Tag Archive for: Trump

Cyrus Mehta

Should Trump’s Lawyers Implementing Policies That Hurt Immigrants be Concerned About Violating Their Ethical Obligations? 

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By Cyrus D. Mehta and Kaitlyn Box*

On January 23, 2025, Acting Secretary of the Department of Homeland Security, Benjamine C. Huffman issued a memorandum entitled “Guidance Regarding How to Exercise Enforcement Discretion”, which directs ICE to take the following action: 

(1) For any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been applied:

     a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether to apply expedited removal. This may include steps to terminate any ongoing removal proceeding and/or any active parole status.

(2) For any alien DHS is aware of who does not meet the conditions described in (1) but has been granted parole under a policy that may be paused, modified, or terminated immediately under the January 20 memorandum:

a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether any such alien should be placed in removal proceedings; and

b. Review the alien’s parole status to determine, in exercising your enforcement discretion, whether parole remains appropriate in light of any changed legal or factual circumstances.

On January 6, 2023, the Biden Administration instituted a humanitarian parole program allowing certain nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to apply for entry to  the U.S. for a temporary stay of up to two years. All individuals admitted through the CHNV program must have a U.S.-based supporter, pass security vetting, and meet other criteria. Parole is not an immigration status. During the two-year parole period, individuals may seek humanitarian relief or other immigration benefits, if they are eligible, and work during that time. See our blog for further details on the CHNV program. 

The Biden Administration committed to accepting 30,000 beneficiaries a month from across the four countries. Within the first six months of launching the program, over 35,000 Cubans, 50,000 Haitians, 21,500 Nicaraguans, and 48,500 Venezuelans came to the U.S. through the program. As of August 2024, almost 530,000 people have been granted parole through the CHNV program, according to U.S. Customs and Border Protection (CBP). 

On January 20, 2025, President Trump issued an executive order terminating the CHNV program. The Huffman memorandum now allows  recipients of the CHNV program  who had been paroled into the United States to be expeditiously removed. It also includes nationals of Ukraine, Afghanistan  and Colombia who have been paroled under separate programs.  These individuals followed the rules established under the Biden administration in order to be paroled into the US in a safe, orderly and legitimate manner. They have now been blindsided and betrayed by the Trump administration. 

The devastating impact that this policy stands to have calls into question the conduct of the Trump administration lawyers involved in its development. We credit our colleague Michele Carney in providing input on ethical issues on the part of government lawyers in the Trump administration. ABA Model Rule 8.4 (c)-(d), (g) prohibits lawyers from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation”, that is “prejudicial to the administration of justice”, or that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law”. By directing DHS officials to expeditiously remove some parolees, the memorandum could run afoul of ABA Model Rule 8.4(d) by depriving these individuals of due process. Termination of parole for some individuals could also be viewed as discrimination on the basis of national origin in violation of ABA Model Rule 8.4(g). If DHS’ implementation of the program results in a misrepresentation, a violation of ABA Model Rule 8.4(c) could also occur. The memorandum in itself may not be indicative of unethical conduct, but its implementation carries significant risk of violation of ethical rules by government lawyers in the Trump administration. 

In a previous blog, we discussed Trump’s executive order restricting birthright citizenship to only a child born in the US has one parent who is either a US citizen or a permanent resident. The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” In United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

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

 On January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction blocking the implementation of the executive order. During the hearing, Judge Coughenhour called the order “blatantly unconstitutional”, stating “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’”. Judge Coughenour’s comments call into question ABA Model Rule 3.1, which states that a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law”. The  Trump administration’s restriction of birthright citizenship  could be viewed as a violation of Rule 3.1 if found to be unconstitutional. Rule 3.1 allows for good faith arguments for the “extension, modification, or reversal of existing law”, however, and it is likely that Trump administration lawyers would argue that the policy laid out in the new executive order falls within this exception. 

Experts will disagree and take the position that Trump’s lawyers may be committing ethical violations in supporting policies that may be cruel and harmful to immigrants. Supporting blatantly unconstitutional actions may be cause for concern according to our colleague, Craig Dobson. Independent of the specific rules governing lawyer conduct, Trump’s lawyers should ensure that their actions align with the ideals of the profession, which prioritize fairness, justice, and upholding the rights of individuals. While Trump holds the office of President of the United States, he is not a lawyer, and is not beholden to the same ethical standards. Lawyers, by contrast, are called to uphold the laws of the United States and avoid perpetuating harm and injustice. 

 *Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Saving America by Defending Clients Against Trump’s Immigration Policies

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By Cyrus D. Mehta and Kaitlyn Box*

On November 5, 2024, Donald Trump was once again elected president. Although Trump’s campaign has been marked by anti-immigrant rhetoric, some hope that a second Trump administration will prove favorable to employment-based immigration. Trump once promised to “staple a green card to every diploma” of graduates of U.S. colleges, and has cultivated relationships with business moguls like Elon Musk and Vivek Ganapathy Ramaswamy.

However, a second Trump presidency is likely to create obstacles even for legal skilled immigrants. Former Trump advisor Stephen Miller, who has espoused notoriously anti-immigrant views, is expected to be appointed Deputy Chief of Staff, and will doubtless influence Trump’s immigration policies. In a post on X last year, Miller confirmed that a denaturalization project started during Trump’s first term would be “turbocharged” in 2025. During his campaign, Trump affirmed his intention to end birthright citizenship. For Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs, being sponsored by a U.S.-born adult child may provide a chance of obtaining permanent residence without waiting for decades. Trump’s proposed policies would ensure that even children born in the U.S. would not be afforded the security of U.S. citizenship unless one of their parents is a U.S. citizen or lawful permanent resident, as well as prevent these children from sponsoring their parents for permanent residence in future. This policy, if implemented, could be challenged in federal court as violations of the 14th Amendment, which provides that “all persons born […] in the United States…are citizens of the United States”, but the current conservation composition of the Supreme Court could render these efforts more difficult.

The Trump administration will seek to thwart employment-based immigration in other ways, as well. During his first term, Trump restricted the H-1B visa program through increased numbers of Requests for Evidence (RFEs) challenging the payment of Level 1 wages, promulgation of a policy memorandum stating that computer programmer positions may not be “specialty occupations”, and imposing onerous documentary requirements on employers who place employees at third-party worksite, as discussed at length in prior blogs. Restrictions of this nature are expected to return, and possibly intensify, during Trump’s second term.

Undocumented immigrants and beneficiaries of humanitarian programs may stand to suffer even more severely under a second Trump administration. Trump has vowed to “bring back” the infamous travel bans INA 212(f), ban refugees from Gaza, and carry out mass deportations. He has also threatened to invoke the Enemy Aliens Act of 1798, which allows for the detention and deportation of noncitizen nationals of an enemy country during wartime, as a justification for widespread deportations. His administration will seek to increasingly use expedited removal INA 235(b)(1)(A)(iii) without an immigration court hearing for noncitizens who are within the border of the US and cannot prove that they have been in the US for more than two years. The return of family separation and reinstatement of the “remain in Mexico” policy appears likely, as does the termination of TPS designations for many country, DACA, and humanitarian parole programs.

Notwithstanding the challenges that Trump’s return is likely to bring, immigration lawyers are prepared to vigorously defend noncitizen clients. His prior presidency provided insight into the types of policies that are likely to return, and allowed advocates to gain experience in combatting these harmful measures. Even if Trump got a popular mandate that does not give him license to ignore the law and act outside the Constitution and Bill of Rights. Immigration lawyers are all set to defend immigrants to preserve the foundations upon which the country is built.

 

 

 

 

 

Cyrus Mehta

While the Dogs and Cats of Springfield, OH Are Safe, the Haitian immigrants Are Not

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By Cyrus D. Mehta and Kaitlyn Box*

This past week, Trump and J.D. Vance have gone viral for some particularly bizarre rhetoric, alleging that Haitian immigrants in Springfield, Ohio were eating people’s pets. On September 9, 2024, J.D. Vance posted on X: “Months ago, I raised the issue of Haitian illegal immigrants draining social services and generally causing chaos all over Springfield, Ohio. Reports now show that people have had their pets abducted and eaten by people who shouldn’t be in this country. Where is our border czar?” Trump repeated these claims in his September 10, 2024 debate with Vice President Kamala Harris, stating “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there.” These allegations were widely recognized as entirely baseless, including by Springfield, Ohio mayor Bob Rue, who in an interview called Trump and Vance’s statements “just untrue” and assured residents that their “pets are safe in Springfield, Ohio”. These anti-immigrant sentiments come after Laura Loomer, a far-right activist and internet personality, stated in a post on X “If @KamalaHarris wins, the White House will smell like curry & White House speeches will be facilitated via a call center and the American people will only be able to convey their feedback through a customer satisfaction survey at the end of the call that nobody will understand.”

Unfortunately, xenophobic statements like these can have real world negative consequences. In Springfield, Ohio, credible bomb threats related to Trump and Vance’s comments forced schools and offices to close. Haitian immigrants in the area, many of whom are Temporary Protected Status (TPS) recipients, report feeling unsafe and even being targeted for property damage as a result of this hostility. Notwithstanding the harm caused to communities in Ohio, the Trump campaign has doubled down on its anti-immigrant rhetoric, with J.D. Vance stating in a CNN interview, “I’m still going to keep on talking about what the migrants have done to Springfield, Ohio, and what Kamala Harris’ open border has done to Springfield, Ohio”. Vance also had the audacity to state that  “If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”

Trump’s animus towards immigrants is hardly new. In 2018, he infamously referred to migrants from Haiti and elsewhere as “people from shithole countries” and has stated that Haitian migrants “all have AIDS”. Sentiments like these no doubt contributed to the Trump administrations efforts to terminate TPS designations for Haiti, Sudan, Nicaragua, and El Salvador, a decision that was challenged by TPS beneficiaries and their U.S. citizen children in federal court in Ramos v. Nielsen. The U.S. District Court for the Northern District of California found that Trump’s animus towards “non-white, non-European” immigrants had influenced the decision to end these TPS distinctions, cataloguing a series of anti-immigrant remarks he has made since 2015, including characterizing Mexican immigrants as criminals and rapists, and calling for “a total and complete shutdown of Muslims entering the United States.” The court ultimately struck down the Trump administration’s effort to rescind these TPS designations, holding that the decision was made “without any explanation or justification in violation of the Administrative Procedure Act”, and that that it may have been “influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution”. The court’s decision to issue a preliminary injunction was later overturned by the Ninth Circuit, which upheld the Trump administration’s TPS rescissions, and the designations were ultimately restored under the Biden administration.  Despite the Ninth Circuit’s decision to overturn the preliminary injunction and the Biden administration restoring TPS, the litigation is not entirely resolved. The en banc Ninth Circuit Court of Appeals granted Plaintiffs’ petition for rehearing and vacated the opinion of the three-judge panel. Plaintiffs filed an opening brief opposing the motion to dismiss.

Although the pets are safe, the rhetoric advanced by Trump and Vance proves that the immigrant community is decidedly not. Baseless anti-immigrant sentiments have the potential to sow discord and violence, as illustrated by recent events in Ohio communities. Moreover, Trump’s antipathy toward immigrants shaped policy decisions while he was president, including the rescission of TPS protections for vulnerable populations.

Indeed, Trump has promised to deport Haitian immigrants in Springfield, OH by again attempting to rescind their TPS status. Trump has repeatedly stated that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States. The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II,”Balko states.

In light of the second assassination attempt on Trump at the time of going to press, his supporters accuse critics of allegedly creating  a climate that encourages people to perpetrate such acts of violence. Although there is no place for political violence in America, and all political differences, however heated, must be settled through ballots and not bullets, Trump should also realize that his baseless claims against Haitians immigrants result in violence towards them too, even if they may whip up votes in his favor. There is no excuse for politicians like Trump, and Vance, who is also the sitting Senator from Ohio, to instigate violence against people here in the US whom they have a solemn duty to protect. Notwithstanding any sympathy that Trump may be generating after the assassination attempts, his dangerous rhetoric towards Haitians who are legally in the US has crossed an unacceptable line and he fully deserves to be completely and frontally defeated in this election.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Ethical Obligation of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System after Trump’s Conviction

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By Cyrus D. Mehta and Kaitlyn Box

On May 30, 2024, Donald Trump was convicted of 34 counts of falsifying business records in New York, all in connection with his payment of hush money to adult film actress Stormy Daniels in advance of the 2016 election. Harvard law professor Laurence Tribe eloquently summarized on X the sense of justice that news of the convictions brought –  “Trump’s trial for 34 felony violations of NY law — violations w/out which he might well have lost the 2016 presidential election  — was a model of fairness that law students and trial judges will study for decades. There’s nothing here for any informed person to complain of.” Trump and his followers, however, promptly decried the trial as having been rigged, accusing Justice Juan M. Merchan, who presided over the trial, and the jury of being biased.

Trump quickly found ways to direct blame for the perceived unfairness of the trial at immigrants. In a disjointed monologue that he delivered outside of Trump Tower on the day after the trial, he stated that migrants are “coming in from mental institutions and insane asylums” and “[t]he Congo has just released a lot of people from jail – Congo, Africa – just released a lot of people, a lot of people, from their prisons and jails, and brought them into the United States of America.” (see here). He bafflingly added that these migrants originated “from places unknown, from languages that we … haven’t even heard of… [i]t’s not like Spanish or French or Russian.” He then concluded that New York City, where the trial was held, is corrupt and crime-ridden, stating “you have violent crime all over this city at levels that nobody’s ever seen before.” Republicans quickly followed suit in drawing parallels between immigrants and the supposed injustice of Trump’s convictions. Tucker Carlson stated on Twitter on May 30, 2024: “Import the Third World, become the Third World. That’s what we just saw. This won’t stop Trump. He’ll win the election if he’s not killed first. But it does mark the end of the fairest justice system in the world. Anyone who defends this verdict is a danger to you and your family.”

Other Republican leaders, too, denounced the outcome of the trial and questioned the impartiality of judge and jury. Marco Rubio, U.S. Senator for Florida, stated: “The verdict in New York is a complete travesty that makes a mockery of our system of justice. A political show trial conducted by an openly pro-Biden judge whose daughter makes money off the case, a jury from the most liberal county in America, absurd and ridiculous charges and outrageous jury instructions that guaranteed guilty verdicts. Biden and the Trump deranged left will stop at nothing to remain in power.” Senator J.D. Vance of Ohio issued a statement calling the verdict a “an absolute miscarriage of justice” and criticizing the “partisan slant of this jury pool”. Mike Johnson, Speaker of the House, said of the verdict “I do believe the Supreme Court should step in”.

These comments have the troubling potential to undermine confidence in the judicial systems of the United States. Trump and Carlson’s misguided criticism of the verdict and demonization of immigrants is, unfortunate though unsurprising. It is disappointing, though, that well-trained lawyers such as Rubio, Vance, and Johnson who are also elected officials would baselessly claim parroting Trump that the trial was biased. Pursuant to the state analogues to ABA Model Rules of Professional Conduct 8.4 (c) and (d), lawyers must not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “conduct that is prejudicial to the administration of justice”. Although these are broad provisions it is unlikely that Rubio, Vance or Johnson would be subject to discipline as their baseless accusations against the criminal justice system may be protected under the First Amendment. Still, Rule 8.4 has been used broadly by disciplinary authorities against lawyers especially when their conduct has been prejudicial to the administration of justice. Comment 7 to Rule 8.4 imposes greater obligations on lawyers who are public official, which states that “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

Critics have every right to disagree with the verdict reached against Trump, or to support his right to an appeal, but it is concerning to see Republican leaders who are also lawyers make blatantly untrue statements that could create the perception that the trial, or American judicial system as a whole, are unjust and undeserving of respect.

It is ironic that Trump, who as president imposed travel bans against people coming from Muslim-majority nations, will now  face bans from 37 countries including major allies such as Canada, Australia, and  the UK because of his felony convictions, although if he becomes president again, it is likely that these countries will make exceptions while he will continue to act ruthlessly towards immigrants in his own country. And finally, one cannot help but snigger at Trump who falsely accuses undocumented immigrants of being criminals and “poisoning the blood of our country” when he is now a confirmed felon!

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected

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By Cyrus D. Mehta

If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States.

“The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II, ” Balko states.

According to New York Times’s columnist Jamelle Bouie in  Trump’s Taste for Tyranny Finds a Target immigrants would be the most easy target for Trump to play out his autocratic fantasies. Trump has already said that undocumented immigrants are “poisoning the blood of this country.” The Supreme Court in Trump v. Hawaii allowed Trump to enforce his Muslim ban.

Stephen Miller, the architect of Trump’s anti-immigrant policies,  has stated on Charlie Kirk’s show how this deportation force would fulfill Trump’s fantasy. The  deportation force would comprise agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. They would look all over the  country for unauthorized and undocumented immigrants moving from state to state, city to city, neighborhood to neighborhood and, finally, house to house. These are people who in the view of Trump and Miller do not belong, not that because are not authorized but because they are also nonwhite and who are from what Trump once called “shithole” countries. By raiding workplaces and staging public roundups, this deportation force would create a climate of fear and intimidation.

Mistakes are bound to happen as legal immigrants and even US citizens may get caught up in the roundups. There could not be any notion of selective enforcement in these roundups, and those caught up in them would be because they appeared to be immigrants. There would be mass racial and ethnic profiling. And by the time this gets sorted out it may be too late if the person already got deported.

Moreover, one thinks of an undocumented immigrants as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year. All these noncitizens would be lumped together as undocumented immigrants that would be red meat for Trump’s deportation force.

Since it would be beyond the capacity to quickly deport the people caught up in these roundups, especially since countries may not even be willing to accept them easily, there would be holding facilities that would serve as staging centers on land near the Texas border. This would not be too dissimilar from internment camps, which were set up in the United States to detain Japanese Americans after the attack by the Japanese military on Pearl Harbor in 1941.

In addition to the round ups, the second Trump administration would sign an executive order to withhold passports, social security numbers and other government benefits from  children born of undocumented immigrants in the United States never mind that the Fourteenth Amendment says the exact opposite. Under Trump’s deportation plan, there would be no distinction between undocumented immigrants and children born to an undocumented immigrant in the United States. If there are going to be protests and resistance from people against agents storming homes, schools and religious places, Trump will invoke the Insurrection Act to mobilize the miliary and crush the resisters as well as his political opponents.

According to Bouie, “what we are seeing here from Trump isn’t simply a distaste for liberal values; it is a taste for genuine tyranny and bona fide despotism, one that complements his endless praise for dictators and strongmen.” Trump has already likened immigrants to invaders, and he can invoke an emergency, and thus a constitutional crisis,  to go ahead with deportations without waiting for the courts to rule, and  when they do rule, Trump’s hope is that the courts will rule in his favor, especially the Supreme Court, which have historically given deference to the executive branch on matters involving national security. This has happened time and time again with respect to court challenges to the internment of Japanese Americans, against the unlawful detention and abuses of noncitizens after the September 11 attacks and most recently in allowing Trump’s travel ban to pass, which was a major part of his election campaign in 2016 to ban Muslims from coming to the US, and in this reelection campaign for 2024, Trump promises to create a tyrannical force to deport millions of immigrants.

On this Memorial Day, as we reflect upon the sacrifices our military personnel have made to free America and the world from fascism and tyranny, think about how Trump can so easily unravel all of this through a deportation force that rips families apart, tears lives and fractures America.

 

Cyrus Mehta

Will United States v. Hansen Come Back to Bite Trump?  

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By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Asylum Seekers are Legally in the US Notwithstanding the Political Stunts of Governors Abbott and DeSantis

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By Cyrus D. Mehta and Kaitlyn Box*

In a reprehensible political stunt, Governor Greg Abbott of Texas and Governor Ron DeSantis of Florida sent around 150 immigrants to liberal states by bus and plane last week. Some of these individuals were abruptly dropped out outside Vice President Harris’ residence in Washington, D.C., while others were transported to Martha’s Vineyard. These immigrants, many of whom had come from Central American countries, had recently presented themselves at the southern border to request asylum. Reports have emerged that some of the asylum seekers were promised that they would receive work authorization more easily if they agreed to be sent to one of these locations. Some individuals believed they were going to Boston, only to be transported to Martha’s Vineyard instead.

Abbott and DeSantis’ action caused untold harm, placing individuals who were already vulnerable in a situation that was undoubtedly terrifying. Many of the asylum seekers were dropped off on the side of the road with nowhere to stay and few possessions. Some individuals had not been given food for hours. Because some of the asylum seekers had been issued Notices to Appear for immigration proceedings in Texas, Abbott and DeSantis effectively ensured that these individuals would have more difficulty attending their court dates by transporting them to a different part of the country. They also risk missing their court dates and be subjected to in absentia removal orders.

The governors’ cruelty stands in sharp contrast to the warm welcome the asylum seekers were given by the communities in Martha’s Vineyard and other locations. Individuals and community organizations rallied to provide the immigrants with food, clothing, and shelter. Immigration attorneys have also sprung into action to provide legal services. This heartwarming response illustrates that most Americans, unlike Abbott and DeSantis, want to welcome and support immigrants.

Though the asylum seekers who unwittingly become pawns in Abbott and DeSantis’ stunt happily found safety and compassion in the communities they were dropped into, this ploy was, at the very least, inhumane and could carry legal consequences for the two governors. California Governor Gavin Newsom has asked the Justice Department to investigate whether fraudulently inducing the asylum seekers to be transported across state lines could support charges of kidnapping under state law. Deliberately lying to and misleading vulnerable people could also render Abbott and DeSantis liable for fraud or severe emotional distress under the relevant state laws. It has even been suggested that luring the asylum seekers onto planes and buses with the false promise of work could constitute labor trafficking. Recently obtained documentary evidence confirms that idea that the asylum seekers were lured to Martha’s Vineyard and other locations with false promises. Lawyers for Civil Rights (LCR), a Boston-based legal organization that represents some of the asylum seekers, provided a brochure that was given to some migrants. The brochure erroneously states that the asylum seekers who were sent to Massachusetts would be eligible for numerous benefits, including “8 months cash assistance,” “assistance with housing,” “food,” “clothing,” “transportation to job interviews,” “job training,” “job placement,” “registering children for school,” and “assistance applying for Social Security cards”.

At first blush, one may also wonder whether the governors have violated INA § 274(a)(1)(A)(ii), which imposes severe criminal penalties on persons for knowingly or in reckless disregard transporting a noncitizen who has come to, entered, or remains in the US in violation of law. However, invoking this provision may be less than helpful, as it pertains only to individuals who have come to, entered, or remained in the U.S. in violation of law, and thus feeds into the narrative that asylum seekers like the ones transported by Abbott and DeSantis are in the United States “illegally”. It is important to recognize that it is not illegal for individuals to enter the United States to seek asylum. These individuals were lawfully released into the United States to pursue their asylum claims after an initial interview and processing by the Department of Homeland Security at the border. The asylum seekers involved in this situation did nothing wrong by seeking protection under U.S. asylum laws. Rather, it is Abbott and DeSantis who engaged in a despicable, and possibly illegal, act.

It is clear that the poisonous attitudes of Trump, who catapulted himself to the presidency while calling migrants “criminals” and “rapists”, are now being borrowed by his apprentices like DeSantis and Abbott as a ploy to whip up anger against Democrats prior to the midterm elections. This strategy is unlikely to succeed as the American tradition of welcoming immigrants remains robust, as demonstrated by the Martha’s Vineyard community. While the pathway for people seeking asylum should remain, our immigration laws need to be radically overhauled to provide more pathways for people to come to the U.S. legally to work and to unite with family members. Asylum should not be the only option for those seeking to come to the U.S. If asylum is the sole option, the system will get overburdened as it has already and will also encourage spurious claims, which in turn undermine genuine claims of persecution.  Both Democrats and Republicans need to work together in order to forge new pathways for immigration.

(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

Overcoming a COVID Travel Ban Through the National Interest Exception

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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.

 

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.”