Tag Archive for: INA 212(f)

Cyrus Mehta

Gomez v. Trump: Welcome to the Brave New World of Made Up Law Under INA 212(f)

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Before President Trump, one could hardly imagine that an American president would use INA § 212(f) to rewrite immigration law in a manner he saw fit and with whatever prejudices might be harboring in his mind. While INA § 212(f) does give extraordinary power to a president, Trump has exploited these powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

President Trump, in addition to various travel bans, sought to bar various immigrants and nonimmigrants from entering the US through Proclamations 10014 and 10052 under the pretext that they pose a threat to the US labor market during COVID-19. Several plaintiffs challenged the proclamations through by seeking a preliminary injunction, which resulted in Gomez v. Trump in the District Court of the District of Columbia. Judge Amit Mehta, who wrote the decision, upheld the validity of the proclamations under INA 212(f), but still ordered the State Department to process the visas of Diversity (DV) lottery winners before the Congressionally mandated deadline of September 30, 2020. The judge said that the government had “unreasonably delayed processing” of their visas.  Others subject to the proclamation did not suffer the same irreparable harm as their visas could be processed even after September 30, but DV lottery winners needed to be issued by the hard deadline of September 30 deadline. Judge Mehta drew a distinction between processing of the visas of DV lottery winners, which were not affected by the proclamations, and their ultimate entry into the US, which would still be prohibited under them.

Trump’s proclamations will still bar immigrants and nonimmigrants from entering the US, including DV winners. The only saving grace is that DV lottery winners may some day hope to enter the US once the proclamations expire as their visas got processed before September 30. If Trump gets reelected, the ban may continue and DV winners, along with all the other immigrants and nonimmigrants, would likely still be barred from entering the US.

Apart from this narrow victory for DV winners, Judge Mehta’s decision was a disappointment.  Judge Mehta confirmed that  INA 212(f) exudes deference under Trump v. Hawaii. This was the decision of the Supreme Court that upheld what has come to be known as Trump’s Muslim ban since it fulfilled a campaign promise that he would ban Muslims if he became president. The watered down version of the proclamation that was upheld by the Supreme Court in Trump v. Hawaii banned nationals of Iran, Sudan, Somalia, Libya, Yemen, Chad and Syria, along with Venezuela and North Korea. Although the Ninth Circuit in Doe v. Trump distinguished the president’s authority under 212(f) in domestic matters – as that involved a ban on  immigrants who were unable to obtain specific health insurance – Judge Mehta gave short shrift to this distinction (see Trump is Not King, Cannot Rewrite Public Charge Law through Executive Fiat).  Judge Mehta also did not discuss the other Ninth Circuit decision in East Bay Sanctuary Covenant v. Trump, where the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. In that case Trump through INA 212(f) prohibited asylum seekers from applying for asylum who crossed outside a designated port of entry even though INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of the manner of entry and even though it was not through a designated  port of arrival. According to Judge Mehta, the plain language of INA 212(f) simply speaks in terms of restricting entry of aliens “detrimental to the United States”; and this  detriment is not limited to any  sphere, foreign or domestic. Since COVID-19 has resulted in changed economic circumstances, a court is not well equipped to evaluate the policy choices of the administration to restrict the entry of certain classes of aliens, according to Judge Mehta. Even if President Trump based these restrictions on false pretenses, Judge Mehta held that the court’s role in evaluating even this is constrained under INA 212(f). “Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed,” according to Judge Mehta.

Judge Mehta also disagreed that the proclamations overrode the INA, and the exceptions and waivers in the proclamations still allowed noncitizens to enter the US. Judge Mehta, unfortunately,  did not analyze that these exceptions, especially the State Department’s National Interest Exceptions,  imposed additional requirements that had no basis in the INA (see Trump’s Work Visa Ban Violates the Immigration and Nationality Act And So Do the Exceptions). Take, for example, the requirement that: “The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.” This additional wage requirement is entirely absent from the INA. Another example is a provision in the guidance which states that “L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.” The requirement that petitioners employ five or more U.S. workers also has no basis in the INA or in 8 Code of Federal Regulations. For L-1B applicants, the need to demonstrate significant and unique contributions to the petitioning company, that the specialized knowledge is specifically related to a critical infrastructure need and that the applicant has spent multiple years with the same company has no basis in the law or regulations. Under the existing INA and regulations, the L-1B applicant must demonstrate that he has had one year of qualifying experience in a managerial, executive or specialized knowledge capacity. Judge Mehta’s decision is devoid of any analysis on how these exceptions have no basis in the INA, and instead, he held that they did not  “expressly override” any “particular” provision of the INA and “[a]liens still may travel to the United States under the visa categories established by Congress. “

Welcome to the new world of INA 212(f) jurisprudence under which law can be simply be made up without going through the arduous process of proposing bills in Congress and having them voted in both the chambers. Indeed, this law can be invented through the stroke of a xenophobe’s pen. Arch xenophobe Stephen Miller has been the architect of Trump’s proclamations under 212(f). Either entire countries can be banned or entire visa categories pursuant to 212(f). The exceptions to these restrictions, based on national interest, can also be made up with no bearing on the actual visa category and subject to a consular officer’s caprice and whim.

If President Trump is reelected, one should expect that he will continue to wholesale rewrite the INA and restrict immigration.  If on the other hand Joe Biden is elected, the broad bans that Trump issued under 212(f) could be eliminated on January 21. In the meantime, even though Gomez v. Trump upheld Trump’s power to rewrite the law under 212(f), it remains to be seen how other courts will interpret 212(f) with respect to Proclamations 10014 and 10052. The hearing for the  preliminary injunction in NAM v. Trump is scheduled for a hearing on September 11 in the Norther District of California, which is in the Ninth Circuit where Doe v. Trump and East Bay Sanctuary Covenant v. Trump should still have sway. Let us hope that the court will rule differently in that case and the desired preliminary injunction will ensue.

 

 

Cyrus Mehta

The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans

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By Cyrus D. Mehta and Kaitlyn Box*

President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications and limits highly skilled workers and several nonimmigrant visa categories. The proclamation is effective as of June 24, 2020 and expires on December 31, 2020. The proclamation may be modified during this period as deemed necessary.

The Proclamation supposedly cites a desire to preserve jobs for American workers and high unemployment rates in the face of the COVID-19 pandemic as a rationale for suspending the entry of certain green card applicants and highly skilled workers. It states without any foundation “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work.  Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.  Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers”. In reality, however, both this Proclamation and the April Proclamation that it expands upon are part of a broader strategy by the Trump administration aimed at curtailing all immigration.

Foreign nationals who were outside the United States on the effective date of the proclamation (June 24, 2020), do not have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on that date, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa are barred. Additionally, accompanying or following to join dependents seeking to obtain H-4, L-2, or J-2 visas who were outside the U.S. on the effective date are also barred. However, if the principal H-1B, H-2B, J-1, or L-1 beneficiary is already in the United States, or otherwise exempt (see below), it is unclear at this time whether this bar will apply to dependents who will subsequently apply for H-4, L-2, or J-2 visas at the U.S. Consulate.

The Proclamation does not apply to: anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State. CBP headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the proclamation.

The Proclamation also seems to leave open the door for other measures aimed at restricting the entry of certain categories of immigrants, or even taking action against individuals who have already been admitted. Section 5(b) of the Proclamation states that: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1))”.  INA 212(a)(5) renders a foreign national who seeks to enter the United States to perform skilled or unskilled labor is inadmissible unless it has determined that there are not a sufficient number of US workers who are qualified for the same job and the employment of such foreign nationals will not affect the wages and working conditions of US workers. Most foreign nationals have already received labor certifications after their employers unsuccessfully conducted a recruitment of U.S. workers in the labor market.   Though this provision does not have any present effect, it seems to enable the administration to take further actions to limit the number of immigrant visa workers in the United States. One could even imagine the provision being invoked to rescind some individuals’ approved labor certifications and I-140 visa petitions, should the administration decide to do so in the future. This would have a devastating impact on the hundreds of thousands of people born in India who have been waiting for green cards in the EB-2 and EB-3 backlogs. Of course, such an action would be challenged in court since INA 204(j) has specifically allowed adjustment of status applicants whose applications have been pending for more than 180 days to “port” to new employers and still keep intact their labor certifications and I-140 visa petitions. Thus, there are provisions in the INA that contemplate that once the labor market has been tested, the test need not be repeated over and over again, even if the foreign national’s green card has been delayed due to  EB-2 and EB-3 backlogs.

Another insidious provision in the Proclamation, section 4(c)(ii), directs the DHS consistent with applicable law to “prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States.” While there are existing provisions in the INA that deem foreign nationals inadmissible for all of the above reasons, one who has been charged or arrested of a criminal offense should not be deprived of eligibility to work in the United States if the charges were dismissed or proved baseless, and the foreign national did not admit to the essential elements of a crime that would render him/her inadmissible.

The Proclamation stands to have a devastating impact on individuals in a variety of scenarios.  Due to numerous travel restrictions that have been put in place as a result of COVID-19, many individuals may have left the United States with a valid visa that has expired while that have been trapped outside the country. Under the new Proclamation, these individuals would not be able to reenter the United States. Family members of a principal visa holder are likely to be similarly impacted. One such situation arises when a principal visa holder was in the United States on the effective date of the Proclamation, but has dependent family members who are currently outside the U.S. without a valid visa. Because individuals who were inside the United States on June 24th, 2020 are exempt from the proclamation, David Isaacson is of the opinion that  family members of an individual who is in the United States are not “accompanying or following to join” an individual whose entry is suspended. Thus, spouses and children of an individual who is exempt from the Proclamation should arguably be able to reenter the United States, but one does not have any faith whether Trump’s State Department will agree with this perfectly reasonable interpretation. Indeed, although the proclamation clearly states that it will not apply to one who was present in the United States on June 24, 2020, the State Department seems to be indicating on Twitter that if such a person leaves, a visa will not be issued during the validity of the proclamation. This seems to be inconsistent with a plain reading of Section 3(i) that states that the proclamation will apply to an individual who “is outside the United States on the effective date of this proclamation.”

The situation is more complicated when reversed, however, with a principal visa holder, for example an H-1B, abroad and his/her H-4 spouse is in the United States. It is unclear how the Proclamation would apply to the H-4 spouse in this situation. Even if the H-4 spouse currently is in valid status, they would only be able to remain in the United States for a limited period of time before being deemed to be in violation of their status. The USCIS allows dependents of nonimmigrant visa holders to remain in the United States while the principal is temporarily outside the country. At the same time, USCIS prevent the “parking” of dependents in the United States for extended periods of time if the principal nonimmigrant worker only comes for occasional work visits.    Thus, if the H-1B is stranded abroad for several months until the end of the ban, which could potentially be extended beyond the end of 2020 depending on who wins in the presidential election this November, the H-4 spouse may no longer be considered to be in valid status. If the principal H-1B spouse’s job has been terminated, this would imperil the status of the H-4 spouse and children even sooner.

As with the April Proclamation, Trump relied on section 212(f) of the Immigration and Nationality Act (INA) to ban nonimmigrant workers. Although Trump also derived authority from 212(f) to issue the travel bans, the third iteration of which was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamations from the travel bans (see Building the Case to Challenge Trump’s Immigration Bans). The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice (see also  Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans. In its recent decision on DACA, the Supreme Court held that the administration has to factor in reliance interests before rescinding a benefit under the APA). This most recent Proclamation represents another attempt by the administration to draw artificial distinctions between certain categories of immigrants. The J visa category, for example, is impacted only “to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program”. Other categories of J visas were exempted from the proclamation, including the student and alien physician categories. The Proclamation also excludes other categories of nonimmigrant visas, including treaty trader (E-1) and investor (E-2) categories, entirely. Lawsuits are bound to be filed not just by H-1B visa holders separated from their families, as they would be the most sympathetic plaintiffs, but also by large multinational corporations whose highly placed executive who would otherwise be able to enter on the L-1A visa has been banned.

In conclusion, this proclamation disproportionately impacts Indians the most as they are the largest users of the H-1B visa. It is no coincidence that in 2016 Steve Bannon, who was then a strategist  to Trump and chairman of Brietbart News expressed concern that too many  CEOs of successful Silicon Valley tech companies were immigrants from Asia. Many of them came to the United on an H-1B, which has been targeted by this proclamation. This sort of hostility against immigrants has been expressed frequently by Trump and his senior advisor Stephen Miller. Brietbart News, from which Miller and other xenophobes in the Trump administration draw inspiration, has consistently railed against Indian immigrants and H-1B visa holders.  The proclamation will not protect American jobs by cruelly separating the H-1B worker from the H-4 spouse and children, many of them who have been in the US for many years waiting for their green cards in the EB-2 and EB-3 backlogs. Nor will this proclamation bring back American jobs when it bans a specialized knowledge intracompany transferee on an L-1 visa who had in depth knowledge of a company’s products and can help it to grow in the United States, which in turn would create more jobs.   While the proclamation flunks the economic test, for the xenophobe it is a dream come true as it incorporates an exhaustive wish list for restricting immigration under the cover of the pandemic that would otherwise have been impossible to pass through Congress.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Using a Sledgehammer to Crack a Nut: Trump Proclamation Bans Chinese Students and Researchers Linked to China’s “Military-Civil Fusion Strategy”

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President Trump has issued a proclamation limiting Chinese students wishing to study in the United States to undergraduates under certain conditions, and limiting Chinese researchers. The proclamation states that the People’s Republic of China (PRC) uses some Chinese students, mostly post-graduate students and post-doctoral researchers, to operate as “non-traditional collectors of intellectual property” in the United States. President Trump said that he therefore has determined that the entry of certain PRC nationals seeking to enter the United States “pursuant to an F or J visa to study or conduct research in the United States would be detrimental to the interests of the United States.”

The proclamation specifically bans nonimmigrants who enter on an F or J visa “to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy”.  The proclamation defines the term “military-civil fusion strategy” as actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.

President Trump has again relied on INA 212(f) to issue this ban on Chinese nationals who enter the US on an F or J visa who are associated with the vague Chinese “military-civil fusion strategy.” This is another case of Trump using 212(f) to rewrite immigration law. Given the vagueness of linking students to China’s military-civil fusion strategy, it would empower consular officers, and even CBP officials, to deny a visa or admission to just about any graduate student or researcher from China as the proclamation does not set any parameters. Trump’s proclamation will unfortunately also result in needless stereotyping. Just as so many people were branded as communists during the “red scare” under the McCarthy era, graduate students from China will also be associated with China’s military-civil fusion strategy. Although the ban is thought to impact 3,000 out of 360,000 Chinese students, many more can be impacted for mere suspicion of being linked to Chinese military-civil fusion strategy.

While there is evidence that the Chinese military has sponsored military scientists to study abroad described as a process of picking flowers in foreign lands to make honey in China, the overall benefits that Chinese graduate students and researchers bring to US universities far outweigh the supposed perils of benefiting China’s military progress. American universities will get adversely impacted if they cannot attract students from China in their graduate and doctoral programs who pay the full freight in tuition fees. When Chinese researchers study in the US and write research papers, they adopt the US model and their papers are peer reviewed before being selected for publication in English that can be accessed by anyone, and not just by the Chinese military. Moreover, 90% of Chinese students are still in the US a decade since they came.

Moreover, there are enough provisions in the INA that would allow a consular officer to deny a visa. In addition to denying an F-1 visa under the usual INA 214(b) for demonstrating immigrant intent, an applicant for a student or research visa can also be denied for security grounds under INA 212(a)(3). Thus, Trump’s latest Chinese ban is akin to using a sledgehammer to crack a nut. It also bypasses Congress authority to amend the INA. In fact, there is a proposed bill sponsored by Senators Cotton and Blackburn that would be even more sweeping by prohibiting t0 Chinese nationals from receiving visas to the United States for graduate or post-graduate studies in STEM fields. The fact that it will be unlikely for these Senators to pass such a draconian bill through both houses of Congress does not justify Trump’s proclamation that rewrites the INA.

The proclamation also contemplates revoking the visas of affected Chinese students and researchers who are already in the US. Under other circumstances, when a nonimmigrant’s visa is revoked while in the US, they can continue to maintain status, but will need to obtain a new visa upon departing the US. Chinese students subject to the ban will likely not be able to apply for new F-1 or J-1 visa unless they qualify for one of the limited exceptions.

Finally, the proclamation leaves open the possibility of further restrictions as it also calls for agency review of “nonimmigrant and immigrant programs” and recommendations for “any other measures requiring Presidential action that would mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”

Cyrus Mehta

Trump’s Expanded Travel Ban and Other Immigration Madness

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President Trump has done it again. On January 31, 2020, he used his extraordinary broad powers under INA § 212(f) to expand his travel ban to six additional countries.  The affected countries are Nigeria, Eritrea, Sudan, Tanzania, Kyrgyzstan and Myanmar. The expanded ban comes about three years after the first ban. Most of the countries targeted in this ban, like the first ban, are countries with significant Muslim populations. Even Myanmar, where Buddhists constitute the majority, has a significant minority population comprising Muslims including the persecuted Rohingya people.  The administration has spuriously argued that the new travel ban is vital to national security and the ban will remain “until those countries address their identified deficiencies” related to security and information-sharing issues. Even if this is the case, it is not sufficient justification to impose a travel ban on unsuspecting countries without warning and on those who have applied to immigrate to the US.

Unlike the first ban, the new ban only restricts immigrants from Burma, Eritrea, Kyrgyzstan and Nigeria. The restrictions on Sudan and Tanzania are narrower as they only apply to immigrants who have won green cards under the diversity program. The new ban does not apply to nonimmigrants who visit the US temporarily such as tourists, students or workers under specialized work visa programs such as the H-1B for specialty occupations or L-1 for intracompany transferees.  It will also not apply to special immigrants who have been helpful to the US such as employees of US consular posts.  Banning immigrants and not nonimmigrants does not make sense at all. If the administration is so concerned about US security, then those granted immigrant visas are more vetted than those who travel on temporary nonimmigrant visas. A terrorist is more likely to quickly get into the US on a temporary visa to cause harm. The justification that the administration has provided is that it is harder remove immigrants from the US is also spurious from a security perspective since all noncitizens are subject to the same removal process, able to contest the charges against them and are eligible for relief from removal. People placed in removal can remain in the US until they exhaust all their appeals.   Also the justification to restrict immigrants from Tanzania and Sudan who have won green card lotteries makes even less sense. Why would one who has won the lottery in Sudan and Tanzania pose more of a risk than someone who is immigrating on another basis?

In 2018 the Supreme Court  in Trump v. Hawaii upheld a third version of the ban, after the previous versions were challenged in court, on the ground that the third version was neutral as it did not violate the First Amendment Clause of the Constitution despite Trump’s utterances in favor of banning Muslims. For instance, in his presidential campaign he called for a “total and complete shutdown of Muslims entering the United States. “  He also said, among other derogatory statements, that “Islam hates us.” This expanded ban too targets Muslim countries, and allows Trump to fulfill his campaign promise to his supporters to ban nationals from Muslim countries. This is why the first ban was rightly called the Muslim ban, and the new ban, also ought to be called the expanded Muslim ban.

Before Trump, one could hardly imagine that an American president would use INA § 212(f) to rewrite immigration law in a manner he saw fit and with whatever prejudices might be harboring in his mind. While INA § 212(f) does give extraordinary power to a president, Trump has exploited these powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

In the expanded ban, Trump has blocked people who have won green card lotteries under the DV program. This is a program that Trump and immigration restrictionists in his administration clearly disfavor, but he has used INA § 212(f) to obliterate the green card provisions in the INA for Tanzanians and Sudanese. Trump has also openly indicated his animosity towards immigrants who come from “shi*hole” countries. It is hardly surprising that Trump, bolstered by a Republican dominated Senate that will likely acquit him for brazen corruption, is abusing his power under INA § 212(f) to reshape immigration law as he sees fit. Congress in enacting INA § 212(f) would have never conceived that a future president could use the provision to block green card lottery winners. Trump can decide, based on whatever prejudice he has, that anything is “detrimental to the interests of the United States.” It is eerily uncanny that Trump’s lawyers have mounted a similar defense in his impeachment trial, especially Alan Dershowitz, who nonsensically argued that “If a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Trump has  used INA § 212(f) to reshape immigration laws enacted by Congress that have nothing to do with travel bans and national security. On November 9, 2018, he issued another Proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States.  The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation. The key issue is whether INA § 212(f) allowed a president like Trump with authoritarian impulses to override entire visa categories or change the US asylum system?   INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration had virtually closed the designated ports of entry for asylum seekers, which forced them to cross the border through irregular methods. In East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (2018), the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus, INA § 212(f) could not be used as a justification to override INA § 208. The Supreme Court has temporarily stayed the injunction in a related case that prohibits asylum seekers on the Southern border from applying for asylum in the US if they have not applied in Mexico or Guatemala – and thus by implication East Bay Sanctuary Covenant v. Trump – from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided. There has been no ruling on the merits of the case.

On October 3, 2019, Trump yet again invoked INA § 212(f) by issuing a Proclamation to ban intending immigrants from entering the United States if they did not have health insurance within 30 days of their arrival in the United States. Under the Proclamation, an intending immigrant who has satisfied all statutory requirements set out in the INA will nevertheless be permanently barred from entering the United States if that person cannot show, to the satisfaction of a consular officer, that he or she either “will be covered by approved health insurance” within 30 days of entering the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” A federal district court in Oregon temporarily blocked the health insurance proclamation through a nationwide injunction by relying on East Bay Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA  § 212(f) to amend the INA. In the health insurance case, Trump’s proclamation contradicts the public charge provision under INA 212(a)(4), which does not have a health insurance requirement. The Ninth Circuit has upheld the temporary order of the Oregon district court, although it has a strong dissent by Judge Bress criticizing the Oregon district court’s finding that INA $ 212(f) was unconstitutional  under the nondelegation doctrine. Under this doctrine, associated with separation of powers, Congress cannot delegate legislative powers to the president under INA § 212(f). This argument needs to be watched more closely as it is bound to play out further when the administration defends its authority under INA § 212(f) in this case and other cases.  The Supreme Court has not yet intervened in this case.

The new travel ban is bound to be challenged in federal district courts, and one or more courts may issue nationwide injunctions. The Trump administration, like in other instances, will likely take this to the Supreme Court and request a stay of the injunction. Most recently, the conservative majority in the Supreme Court stayed the injunction of a New York district court, which was confirmed by the Second Circuit, against the public charge rule. Justice Gorsuch wrote a concurring opinion along with Justice Thomas that was critical of nationwide injunctions of this sort. The concurrence complained that a single judge enjoined the government from applying the new definition of public charge to everyone without regarding to participation in this lawsuit, and that they are “patently unworkable” and sow chaos. It could also be argued that Justice Gorsuch’s lifting of a nationwide injunction would sow chaos if a law that is potentially inconsistent with a statute or unconstitutional is implemented until it is found so by the Court. And here, in the instant case, there is even further chaos as the public charge rule is being implemented everywhere after the stay of the injunction expect in Illinois. Nationwide injunctions, according to Mila Sohoni, a professor at the University of San Diego law school, are not a recent phenomenon and this practice goes all the way back to the 19th century.

Notwithstanding all the barriers and obstacles, including the admonition against nationwide injunctions by Justice Gorsuch and the prior Trump v. Hawaii ruling, it is imperative that the limits to INA § 212(f) be challenged as Trump can use this provision to radically transform immigration laws enacted by Congress, and without going through Congress to amend laws that he does not like. A challenge to the expanded ban will again give courts the ability to examine INA § 212(f).   The Supreme Court, disappointingly, held in Trump v. Hawaii   that INA § 212(f) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” One should however  still give credit to prior lower federal court decisions that blocked the first and second versions of the travel ban, on the grounds that Trump exceeded INA § 212(f), which were far worse than the watered down third version that was finally upheld. Although the Supreme Court may have stayed the injunction in East Bay Sanctuary Covenant v. Trump, it has not ruled on the merits of the Ninth Circuit’s reasoning that Trump could not use INA § 212(f) to rewrite asylum law in the INA. The Supreme Court is yet to hear any challenge to the health insurance proclamation. The Ninth Circuit in both these cases did not disapprove of the reasoning by district court judges that Trump overstepped his authority notwithstanding the powers given to him under INA § 212(f).

In issuing the expanded travel ban, which takes effect on February 21, 2020,  Trump has abused his authority in selectively blocking immigrants from predominantly African nations.  This ban too, like the last one, will equally impact US citizens who have legitimately sponsored family members under the law as they will not be prevented from reuniting in the US. The ban also arbitrarilyy, and without  foundation, blocks green card lottery winners from two nations. Nigerians will be most impacted by the new ban as they by far make up the largest number of African immigrants in the US, numbering approximately 327,000. A connection between Trump’s ban and Nigeria can be made to a meeting in the Oval Office in June 2017 when Trump told his advisers in the Oval Office in June 2017 that Nigerians who set foot in the US would never “go back to their huts” in Africa. This ban will result in the isolation of the US while other countries will benefit. The new ban also does nothing to enhance US national security. Since it does not apply to nonimmigrant visa entries, US citizens who are not yet married to their spouses in any of the newly banned countries may file a nonimmigrant K-1 visa fiance petition. Once the fiance enters the US on a K-1 fiance visa, they can marry the US citizen and adjust status to permanent residence. It makes no sense for a person from a banned country to delay a marriage with a US citizen in order to be eligible for a K-1 fiance visa, but  this is what Trump’s illogical ban forces them to do in addition to making every national of the banned country a suspect.

In approving Trump’s first travel ban,  the majority in Trump v. Hawaii made reference to Korematsu v. United States, 323 U.S. 214 (1944). This was the shameful Supreme Court case that allowed the internment of Japanese Americans after the attack on Pearl Harbor in 1941. Justice Sonia Sotomayor referencing this decision in her powerful dissent in Trump v. Hawaii. Justice Sotomayor found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy. The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel bans, especially after the second one, they are not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

It is time to revisit the Supreme Court’s overruling of Korematsu in Trump v. Hawaii. In that case, the Supreme Court opined that the first travel ban was facially neutral and took pains to distinguish it from the repugnant Korematsu decision. The second travel ban confirms that the first ban was not neutral, and this ban, along with the first one is strikingly similar to Korematsu. Since the first ban took effect, thousands of intending immigrants from the banned countries, from infants to elderly parents, have been needlessly impacted and they pose no threat to national security. The waivers in the first ban are a sham and are seldom granted. The waivers incorporated in the second ban will also be a sham.  INA § 212(f) must have limits, courts must hold, including the Supreme Court someday. Otherwise, Trump’s travel bans and other sorts of immigration madness will have no limits.

 

 

 

Cyrus Mehta & Sophia Genovese

Threading the Needle: Challenging Trump’s Travel Ban Despite Trump v. Hawaii

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On June 26, 2018, the US Supreme Court in a 5-4 decision in Trump v. Hawaii upheld President Trump’s travel ban against seven countries, the majority of which are predominantly Muslim. Chief Justice John Roberts, in writing the majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.”

There has already been much criticism of this decision. Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of the Executive Order to be neutral on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution. Still, ironically, the majority made reference to Korematsu v. United States, 323 U.S. 214 (1944) as a result of Justice Sonia Sotomayor referencing this decision in her powerful dissent. She found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy.

The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel ban, it is not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

The irony here is that although the majority found that the motivation behind the executive order that resulted in the internment of Japanese-Americans was gravely wrong and has no place in law under our Constitution while Trump’s travel ban is facially neutral, the ban has resulted in the tragic and forced separation of families from the banned countries. It has also prevented the future entry of skilled people from these countries. For instance, if a US citizen sponsors a parent of Iranian nationality, that parent can never immigrate to the United States under the travel ban. The same prohibition would be applicable to a spouse who is an Iranian national who is the beneficiary of an approved I-130 petition filed by her US citizen spouse. While there are supposedly waivers for entry, as Justice Breyer in his separate dissent observed, the Government “is not applying the Proclamation as written,” where the Secretaries of State and Homeland Security have failed to issue guidance to consular officials on the issuance of waivers, and where only 430 waivers have been issued in total, representing “a miniscule percentage of those likely eligible for visas.” Justice Breyer points to a particularly egregious example of a travel ban waiver denial of a child with cerebral palsy from Yemen to demonstrate his point. Due to the war in Yemen, he explained, the young child could no longer access her medication for her disease, and was thus no longer able to move or speak and was going to die if she did not receive treatment soon. Despite this predicament and the young child’s clear eligibility for a waiver according to Presidential Proclamation 9645 (explaining that case-by-case waivers may be granted in circumstances involving, for example, “the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”), the consular official denied her waiver. After this story had been highlighted in an amicus brief before the Supreme Court, the family received an update from the consulate that they were eligible for waivers; however, instead of receiving visas, the case was put into administrative processing. It took several more months and international attention to get this child a waiver, indicating that these waivers are not being granted despite an individual’s clear eligibility for them, as outlined in the EO.

If waivers of those who are clearly eligible do not get approved, and one can find a pattern of wholesale denials that are consistent with Trump’s animus and hostility towards people from these banned nations, then it may be possible to assert that the motivations behind the denial of the waivers are based on improper stereotyping of certain nationalities that have no place under our Constitution, like the majority in Trump v. Hawaii found in Korematsu. Finding parallels behind the motivations that resulted in the forced internment of Japanese Americans to the wholesale denial of entry to people eligible for visas just because they happen to be nationals of predominantly Muslim countries could potentially result in further litigation that can overrule the ban, or at least force the Administration to actually implement its waiver process as outlined in the Proclamation. This will no longer be the facially neutral policy that the majority gave a pass to, rather the application of that policy through a sham waiver process will put more focus on the animus displayed by Trump towards Muslims. In other words, the failure to issue waivers, if shown to be a result of Trump’s animus towards Muslims, could be used as evidence to show that not only is the waiver process a sham, but could invalidate the entire EO in a future challenge.

It is at this juncture that Justice Kennedy’s tepid concurrence can provide the ammunition for future plaintiffs who challenge the waivers, and thus Trump’s travel ban. The following extract from Justice Kennedy’s concurrence is worth quoting in verbatim:

There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive…

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, dis­cretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their ac­tions, even in the sphere of foreign affairs. An anxious world must know that our Government remains commit­ted always to the liberties the Constitution seeks to pre­serve and protect, so that freedom extends outward, and lasts.

Thus, all hope is not lost for future plaintiffs adversely impacted by the travel ban. There might be a way to thread the needle by demonstrating that the actual application of the Executive Order, which the majority found facially neutral, is no longer so neutral if waivers are denied wholesale by government officials that are motivated by Trump’s original animus towards Muslims. It was this animus that resulted in the first two versions of the travel ban that were struck down by the lower courts of appeals, and which resulted in the third ban that was the subject of the Supreme Court’s decision in Trump v. Hawaii. It was also the same majority in Trump v. Hawaii that found Korematsu abhorrent but distinguished it from the supposedly facially neutral Executive Order of Trump. But plaintiffs can show that this very same EO is no longer neutral because the waivers are not accessible as misrepresented by the Government in Trump v. Hawaii. As explained above, there have been no official guidelines issued by the Secretaries of State and Homeland Security regarding how consular officials will adjudicate waivers, and whether those denied can seek further redress or review within the administrative system.  Such a failing to issue waivers or at least issue guidance to obtain these waivers again calls into question the ‘neutrality’ of the ban. Once the improper motivation can be shown, especially through the application of the waivers, litigants can again potentially challenge the ban.

As we’ve previously explained, while INA § 212(f) grants wide discretion to the President, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). Once plaintiffs find an opening by challenging the ban through the sham waiver process, other authorities that limit the power of the President can spring to life. For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court found that the power of the Executive is “subject to important constitutional limitations.” In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court stated that the President’s Article II powers are subject to review, and ruled that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention. In Boumediene v. Bush, 553 U.S. 723, 765 (2008), the Supreme Court declared that the political branches cannot “switch the Constitution on or off at will” and extended the right of habeas review to a non-citizen outside the US. Moreover, in INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court reaffirmed that Courts were empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.” And as was argued in the Ninth Circuit, even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

Finally, until Trump became President, no one realized that INA § 212(f) could be applied so broadly so as to eviscerate visa classifications created by Congress. Trump v. Hawaii will embolden Trump even further to restrict legal immigration without going through Congress. For instance, he may apply 212(f) to certain family preference categories and restrict the entry of foreign nationals who are the beneficiaries of approved I-130 petitions, by declaring that their entry will be detrimental to the interest of the United States. The same would be true if Trump hypothetically decided to restrict H-1B beneficiaries, say from India, because he believed that their entry into the US would be inconsistent with his Buy American Hire American Executive Order, and thus detrimental to the interest of the United States. It is at this point that a less pliant Congress may have to step up and limit the broad language under 212(f) so that a president like Trump with authoritarian impulses will not be able to trample upon the separation of powers doctrine.

As Trump v. Hawaii passes through the ages, the dissents of Justice Sotomayor and Justice Breyer will have more force than the majority opinion. A powerful dissent signals to another court that the majority got it wrong, similar to Justice Murphy’s dissent in Korematsu. A dissent also sends a signal to Congress that it can overrule a Supreme Court decision by changing the law. This is how Justice Ginsburg’s powerful dissent in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618 (2007), resulted in Congress enacting the Ledbetter Equal Pay Act. There is thus hope for the nation to redeem itself if a future Congress modifies INA § 212(f) thus effectively overruling Trump v. Hawaii.