How Trump Era Immigration Enforcement Violates the Law, by Geoffrey A. Hoffman

by Guest Blogger — Friday, Jan. 25, 2019

Since the Trump era began more than two years ago with the election of 2016, the administration has put into place an increasingly draconian legal regime of restrictions against immigrants. Navigating these outrageous examples of executive overreach has been challenging. The current administration has attempted to cloak the new restrictions under the guise of quasi-legality. However, a close look reveals that each attempt has in some way either violated the Immigration and Nationality Act (INA), the U.S. Constitution and/or other legal authorities such as international legal norms and instruments.[1]

One of the most recent examples is the so-called interim final rule and the Presidential Proclamation, which purported to change the rules regarding asylum eligibility to limit it to only those entering at a designated port of entry in a way completely at odds with current law.[2] In Matter of A-B-, the former Attorney General Jeff Sessions attempted to rewrite the definition of “refugee” under the INA, in a way that attempts to change the rules for domestic violence asylum seekers, and in addition (through dicta) shape adjudicators’ views on gang violence and other private actor cases.[3] In addition, DHS has just attempted to invoke (incorrectly) the contiguous territories provision in INA 235 to apply (erroneously) to all asylum seekers.[4] These, and many other restrictions have been foisted upon the immigrant community. Because they have come so fast and furious we must acknowledge a sea-change is occurring. It affects virtually all aspects of immigration law and policy. These changes will not be easily reversed or remedied. These shattering changes are just the tip of the iceberg, as the administration is just warming up. The future may hold new, and even more insidious ways, to continue to revamp the immigration legal landscape in ways injurious to immigrants’ rights.

The examples discussed here show that the current administration has become increasingly emboldened and brazen. The fight has now shifted to federal court litigation in a way that few had predicted. There has been an uptick in favorable district court cases, which have pushed back against the onslaught of bizarre policy choices promulgated by the administration. To inform the ever-changing role of the immigration lawyer in these troubled times, the following questions must be confronted: Where do these more and more outrageous examples of executive branch overreach stop? What about threatened executive orders such as the as yet unrealized Executive Order on birthright citizenship? How would such an order even be operationalized to actually strip people of their citizenship? What does all this mean for the concept of law and the legal functioning of disparate federal agencies? In the latest most recent reporting we have seen consideration by this administration of many for denaturalization proceedings.[5] These questions should form the background for our thinking about ways to move forward as immigration advocates against the latest changes.

Consider three broad areas of immigration law and the changes happening in each. These are symptomatic of the types of changes attempted to be put into place. The first involves the most important changes in humanitarian cases (for example, asylum, credible fear, and related issues). The second relates to the adjudication and treatment surrounding employment-based cases (for example, H1Bs, L1s and other various types of categories being made more difficult if not impossible, thus affecting the possibility for legal immigration). Third, I discuss the prime example affecting all family-based cases: the expansion of the public charge ground of inadmissibility.

The administration has sought to infiltrate immigration policy and procedures. This has been done, at times, incrementally, but also drastically and without prior notice. These policy choices should be seen as part of a larger more grand and insidious strategy: to vastly reform the immigration laws without the troublesome need to seek Congressional oversight or intervention. The strategy is also one which has triggered an active fight with the judiciary where the government, for example, most clearly exemplified with Trump’s attempt to rescind DACA, has failed to completely derail the program, at least to date without success.[6]

Humanitarian Cases

The prime example of the administration’s blatant attempt to reshape the calculus of adjudicating humanitarian cases can be found in Matter of A-B-.[7] In that decision, as alluded to earlier, then Attorney General (AG) Sessions attempted to create new requirements for asylum cases involving private actor violence, not sanctioned by INA 101 or INA 208 nor by any prior BIA case law. In overruling the reigning case, Matter of A-R-C-G-, the main complaint on the part of the AG seemed to be that DHS had conceded too much and the IJ had not engaged in sufficient fact-finding in the prior case.[8] The AG was intent on editorializing as much as possible in this bizarre decision, one of its kind in terms of all prior BIA cases and certainly unique among Attorney General decisions. While the Attorney General has the authority by statute and regulation to refer cases to himself, this heretofore rarely used procedural possibility has become apparently de rigueur for this administration as a means of changing policy and procedure.[9]

Importantly, the former AG in A-B- creates out of thin air a new interpretation of the definition of refugee in INA 101(a)(42) and unilaterally reformulates the particular social group articulated in the previous precedential case, Matter of A-R-C-G- .[10] Instead of applying the plain language of the statute requiring that the government be shown to be “unable or unwilling” “to protect” the applicant, the new gloss is that the government must somehow be required “to prevent” the violence or, even more startling, be shown to have condoned the private actor violence. It is clearly much harder to prove a government (or anyone) could prevent something from happening versus protecting someone from hard. It is also almost impossible to find a government which would “condone” private violence. While it is possible to imagine some draconian regime where private actor violence is explicitly condoned, it is a completely illogical and unreasonable requirement to force an applicant to show, which is apparently the point. Which country’s government or police force would expressly ever publically “condone” violence against women and provide such evidence to the public or in ways that litigants could access such evidence?

Even if such evidence were available, there is now a necessity to produce an even greater quantum of evidence in the form of experts, medical reports, affidavits etc, which of course will be an impossibility for a large proportion of applicants. That said, in A-B-, the AG interestingly and importantly recognized up front he is not saying that asylum can never be granted in any private actor case. Rather, he is saying that it would be very difficult to prove.[11] This explicit and frank concession up front in the decision begs the following question: what amount of evidence would satisfy the new, more stringent (even if ludicrous and ultra vires) standard under Matter of A-B-?

Astute commentators have pointed out that despite A-B-’s dicta, the scope of the decision should be strictly limited to its facts.[12] Most crucially, the decision does not and cannot change the standards for other types of asylum claims which may overlap with PSG as alternative bases for relief. For example, where an abused applicant for domestic violence believes that all women should be free of their abusive husbands then this should qualify as political opinion, and especially where that belief encompasses also a desire to be free from corrupt police who fail to protect or are in league with gangs or other private actors within a country. Political opinion,race, including ethnicity, religion, nationality (including linguistic claims), and others may provide alternative forms of nexus not affected by A-B-.

Furthermore, if an applicant can identify another (more particularized or fully articulated) PSG than the one formulated in A-B- then this may be another strategy to provide relief despite the AG’s decision. For example, in cases where a woman’s relationship with the abuser is complicated by his gang affiliation and status, tied to police corruption, or relates to her ability to serve as a prosecutorial witness against the abuser or gang then incorporating these further facts into new PSG articulations which may be more successful, even despite the influence of A-B.

A further point is that the former AG took great pains to emphasize his decision in A-B- applies not just to immigration judges, but also to the DHS agencies overseeing adjudications of asylum and credible fear claims. To that end USCIS set forth new policy guidance which tries to apply and incorporate the new requirements in A-B- for their officers, while still emphasizing the need for case-by-case adjudication. The clear import on the part of former AG Sessions was that the more stringent requirements should serve to impact applicants’ credible fear interviews, before they even get into the pipeline of asylum-only removal proceedings. Statistics show that the new rules are having a profound effect and that the denials of credible fear and asylum claims are higher than ever, and climbing.[13]

In light of the wide-reaching effects of Matter of A-B-, plaintiffs brought suit in late 2018, in a case called Grace v. Whitaker[14] in the District of Columbia challenging negative credible fear determinations which were made based on A-B- and the agency’s subsequent policy memorandum. The plaintiffs exhausted their administrative remedies by seeking review of the negative findings, but the immigration judges in their cases all affirmed the asylum unit’s determinations. On December 19, 2018, Judge Emmet G. Sullivan issued a permanent injunction to twelve (12) plaintiffs.[15]

The over 100-page decision by Judge Sullivan is a watershed moment. The district court found it had jurisdiction to review the issue, an important consideration given the sometimes confusing and expansive jurisdiction-stripping provisions found within INA 242. Importantly, the court found that there was jurisdiction because this was “a systemic challenge to the legality of a ‘written policy directive, written policy directive guideline, or written procedure issued by or under the authority of the Attorney General to implement’ the expedited removal process.” [16]

Judge Sullivan held “that Congress has not ‘spoken directly’ on the question of whether victims of domestic or gang-related persecution fall into the particular social group category” and that Matter of A-B- “create[d] a general rule against [domestic and/or gang violence] claims at the credible fear stage” and that the rule was “not a permissible interpretation of the statute.” Id. at 56. Additionally, the general rule “impermissibly heighten[ed] the standard at the credible fear stage[,]” which rendered the rule arbitrary and capricious. On the “unable and unwilling” standard, Judge Sullivan further found that requiring a government to condone or to be completely helpless to prevent persecution by a non-government actor violated the INA and the APA because the “unwilling or unable” standard for persecution “was settled at the time the Refugee Act was codified[.]” Id. at 59, 66.

The question becomes what is the potential scope of Grace v. Whitaker and whether it can be used to more broadly argue against all uses of A-B- not just in the context of agency credible fear determinations, but in all domestic violence asylum cases whether before USCIS in an asylum interview or the immigration courts in removal proceedings. The issue was discussed in a recent blog by Hon. Jeffrey Chase. The former immigration judge pointed out that immigration courts generally do not feel bound by the district court decisions due to the INA 242 provision which provides for exclusive jurisdiction in the circuit courts over final orders of removal.[17]

Despite Judge Chase’s valid point about exclusive jurisdiction, the district court’s decision in Grace can and still should be used in pending and current removal cases to argue that although the decision does not purport to reach outside the credible fear and expedited removal context, the arguments are equally applicable in cases before immigration judges. If an agency (DHS) is acting in violation of the INA and APA (arbitrarily and capriciously) by applying A-B- then it would seem EOIR should be on notice that a similar application in their courts would be equally as violative of these federal statutes. In addition, advocates can always argue that any decision should be strictly limited to its facts and Grace certainly supports that argument. Therefore, Grace can and should be cited to preserve the argument that A-B- was wrongly decided in all pending private actor cases in removal proceedings. Finally, as a systemic decision it will be especially relevant to preserve as the cases relying on A-B- make their way to the circuit courts and, ultimately, the Supreme Court.

Another example in the humanitarian context is the President’s Proclamation concerning asylum eligibility. It attempts to limit such claims to people who have applied only at designated ports of entry in violation of the INA. The Proclamation facially is premised on INA 212(f) and attempts to draw the connection between the presidential power in that context to designate certain persons “detrimental” to U.S. interests, as we saw in Trump v. Hawaii. There, the statute was found to “exude deference” to the President and that decision apparently emboldened the president to attempt further restrictions under INA 212(f). Accompanying the Proclamation was an “interim final rule” which was immediately challenged in federal district court.

In a ruling in late November, 2018, District Judge Jon S. Tigar issued a temporary restraining order enjoining the application of the rule as a violation of the INA. In his decision, the judge opined, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden … Defendants’ claims that the rule can somehow be harmonized with the INA are not persuasive.” In late December, the Supreme Court rejected the government’s bid to stay the district judge’s order.[18] The decision to deny the stay was 5-4, with Justice Roberts joining the more liberal justices

The administration has been frustrated at almost every turn (with the exception of its final iteration of the “travel ban”) in attempting to unilaterally change the rules in the humanitarian context. Other salient examples beyond the scope of this article include DACA, TPS, the Contiguous Territories provision mandating that those who seek asylum even at designated ports of entry await their removal proceedings in Mexico (yet to be challenged). Several possibilities exist for those advocates litigating against these changes in individual cases, including but not limited to FOIA litigation, Habeas Corpus, Mandamus, and cases involving challenges to individual agency actions which violate the Administrative Procedure Act and/or the INA based on the general power of a federal court to hear a federal question under 28 USC 1331.

Employment-Based Cases

Although less sensational and not as apparent to the public, there are many other examples of restrictions applied to employment-based cases. For example, the administration issued a policy memorandum in March, 2018, relating to new rules relating to H1-B visas.[19] The H1-B is a very valuable avenue for some and companies like it because it enables them “to hire highly skilled foreign workers in fields that require technical and theoretical expertise.”[20] According to the new memo, applicants must now supply “detailed statements of work or work orders” about any duties performed by a worker holding an H-1B visa at a third-party site.[21] In addition, employers are required to provide “more information” about why they need to hire someone from abroad to complete a job. Now, a visa beneficiary should have “specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.” H-1B visa holders could earn less money than their employers promise or perform “non-specialty” jobs when hired out to any third-party workplace, the memo provides.[22]

In terms of processing adjustment of status applications, new USCIS policies have resulted in extreme backlogs. Now, a “new mandated in-person interview” for all applicants has “increased processing time and slowed applications to a crawl.” [23] The new USCIS policy allows officers the right to deny “any visa or green card application that is missing evidence or contains an error without giving applicants a chance to fix it.”[24]This new policy means that many more people with lawful visas could be automatically placed into removal proceedings, whereas before they would be issued the request for evidence or notice of intent to deny or chance to re-file without the need to go before a judge who may not have jurisdiction over their case.[25]

These increased restrictions are not limited to one type of visa, but apply across the board. Take for instance, the L-1 or intra-company transferee visa. Under the Trump administration’s policies, access to the L-1 has become more difficult as applicants have seen increased scrutiny by USCIS. In the past, those Canadians subject to NAFTA have enjoyed on the spot L-1 visa processing. Now, reportedly, in addition to CBP’s review, “the [L-1] petition will now also be sent to the USCIS service center for processing of the I-797 notice approving the petition so increasing the time it takes to obtain a L1 visa.”[26] This has resulted in greatly increased wait times and delays for L-1s.[27]

Commentators also noted that the new rules regarding H1-Bs and L-1s cause increased “friction” in the visa process in at least three different ways: “increasing scrutiny of H-1B applicants, increasing the number of denials and lengthening the approval times.”[28] The new rules make it more difficult for the lower skilled jobs to qualify.[29] The rules also result in more wage inflation and the resultant increase in visa processing will “favor[] the sophisticated firms over the less-sophisticated firms.”[30] It also “encourages companies over the medium to long range to locate their R&D centers and technical centers outside the United States.”[31]

With respect to F (student), J (exchange) and M visas, the government has fundamentally changed the way the accrual of unlawful presence is measured, with profound effects for immigrants. On August 9, 2018, the administration issued new guidance.[32] Specifically, as reported on the USCIS website, those in such categories who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following: “the day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity; the day after completing the course of study or program, including any authorized practical training plus any authorized grace period; the day after the I-94 expires; or the day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).”[33]

The administration’s “America First” ideology has fully pervaded its treatment of immigrants both lawful and unlawful. This was exhibited in the President Trump’s reneging on an offered settlement of the DACA rescission crisis, where initially the administration seemed willing to go along with a pathway to lawful status for those with DACA, in exchange for border security. However, the Trump administration pulled out of the deal, leaving the DACA recipients in a continuing limbo. It is also apparent in the proposed RAISE Act, which would have drastic consequences for legal immigrants.

At the time of this writing, the government shutdown further evidences the lengths to which the administration is apparently willing to go to maintain it “America First” political position and perception on behalf of political supporters. The shutdown, by the way, is the ultimate irony and paradox. On the one hand, the administration is attempting to negotiate its way out of an impasse for a politically charged “Border Wall” while at the same time shutting down the non-detained (the vast majority) of immigration courts. Legitimate applicants for relief are frustrated at the (now even increasing) backlog in the courts due to the shutdown. Moreover, Trump’s shutdown power play does nothing more than frustrate his own rhetoric in that it prevents the very government agencies responsible for the processing of deportation cases from doing their jobs.

Family-Based Cases

While the public charge ground of inadmissibility, under INA 212(a)(4), potentially could affect employment-based cases, it is much more likely to impact a range of family-based adjudications. The ground under the INA should be a prospective test and asks whether the applicant “at the time of application for a visa, or… application for admission or adjustment of status, is likely at any time to become a public charge . . . .”[34] Many applicants for adjustment of status which are based on a familial relationship may not be in stable financial situations and thus may have a harder time overcoming this ground. To date, the I-864 or affidavit of support has been used effectively to show that either the petitioner/sponsor or a co-sponsor who will be able to support the applicant/beneficiary. The I-864 is a contract between the sponsor and the government, where the intending immigrant is the third-party beneficiary.[35]

On October 10, 2018, DHS published in the federal register a notice of proposed rulemaking, relating to “Inadmissibility on Public Charge Grounds.” The proposed rule expands the interpretation of public charge beyond all reason. Importantly, it greatly expands what counts as a “public charge” far beyond the definition previously applied. For example, under the proposed “past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.”[36] In addition, “all use of cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.”[37]

 

Instead of considering the I-864, on its face, and determining whether the sponsor or co-sponsor has the requisite assets or income required for overcoming the public charge ground, the new proposal would look into the relationship of the sponsor or co-sponsor to the applicant/beneficiary. Most troublingly, the proposal establishes “heavily weighted negative” and “heavily weighted positive” factors. Among the negative factors is lack of English proficiency. Among the positive factors is having a household income at or above 250% of the federal poverty level.[38] It is unclear how an officer would weigh a case with both heavily weighted “negative” and “positive” and, moreover, whether the 250% would become a litmus test few could satisfy.

In addition to these changes, the proposal also would establish an excessive minimum bond of $10,000 which could be higher depending on the discretion of USCIS. The rule provides that the penalty for any bond breach is the full amount of bond, and “any use of a specified public benefit while the bond remains in effect constitutes such a breach.”[39] As organizations have noted in their responses during the public notice period, these “harsh conditions would drive many noncitizens to accept crippling surety bond terms to avoid family separation.”[40] Moreover, the rule has no limits on the USCIS adjudicator to use his or her discretion in imposing these disproportionate consequences.[41]

Paths Forward? Strategies and Anticipating the Future

Cataloguing these wide-sweeping restrictions on the part of the administration is an important first step. But, just as importantly, immigration attorneys in the Trump Era need to be ready to respond with appropriate litigation, vigorous advocacy, and effective coordination among groups to meet all the distinct and multipronged challenges.

Advocates must recognize the necessity for coordination and formulate concrete mechanisms to facilitate connections among private practitioners, nonprofit organizations, and others in the community who may have limited experience in dealing with immigration issues. Coordinating efforts may be found through law school clinics, as well as the immigration bar, such as AILA, and other groups. An example of one such effort is the Center for Human Rights and Constitutional Law which has been instrumental in coordinating efforts of pro bono attorneys and volunteer observers around the issue of family separation. Another example is AILA’s CARA-Family Pro Bono Project which has coordinated efforts at Dilley and Karnes detention centers and helped numerous immigrants in family detention. A further example of a successful project is the Catholic Legal Immigration Network, Inc. (CLINIC) which coordinates pro bono representation and screens cases at the BIA level through their BIA Pro Bono Project.[42] Without additional coordination, it will be impossible to effectively respond.[43]

Furthermore, because the administration’s restrictions are in many cases binding on DHS, EOIR and other federal agencies, the relief from such restrictions generally will not be available before the agencies themselves, such as USCIS or the immigration courts. As a consequence, the locus of power has shifted to the federal courts and, ultimately, future efforts at comprehensive immigration reform which will come before Congress. Federal litigation will include district courts, but also may renewed efforts at litigating cases on appeal in the circuit courts, and before the Supreme Court.

Federal courts, unfortunately, are a vastly underutilized option for many immigrants. This is due to a variety of factors. The high cost of litigation is probably the most salient issue for most immigrants. Next, many immigration attorneys do not have the time or experience to litigate in federal court. Federal litigation is not tantamount to filing for a specific type of visa, and is not even comparable to immigration court, but often requires many more hours of briefing, potential discovery, depositions, and various in-person court appearances before a federal judge involving oral argument and/or evidentiary hearings. All of these factors militate against an individual immigration attorney taking up federal court actions.

Many federal actions are underutilized or may simply be completely unknown to immigrants, their families (or even their attorneys) facing delay or injustice. The mandamus statute, 28 U.S.C. 1361, provides that action may be brought in federal court “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Given the extreme backlogs in terms of agency adjudications, there is no reason why mandamus could not be utilized to provide a way to move a case forward which is being unduly delayed. The Administrative Procedure Act (APA) also provides for relief in unreasonable delay cases.[44] It further provides for review over agency actions which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law. . . .” [45] A federal question is presented under 28 USC 1331 for jurisdictional purposes when an immigrant is challenging an agency practice, policy or decision that presents a legal question concerning the application of the INA to the client’s specific case.[46]

For those in immigration detention or subject in custody constraints such as an ankle bracelet or other restrictions, a habeas corpus petition under 28 U.S.C. 2241 can be combined with a mandamus or APA or other claim.[47]

A final point about federal litigation as it relates to high impact litigation. Those who have thus far gone to court in efforts to challenge the expansive policies of the administration discussed above have, in large part, been successful. Whether it is in the context of restricting eligibility for asylum, challenging family separation policy, or DACA rescission, the efficacy of the federal court in the Trump Era cannot be understated or undervalued.

Being an immigration attorney in the Trump Era is far from easy. Advocates are in an unenviable position. They fight for their clients while the ground shifts constantly beneath their feet. The changes have come so rapidly that there is no way that a single attorney could keep up with all of them. Moreover, the changes looming or threatened on the horizon, such as to birthright citizenship or denaturalization, are even more drastic still. These are some of the most egregious, over-expansive and debilitating restrictions that any generation of immigration attorneys has (as yet) had to face.

Geoffrey A. Hoffman is the Director of University of Houston Law Center Immigration Clinic and clinical associate professor (Individual capacity. Institution for identification only).

[1] Proponents of these executive actions have drawn an inappropriate analogy to DACA. The changes or attempts to exert outsized executive power are not analogous to the Obama administration’s DACA policy to provide prosecutorial discretion for childhood arrivals. See Letter from Shoba Sivaprasad, Jill E. Family et al., to Donald Trump, President of the U.S. (Aug. 14, 2017). By contrast, the initiatives attempted to be imposed against immigrants by the Trump administration have been far more wide-reaching and are directly in violation of portions of the INA, as will be discussed.

[2] This interim rule is currently subject to a nationwide TRO put in place by a federal district court. See East Bay Sanctuary Covenant v. Trump, 11/9/18, decision available at https://www.aclu.org/legal-document/east-bay-sanctuary-covenant-v-trump-tro-granted.

[3] As will be discussed, the Matter of A-B- decision does not in actuality nor can it re-write the INA despite repeated attempts in dicta to do so. Any attempt for the case to be broadly applied should be soundly rejected. See, e.g., https://www.jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs; https://www.aila.org/infonet/former-chairman-bia-paul-w-schmidts-speech.

[4] On December 20, 2018, the DHS Secretary announced the purported use of the contiguous territories provision against asylum seekers. See https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration. The use of 235(b)(2)(C) however is not appropriate in the context of asylum seekers. See e.g. “Contiguous Territories: The Expanded Use of Expedited Removal in the Trump Era,” Maryland J. Int’l Law (June 2018). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3107737.

[5] The New York Times magazine recently featured this issue. See https://www.nytimes.com/2018/12/19/magazine/naturalized-citizenship-immigration-trump.html

[6] In a unanimous decision by the three-member panel in the Ninth Circuit, the judges ruled that the Trump Administration cannot immediately end the DACA program. See

http://cdn.ca9.uscourts.gov/datastore/general/2018/11/08/18-15068%20Opinion.pdf.

To date the Supreme Court has not intervened in the decision to enjoin the rescission of DACA. See https://www.npr.org/2018/11/06/664649161/white-house-asks-supreme-court-to-rule-on-daca-sooner-not-later. As discussed in the most recent decision of District Judge Hanen in August 2018, all but one district court has agreed with immigrant advocates that the administration’s attempt to rescind DACA should not be permitted to go forward. See https://www.nilc.org/wp-content/uploads/2018/08/Texas2-v-US-memorandum-opinion-and-order-2018-08-31.pdf.

[7] 27 I&N Dec. 316 (A.G. 2018).

[8] Id.

[9] The unilateral referral of cases to the AG by the AG has not been limited only to asylum cases but also encompasses other areas involved with immigration court procedures. See, e.g., Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018); Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), and others.

[10] It should be mentioned at this point that under the Board’s own precedent decision, W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), the exact delineation of the PSG is required and cannot be changed on appeal before the BIA. Id. Therefore, applying W-Y-C- & H-O-B-, AG Sessions himself should not have been allowed to change the PSG when under the Board’s own precedent litigants are not allowed to modify or even clarify their PSGs on appeal. (Note, the author of this article is a co-counsel in W-Y-C- & H-O-B- now pending in the Fifth Circuit).

[11] Id.

[12] See, e.g., https://www.jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs; https://www.aila.org/infonet/former-chairman-bia-paul-w-schmidts-speech.

[13] See TRAC, Syracuse University, statistics

[14] Grace v. Whitaker, No. 18-cv01853 at 11 (D.D.C. Dec. 19, 2018).

[15] See Penn State Law’s excellent summary of the decision available at https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/Grace%20v.%20Whitaker.pdf

[16] Id.

[17] https://www.jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs;

[18] https://www.supremecourt.gov/orders/courtorders/122118zr_986b.pdf

[19] https://www.newsweek.com/h-1b-visa-program-trump-administration-824688

[20] Id.

[21] Id.

[22] Id.

[23] https://www.afsc.org/blogs/news-and-commentary/trumps-attacks-legal-immigration-system-explained

(citing https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/h-1b-2007-2017-trend-tables-12.19.17.pdf).

[24] Id. (citing https://www.propublica.org/article/authorities-can-now-deny-visa-and-green-card-applications-without-giving-applicants-a-chance-to-fix-errors).

[25] Id.

[26] https://workpermit.com/news/l1-visa-canadians-and-others-more-difficult-under-trump-20181125

[27] Id.

[28] https://www.forbes.com/sites/peterbendorsamuel/2018/11/12/impacts-from-changing-administrative-rule-for-h-1b-and-l1-work-visas/#4fb64c3855b1

[29] Id.

[30] Id.

[31] Id.

[32] https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

[33] https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

[34] INA 212(a)(4)(A).

[35] Geoffrey A. Hoffman, Immigration Form I-864 (Affidavit of Support) and Efforts to Collect Damages as Support Obligations Against Divorced Spouses – What Practitioners Need to Know, FLORIDA BAR JOURNAL (October 2009).

[36] See https://www.ilrc.org/public-charge

[37] Id.

[38] Id.

[39] ILRC comments to proposed rule, p. 5, Part C, available at

https://www.ilrc.org/sites/default/files/resources/ilrc_pub_charge_comment-20181206.pdf

[40] Id.

[41] Id.

[42] See https://cliniclegal.org/

[43] Another example concerns the Supreme Court’s decision in Pereira v. Sessions, 585 U.S. ___ (2018).The decision related to the stop time rule and deficient NTAs that lacked the required information about time and date under INA 240. Currently, there are many cases pending in the circuit courts seeking to litigate the scope of Pereira because it also applied to subject matter jurisdiction. The author of this Article saw a need for coordination among private attorneys and law school clinics. As a result, a brief bank was created and working group that serves a place for exchange of ideas and notice regarding the various efforts of attorneys litigating Pereira issues in almost every circuit.

[44] 5 USC 706(1).

[45] 5 USC 706(2).

[46] The government may and often does argue that federal lawsuits are barred by various jurisdiction-limiting provisions, generally found within INA 242. While there are various provisions within this subsection, the motions to dismiss by the government which inevitably filed should be responded to and vigorously opposed. While the government may argue for limiting the federal court’s jurisdiction, there is still ample argument in favor of judicial review over immigration actions. See, e.g. Kurzban’s Immigration Law Sourcebook (16th ed. AILA) at 1875 (strong presumption of review) and Chapter 10, generally.

[47] Attorneys should also be aware to seek appropriate attorneys’ fees under the Equal Access to Justice Act (EAJA), which is available to those who are the prevailing party and where the government’s position was not substantially justified. See The Equal Access to Justice Act (EAJA) cite is 28 U.S.C. § 2412(d) & 5 U.S.C. § 504 et seq.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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2 thoughts on “How Trump Era Immigration Enforcement Violates the Law, by Geoffrey A. Hoffman

  1. William M Yeatman

    This is fantastic. If you already don’t, you should get to know my Cato colleagues Alex Nowrasteh & David Bier. Best, will

    Reply
  2. Mike Jones

    Your analysis on the USCIS March 2018 memorandum for H-1B visas seems incomplete. While the memorandum may have increased the difficulty somewhat, this is a response to outsourcing companies who lose sight of their personnel through numerous contractual agreements, sometimes with more than four or more intermediate companies. Oftentimes once a worker is placed with the final client, these companies sort of change to autopilot and almost lose all contact with the worker. This is not how this visa was intended to be used. If we blindly oppose anything from the current administration without considering the other perspective, it is a disservice. Just a thought.

    Reply

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