Tag Archive for: ICE

Cyrus Mehta

ICE Imposes Guardrails On Use of Red Notices Against Noncitizens in Removal Proceedings

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By Cyrus D. Mehta and Jessica Paszko*

A Red Notice is a request to locate and provisionally arrest an individual pending extradition, which INTERPOL issues at the request of a member country or an international tribunal based on a valid national arrest warrant.  A Red Notice does not establish that the person has been convicted of a crime. It is based on the word of the government that issued the arrest warrant, and does not add any further force or legitimacy to it. Unfortunately, the issuance of a Red Notice by a country whose government is corrupt or abusive can result in adverse consequences for persons applying for immigration benefits under US law. Many immigration benefits may not be granted based on the commission of a crime or if there is reason to believe that the person will commit a certain crime.  For an excellent overview, please read Challenging a Red Notice – What Immigration Attorneys Need to Know About INTERPOL by Ted R. Bromund and Sandra A. Grossman, AILA Law Journal, April 2019.

On September 29, 2023, U.S. Immigration and Customs Enforcement (ICE) announced new agency-wide guidance, ICE Directive 15006.1, about the use of Red Notices and Wanted Person Diffusions, as part of its commitment to comply with the requirements of INTERPOL’s Constitution and Rules on the Processing of Data.

More specifically, a Red Notice, as defined by the INTERPOL on its website, is a:

[R]equest to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. It is based on an arrest warrant or court order issued by the judicial authorities in the requesting country. Member countries apply their own laws in deciding whether to arrest a person.

It contains two main types of information:

  • Information to identify the wanted person, such as their name, date of birth, nationality, hair and eye colour, photographs and fingerprints if available.

  • Information related to the crime they are wanted for, which can typically be murder, rape, child abuse or armed robbery.

 

Red Notices are published by INTERPOL at the request of a member country, and must comply with INTERPOL’s Constitution and Rules

INTERPOL further indicates that once a Red Notice is published, each member country determines what effect to give it within its jurisdiction according to its national law and practice. The US does not consider a Red Notice alone to be a sufficient basis for an arrest because it does not meet the requirements for arrest under the 4th Amendment to the Constitution. Instead, the US treats Red Notices only as “a formalized request by the issuing law enforcement authority to ‘be on the look-out’ for the fugitive in question, and to advise if they are located.” The Department of Justice (DOJ) also recognizes that in the US, “national law prohibits the arrest of the subject of a Red Notice issued by another INTERPOL member country, based upon the notice alone.”

ICE Directive 15006.1 aims to codify and strengthen the agency’s “best practices and supports the U.S. Department of Homeland Security’s (DHS) broader efforts to combat transnational repression by helping ensure Red Notices and Wanted Person Diffusions are issued for legitimate law enforcement purposes and comply with governing rules.” The new guidance also claims that ICE Directive 15006.1 “prohibits ICE personnel from relying exclusively on a Red Notice or Wanted Person Diffusion to justify law enforcement actions or during immigration proceedings.” It also limits ICE personnel’s ability to rely on a Red Notice or Wanted Person Diffusion to help inform whether an enforcement action should be taken or during immigration proceedings by stating that reliance on either should be done “sparingly and only after certain threshold criteria have been met, as outlined in the directive.”

ICE Directive 15006.1 provides the following safeguards by instructing personnel to:

  • Complete mandatory training annually.

  • Verify the validity of a Red Notice or Wanted Person Diffusion to ensure it has not been suspended, withdrawn, or expired.

  • Conduct a preliminary review of available information for any indications of potential abuse or non-compliance with INTERPOL’s rules.

  • Obtain supervisory approval to act upon a Red Notice or Wanted Person Diffusion.

  • Request the associated underlying documentation via INTERPOL Washington.

  • Request use authorization via INTERPOL Washington if ICE intends to use a Red Notice or Wanted Person Diffusion in immigration proceedings.

  • Provide the wanted person with underlying documentation associated with the Red Notice or Wanted Person Diffusion, as applicable, and provide them with a meaningful opportunity to contest it or its contents.

  • Not represent or imply that a Red Notice or Wanted Person Diffusion is an arrest warrant, nor that it conveys independent legal authority or represents an independent judgment by INTERPOL concerning probable cause or the validity of the underlying criminal proceedings.

In practice, we have seen DHS use Red Notices as a basis to detain clients and place them in removal proceedings on the ground that they are a danger to the community and a flight risk. This, however, is not correct and constitutes abuse of Red Notices. Indeed, many asylum applicants fleeing from persecution from governmental actors in their home countries may have outstanding Red Notices as their persecutors levy false criminal charges against them. Even individuals who were not subject to detention due to a Red Notice may still face hurdles as they attempt to adjust their status or obtain US citizenship. The Board of Immigration Appeals in Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020)  ruled that an INTERPOL Red Notice may constitute reliable evidence of criminality that serves as a  bar for asylum and withholding of removal. As we commented in a prior blog, W-E-R-B unfortunately gives leeway for a foreign government persecuting the asylum claimant to issue an arrest warrant based on a false charge, and then inform INTERPOL to issue a Red Notice. If the charges remain outstanding, an IJ can potentially take for true the accusations in the charge even though there has not been a conviction. The burden of establishing the nonpolitical nature of the accusation is high under Matter of E-A, 26 I&N Dec. 1 (BIA 2012), as well as the nonseriousness of the crime. It is hoped that ICE will comport with its new policy, and a future BIA ruling on Red Notices will take account of the new ICE policy and allow respondents to challenge red notices if they do not comport with the guardrails established in ICE Directive 15006.1.

Though we don’t often share this sentiment for ICE, this time we think US Citizenship and Immigration Services (USCIS) should take example from ICE and issue similar policy guidance that discourages USCIS officers from using a record of a Red Notice from denying someone immigration benefits such as adjustment of status or naturalization. Oftentimes, the charges against an individual applying for immigration benefits may remain outstanding indefinitely. If the DOJ intended to extradite an individual subject to a Red Notice it would do so, but it usually does not. As a Red Notice does not constitute a conviction and does not prove that the individual committed any crime, it cannot be used to determine that someone is inadmissible for having committed a crime involving moral turpitude.

Under the new ICE policy, which until USCIS also adopts, it ought to be persuasive in USCIS adjudications, and the applicant subject to bogus charges must be prepared to strenuously contest that the underlying charges of a Red Notice are without merit, the applicant never committed the crime and provide evidence that the country abused the process in having INTERPOL issue the Red Notice to target him or her. The applicant must also insist that all the procedures set forth in ICE Directive 15006.1 have been followed. Bromund and Grossman’s article in the AILA Law Journal provide invaluable advice on how to challenge a Red Notice if it violates INTERPOL rules or indicates a bias on the part of the requesting authorities. More often than not, the charges against a non-citizen who is already in the US applying for a benefit will likely remain outstanding indefinitely in the foreign country. The Department of Justice infrequently extradites people subject to a Red Notice. If the DOJ has not taken any action, this too could be pointed out that the US has not taken the Red Notice seriously. One should try to convince the adjudicating official that the accusation, apart from not constituting a conviction, does not necessarily prove that the applicant even committed the crimes and do not render him or her inadmissible. Even if the applicant is granted permanent residence, it can further be asserted that the government can always hypothetically commence removal proceedings if there is a conviction that would render the applicant deportable. INTERPOL Red Notices are being erroneously viewed by the US immigration authorities as conclusive proof of criminality against non-citizens living in the US. Every effort must therefore be made to push back against this assumption. Otherwise, the US becomes complicit in the abuse by foreign governments to manipulate and undermine the integrity of immigration proceedings, including asylum claims, that otherwise ought to assure fairness and due process to non-citizens under the law.

(This blog is for informational purposes and cannot be relied upon as a substitute for legal advice).

Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Is the USCIS Improving or Undermining the Immigration System Through its Top Ten Ways?

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USCIS posted TOP TEN WAYS USCIS is improving the Integrity of the Immigration System. Really? Is USCIS improving the integrity of the system or undermining it? The USCIS has been mandated by Congress to grant benefits. Instead, it has usurped the role of ICE to become an enforcement agency. USCIS’s policies under President Trump and its Director, Francis Cissna,   have been mean spirited and cruel, designed to hurt individuals who are trying to come to or remain in the US legally. Their objective is to restrict immigration, and bring it to a grinding halt via the backdoor, something that the Trump administration has not been able to achieve as yet through Congress.

My responses to each Top Ten Way shows that USCIS is actually undermining the immigration system rather than improving it. To those who are dismayed at the sudden turn the USCIS has taken, including many employees of the USCIS who believe in America’s noble mission of welcoming immigrants, my advice is to ensure that the USCIS applies the Immigration and Nationality Act as intended by Congress rather than follow the current leadership’s meaningless Top Ten slogans! There is a general rule of statutory interpretation that when the legislature enacts an ameliorative law designed to forestall harsh results, the law should be interpreted in an ameliorative fashion, and any ambiguities especially in the immigration context, should be resolved in favor of the non-citizen. See e.g. Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). As the USCIS is mandated by Congress to implement the provisions of the INA that grant benefits and ameliorative relief, those provisions ought to be interpreted by the official in favor of the applicant seeking the benefit. Unfortunately, this is not the guiding mission of the USCIS through its Top Ten Ways.

1. FAITHFULLY EXECUTING THE LAW THROUGH UPDATED “NOTICE-TO-APPEAR (NTA) GUIDANCE

placing individuals in removal proceedings who have applied for an immigration benefit, are denied, and do not have any lawful status to remain in the United States. Previously, most such persons were not issued NTA.

My Response: It is a waste of resources to place every individual whose application for an immigration benefit is denied, often arbitrarily, in removal proceedings. Many would prefer to leave the United States than stay in the US in an unauthorized manner. Moreover, placing everyone in removal proceedings will overburden the immigration courts even more, resulting in further backlogs and delays. It would force individuals to appear for hearings when they would have otherwise left the country, or at least stayed up to the point they could appeal and reverse the denial. As  David Isaacson has aptly stated: “Subjecting well-meaning temporary workers, students, tourists and other nonimmigrants to immigration court proceedings, and even potential detention, just because USCIS disagrees with the merits of their application for extension of stay or change or adjustment of status, is indicative of a malicious attitude towards noncitizens.

2.  CLARIFYING “UNLAWFUL PRESENCE”

holding foreign students accountable by counting as unlawful presence all of the time they remain in the United States after violating the terms of their student admission. Previously, students could violate their student status and potentially remain and work illegally in the United States for years and not accrue a single day of unlawful presence.

My Response: There are many ways in which a student may technically violate status without even knowing it. Students are even found to be in violation of status when the school has authorized more than 12 months of Curricular Practical Training under the regulation.   A student would only come to know of the violation after departing the country, and being barred for 10 years from reentering the country. This clarification of unlawful presence upends over 20 years of the way “unlawful presence” has been interpreted, potentially in violation of the Administrative Procedures Act, and places students in even greater jeopardy than other nonimmigrants who may have been found to have violated status during their period of authorized stay.

3.  ENHANCING SCREENING AND VETTING

strengthening procedures, such as biometric (eg fingerprint) collection and in-person interviews, to ensure that those seeking immigration benefits are eligible and do not pose a risk to national security, and to strengthen identity management and deter fraud.

My Response: The new biometric procedure for nonimmigrant dependents applying for extension of status along with the principal is mean spirited. It is designed to cause further delay of the processing of their applications, and there is no need to subject dependent infants to biometrics. How do they pose a risk to national security?  The in-person interview of all applicants is also unnecessary in straight forward cases, and this new imposition is slowing down the granting of immigration benefits that deprive people of their ability to work and travel while their applications remain pending for longer than usual periods of time.

4. MORE EFFICIENT ASYLUM PROCESSING

increasing resources dedicated to processing asylum cases and reinstituting “last in, first out” (LIFO) processing of asylum cases to help recent asylum seekers and address new operational realities at the Southern border.

My Response: This policy delays those who filed asylum cases less recently. The asylum system only becomes efficient when all cases are processed quickly rather than the last cases. The goal of LIFO is not designed to  “help” recent asylum seekers, rather it is to apply the new restrictive social group interpretations  to those fleeing gang violence or domestic abuse from Northern Triangle countries, thus assuring the denial of their asylum applications and their swift deportation from the US

5. ENSURING PETITIONERS MEET THE BURDEN OF PROOF

rescinding guidance that requires USCIS officers to give deference to the findings of a previously approved petition by the same employer. Every petition for an immigration benefit should stand or fail on its own merit and USCIS officers should not have their hands tied in assessing whether a petition meets legal requirements.

My Response: It defies common sense to not give deference to a previously approved petition by the same employer when the facts and circumstances remain unchanged. For those who are caught in the never ending green card backlogs, their life has become ever more uncertain when they now apply for routine extension of their H-1B status and face the peril of a denial. Moreover, the preponderance of evidence standard is applicable when applying for an immigration benefit. This standard, requiring that there is more than a 50% chance that the claim is true, is being disregarded and petitioners must meet a standard that is higher than even the “beyond a reasonable doubt” standard that is required for proving guilt against a defendant in a criminal trial.

6. COMBATTING H-1B ABUSE AT THIRD-PARTY WORKSITES

ensuring that those who employ foreign workers that they seek to assign to client worksites establish eligibility for h-1B petition approval and comply with the terms of the petition approval; violation of the rules regarding placement of H-1B workers at client worksites and related abuse of those foreign workers can also result in injury to US workers

My Response:  Corporate America relies on H-1B workers to keep it efficient and the economy humming. The USCIS has made it impossible for petitioners to place H-1B workers at client sites without onerous and unnecessary documentation in order to establish a nexus between the petitioner and the client. The need to submit detailed statements from the end-client company regarding the specialized duties that the H-1B beneficiary will perform, as well as the qualifications that are required to perform those duties, would be extremely onerous. Since the end-client is not the ultimate employer of the beneficiary, most clients would be reluctant to provide such letters. Indeed, providing such letters would be tantamount to acknowledging an employment relationship with the beneficiary, which the end client has avoided by arranging to contract with the petitioner or intervening vendors for a project or to fill positions. As a result of a client’s unwillingness to provide the unreasonable documentation being required by the USCIS, petitioners are unable to successfully assign H-1B workers to clients’ project that critically need the H-1B worker’s skills.  This draconian policy relating to placement at their party sites of H-1B workers is designed not to combat legitimate abuse, but to kill a successful business model that has benefitted the American economy.

7. EXPANDING SITE VISITS

increasing site visits in employment-based visa programs to ensure employers of foreign workers are doing what they represented to the USICS.

 My Response: Under the site visit policy, USCIS officials in Fraud Detection and National Security come unannounced often catching unsuspecting employers and foreign workers off guard without the benefit of legal representation. If the foreign worker is legitimately not available during this surprise visit, due to sickness or vacation, fraud is needlessly suspected.  These officials are not so well trained in understanding the nuances of different nonimmigrant visas (such as an L-1A functional manager from an L-1A people manager) that has already been granted and adjudicated after a review of the evidence. The site visit official asks for evidence that may have no bearing to establish eligibility under the specific visa category.  As a result of misinterpretation of the law and the facts, many approved visa petitions get needlessly revoked causing great hardship to both the employer and the foreign worker.

8. PROTECTING U.S. WORKERS FROM DISCRIMINATION AND COMBATTING FRAUD

USCIS entered into a partnership with the Department of Justice to help deter, detect, and investigate discrimination against U.S. workers

My Response: No one can object to the need of protecting U.S. workers from legitimate discrimination. However, in a market-based economy, employers should also be free to hire the best workers most suited to their needs and the most qualified. Just because an employer hires qualified foreign workers, it should not axiomatically lead to an assumption that the employer is discriminating against US workers. .If the employer can hire the best workers without fear of discrimination, these workers make the business more profitable, which in turn results in more jobs for American workers.

9. STRENGTHENING INFORMATION SHARING

streamlining information sharing with other agencies to administer and enforce the immigration laws and ensure adherence to the President’s enforcement priorities

My Response: One can understand the need to share information between government agencies in the interests of national security in specific cases, but unnecessary sharing of information results in delays in the adjudication of an immigration benefit. It is also inappropriate for USCIS to share information to “ensure adherence to the President’s enforcement priorities.” USCIS should be in the business of granting benefits and leave enforcement priorities to ICE.

10. IMPROVING POLICIES AND REGULATIONS

proposing and implementing policies that better comport with the intent of the laws Congress has passed, including updating the EB-5 immigrant investor program, defining what it means to be a “public charge,” and eliminating work authorization for categories of foreign nationals that Congress did not intend to allow to work in the United States.

My Response: While the EB-5 immigrant investor program needs reform, simply raising the investment amounts without expanding visa numbers will kill the program. Foreign investors will no longer be drawn to the US to invest money in projects that create jobs for American workers. Also, proposing a regulation to rescind work authorization for H-4 spouses, most of whom are women and waiting for years in the green card backlogs, is downright cruel. It is also false to claim that Congress did not intend to allow work authorization for certain categories of foreign nationals. INA 274A(h)(3) gives the Attorney General, and now the Secretary of Homeland Security, broad flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Finally, redefining the definition of “public charge” is essentially a subterfuge to find ways to deny immigration benefits to a broad swath of people.

I rest my case, and leave it to readers to decide whether USCIS is improving or undermining the immigration system through its TOP TEN WAYS!  I would recommend to Mr. Cissna that he spend his time and energy in finding ways to ensure that the INA works for individuals who wish to come to the US through legal means. There are many flaws in the nation’s immigration system that restrict pathways to legal status, and the INA clearly needs an urgent update, but USCIS’s current anti-immigration bias makes a bad situation even worse. The USCIS has the power to make America a welcoming nation for immigrants. Reverting to its former mission, rather than dabbling in President Trump’s enforcement priorities, when there is no basis in the INA for USCIS to do so,  would also keep its employees happier as well as being in the nation’s interest.

 

Cora-Ann Pestaina

USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training

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An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend that we first mentioned in an earlier blog where we indicated that USCIS had started challenging F-1 maintenance of status through CPT by issuing Requests for Evidence on pending H-1B petitions requesting a change of status in the US.

Essentially, 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however,  “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002. [revised 10/25/2018] This could clearly be interpreted to mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any practical training after graduation. This appears to have been the prevailing interpretation by all government agencies and CPT has continued to be routinely granted by Designated Student Officers (DSO) through the Student and Exchange Visitor Information System (SEVIS) that is administered by Immigration and Customs Enforcement (ICE). Enter the new USCIS in the era of Trump. Suddenly, USCIS has begun to interpret the regulations to mean that a student may only be granted a total of 12 months of any type of practical training. This, despite the fact that ICE, its sister agency, authorized more than 12 months of CPT. USCIS is choosing to completely disregard the unmistakable indication in 8 CFR § 214.2(f)(10)(i) that students may legitimately receive “one year or more” of CPT.

It is painfully obvious that the intent behind the regulation was only to prohibit students who had received more than 12 months of CPT from then also receiving Optional Practical Training (OPT) after graduation. The intent was not to penalize a student for receiving more than 12 months of CPT. First, the student could not receive more than 12 months of CPT if the CPT weren’t actually granted by a school DSO and entered into SEVIS. Accordingly, if there were any violation, it should be on the part of the school and not the student. The student should not be punished for failure to maintain status when that student followed all the appropriate steps to maintain status. Second, why is USCIS making a determination that such a student failed to maintain status when ICE is the agency that administers the Student and Exchange Visitor Program (SEVP)? If ICE has not determined that a student failed to maintain status and if SEVIS indicates that the student is currently in status, then USCIS ought to acknowledge that. If there had truly been a violation of status then SEVIS would have so indicated.  And third, the regulations at 8 CFR § 214.2(f)(10) are simply outdated. In March 2016, the Department of Homeland Security (DHS) amended its F-1 student visa regulations on OPT for certain students with degrees in science, technology, engineering, or mathematics (STEM) from SEVP-certified and accredited U.S. colleges and universities. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). See 8 CFR § 214.2(f)(10)(ii)(C). Perhaps DHS could have also amended the regulations and removed all outdated sentences. Unfortunately, USCIS is now seizing upon such a sentence and using it to launch another attack on F-1 students.

In the case of the H-1B petition, USCIS can approve the underlying H-1B but deny the request for a change of status. In order to obtain H-1B status, the student would need to leave the US and apply for an H-1B visa at a US Consulate or Embassy abroad. At this point in time, upon receipt of a USCIS denial of a request for a change of status on an H-1B petition, the F-1 student would only have accrued unlawful presence from August 9, 2018 under USCIS’ unlawful presence policy for F, J and M nonimmigrants. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Very few students will trigger the permanent bar as they generally do not try to reenter the US without being admitted or paroled.   Students in receipt of a denial of a change of status can take advantage of the current grace period until February 5, 2019. However, if the student departs the US later than February 5, 2019, he or she will be barred from re-entering for 3 or 10 years.

So what can be done? More so than ever before, F-1 students really need to be proactive about their maintenance of status and need to seek legal advice in the event that any rules are unclear or even just to ensure that they are on the right track. It will not be enough to rely on the DSO’s advice as the student will be the one punished in the end. But the bottom line is that this USCIS policy must be challenged in federal court! It is simply unconscionable to inflict the 3 and 10 year bars on a student who has diligently sought to maintain status in the US.

Cora-Ann Pestaina

Guidance To The Perplexed After USCIS Sneaks In Ban On Third-Party Placement Of STEM OPT Workers

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Recently, without any prior notice, USCIS quietly updated its STEM OPT webpage to reflect a ban on the placement of STEM OPT workers at third-party client sites. As background, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). This new rule took effect on May 10, 2016 and replaced the 17-month STEM OPT extension previously available to STEM students most significantly expanding the extension period to 24 months. The rule set forth various requirements that must be met by schools, students and employers. Briefly, in order to obtain 24-month STEM OPT, the employer must have an Employer Identification Number (EIN) and be enrolled in the E-Verify program. The employment opportunity must be directly related to the student’s qualifying STEM degree and there must be an employer-employee relationship between the employer and the student.  Therefore, employment for staffing agencies where an employer-employee relationship is not maintained or other labor-for-hire arrangements will not qualify. Within 10 days of the employment start date, the student and the new employer must complete a Training Plan on Form I-983 and submit it to the Designated Student Officer (DSO). I previously blogged about STEM OPT here where I examined the Form I-983.

In another blog, I specifically examined whether the student could be employed at a third-party client site and argued that there isn’t anything in the governing regulations that expressly forbids this type of employment. The employer should be able to satisfactorily demonstrate the employer-employee relationship and its control over the student despite placement of the student at an end client site. The Form I-983 must, among other things: (1) Identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision. Although having the student work at a client site makes for a more difficult case, I opined that if the employer already has employees at that site who can implement the employer’s training program by providing the training, on-site supervision and evaluation of the student, then the Form I-983 ought to be approvable. Since the implementation of the STEM OPT rule, thousands of students have obtained the required authorization to receive their STEM OPT at third party client sites. This authorization required the full disclosure of the employment arrangement to the DSO.

USCIS recently updated its website to now state:

[T]he training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

Based on this update, the placement of a STEM OPT worker at a third-party client site is apparently unacceptable because ICE lacks authority to visit third-party client sites.  No explanation was provided as to exactly why ICE supposedly lacks the authority to conduct a site visit on the premises of a third-party client if that client site had been clearly listed on an approved Form I-983. The Form I-983 sets forth that DHS may, at its discretion, conduct a site visit. It would be reasonable to conclude that by listing a third party client site as the student’s work location on the I-983, that the worksite is open to a site visit by ICE.

By updating the USCIS website with no prior notice and no opportunity for comment, USCIS has effectively created a state of confusion and has left employers and students, with previously approved Forms I-983, unsure of what action they must now take. Have employers been unknowingly violating the STEM OPT rule? Will USCIS now deny H-1B petitions for change of status for OPT students employed at third party client sites? Despite a denial of a request for a change of status, the underlying H-1B petition could still be approved but the STEM OPT worker would have to leave the US and apply for an H-1B visa abroad, a process that can come with its own set of issues such as administrative processing delays that can force the visa applicant to remain abroad for weeks or even several months.

Should employers scramble to relocate all STEM OPT workers to their headquarters or other office locations? And, if they do relocate them, would this change in worksite location be considered a material change necessitating a modification of the approved I-983? Based on how USCIS chose to update the STEM OPT rule, there are no immediate and definitive answers to these questions. However, some immigration attorneys are advising employers to relocate STEM OPT workers to headquarters or other office locations where there would be no question regarding ICE’s authority to conduct a site visit. On the issue of a relocation being a material change, while the regulations at 8 C.F.R. §214.2(f)(10)(ii)(C)(9)(ii) do not specifically list relocation as an example of a material change, relocation is considered a material change in the H-1B context which leads one to think that it would similarly be considered in the STEM OPT context. Also, there is the potential practical problem of the student not being at the location listed on the I-983 when ICE attempts to conduct a site visit. On the other hand, since USCIS claims that ICE would not go to a client site anyway, due to a supposed lack of authority to do so, then there is a good argument that a relocation is not a material change that necessitates a modification of the I-983.

Is there any basis for continuing to employ STEM OPT workers at third-party client sites? Some immigration attorneys are advising employers to stay the course while we wait for additional guidance regarding USCIS’ update to its STEM OPT page. One main basis is the fact that the Student and Exchange Visitor Program (SEVP) is governed by ICE and not by USCIS and therefore ICE ought to present any amendments to the program. Another reason is the fact that the mere modification of a web page does not have the same force as an amendment to the regulation or a Policy Memorandum. USCIS should issue a proposed regulation and allow a period for public comment. In addition, provided all the requirements are being met under the regulations found at 8 C.F.R. §214.2(f)(10)(ii)(C)(6)-(12), then the employer’s decision to continue to employ the STEM OPT worker at the third party client site may be justifiable. The following could serve as a reasonable defense although there is no guarantee that the DHS will agree:  Under 8 C.F.R. §214.2(f)(10)(ii)(C)(7)(ii), the I-983 clearly identified the goals of the training and explained how these goals would be met through a work-based learning opportunity with the employer and described the employer’s performance evaluation process including how oversight and supervision would occur at the third party client site perhaps by the employer’s more senior staff also stationed at that site.  This in turn may also meet the requirement under 8 C.F.R. §214.2(f)(10)(ii)(C)(10)(i) that the employer have sufficient resources and personnel to provide the training. Furthermore,  if ICE would be welcomed at the client site (similar to how USCIS site visits are welcomed in the H-1B context) where ICE could satisfy itself that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences (8 C.F.R. §214.2(f)(10)(ii)(C)(11)), then the mere fact that the STEM OPT worker is stationed at a third party client site ought not invalidate a previously approved placement.

Still, the practical fallout may not be worth it and employers and students alike are justifiably worried.  There are many unanswered questions and employers are hesitant to make any changes when it is not clear that these changes are actually required under the regulations. It appears that this is yet another way that USCIS is seeking to comply with President Trump’s Buy American, Hire American Executive Order that allegedly protects US workers. The ultimate success of a challenge to USCIS’ modification of their webpage is therefore hard to predict. But what is also clear is that the STEM OPT rule ought to encompass all kinds of modern work arrangements, including working at third party sites. US businesses should not be deprived of the opportunity to engage talented foreign students. DHS ought to bear in mind that the industries which rely on assigning workers to third party client sites – such as the Information Technology industry – are the industries that give American businesses that necessary competitive edge. It is not clear how seeking to destroy theses industries by wholly affecting how they do business is supposed to make America great again.

 

Cyrus Mehta

The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir

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By Cyrus D. Mehta and Sophia Genovese

Foreign nationals with removal orders are in an extremely vulnerable situation. Even if they are asked to report on a regular basis under an order of supervision, there is no guarantee that a whimsical ICE officer the next they show up to an interview may decide to apprehend this person with handcuffs and expel them from the country.  ICE may also decide to make a pre-dawn arrest of an undocumented person at home in front of family members including children, arrest  those who are attempting to regularize this status, or even victims of domestic violence seeking to escape their abusers.

Or if this person is an activist protesting against ICE’s tactics and fighting for the rights of immigrants, ICE could retaliate by arresting him or her with the goal of removing this so called “irritant” from the United States.  Indeed, no one appears to be beyond the reach of ICE’s heavy handedness in the Trump era.

At issue is whether a removable person has been allowed to stay in the US, and regularly report to ICE, can this person one day be suddenly apprehended without the chance to say goodbye to his family?

This was the very issue raised in Ragbir v. Sessions before Judge Katherine B. Forrest in a petition for habeas corpus in the United States District Court for the Southern District of New York. Ravi Ragbir has lived in the US for over 25 years, but in the last ten years was subject to a final order of removal based on a deportable criminal conviction. Because of his special contributions to the community as the Executive Director of New Sanctuary Coalition of New York City, ICE until recently allowed him to remain in the US with his citizen wife and daughter, granting him an order of supervision and four administrative stays of removal. On January 11, 2018, however, while the administrative stay was still in place, ICE suddenly and inexplicably detained him during a routine check in.

Mr. Ragbir’s petition for habeas corpus was granted. The decision in Ragbir v. Sessions is astounding as it acknowledged the right of a removable person to say goodbye to loved ones and leave in an orderly and dignified fashion, especially one who did not pose a flight risk, was not a danger to the community and who was routinely checking in with ICE. The Court wrote that “[i]t ought not to be – and it has never before been – that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust.”

Although the Court’s decision granting the habeas corpus petition was thin on legal authority, it broadly relied on the Fifth Amendment’s liberty and due process guarantees. “In such circumstances, the Fifth Amendment’s liberty and due process guarantees are North Stars that must guide our actions,” the Court eloquently stated. Although Mr. Ragbir had a final order of removal, “his interest in due process, required that we not pluck him out of his life without a moment’s notice, remove him form his family and community without a moment’s notice.” He should have at the very minimum been given to understand that he must organize his affairs and leave by a due date.

As this victory was being celebrated, Mr. Ragbir was still required to report to ICE for removal on February 10, 2018. This would have possibly been in compliance with Judge Forrest’s order that he be asked to leave by a due date in an orderly fashion rather than suddenly arrested and separated from his family. However, Mr. Ragbir, together with New Sanctuary Coalition of New York City, CASA de Maryland, Detention Watch Network, the National Immigration Project of the National Lawyers Guild, and the New York Immigration Coalition filed suit on February 9, 2018, Ragbir v. Homan,  in the Southern District of New York to challenge the recent targeting of immigrant rights activists by federal immigration officials. The government has agreed to stay Mr. Ragbir’s deportation temporarily pending further briefing in this action. The lawsuit seeks, among other forms of relief, a preliminary and permanent injunction restraining the government from taking further action to effectuate a deportation order against Mr. Ragbir, while also seeking a preliminary and permanent injunction restraining the government from selectively enforcing immigration laws against individuals based on protected political speech.

It is hoped that Mr. Ragbir’s case will shine the torch on the draconian impact of deportation on the individual and the family that is left behind in the US. There have been far too many instances where removable persons have been suddenly and abruptly plucked from their families without giving them a chance to leave in an orderly and dignified fashion, or to consider allowing them to remain while they collaterally challenge their deportation orders or seek to reopen them. And as was done under the President Obama administration, allow such people to remain in the US if they have family members and have lived a life without incident apart from the ground that caused their deportation order. It is important for all of us to examine our collective morality when the government preys upon the most vulnerable populations among us.

As early as 1945, the Supreme Court in Bridges v. Wixon held:

Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual, and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times, a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.

Under our immigration system, people may be removed for a number of reasons. In Mr. Ragbir’s case, although he was a lawful permanent resident, his order of deportation was based upon a felony conviction for wire fraud in 2001. Mr. Ragbir paid his dues for that conviction under the criminal justice system. If Mr. Ragbir had been a citizen, he would not have been in this predicament. But because of his non-citizen status, he was also put in removal proceedings and thus was punished further for his criminal conviction even though as a citizen he would not be. A deportation proceeding is a civil proceeding, and the purpose is to remove the non-citizen rather than to punish, and yet it ironically results in a far greater punishment than the criminal proceeding.

Others are removed simply for not being in lawful status. It is a myth that undocumented immigration can be controlled or eliminated. Indeed, undocumented immigration is an inexorable outcome of restrictive immigration policy, a situation bound to worsen under the Trump Administration’s proposals to severely limit legal pathways. No matter how many more ICE agents that the Trump administration may add to enforce immigration law, there will always be undocumented immigrants who will desperately try to stay in the US to be with loved ones.

If ICE enforces the law harshly and egregiously, they will be even less effective as law suits like Mr. Ragbir has filed will push them back, as we have already begun to see in courts in Southern California and New Jersey. Judge André Birotte in Los Angeles, ruling on the unconstitutionality of ICE detainers (requests to local law enforcement to detain an individual for an additional 48 hours so ICE may decide whether or not to place the individual into removal proceedings), wrote “The LASD [Los Angeles County Sheriff’s Department] officers have no authority to arrest individuals for civil immigration offenses, and thus, detaining individuals beyond their date for release violated the individuals’ Fourth Amendment rights.”  Judge Esther Salas in New Jersey temporarily halted the deportation of Indonesian Christians with “administratively final orders of removal predating 2009 and were subject to an order of supervision,” pending further adjudication of their claims. As the ACLU has argued, “This case involves life-and-death stakes and we are simply asking that these longtime residents be given opportunity to show that they are entitled to remain here.”

No amount of cruel and egregious enforcement measures can eliminate undocumented immigration. Rather, having sensible immigration laws that allow foreign nationals to more easily legalize their status will be more effective in solving the undocumented immigration problem in America, and would be more consistent with its values. This would be a better way to deal with the issue rather than to cruelly pluck people away from their families in violation of their rights and liberties enshrined in the Constitution.