Tag Archive for: Fourteenth Amendment

Cyrus Mehta

The Impossible Feat of Determining Who is an “Illegal Alien” Under Trump’s Unconstitutional Census Executive Order

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In line with other xenophobic actions too numerous to keep tabs on, President Trump issued a Presidential Memorandum dated July 21, 2020 entitled “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” From the title itself, it is readily obvious that the Trump administration does not intend to count undocumented or unauthorized immigrations in the 2020 census, which it pejoratively refers to as illegal aliens. Who is legal or illegal defies an easy definition. US immigration law is so paradoxical that even if one has been ordered removed, this individual may still be authorized to remain in the US and obtain work authorization.

Not only is this executive order unlawful and completely unconstitutional, but it boggles the mind regarding how the administration will ever be able to determine who is authorized or not in the US in order to be counted in the 2020 census.

It is vitally important to count population numbers to divide up seats in Congress among the states. Excluding undocumented immigrants will result in less seats in Congress for Democratic states. If unauthorized immigrants are left out of the apportionment count, according to the Pew Research Center, California, Florida and Texas are each likely to end up with one less House seat, while Alabama, Minnesota and Ohio are each likely to hold onto a seat they would have otherwise lost after the 2020 Census. Since the first Census of the United States in 1790, counts that include both citizens and noncitizens have been used to apportion seats in the House of Representatives, with states gaining or losing based on population change over the previous decade.

Lawsuits have been filed – here, here and here,  justifiably challenging the exclusion of unauthorized immigrants from the census counts on constitutional and other grounds. The Presidential Memorandum follows the Supreme Court’s decision in New York v. Department of Commerce , 588 U.S. ___ (2019) that held that the Trump’s administration’s prior reasoning to include the citizenship question in the Census was “contrived” and thus arbitrary and capricious under the Administrative Procedure Act (see Can the Arbitrary and Capricious Standard under the Administrative Procedure Act Save DACA). Hopefully, the courts will also smack down this Presidential Memorandum for its blatant disregard of the Constitution’s mandate under the Fourteenth Amendment to count all residents in a state.

Section 2 of the Presidential Memorandum excludes “aliens who are not in a lawful immigration status under the Immigration and Nationality Act.” But this too is broad and vague. One who is in the US in temporary B-2 visitor status for three months is in a lawful immigration status. On the other hand, a person who has resided in the US for a decade and whose  status  expired a long time ago could  be authorized to remain in the US upon filing an I-485 application to adjust status to permanent residence by virtue of a recent marriage to a US citizen. The Presidential Memorandum provides the following false rationale for excluding undocumented immigrants:

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.  Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.  Many of these aliens entered the country illegally in the first place.  Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.  States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.  Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.  Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.

However, the rationale still does not explain whether one who entered without inspection, but is now authorized to remain in the US through the filing of an I-360 petition under the Violence against Women Act and a concurrent I-485 application will be included or not in the census. It does not appear that whoever drafted this document really had any idea about how “legal” or “illegal” is considered under the INA.

“Lawful immigration status” is specifically defined in the implementing regulations at 8 CFR 245.1(d)(1) rather than in  the Immigration and Nationality Act (INA) itself,  for purposes of determining who is eligible to adjust status under  INA 245(c)(2). It provides for the following categories of persons who are in “lawful immigration status”:

(i) In lawful permanent resident status;

(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter;

(iii) In refugee status under section 207 of the Act, such status not having been revoked;

(iv) In asylee status under section 208 of the Act, such status not having been revoked;

(v) In parole status which has not expired, been revoked or terminated; or

(vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

It is unlikely, however, that this is what the drafters of the Presidential Memorandum within the Trump administration had in mind in deciding who is in lawful status and who isn’t. As already explained, there is a large universe of persons who are authorized to remain in the United States but who do not fall into any of the above categories pursuant to 8 CFR 245.1(d)(1). Perhaps, one is giving the Trump administration too much credit about thinking through this definition and the drafters just assumed, albeit erroneously, that there are discrete classes of those in lawful status and those who are not.  Immigration law is far more nuanced. One may not have been granted asylum, and thus qualify as an asylee under 8 CFR 245.1(d)(1)(iii), but an applicant for asylum is nevertheless authorized to remain in the US and can also obtain employment authorization after 365 days of filing the application. Similarly, one who files an I-485 application to adjust status is authorized to remain in the US even if the underlying nonimmigrant status has expired.

Any attempt to define who is unauthorized in order to exclude them in something as crucially vital as the decennial census count will get it wrong. Even Chief Justice Roberts got it wrong in Chamber of Commerce v. Whiting, 563 U.S. 582 (2011),  when he wrote for the majority that  an individual  who “had been ordered removed” would establish that individual’s lack of authorization to work. In that case, the Supreme Court upheld an Arizona state law suspending business licenses if businesses hired people without work authorization.  David Isaacson in his blog,  If Even the Chief Justice Can Misunderstand Immigration Law, How Can We Expect States to Enforce It Properly?   Removal Orders and Work Authorization,  cites many other instances when a person with a removal order is still entitled to work authorization. For example,  an asylum applicant who has been ordered removed but has filed a petition for review in circuit court can nevertheless apply for work authorization and is authorized to reside in the US during the pendency of the appeal.  8 C.F.R. § 274a.12(c)(18) also contemplates the issuance of work authorization to one who has been ordered removed if the person cannot be removed or where it is impractical to remove him or her.  A DACA recipient who may have been the subject of a removal order at some point is now authorized to reside in the US without fear of removal.

The sheer inability to define who is a so called “illegal alien” further opens up the Presidential Memorandum to challenge in the courts. Persons whom the government may arbitrarily decide are unauthorized may be left out of the count even if they have been in the US for years, paid taxes and been authorized to reside and work under the law. These persons have also been denied their basic humanity by not being treated as persons. This executive action will also deter noncitizens from completing the census as most – unless they are lawful permanent residents -will not know whether they are documented or not.  Four decades ago,  the Supreme Court reaffirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982). It is axiomatic that undocumented individuals are human beings and President Trump cannot change this. Given the sheer impossibility of determining who is and who is not legal, President Trump must be compelled by a court to count all persons for the census regardless of their immigration status. This is also mandated by the Constitution.

Cyrus Mehta

Extending Visitor Visa Status During Covid-19 and after the Birth Tourism Rule

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Visitors who have been admitted in B-2 visa status may extend their status while in the United States. Even if a visitor has a multiple entry visa in the passport for a duration of ten years, the visitor is admitted into the US for a more limited time at a port of entry, which is generally a period of six months in B-2 status.

Since the COVID-19 pandemic, many visitors have sought to extend their status as flights are not yet plying to their home country or they may wish to avoid flying out of fear of contracting the infection. Some countries have put restrictions on travelers from the US. A request to extend B-2 status may be made by filing Form I-539 pursuant to 8 CFR 214.1(c)(1) either electronically or through a paper-based application. Although this blog’s focus is on filing an extension for B-2 status, it is also possible to change from another nonimmigrant status to B-2 status pursuant to 8 CFR 248.1. Many nonimmigrants in H-1B or L status who have lost their jobs due to the economic downturn caused by Covid-19 have had to resort to changing to B-2 status due to non-availability of flights to their home country. Note that one who was admitted under the Visa Waiver as a visitor for 90 days is not eligible for filing for an extension of status, although a Visa Waiver entrant may apply for a 30 day extension directly wither with USCIS or CBP called Satisfactory Departure.

In order to be eligible to request an extension of B-2 status or a change to B-2 status, it is important for the applicant to have maintained her current nonimmigrant status. If the visitor has engaged in unauthorized employment, he will be ineligible to request an extension of status. Although the extension or change of status request must be filed timely, the USCIS has authority to exercise its discretion in excusing an untimely filing based on extraordinary circumstances beyond the control of the applicant. The applicant must also demonstrate that she has not otherwise violated nonimmigrant status, continues to remain a bona fide nonimmigrant and is not the subject of removal proceedings. The USCIS has indicated that it will consider late filings caused as a result of Covid-19. See 8 CFR 214.1(c)(4) for authority for excusing untimely filings for extensions of status and 8 CFR 248(b) for excusing untimely filings for change of status.

There are very harsh consequences if the applicant overstays the terms of his stay in the US. Overstaying one’s visa results in the automatic voidance of the multiple entry visa on the passport under INA 222(g). Overstaying beyond the expiration of the nonimmigrant status, governed by the I-94, for more than 180 days results in a 3-year bar against re-entry under INA 212(a)(9)(B)(i)(I). Furthermore, overstaying the visa for more than one-year results in a 10-year bar against re-entry under INA 212(a)(9)(B)(i)(II). Therefore, ensuring that the I-539 is timely submitted (of if not timely submitted, it is at least excused by USCIS) will toll the accrual of unlawful presence, and thus avoid the triggering of automatic voidance of the visa stamp or the accrual of unlawful presence that will result in the 3- or 10-year bars to reentry into the United States.

At the time of submission, Form I-539 must be accompanied by evidence that the reason for the extension is consistent with the purpose of the visitor visa, and the visitor continues to maintain a residence in the home country as well as ties with that country. It is also strongly recommended that a sworn statement is included that clearly indicates the need for the extension and the change of intention since the initial admission to stay longer, along with an I-94 printout and other evidence of financial sufficiency and support. A Form I-134, Affidavit of Support, may also be submitted to bolster the evidence of financial support. The new public charge rule took effect on February 24, 2020 and applies to extension and change of status requests. The USCIS will consider whether an applicant seeking an extension of stay or change of status has received, since obtaining the nonimmigrant status she seeks to extend or from which he or she seeks to change, public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, the receipt of two benefits in one month counts as two months.  Among the prohibited benefits is federally funded Medicaid, although Medicaid funding for an emergency medical condition will not be considered, which includes emergency labor and delivery. Noncitizens regardless of status are eligible to receive Medicaid for an emergency medical condition. See 42 CFR 440.255A. Form I-539 has new sections that require applicants to check off whether they have accepted prohibited benefits.

Notwithstanding the Medicaid exception for emergency medical conditions, including pregnancy and birth, applicants have to be very careful regarding applying for extensions based on health reasons, especially relating to pregnancy and birth. The Trump administration has amended the definition of visitor for pleasure at 22 CFR 41.31(b)(2) to prohibit so called birth tourism. The original version of this rule, before it was amended on January 24, 2020, defined “pleasure” as stated in INA 101(a)(15(B) “to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Now 22 CFR 41.31(b)(2)(i) includes the old definition for pleasure but adds that the term “pleasure” does not include obtaining a visa for the primary purpose of obtaining US citizenship for a child by giving birth in the United States. The new rule at 22 CFR 41.31(b)(2) is reproduced in verbatim below:

(i) The term pleasure, as used in INA 101(a)(15)(B) for the purpose of visa issuance, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature, and does not include obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

(ii) Any visa applicant who seeks medical treatment in the United States under this provision shall be denied a visa under INA section 214(b) if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, that a medical practitioner or facility in the United States has agreed to provide treatment, and that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant also shall be denied a visa under INA section 214(b) if unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.

iii) Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.

President Trump has always intended to abolish birthright citizenship even though it is protected under the Fourteenth Amendment of the US Constitution. Knowing fully well that the abolition of birthright citizenship would require a constitutional amendment, the Trump administration quietly amended the State Department regulation as a step towards discouraging pregnant women from entering the US to give birth to children who then automatically become US citizens. While birthright citizenship has advantages, and abolishing it will be a bureaucratic nightmare as it may be applied retroactively (see Why Birthright Citizenship is so Wonderful for America), visa applicants now have to confront needless scrutiny while applying for a tourist visa. A pregnant person may be denied a visa even if the primary goal is not to give birth to a child in the US for the purpose of conferring US citizenship. The applicant may wish to seek the best medical care for a potentially complicated pregnancy, or may be more comfortable with a doctor and hospital facility in the US than in her own country. An applicant may be travelling purely for business or a holiday and intending to return to her home country to give birth, and could still be denied the visa. Even if the applicant wishes to seek a visa for pursuing medical treatment, even if it is not associated with pregnancy and birth, the rule now requires a demonstration that the applicant will be able to pay for the costs of the medical treatment, and has the ability to pay for them through lawful sources.

Although 22 CFR 41.31(b)(2) applies to a visa issuance at a US Consulate, the USCIS would also likely refer to it when applying for an extension of status even though an applicant previously was issued the B-2 visa at the US consulate. The USCIS routinely issues a Request for Evidence (RFE) asking for further evidence of ties with the home country and financial sufficiency after a request for an extension if filed. An extension request based on medical reasons will result in more scrutiny as a result of 22 CFR 41.31(b)(2). This author has seen RFEs asking for a detailed letter from the applicant’s physician regarding the medical condition, the prescribed treatment and its duration, the physician’s opinion on the applicant’s ability to travel, and the availability of similar treatment in the applicant’s home country. The RFE may also ask for the stated reason for the trip when applying for the B-2 visa at the US Consulate. If the applicant was already suffering from symptoms of the medical condition, the RFE may question whether this was disclosed to the Consular Officer, and if not, an explanation for why the applicant did not disclose the possibility of her seeking treatment in the US. The RFE may also demand extensive proof of financial ability of the applicant to pay the medical bills. Finally, the RFE will also ask for proof of foreign residence when the applicant departs the US.

The timely filing of the I-539 application tolls the accrual of unlawful presence for purposes of the 3- and 10-year bars to reentry into the US if the applicant stays beyond the expiration of the validity date on the I-94. If the I-539 remains pending beyond the requested date, as the request can be made for up to 6 months, another I-539 application must be filed before the date the first extension if granted would have expired even if there has been no decision on the first I-539. The applicant may, however, depart the US during the pendency of the I-539 application. If the application is denied, there is no right of appeal, although the applicant may request a motion to reopen or reconsider. Requesting a reopening or reconsideration will not toll unlawful presence for purposes of the 3- and 10-year bars. If the extension is granted, it is imperative that the applicant depart the US timely prior to the expiration of the extended date. While there is no limit in seeking additional extensions, the USCIS will take issue with immigrant intent.

Finally, even if all goes well and the applicant timely departs the US, the Consular Officer could still question why the applicant sought an extension at the time of next applying for a renewal of the B-2 visa at the US Consulate. Given all the risks and pitfalls, one should avoid seeking an extension or change of status to B-2 unless it is truly necessary and made in good faith.

(This is blog is for informational purposes only, and should not be viewed as a substitute for legal advice)

 

 

 

 

 

 

Cyrus Mehta

THE ABSURDITY OF THE BIRTHRIGHT CITIZENSHIP ACT OF 2011

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By Cyrus D. Mehta

When I first glanced at he Birthright Citizenship Act of 2011, H.R. 140, introduced by Representative Stephen King (R-IA) on January 5, 2011, http://www.opencongress.org/bill/112-h140/show, I figured that it was not worth my time to even write about it. I read it once more, and it dawned upon me that I could have some fun commenting on it and highlighting its absurdity.

The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” A list of resources can be found on Bender’s Immigration Bulletin at http://bit.ly/f5pX7U. And here is a good policy policy piece from AILA, http://www.aila.org/content/default.aspx?docid=34106 and a great blog with more resources, http://ijjblog.org/blog-mt/dan/2010/11/birthright_citizenship_under_t_1.html.

Nobody is attempting the extremely arduous task to amend the hallowed Fourteenth Amendment, although opponents of birthright citizenship are proposing a reinterpretation of the phrase “subject to the jurisdiction thereof” by denying the children of illegal immigrants and temporary residents from claiming US citizenship. Well over a century ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held in no uncertain terms:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.

H.R. 140 seeks to amend section 301 of the Immigration and Nationality Act, which replicates the 14th amendment, by not just depriving the children of illegal immigrants from automatically becoming citizens, but by narrowly limiting birthright citizenship to a person born in the US to parents, one of whom is –

1) a citizen or national of the United States;
2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).

This bill, if enacted into law, would even deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child? H.R. 140 is silent. Would this poor child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Or would the child be given a dependent H-4 status? What if the parents of the child have two different statuses – one on an H-1B visa and the other on a B-1 business visa? Will the child get the more solid H-4 status or the more transient B-2 status as a visitor for pleasure?

It is true that a diplomat, in accordance with Wong Kim Ark, is not subject to the jurisdiction of the US as a diplomat enjoys immunity from US law, but a child of such a diplomat born in the US is at least deemed to be a permanent resident. See Matter of Huang, Interim Decision #1472 (BIA May 27, 1965). On the other hand, it is not so apparent that conferring some kind of legal status short of citizenship is the intent of H.R. 140, which seeks to keep children in the same illegal status as their parents if born in the US.

The only historic exceptions to those subject to the jurisdiction of the US are diplomats and enemies during the hostile occupation of a part of US territory. Congress even passed legislation to ensure that children of all Native Americans are US citizens. See INA section 301(b). An illegal immigrant is undoubtedly subject to the jurisdiction of the US. If he commits a crime, he will surely be prosecuted. He can sue and be sued in US courts, and Uncle Sam gleefully collects his taxes and his contributions to social security (even if he is unable to claim it later on). You cannot liken an immigrant who has entered the US without inspection with the objective of finding work to a member of a hostile force occupying a part of the US. When a hostile force occupies any part of the US, the laws of the US are no longer applicable in the occupied territory. Even a terrorist who enters the US in a nonimmigrant status, such as on an F-1 student visa with an ulterior motive to commit an act of terrorism, unlike a member of a hostile occupying force, is subject to the jurisdiction of the US as she can be convicted or treated as an enemy noncombatant, and if she gives birth to child here, the child ought to be a US citizen under the Fourteenth Amendment.

Moreover, often times being legal or illegal is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria and become a permanent resident. Such a person whose visa has long since expired could get wrapped up in a romantic encounter with a US citizen, marry, and dramatically convert from illegal to permanent resident within a few months. At times, Congress bestows such permanent residency through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status if a calamity were to befall her country. The following extract from the Supreme Court’s decision in Plyler v. Doe, 457 US 202 (1982), which held that undocumented children could not be deprived of a public education:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

Under H.R. 140, one who is so unlucky to have been born a day before his parent adjusted to permanent resident status would be in some kind of immigration purgatory. The Birthright Citizenship Act of 2011, along with similar proposals from states to issue two types of birth certificates, is not just unconstitutional but is also shockingly absurd!