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Overcoming a COVID Travel Ban Through the National Interest Exception

February 28, 2021/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta & Kaitlyn Box*

Although the Trump era has ended, some of its draconian immigration policies continue to linger, including the COVID travel bans. On January 25, 2021, President Biden issued Presidential Proclamation 10143, entitled “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease”, which effectively extends many of the Trump administration’s COVID bans. Proclamation 10143 suspends the entry into the United States of noncitizens who were physically present in the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa within the 14 days preceding their attempted entry into the United States. As with the Trump-era COVID bans, Proclamation 10143 outlines several categories of individuals who are exempt from the ban, including certain relatives of U.S. citizens and LPRs, diplomats, members of the Armed Forces, and those working to treat or contain COVID-19. Importantly, “any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees” is also exempt from the ban.

The DOS further clarified this exception, issuing guidance which stated that “certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom, and Ireland”. F-1 and M-1 students who have valid visas may enter the United States without a national interest exception (NIE) waiver, while business travelers, investors, academics, J-1 students, journalists, and treaty traders must seek an NIE before traveling, whether they currently hold a valid visa or are seeking one. H-2A and certain H-2B travelers who have been present in South Africa may qualify for an NIE “if they are providing temporary labor or services essential to the United States food supply chain.”

Despite the exceptions, Proclamation 10143 still has enormous potential to snare unwary travelers. One might assume that a noncitizen flying back to the United States from a country not enumerated in the Proclamation would be exempt from the ban. However, if individuals have a layover, however brief, in a Schengen country’s airport in Frankfurt or Paris, they become subject to the ban. Ideally, travelers want to ensure that they are not passing through the countries listed in the ban at all. Once this complication arises, though, the noncitizen can travel to a second country that is not subject to the ban and spend at least 14 days there before attempting to reenter the United States. Someone who lives in a country subject to the Proclamation, though, this might not be possible. It could cause an individual living in Brazil, for example, undue hardship to have to spend 14 days in a second country before coming to the United States. During the pandemic, each country has imposed its own travel restrictions and it may not be easy to hop from one country to another before entering the U.S.

The other way that a noncitizen subject to the ban may reenter the United States is by obtaining a national interest exception waiver. To do so, one needs to contact the relevant consulate, usually by email, to request a waiver. The email must state the noncitizen’s biographical details, contact information, and proposed itinerary. A copy of the noncitizen’s passport biographical page and visa page should be attached. Most importantly, an NIE request must outline the justification for the waiver. It may be especially helpful to demonstrate that the noncitizen is working in a significant role in critical infrastructure. One may reference the CISA guidelines for a list of essential infrastructure, which includes healthcare, education, transportation, financial services, and communications and IT, to highlight only a few industries. The consulate may approve or deny the waiver straight way, or may request that additional information be provided.

In some instances, an NIE waiver request may also be made to CBP rather than a consulate. CBP at JFK airport, for example, requires that a noncitizen first request a waiver through DOS. If 14 days have passed without a response from DOS, CBP will entertain the waiver request. The noncitizen may be required to demonstrate proof that they have attempted to follow up with DOS beyond the initial waiver request. CBP at JFK will also take NIE waiver request in emergency or humanitarian cases. Other ports of entry may have similar policies. For a list of the policies of other ports of entry on regarding the NIE, see Practice Alert: National Interest Exemption (NIE) and Satisfactory Departure (SD) Procedure Spreadsheet for Requests at CBP Ports and Preclearance Locations Due to COVID-19, AILA InfoNet at Doc. No. 20032043 (July 22, 2020).

The COVID bans are not the only Trump era immigration policies that remain in effect. Although Biden recently rescinded Proclamation 10014, which suspended certain green card applications, and restricted some nonimmigrant visa categories, Proclamation 10052 is very much alive. Proclamation 10052, an extension of Proclamation 10014, restricts the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the Proclamation, June 24, 2020, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. We have discussed both Proclamation 10014 and Proclamation 10052 in our previous blogs. Proclamation 10052 was extended to March 31, 2021 at the end of the Trump administration, and will continue to impose hardship and separate families until that date if it is not rescinded by the Biden administration. Notably, a noncitizen who has been in one of the countries listed in Proclamation 10143 without a visa since June 24, 2020 would be subject to both Proclamations. Proclamation 10052 also exempts “any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”, but the national interest exceptions for H-1Bs and Ls in Proclamation 10052 have different standards from the NIE in the COVID ban.

As detailed in a prior blog, it is reiterated that there are better ways to curb the spread of COVID-19 than imposing travel bans. Given the number of exceptions to these bans, it is questionable how effective they could be at controlling COVID-19, since an exempt traveler is just as likely to have contracted COVID as a noncitizen who is covered by the Proclamation. Currently the United States requires travelers to provide a recent negative COVID test before entering. Even if a negative COVID test is not considered a sufficient safeguard against the spread of COVID-19, however, other measures could be imposed, such as requiring travelers to quarantine for a few days before entering the United States. As the vaccine becomes more readily available, noncitizens who provide proof of vaccination should also be able to freely enter the United States.

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

Trump’s Expanded Travel Ban and Other Immigration Madness

February 2, 2020/0 Comments/in uncategorized/by Cyrus Mehta

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 19^th 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.

Trump Is Not King, Cannot Rewrite Public Charge Law Through Executive Fiat

November 4, 2019/0 Comments/in Blog/by Cyrus Mehta

Can President Trump act like a king by rewriting US immigration law through the invocation of INA 212(f)? Although America shrugged itself from the yoke of King George III in 1776, Trump issued a Proclamation on October 4, 2019 in total disregard of a Congressional statute – defining who is likely to become a public charge – that would bar intending immigrants from the United States if they do not have health insurance lined up within 30 days of their admission. A federal court in Oregon in Doe v. Trump issued a Temporary Restraining Order on November 2, 2019, one day before the Proclamation was to take effect. Although the TRO is only valid for 28 days, it is still a significant victory in the opening salvo of yet another challenge to thwart Trump’s ability to rewrite large swaths of the Immigration and Nationality Act.

While INA § 212(f) does give extraordinary power to a president, Trump has tried to use his 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

Trump soon after becoming president 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, which is also why it is known as a Muslim ban. 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 marry a US citizen or visit relatives. The Supreme Court, disappointingly, upheld the third version of the ban in Trump v. Hawaii in June 2018 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.” One should 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.

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) 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. Although the Supreme Court has temporarily blocked East Bay Sanctuary Covenant from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided, Supreme Court has not passed any judgment on the merits of the case.

The Proclamation provides eight specific types of “approved health insurance” for an intending immigrant: (1) an employer-sponsored plan; (2) an “unsubsidized health plan offered in the individual market within a State;” (3) a short-term limited duration insurance (“STLDI”) plan “effective for a minimum of 364 days;” (4) a catastrophic plan; (5) a family member’s plan; (6) TRICARE and similar plans made available to the U.S. military; (7) a visitor health insurance plan “that provides adequate coverage for medical care for a minimum of 364 days;” and (8) Medicare. A prospective immigrant may also obtain a “health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee,” but the Proclamation provides no guidance as to how “adequate coverage” is defined.

The Proclamation excludes from the scope of “approved health insurance” any “subsidized” healthcare offered in the individual market within a State under the Affordable Care Act, as well as Medicaid for individuals over 18 years of age, even though some states have chosen to make Medicaid available to certain adults over 18 years of age, including certain new and recently arrived immigrants. The Proclamation relies on a single dispositive factor—the health care insurance status of an individual—to determine whether the individual will “financially burden” the United States. It is designed to exclude a large number of otherwise qualified immigrants because in reality only an STDI plan and a visitor health insurance plan would be available to one who has yet to enter the United States. Even if such plans were available, they would exclude people with preexisting conditions and would not have the essential health benefits as required under the ACA to which a new immigrant could access, but which would not qualify under the Proclamation.

Based on the likelihood of success on the merits standard that applicable for the grant of a TRO, Judge Michael Simon in Doe v. Trump found that the Proclamation’s reliance on the health care insurance status of an individual as the sole factor for determining inadmissibility as a public charge conflicted with INA § 212(a)(4) in at least five ways.

First, Congress in INA §212(a)(4)(A) has spoken directly to the circumstances in which an individual may be deemed to become a “financial burden” to the United States and has rejected the Proclamation’s core premise of lack of health insurance being the sole factor. This provision states that “[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” When determining whether an individual may become a public charge, the statute enumerates the factors that are to be considered “at a minimum” to include the applicant’s age; health; family status; assets, resources, and financial status; and education and skills. The statute outlines the permissible factors in the public charge determination and nowhere mentions an individual’s health care insurance status as one of the permissible factors, according to Judge Simon. Given the statute’s enumeration of age and health, the statute’s omission of “health care insurance status” is important.

Second the statute precludes any single factor from being a dispositive factor, which requires a totality of the circumstances test to be applied. The totality of the circumstances test has long been a feature of the public charge ground even before Congress statutorily mandated it in 1996. The court in Doe v. Trump cited Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) in support of the long use of the totality of circumstances test. The Proclamation, on the other hand, conflicts with the statutory text by deeming an individual to be a financial burden based solely on her health care insurance status and eschewing all the other statutory factors including, perhaps most incongruously, the health of the individual herself.

Third, the Proclamation’s dispositive reliance on health care insurance status contravenes decades of agency interpretation.

Fourth, the Proclamation’s reliance on an individual’s accessing short-term health care benefits as a reason to find the person a “financial burden” has been expressly rejected. Citing City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., (N.D. Cal. Oct. 11, 2019) (the public charge statute has had a “longstanding allowance for short-term aid”).

Fifth, the Proclamation revives a test for financial burden—the receipt of non-cash benefits—that Congress has rejected. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996), which amended the INA by codifying five factors relevant to a public charge determination. The Senate rejected the effort to include previously unconsidered, non-cash public benefits in the public charge test and to create a bright-line framework of considering whether the immigrant has received public benefits for an aggregate of twelve months as “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet.” S. Rep. No. 104-249, at *63-64 (1996) (Senator Leahy’s remarks). Accordingly, in its final bill, Congress did not include the receipt of Medicaid, Security Income, and other means-tested public benefits as determinative of a public charge.

Based on these five reasons, the court in Doe v. Trump issued the TRO on the ground that plaintiffs were able to show a substantial likelihood of success on the merits. The court specifically relied on East Bay Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA 212(f) to amend the INA. The court also held that notwithstanding this being a presidential proclamation, it was “not in accordance with the law” under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A). Further, the court also noted that the Plaintiffs have satisfied their burden of showing Defendants’ implementation of the Proclamation likely constitutes final agency action, thus akin to a final substantive rule, that is “arbitrary, capricious, [or] an abuse of discretion.” While the government has yet to submit arguments, and another hearing is scheduled shortly, it is remarkable that once again a court has struck down Trump’s use of INA §212(f) to rewrite the immigration law. In the instant case, Trump has undermined provisions that Congress has specifically enacted to determine who is likely to become a public charge. If courts do not check the president’s use of INA §212(f) to issue policies that reflect his racist views, there will be no limit with what Trump can do with our immigration laws without having to go through Congress to change them, or even issuing regulations under the Administrative Procedures Act.

There are other arguments that can be advanced to show how utterly incompatible the Proclamation is to specific provisions of the INA. The Proclamation would also bar immigrants based on approved self-petitions under the Violence Against Women Act. Congress specifically indicated that VAWA self-petitioners will be excepted from the public charge requirements in INA 212(a)(4)(A)-(C). How can the Proclamation override these provisions in the INA that created an exception for VAWA petitioners and require them to have health insurance?

In addition, the Proclamation is also a gross violation of the APA as the Proclamation is ultra vires of the INA. This argument can be further bolstered if the court considers Justice Robert’s invocation of Justice Friendly in the census case, Department of Commerce v. New York, favoring judicial review of executive actions:

Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Furthermore, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich, 74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not.

It is also no secret that the Proclamation is designed to exclude immigrants from poorer countries from Latin America, Asia and Africa, which Trump has derided as “shithole countries.” The President’s derisive language towards Muslims was successfully used against him in the Fourth Circuit decision in IRAP v. Trump, to demonstrate that the Muslim ban violated the Establishment Clause of the US Constitution. It has also been used against him in litigation opposing the termination of Temporary Protected Status. Although the Supreme Court did not consider violation of the Establishment Clause argument, it does not mean that plaintiffs cannot pursue constitutional arguments in Doe v. Trump. Here, the Proclamation has violated the Equal Protection Clause as it discriminates against immigrants from poorer countries who will not be able to afford the health insurance or will be forced to buy substandard insurance plans. The healthcare exchanges under the Affordable Care Act clearly allows a new immigrant to buy into a subsidized healthcare plan, which they cannot decline under a particular income level. This is inconsistent with the statutory and regulatory structure that directs a lawful permanent resident to do so under the ACA.

The American Immigration Lawyers Association along with a coalition of civil rights groups under Latino Network inspired the lawsuit, which makes me feel proud to be a member of AILA and especially AILA’s Administrative Litigation Task Force. We have a long road ahead as the government will respond with arguments in favor of presidential power, but now is the time to make the most compelling arguments to stop a president like Trump from invoking INA § 212(f) to rewrite immigration law in a way that is both inconsistent with the INA and with the foundational principle of America being a nation of immigrants.

The Best Way for Trump to Offer “Love and Sympathy” is to Repeal the Muslim Ban

March 16, 2019/0 Comments/in Blog/by Cyrus Mehta

In the aftermath of the killing of 49 people who were peacefully praying in two mosques in Christchurch by a white supremacist, it is worth reflecting on Trump’s travel ban again.

Trump’s travel ban, also known as the Muslim ban, and all of his other immigration policies, are based on promoting white nationalism. It is thus little surprise that Trump did not firmly denounce white nationalism and did not view it as a worrying trend in the world and instead blamed a small group of people “with very, very serious problems.” He did not show any revulsion for the suspected killer, Brenton Harrison Tarrant, even though in his manifesto Tarrant praised Trump “as a symbol of renewed white identity and common purpose.”

When Trump was a candidate he said “I think Islam hates us.” He also lied about Muslims across the river in New Jersey celebrating after the September 11 attacks. As a candidate, Trump audaciously called for a “total and complete shutdown for Muslims entering the United States.” It was this animus towards Islam that played to Trump’s electoral base that served as the backdrop for Trump’s executive orders banning people from mostly Muslim countries when he took office. The first two executive orders were struck down by courts. A modified third executive order was fashioned to survive court scrutiny, which was upheld by the Supreme Court in Trump v. Hawaii even though two lower courts of appeal struck it down as unconstitutional. The ban has empowered extremists and Islamophobes worldwide.

This may also be the reason why Trump did not specifically express empathy with Muslims in his tweet expressing condolence after the Christchurch massacres, which he tweeted shortly after an interview with Brietbart News where he suggested that his supporters would resort to violence:

My warmest sympathy and best wishes goes out to the people of New Zealand after the horrible massacre in the Mosques. 49 innocent people have so senselessly died, with so many more seriously injured. The U.S. stands by New Zealand for anything we can do. God bless all!

Neither does Trump condemn the killer in this tweet. He insensitively says “best wishes” as if it is a wedding and ends with “God bless all.” One can see white supremacists taking some comfort in this equivocal message. Recall his other infamous equivocal message when he defended neo Nazis in Charlottesville by stating that there are “very fine people on both sides.” Compare Trump’s statements with those of New Zealand’s premier Jacinda Ardern’s expressing great solidarity with Muslims while wearing a dupatta. She also advised Trump to offer Muslim communities “sympathy and love” when he asked her what the United States could do to help New Zealand.

While nobody is expecting Trump to visit a mosque in Muslim dress, the best way for him to take up Ardern’s offer of “sympathy and love” is to repeal the Muslim ban. It does not matter that the Supreme Court in Trump v. Hawaii upheld the travel ban by a narrow 5-4 majority. The ban has contributed to global Islamophobia, which in turn inspires supremacists like the New Zealand killer to massacre peaceful Muslims during Friday prayer time. There has already been much criticism of the Supreme Court’s decision in Trump v. Hawaii. 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 overruled Korematsu v. United States, 323 U.S. 214 (1944), which upheld the forced internment of citizens of Japanese-American origin during World War II, as having no place in the US Constitution. Yet in her powerful dissent, Justice Sotomayor found striking parallels between Korematsu and Trump’s ban. For example, both executive orders were 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 Supreme Court’s decision in Trump v. Hawaii is destined to be viewed in the same way as Korematsu – a shameful low point in Supreme Court history.

The Muslim ban views every national of a banned country as suspect and as someone who possesses a grave threat to the United States even if this person is a grandmother or a baby. While it is true that nationals of banned countries can seek waivers, such waivers are seldom granted and have been viewed as a farce. The ban separates a foreign national spouse of the banned country from uniting with the US citizen spouse. The ban also prevents a banned country national from studying in a US university, taking up employment as a skilled professional on an H-1B visa or attending an academic conference as a visitor. While one is hard pressed to conclude whether the ban furthers the national security interests of this nation, it definitely inspires white supremacists, who like the Christchurch killer believe that white people will be replaced by Muslims, blacks and Jews who will eventually subordinate them. In his manifesto, the killer referred to himself as a “regular white man” and that he was carrying out this attack to “directly reduce immigration rates to European lands by intimidating and physically removing the invaders themselves.” This is so similar to Trump’s rhetoric where he refers to the “caravan” of Central American migrants as invaders to justify the Wall, which is lapped up by white nationalists. Trump also falsely claimed when speaking about the dangers of the caravan that prayer rugs were found at the border to keep his base happy but also playing to their basest instincts. How could Trump denounce white nationalism when asked about it in the aftermath of Christchurch when he has the support of white nationalists and his immigration policy promotes white nationalism? White nationalism can only be eradicated if Trump is first universally condemned for inspiring it.

Can Trump rise up to the challenge and repeal the travel ban, and reverse so many other of his harsh immigration policies that do nothing to further America’s interests? It is the millions of immigrants who came to America since its inception for a better life that have contributed to the nation’s greatness. Trump has nothing to make America great by undermining the notion of America as a nation of immigrants. Instead, his immigration policies have been deployed to please his mostly white voter base who are insecure that immigrants are invading their country. His base does not represent the majority of Americans who have a positive view of immigrants. Trump’s slogan “Make America Great Again” is code for making America white again. Trump likes to cast himself as an incredible leader who has achieved more than any other president in his first two years, but that claim merely exists as fantasy in his mind. A leader can do better than catering to people’s vilest and basest fears, as Trump has done so far. A leader must inspire Americans to embrace immigrants who, like sugar dissolving in a bowl of full of milk, have sweetened the nation with their enterprise, talents and culture.

Trump’s travel ban is a mere executive order that can be withdrawn with the stroke of a pen. If he does so, it would be a powerful symbolic gesture for expressing solidarity with Muslims after the horrific Christchurch massacres and a blow to the cause of white supremacists and Islamophobes. If Trump cannot rise to the occasion and view white nationalism as a rising global threat, he will deservedly be viewed no better than a vile white supremacist even though he rose to become president of the United States, and consigned to history’s garbage bin.

Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States

May 30, 2017/0 Comments/in Blog/by Cyrus Mehta

The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against President Trump’s travel ban, on the ground that it violated the Establishment Clause of the US Constitution, holds out hope for other similar challenges that have otherwise faced a high bar to overcome the Executive branch’s unbridled discretion to keep out non-citizens of the United States.

In a lengthy majority opinion, Chief Judge Roger Gregory asked whether the Constitution “protects Plaintiffs’ right to challenge an Executive Order that in the text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the EO was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security.

The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always give deference to the government’s national security justification. The following extract from the majority opinion is worth noting:

The Government argues that we should simply defer to the executive and presume that the President’s actions are lawful so long as he utters the magic words “national security.” But our system of checks and balances established by the Framers makes clear that such unquestioning deference is not the way our democracy is to operate. Although the executive branch may have authority over national security affairs, see Munaf v. Geren, 553 U.S. 674, 689 (2008) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)), it may only exercise that authority within the confines of the law, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645–46, 654–55 (1952) (Jackson, J., concurring); and, of equal importance, it has always been the duty of the judiciary to declare “what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

To what extent can IRAP v. Trump be extended to other situations where a visa may be denied in bad faith and thus not meet the “facially legitimate and bona fide” test of Mandel? In Kerry v. Din, the Supreme Court upheld the visa refusal of the beneficiary of an I-130 petition filed by his US citizen spouse under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(b). According to the concurrence by Justice Kennedy, the beneficiary, an Afghan national, who once worked for the Taliban government in Afghanistan, received sufficient notice by being provided the section number of the INA under which he was found inadmissible, and thus the government met the “facially legitimate and bona fide test” of Mandel. However, Justice Kennedy did indeed emphasize, “Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.”

In IRAP v. Trump, the plaintiffs successfully showed bad faith by President Trump who violated the Establishment Clause of the US Constitution. What other sorts of bad faith may a plaintiff show to convince a court to look behind the “facially legitimate and bona fide” test? Perhaps, if the facts in Kerry v. Din showed that the beneficiary was unlawfully detained for hours in the US Consulate during his visa interview and forced to admit that he was involved in terrorist activities on condition of being released, even though he was not, that could arguably be tantamount to bad faith? In this hypothetical situation, the constitutional violation which gives rise to bad faith would be the violation of the beneficiary’s due process rights rather than the violation of the Establishment Clause. The beneficiary, in this situation, could potentially cite to landmark cases such as Zadvdas v. Davis (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), Boumediene v. Bush, (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”).

Finally, the plaintiff would also need to demonstrate standing in order to bring the claim. To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In IRAP v. Trump, the government in an effort to object to standing to the plaintiffs asserted that in Saavedra Bruno v. Albright, a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise. However, the court noted that Saavedra also stands for the proposition that when cases are brought by U.S. citizens, or when statutory claims are combined with constitutional ones, judicial review is permitted.

In a fact pattern similar to Kerry v. Din, the I-130 petitioner, a US citizen, would have standing to bring the action. What about an H-1B visa holder, with three months remaining on that visa, applies for a renewal of that visa at the US consulate? The consular officer, animated by the new rhetoric flowing from the administration that H-1B workers steal jobs of US workers, badgers the H-1B applicant, under threat of many years of imprisonment, to falsely admit she is not performing the duties indicated in the perfectly bona fide H-1B petition and revokes the existing visa as well as refuses to issue a new H-1B visa. Would the H-1B worker have standing to allege bad faith on the part of the consular officer? The H-1B plaintiff can potentially assert that she is residing in the US, and also enjoys “dual intent” under the H-1B visa. [Under INA 214(b), an H-1B beneficiary is allowed to harbor an intent to remain in the US permanently even though the H-1B visa is temporary]. If the H-1B holder has also been sponsored for a green card through the employer, this would further bolster her standing, as she had not just harbored an intent to reside permanently but has taken concrete steps to do so. Finally, the US employer can also file an action as the petitioner of the H-1B who will be affected if she is unable to resume employment in the US. Still, being overaggressive, coercive, and sloppy, even to an extent that would violate due process rights assuming the targets of one’s over-aggressiveness had standing to assert such rights, may not necessarily imply bad faith, such as having a hidden agenda like Trump’s travel ban. Nevertheless, the evolving jurisprudence in IRAP v. Trump does give other plaintiffs food for thought to blow a hole through the “facially legitimate and bona fide” wall set forth in Mandel.

The government may have maximum power to deny non-citizens admission into the US, but that power is not absolute. IRAP v. Trump, and many other successful challenges to Trump’s travel ban, may provide a pathway for a plaintiff to seek judicial review of governmental actions that have been conducted in bad faith.

Immigrants Are Not Undesirable Criminals

March 27, 2017/0 Comments/in uncategorized/by Cyrus Mehta

During his campaign and after he became president, Trump has unfortunately changed the narrative by linking immigrants, especially undocumented immigrants, to rapists, murderers, terrorists and job stealers. Trump has exploited the crimes committed by a few immigrants to link all of them to criminal activity. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. While we undoubtedly sympathize with the victims of such crimes, it is morally reprehensible to taint all immigrants with the conduct of a very few. The criminal justice system can effectively punish perpetrators of all crimes, whether they may be immigrants or US citizens. Most immigrants are hardworking and honest, trying to make a better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans.

Some in the media have latched onto this false narrative to further sensationalize the issue. When I was invited to debate Tucker Carlson on Fox News on March 27, 2017 I accepted believing it is important for an immigration attorney to speak out loudly and boldly, no matter how ruthless the TV host may be.While Carlson may limit the conflation to crimes with undocumented immigrants, this has the tendency to extend to even legal immigrants as exemplified in Trump’s travel ban. Nationals of the countries affected in the ban are people entering the United States legally as students, temporary workers or as refugees, but they are still considered suspect as the Trump’s travel ban directly links to nationals of Muslim majority countries suspected of terrorism. This sort of stereotyping is not just false, but it is also extremely dangerous. A few weeks ago, a US citizen k illed an Indian engineer who was legally in the United States on an H-1B visa under the false perception that he was a dangerous immigrant. By Carlson’s logic, the immigrant would not have committed a crime if he or she had not been let into the United States in the first place. But how do you determine this in advance as to who will commit a crime in the future? Does this mean that our entire immigration system has to shut down? Or do we no longer take in people fleeing persecution to prevent risking one of them or one of their descendants from committing a crime in the future, even though America is known as the beacon of hope for the persecuted? Is there a way to determine whether one born in the United States will be the next Timothy McVeigh or Adam Lanza?

We can only hope that this virulent fever in America breaks soon because it goes against the long cherished notion that America is nation of immigrants.

Watch the clip below:

Protesting Trump’s Muslim Ban Through Art: An Immigration Lawyer’s Perspective

March 12, 2017/2 Comments/in uncategorized/by Cyrus Mehta

There are many ways to protest Trump’s travel ban, also known as the Muslim ban. Lawyers have successfully sued against the ban in the courts. People protested at airports in an unprecedented and spontaneous manner. Art can also be a powerful form of protest against the ban. The Museum of Modern Art (MOMA) has also joined the protests by displayng works of artists from the banned countries among other iconic works of art in its permanent collection. One has to go through the galleries housing the permanent collection to serendipitously come across the work of an artist from a banned country, which in the age of Trump, have also attained iconic status. Art is able to inspire the lawyer in protesting the ban. Trump’s exclusion of an entire people from a banned country casts all of them as terrorists, including the artist. This is both legally wrong and morally shameful.

These are three of my favorites among the works of the artists from the banned countries at the MOMA. I have also included at the end the works of two artists from my own very modest art collection. I am happy to possess these works, which have always been beautiful, but resonate more powerfully today. They inspire me as I protest Trump’s ban.