Supreme Court Rules to Allow Enforcement of Public Charge Rule

On January 27, 2020, the Supreme Court released a 5-4 ruling granting a stay which  allows the Trump administration to pursue its “Public Charge” Rule, which allows for the limitation of green card approvals based on whether the government deems approving the applicant would likely result in the applicant becoming dependent upon specific government benefits,  defined by the government as a, “public charge.”

On October 10, 2018, The Department of Homeland Security (DHS) initiated a rulemaking process in order to define the term “public charge” with reference to its utilization within immigration law, and after 10 months a final rule was issued. Almost immediately, numerous States, organizations, and individual plaintiffs filed litigation, asserting this new definition’s violation of the United States Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs’ urging for courts to enjoin the rules enforcement has seen mixed results. While the Northern District of California and the Eastern District of California both ordered the government not to enforce the new rule, the former doing so within a specific group of jurisdictions and the latter enjoining the government’s enforcement of the rule on a global scale, the Ninth Circuit stayed both orders soon thereafter. Concurrently, the District of Maryland entered its own universal injunction, only to see it stayed by the Fourth Circuit. Further muddying the waters, in the Midwest, the Northern District of Illinois implemented its own injunction, affecting the state of Illinois.

This all culminated in a New York judge’s enjoinment of the government from applying the public charge definition to anyone, without limitations on geography or participation in this or any other lawsuit. The Second Circuit declined to stay this injunction, bringing the case to the Supreme Court.

The Supreme Court granted a stay permitting the government to pursue its policy everywhere except for Illinois. Shortly before going to press, however, the bar implementing the rule in Illinois was lifted. Justice Goursch took umbrage with the scope of previous rulings as effecting anywhere from local jurisdictions to a global audience; he called such universal injunctions, “not normal,” and described them as having, “little basis in traditional equitable practice.” Criticizing the nature of such injunctions, he asserted that they counterproductively, “force judges into making rushed, high-stakes, low-information decisions.”

On January 30, United States Citizenship and Immigration Services (USCIS) announced that it would begin implementation of the Final Rule beginning February 24, 2020.

USCIS will apply the Final Rule to applications and petitions postmarked or electronically submitted on or after February 24, 2020. Applications and petitions sent via commercial courier, such as FedEx, DHL, or UPS, will have a postmark date reflecting the date on the courier receipt. As laid out in the Final Rule, DHS is prohibited from considering an application for, certification or approval to receive, or receipt of certain non-cash public benefits prior to October 15, 2019 in deciding whether an applicant individual is likely to become a public charge. DHS plans to extend this prohibitive date to February 24, 2020, in light of the recently lifted nationwide injunctions.

On February 5, 2020, USCIS published updated forms reflecting the Final Rule. Beginning February 24, 2020, applicants and petitioners are required to use the new editions of the following forms:

Furthermore, applicants filing for adjustment of status who are subject to the public charge ground of inadmissibility and the Final Rule are required to submit Form I-944, Declaration of Self Sufficiency. Specific applicants whom UCSIS invites to submit a public charge bond will use the new Form I-945, Public Charge Bond, and the new Form I-356, Request for Cancellation of Public Charge Bond, in order to request cancellation of a public charge bond.

Certain classes of individuals are exempt from the public charge ground of inadmissibility and thus are not subject to the Final Rule. These include refugees, asylees, petitioners under the federal Violence Against Women Act, and specific T and U visa applicants.

For more information, view the full Supreme Court decision, and USCIS’ implementation announcement, and the USCIS Policy Manual.

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Fifth Circuit Court of Appeals Lifts Block on Trump Administration’s $3.6 Billion Funding for Border Wall

On January 8, 2020, the Fifth United States Circuit Court of Appeals lifted an order which blocked the $3.6 billion in military construction funds the Trump administration planned to use in order to finance his long-promised border wall. The three-judge appeals court was divided in its decision, with two Republicans approving the lift of the block, while one Democrat dissenting, which stayed the injunction issued just a month ago by a District Court Judge in El Paso.

While the majority decision was not detailed in its reasoning, Judge Edith Jones did state that there was a, “substantial likelihood,” the plaintiffs in the Texas-based suit lacked legal standing pursuant to their claims that the spending was in violation of the Congress-imposed appropriations limits.

In his dissent, Judges Stephen Higginson agreed the matter presented a, “substantial case on the merits,” but disagreed that the Trump administration, “has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay.”

In February 2019, Trump announced a public emergency in order to secure more than $6 billion he sought in funding for his border wall, taking the funds from military construction and counterdrug appropriations. This came on the heels of Congress’ approval of only $1.375 billion for border wall improvements, a substantially lower figure than Trump demanded.

For more information, view the full article from Politico.

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BIA Reinstates Removal Proceedings After Finding IJ’s Decision Lacked Legal Basis

The Board of Immigration Appeals (BIA) sustained an appeal filed by the Department of Homeland Security (DHS) which called for reinstatement of removal proceedings. The decision overturned an Immigration Judge’s May 2019 decision to terminate the removal proceedings of a native and citizen of Honduras who applied for admission to the United States at a point of entry. In April 2019, DHS served the respondent with a notice to appear, charging him with removability, since at the time of his admission, he was not in possession of valid entry documents. Pursuant to the Migrant Protocols Protection, DHS ordered his return to Mexico, where he had a documented address of residence, to await his removal proceedings. The respondent failed to appear for this hearing, at which point DHS requested the Immigration Judge enter an in absentia order for removal. The Immigration Judge, having due process concerns, concluded DHS failed to adequately provide the respondent with sufficient notice of his hearing and, without allowing DHS to produce evidence regarding the respondent’s removability, terminated the removal proceedings without prejudice. DHS appealed this decision.

The BIA agreed with DHS’ argument that the Immigration Judge made an error in terminating the removal proceedings. The BIA noted that due process mandates that an individual be provided notice of proceedings and an opportunity to be heard and concluded that DHS fulfilled this requirement. The BIA found no indication that the notice to appear was in any way deficient, having been personally served to the respondent and containing information of the charges placed against him and the consequences of his failure to appear.

This led the BIA to conclude that the termination of removal proceedings had no legal basis,  thusly reinstating those proceedings and remanding the record to the Immigration Judge.

For more information, view the full decision from the BIA.

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District Judge Grants Nationwide Enjoinment of the USCIS’ Accrual of Unlawful Presence Policy Memorandum

On February 6, 2020, North Carolina-based District Judge Loretta C. Biggs released her decision regarding whether the August 2018 USCIS Policy Memorandum entitled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” was in violation of the Administrative Procedure Act (APA). Judge Biggs granted the plaintiff’s motion, denying the motion put forth by the government and permanently enjoining the August Policy Memorandum nationwide.

Established in 1996, an amendment to the Immigration and Nationality Act (INA) established the concept of “unlawful presence,” which constituted an individual who is, “present in the United States after the expiration of the period of stay authorized by the Attorney General.” This unlawful presence time was tallied, and an individual who left the country after having been “unlawfully present,” for more than 180 days would be prohibited from reentering for a span of three years. Furthermore, those who accumulated more than 365 days would be barred reentry for 10 years. While with some visa categories this tally was definitive, other visas, such as a student who may be admitted for the duration of the pursuit of a full course of study, do not have a precise expiration date for their periods of stay.

F, M, and J visas are included in this group ambiguous ending dates, and until the USCIS Policy Memorandum, their tally of unlawful presence would not automatically initiate, rather a government official, such as an immigration judge or a USCIS adjudicator, would have to formally identify an immigration status violation before this account began. However, a May 2018 Policy Memorandum ushered in a change in how the agency made this calculation, and the August 2018 Policy Memorandum established that an individual’s unlawful presence tally began not upon the formal identification of a violation, rather the time an adjudicator concludes that the status violation first occurred.

The plaintiffs in the case argued the wide-reaching ramifications that the PM would have on the lives of affected individuals. Since the unlawful presence time for an individual begins counting the day after an unauthorized activity, minor violations, such as failing to update an address, could result in a three- or even ten-year bar from reentry, without proper manner of reconciliation. Shortly after the Policy Memorandum’s initiation, in October 2018, the plaintiffs issued a complaint, hoping to halt its application. Contained within the complaint were four interrelated claims:

  1. The issuance of the August 2018 PM failed to recognize rulemaking procedures as required by the APA;
  2. The August 2018 PM was, “substantively arbitrary and capricious;”
  3. The August 2018 PM conflicted with the statutory text of the INA; and
  4. The August 2018 PM violated the Due Process Clause of the Fifth Amendment.

The Plaintiffs in the case before Judge Biggs sought judgement on claims 2 and 4, with which Judge Biggs was in full agreement.

With respect to the first claim, the APA clearly states that all proposed rules be issued through a notice-and-comment process. This process contains three steps. First, the agency must publish a notice of the proposed rule making in the Federal Register. Second, the agency is required to provide concerned parties the opportunity to participate in the rule making through submission of written comments, then consider and respond to any significant comments received. Finally, once a final iteration of the rule is synthesized, the agency is required to include with it a concise statement outlining the basis and purpose of the rule. Failure to adhere to the prescribed requirements invalidates proposed rules. Both the plaintiffs and the government agree that neither the May 2018 preliminary nor the August 2018 final memorandum was published in the Federal Register. However, the government argues that the August 2018 PM was a, “reasonable interpretive rule,” an important distinction which would make the rule exempt from the notice-and-comment.

While this distinction can be somewhat ambiguous, Judge Biggs cited caselaw from the Supreme Court which helped to clarify, “the critical feature of interpretive rules is that they are issued … to advise the public of the agency’s construction of the statutes and the rule which it administers.” Essentially, a point of emphasis on where this distinction can be made is whether a rule represents the agency’s effort to implement a statue or to explain its meaning.

Judge Biggs disagreed with the government’s argument, determining the August 2018 PM to have been a legislative rule not interpretive, making it subject to the notice-and-comment procedure, the adherence to which the government failed. This rendered the Policy Memorandum invalid. Since USCIS was in violation of the APA with its Policy Memorandum, the Court had to then determine the appropriate relief for those affected by the illegitimate PM. While the government argued that relief should be limited to those Plaintiffs listed in the case, the court found that the issues of law would not vary from location to location, and thus should go into effect on a nationwide scale to anyone affected by the August 2018 Policy Memorandum.

For these reasons, the August 2018 PM was vacated, and its application was permanently enjoined nationwide.

For more information, view the full case.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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