Tag Archive for: Remain in Mexico

Cyrus Mehta

Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo

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By Cyrus D. Mehta and Kaitlyn Box*

On July 21, 2022, the Supreme Court granted certiorari in United States v. Texas, which involves a challenge to the U.S. Immigration and Customs Enforcement (ICE) enforcement priorities as originally laid out in the 2022 Mayorkas Memo. Pursuant to these priorities, ICE would have prioritize the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. In previous blogs, we have discussed some of the implications of the priorities. The attorneys general of Texas and Louisiana soon challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained. Judge Drew Tipton of the Southern District of Texas issued a decision precluding the enforcement priorities in the Mayorkas Memo from going into effect, and the Fifth Circuit affirmed Tipton’s order. The Department of Justice asked for a stay of Tipton’s order halting the implementation of the enforcement priorities, but the Court denied the request in its order granting certiorari, offering no explanation.

It appears that federal judges are running US immigration policy these days. Our esteemed colleague Steve Yale-Loehr was quoted by Time in “Why Judges Are Basically in Charge of U.S. Immigration Policy Now.” He said, “This is a manifestation of our broken immigration system. Today, almost every executive action on immigration is being challenged in the courts.” He also noted that judges having so much power to determine immigration policy puts the U.S. judicial system in a delicate spot, since federal judges are often wary of being drawn into issues of national sovereignty or of impinging on the executive branch’s authority to conduct foreign policy. But these days, they often have no choice. “Courts are loath to weigh in,” he said. Another reason for the recent explosion of court challenges was the pace at which the Trump administration moved on immigration issues, the article notes. That “unprecedented pace” led to an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Steve said. And now, he said, “Conservative states are suing every chance they get to challenge everything that the Biden administration is doing on immigration.”

Given the current composition of the Court, it may come as no surprise that the DOJ’s requested stay in United States v. Texas was denied. What is, surprising, though, is that Justice Amy Coney-Barrett voted in favor of granting the stay, along with the Court’s liberal justices, Sotomayor, Kagan, and Brown Jackson. Prior to Justice Barrett’s ascension to the Supreme Court, she had a history of voting to uphold President Trump’s oppressive immigration policies, including the public charge rule. A notable exception to her record, however, is the Seventh Circuit’s opinion in Meza-Morales v. Barr, which Justice Barrett authored. Meza-Morales challenged Attorney General Jeff Sessions’ ruling in Matter of Castro-Tum, which held that immigration judges cannot “administratively close” cases under most circumstances. Administrative closure allows immigration judges to avoid wasting resources on low priority cases or those awaiting action by another agency by indefinitely suspending removal proceedings. We have extensively covered administrative closure and the trajectory of Castro-Tum in previous blogs, see here, here, and here. Barrett, writing for the majority, rejected Sessions’ arguments in Castro-Tum and held that administrative closure is “plainly within an immigration judge’s authority to take “any action” that is “appropriate and necessary for the disposition of … cases” pursuant to 8 C.F.R. § 1003.10(b). The opinion emphasizes that immigration judges are afforded discretion to dispose of cases as they see fit. Given that Justice Barrett championed discretion in one context, it may not be such a stretch to think that she also recognizes the importance of allowing ICE prosecutors the discretion to decide which removal cases to pursue, a key tenet of the Mayorkas enforcement priorities.

Last year, Matthew Kacsmaryk, a Trump appointed judge, like Tipton, issued a similar order that required the Biden administration to reinstate Trump’s “Remain in Mexico” policy. The Supreme Court eventually ruled against Kacsmaryk, but it allowed his order to remain in effect for 10 months, leaving Remain in Mexico in place for that entire time. Six justices — the three liberal justices plus Chief Justice John Roberts, and Justices Brett Kavanaugh and Barrett — all agreed that Kacsmaryk misread federal immigration law when he held that the federal government is required to maintain the Trump-era program.  Barrett actually dissented from the Court’s holding, stating in her opinion that she agrees “with the Court’s analysis of the merits,” but she would have sent the case back to lower courts to consider a jurisdictional issue.

It is hoped that Tipton’s order will suffer the same fate. Even if Justice Barrett does not prove to be an unexpected supporter of prosecutorial discretion, it will not be so easy for the courts to kill the longstanding doctrine. ICE Office of the Principal Legal Advisor (OPLA) attorneys have the inherent authority to exercise prosecutorial discretion, whether or not the Mayorkas Memo ultimately remains in place. Because ICE has finite resources, OPLA attorneys will need to continue choosing which cases to aggressively prosecute. Even after the Supreme Court refused to stay Tipton’s injunction, the ICE OPLA provided guidance on prosecutorial discretion indicating that the doctrine will remain in place even though Mayorkas’ priorities will not explicitly be applied. This guidance states that “OPLA attorneys… may – consistent with longstanding practice – exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

How the Founding Values of Two Great Nations – United States and India – Can Get Hollowed Out Through Tweaks in their Immigration Laws

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Until President Trump of the United States and Prime Minister Modi of India came to power, it was unimaginable that democratically elected leaders could cynically tweak immigration laws to undermine the founding values of their nations.

America has unquestionably been viewed as a nation of immigrants and a beacon of liberty for the world’s persecuted until Trump came on the scene. Trump cruelly reduced refugee admissions to a trickle and toughened asylum laws. He has separated children from parents fleeing violence in Central American countries and virtually eliminated their ability to legally claim asylum under US immigration law. Most recently, our colleagues have been able to witness firsthand that the tent courts under Trump’s Remain in Mexico policy, are totally and shockingly lacking in due process. Worse still, Trump fulfilled his campaign pledge by imposing a travel ban on countries with mostly Muslim populations in the name of national security. All of these actions, and many more architected by Trump’s openly xenophobic Senior Advisor Steven Miller, have undermined American ideals symbolized by the Statue of Liberty. Even the new public charge rule has been designed to keep out less wealthy immigrants from countries that Trump derisively called “s-hole countries”. Trump’s then acting USCIS chief Cuccinelli uglily distorted   the famous Emma Lazarus poem associated with Lady Liberty by saying, “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

Modi’s Hindu nationalist Bhartiya Janata Party got a second five year term after winning a thumping parliamentary majority in May 2019. India is the world’s largest democracy and 900 million people were eligible to vote in the last general election. Voter turnout in that election was the highest at 67%.  While campaigning for the BJP, Amit Shah, now India’s powerful Home Minister, likened unauthorized immigrants from Bangladesh as termites and vowed to throw them in the Bay of Bengal. Soon after resuming power, the BJP revoked the autonomy of Kashmir in August, the only Muslim majority state in India, and detained its political leaders. Continuing on the same Hindu nationalist trajectory, the BJP pushed through the Citizenship Amendment Act (CAA) that amends the Citizenship Act of 1955. The CAA provides for a pathway to citizenship for Hindus, Christians, Sikhs, Buddhists, Jains, and Parsis who came to India from Pakistan, Bangladesh or Afghanistan on or before December 31, 2014, even illegally, but excludes Muslims. Most of the immigrants who are in India since that time are Muslims. It is also interesting to note that CAA excludes Jews and potentially atheists, although if there are any who are affected, they may be very few in comparison to the millions of Muslim immigrants who have been living in India for decades. The BJP justifies the CAA as a means for sheltering persecuted minorities in neighboring countries, although this makes little sense as Muslims have borne the brunt of persecution in those countries especially the Ahmadiyya and Shia from Pakistan and the Rohingya from Myanmar.

The CAA is far more pernicious when viewed in conjunction with India’s controversial National Register of Citizens, which is part of the Indian government’s efforts to identify unauthorized immigrants in the northeastern state of Assam who allegedly came from neighboring Bangladesh, even though they have lived in Assam for decades. When the NRC was published in August, about 2 million people were not able to establish that they were in India since 1971. Most of them were Muslims and some of them were Hindus. The CAB will protect Hindus who are not on the NRC by affording them citizenship while Muslims who cannot prove that they are citizens will ultimately be kept in massive detention camps and ultimately deported.  Home Minister Amit Shah, who like Steve Miller in Trump’s administration, is the mastermind behind these cruel and divisive policies, plans to extend the NRC across the country that will catch many more million Muslims suspected of being in India illegally. One should note that many of the affected Muslims live in abject poverty and have hardly preserved documents to establish their entry into India by a cutoff date many decades earlier. Many have also been valiant survivors of cyclones that ravage those eastern parts of India that might have washed away their homes, meagre belongings and documents.

Although Muslims have been subjected to discrimination and violence under the BJP administration, and the excellent profile of Modi in the New Yorker reveals why,  the CAA takes this discrimination to a new level as it completely contradicts India’s founding ideal as a plural and secular nation. As the Economist has aptly commented, “To accept religion as a basis for speedier citizenship is to cock a snook at India’s own founding fathers, who proudly contrasted their vision of an open, pluralist society against the closed, Islamic purity of next-door Pakistan.”

Although Trump’s Muslim ban was successfully blocked by lower federal courts, the US Supreme Court in Trump v. Hawaii upheld a watered down version of it in a 5-4 decision. 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.” 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 the US Constitution. Several of Trump’s other immigration policies such as his blocking of asylum seekers and public charge rule are still being reviewed by the courts.

CAA’s legitimacy will also soon be tested in the Indian Supreme Court. Article 14 of India’s Constitution provides, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It remains to be seen whether India’s Supreme Court strikes down CAA as unconstitutional or whether it will affirm a law that is blatantly discriminatory against Muslims just as the US Supreme Court upheld Trump’s Muslim ban. It is also rather strange to use religion as a litmus test for citizenship. How does one prove one’s religion, especially when he or she may be not openly practicing it? The fact that Muslims can apply for Indian visas, OCI status or citizenship under other provisions of the Citizenship Act is beside the point. CAA’s blatantly discriminatory intent will subject millions of Muslims to statelessness, detention and deportation while those of other religions even if unauthorized will get a smooth ride to Indian citizenship. It is no surprise that CAA has resulted in massive protests across India and an unjustified harsh police response.

While leaders like Trump and Modi tweak immigration laws for political advantage, they not just undermine the founding values of their nations but also cause great havoc and distress to millions of people. People who vote for them may perceive certain advantages, such as economic or otherwise, but they must also realize that those perceived benefits are hollow if the soul of the nation is eviscerated through cynical manipulation of the immigration laws.

 

 

Cyrus Mehta & Sophia Genovese

Trump Is Not King. He Cannot Change the US Asylum System Through Executive Orders.

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Donald Trump probably thinks that section 212(f) of the Immigration and Nationality Act (INA) makes him king as far as immigration matters are concerned. As a president with autocratic impulses, INA § 212(f) gives him leeway to act out these impulses on immigrants, which he may not be able to do so readily on US citizens.

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.”

Trump invoked INA § 212(f) through presidential proclamations to impose his travel ban against nationals of mainly Muslim countries. This was done to fulfill a campaign promise to impose a ban on Muslims.  He decided without foundation that the entry of Iranian nationals (one of the countries subject to the ban) would be detrimental to the interests of the United States even though they came to pursue studies, marry a US citizen or visit relatives.   The Supreme Court, unfortunately,  upheld the third version of the ban in  Trump v. Hawaii  stating 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.”

Trump got more emboldened. 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) allows a president like Trump with authoritarian impulses to override entire visa categories or change the US asylum system?  Can Trump use INA § 212(f) to reorder the asylum system because he believes that the people in a caravan heading to the United States to apply for asylum are detrimental to the interests of the United States? 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 has 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 has virtually closed the designated ports of entry for asylum seekers, which forces them to cross the border through irregular methods.

In East Bay Sanctuary Covenant v. Trump, Judge Tigar on November 19, 2018 forcefully ruled that the president could not use INA § 212(f) to override Congress’s clearly expressed legislative intent. 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.

Trump was obviously displeased with the ruling and branded Judge Tigar, who was appointed by President Obama, as an “Obama judge.” This resulted in an unusually strong rebuke from Chief Justice Robert who stated, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Trump then attacked Justice Robert in a tweet on Thanksgiving day:

“Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security…

……and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written”

Trump is wrong. The judge was not legislating, but rather, was correctly interpreting INA § 208(a)(1), which allows any person physically present in the United States to apply for asylum regardless of whether they arrived through a port of entry or not. It is likely that even a judge appointed by President Bush or even Trump could have ruled the same way. Even the Supreme Court may find it easier to smack this proclamation down than the travel ban, which it found facially neutral on its face.

But Trump is still determined to stop the caravan. The media has reported that the US   has won the support of the incoming Mexican government under Andrés Manuel López Obrador to let asylum claimants wait in Mexico while their claims are heard in the US. There are also reports now claiming that Mexican officials have denied that there is such a plan, but this is not inconsistent with the fact that negotiations are still underway even though a deal is not yet finalized. If the deal is put into place, which is being called “Remain in Mexico”, Mexico will become a waiting room for America’s asylum system.

It is not clear how this will work. If asylum claimants need to pass the credible fear interview, they will then have to wait for their cases for several years on end in Mexico and may be subject to the continued abuse of smugglers who brought them to the US border as well as drug cartels who are predominant in the Mexican border towns. While the scheme will also allow the applicant to show that they have a reasonable fear of staying in Mexico, demonstrating that will require a higher standard than the credible fear standard. Many will not meet this standard and will unfortunately be subjected to persecution and abuse in Mexico while they wait out the outcome of their asylum claims in the US. Most claimants who base their asylum claims on gang based persecution or domestic violence will also likely lose, and they will be then directly deported to their country of origin. They will have difficulty in accessing US trained lawyers to assist them in the preparation of their asylum claims. There is also a good chance that Mexico may deport an asylum claimant under its own laws on grounds that may not even constitute deportable offenses under US law.

What would the legal authority be for such a scheme? It is unclear, but INA § 235(b)(2)(C) provides that an alien who is arriving by land, whether or not from a designated port of entry, from a foreign territory contiguous to the US may be returned to that territory pending a proceeding under INA § 240.

A section 240 hearing offers the full panoply of rights of a removal hearing, including the right to appeal, as opposed to a limited asylum hearing before an Immigration Judge after an applicant passes the credible fear interview. INA § 235(b)(2)(C) does not contemplate a credible fear interview set forth in INA § 235(b)(1). Even a reasonable fear of remaining in Mexico is not contemplated and may be ultra vires the INA.   The administration could try to bypass the credible fear interview process and issues a  Notice to Appear that would initiate a removal proceeding under INA § 240. But this will create far more work for the administration.    INA § 235(b)(2)(C) arguably applies to inspection of “other aliens” as opposed to those found inadmissible under sections 212(a)(6)(C) or 212(a)(7) under § 235(b)(1). Thus, INA § 235(b)(2)(C) provides dubious legal authority for a “Remain in Mexico” scheme.

Any new proclamation and rule to set into effect this new policy will most likely be successfully challenged in federal court. Instead of creating an orderly procedure to process a few thousand asylum claims under the INA, Trump seems hell bent on creating chaos and disorder. If he loses in court, Trump attacks the judge and also blames the media by calling in “fake news.”  On November 25, 2018, the administration closed the San Ysidro port of entry near San Diego and fired tear gas shells at people seeking asylum, including children in diapers. Cruelty is part of Trump’s nature. He also systematically separated migrant children from their parents as a stated deterrent policy. The morning after the tear gassing episode, Trump tweeted that he wants to close the border to asylum seekers, and without foundation, stated that “many of them are stone cold criminals.” The law does not allow him to even do that. To imagine an American president acting so cruelly before November 2016 was inconceivable. We only write in the faint hope that in addition to our courts, America will come to its senses and not tolerate this man any longer. We can only hope!