The Trump Administration has continued to perpetuate the falsehood that immigrants are criminals, despite overwhelming evidence that communities are safer when immigrants arrive. Trump’s recent spectacle to honor victims of crimes perpetrated by people who happened to be immigrants was designed to not just to spread hatred and fear of immigrants, but to counter criticism of his policies that have resulted in the cruel separation of children from parents. Trump cynically tried to show that Americans, whom he called “angel families,” have been permanently separated from their parents, thus attempting to deflect from the worldwide negative reaction he has received from the separation of immigrant families seeking asylum in the United States. While it is unfortunate that parents lost their children in crimes committed by immigrants, Trump has manipulated and exploited their unfortunate situation as justification for his inhumane policies.

The purpose of this blog is to continue to focus on the gross abuses that were perpetrated on children by the Trump Administration. These abuses were intentional and targeted against children from Central America that ought to make the architects criminally culpable. The separations did not arise from a policy that could not be avoided under law. Indeed, it was a deliberate policy to deter people from Central America from applying for asylum under US law by cruelly separating children, knowing that it would cause them trauma and permanent psychological harm.  Accordingly, the real criminals are not the immigrants. The real criminals are those in the administration who have separated families, subjected detained immigrants to inhumane and violent conditions, and who now seek to detain immigrant families indefinitely.  These officials may never be prosecuted under US law, but it is important to show how they can be held criminally culpable under international law so that they can be amenable to prosecution at some point of time in the future.

Article 7 of the Rome Statute of the International Criminal Court defines “crimes against humanity” as

[A]ny of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
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1. Murder;
2. Extermination;
3. Enslavement;
4. Deportation or forcible transfer of population;
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
6. Torture;
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
9. Enforced disappearance of persons;
10. The crime of apartheid;
11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(emphasis added).

The widespread and systematic separation of over 2,000 immigrant children from their families, the inhumane and torturous acts committed by the United States against them, and the ongoing incarceration of children potentially constitute crimes against humanity. The United States, especially Trump administration officials who established these children and toddler internment camps, ought to be prosecuted to the fullest to redress these egregious criminal acts.

The policy of family separation has been condemned by the Office of the United Nations High Commissioner for Human Rights, stating that the practice “amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child […] The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles.” High Commissioner Zeid bin Ra’ad al-Hussein further stated that such separation and incarceration of children constituted “government sanctioned child abuse.” The OHCHR statement also reminded that the United States is the only country in the world that has refused to ratify the Convention on the Rights of the Child (CRC), which specifies the civil, political, economic, social, health, and cultural rights of children, including Article 37, which provides, inter alia, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily.”

Amnesty International has taken the criticism one step further and has argued that the “policy of separating children from parents is nothing short of torture…The severe mental suffering that officials have intentionally inflicted on these families for coercive purposes means that these acts meet the definitions of torture under both US and international law.” Indeed, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, defines torture as

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The US has adopted this definition of torture in 18 U.S. Code § 2340. The severe psychological and physiological effects of the separation of immigrant families rises to the level of torture under international and US law, as well as constitutes a crime against humanity given its widespread application against immigrant families, where such separation is used as a punishment for, and as a deterrence to, seeking asylum in the United States. This separation of asylum-seeking families constitutes impermissible, severe deprivation of liberty. Moreover, if reports regarding the forced drugging of detained immigrant children prove to be true, in addition to well-documented historical abuses of detained immigrant children including the denial of medical care and physical and sexual abuse, they too would rise to the level of crimes against humanity as “other inhumane acts.” Moreover, this separation, mistreatment, and incarceration violates the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which the United States has also ratified. Under the Genocide Convention, “causing serious bodily or mental harm to members of the group” and “forcibly transferring children of the group to another group,” with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” constitutes genocide.

On June 20, 2018, Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly ending family separation. The EO maintains support for Sessions’ zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the duration of the family’s immigration proceedings. This EO thus remains in contravention of international norms and standards in regards to the prolonged detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days, and which now the government seeks to amend. Moreover, despite a recent announcement by the Department of Homeland Security and the Department of Health and Human Services of a policy to reunite these families (indicating that no such reunification policy existed prior to the taking children from families), this reunification may only occur at the end of the parents’ removal proceedings, which can take several months. The reversal of family separation does not erase the fact that the children were abused  by the Trump administration’s separation policies in the first place.

The solution to family separation is not family incarceration. Indeed, the punitive incarceration of children and their asylum-seeking families not only violates the CRC and the Torture Convention as described above, but also violates the 1951 Refugee Convention and its 1967 Protocol. Under Article 31(1) of the Refugee Convention, contracting States “shall not impose penalties” on asylum-seekers, even if they entered without inspection. As Human Rights First explains, “refugees and asylum-seekers should also not be subjected to punitive or penal detention conditions […] While administrative detention is permitted in limited circumstances, the term ‘penalty’ certainly includes imprisonment […] UNHCR’s Detention Guidelines emphasize that, consistent with Article 31, ‘[t]he use of prisons should be avoided.’” The Trump administration under this EO now seeks to indefinitely detain asylum-seeking families, which is undoubtedly being implemented to deter future families from seeking refuge in the United States, which is in direct violation of international law.

Prosecution against the United States is unlikely to occur at the International Criminal Court, as it has yet to ratify the Rome Statute. Even an investigation at the ICC is unlikely because under Article 17 of the Rome Statute, the ICC can only open up an investigation in States that are unwilling and unable to genuinely carry out an investigation or prosecution. Moreover, even if the ICC opened up an investigation into the United States’ alleged crimes, the US would not cooperate, making prosecution unlikely. Advocates in the United States have been successful in suing the government over these egregious practices in domestic courts, and it thus appears that we have not exhausted all local remedies yet. Advocates ought to begin to raise these international law violations in their suits, and US judges ought to meaningfully adjudicate these violations.

Another option for the United States to be held accountable would be for another country to prosecute officials of the Trump administration in their domestic courts. Although he died before ever being convicted for his crimes, Pinochet was arrested by police in London for charges brought in Spain to punish him for crimes against humanity in Chile under the principle of universal jurisdiction. A similar action could occur here, where another country, such as Canada or Mexico, could lodge an investigation into and ultimately indict Trump or one of his cabinet members, and another country could subsequently arrest those members upon travel. While it may be impossible to do so if Trump travels to these countries as head of state, the indictment could be executed after Trump or other officials leave office and travel to other countries.

International human rights organizations and the ICC are correctly criticized for explicitly targeting and prosecuting African leaders for their human rights abuses, who rightfully deserve such prosecution but who are not alone in committing these atrocities. Recently, however, the Stanford International Human Rights Clinic and the Global Legal Action Network sought to reverse this discriminatory trend at the ICC. In February 2017, the two groups filed a Communiqué to the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, arguing that Australia’s offshore migrant and refugee detention practices constitute crimes against humanity. As documented in the Communiqué, the Australian government has systemically blocked boat refugees from accessing its shores and have instead diverted them to detention facilities on the Nauru and Manus Islands, where they are denied access to Australia’s asylum procedures. Stanford and the GLAN provided evidence to the ICC of widespread human rights abuses committed against these asylum-seekers at these offshore detention facilities, and showed that such abuses were committed for the sole purpose of deterring others from seeking asylum in Australia.

To no one’s surprise, the ICC has yet to take up the investigation into Australia’s crimes against humanity. Despite this, the Stanford Communiqué acts as guidance for a future filing against the United States, especially with regards to inhumane treatment of asylum-seekers for the sole purpose of deterring future asylum-seekers. The key difference between the Australian case and a future action against the US is that the US is committing widespread human rights abuses against asylum-seekers on US territory (in addition to preventing asylum-seekers who have lawfully presented themselves at Ports of Entry from entering the US and thus preventing them from claiming asylum, which is yet another international human rights violation). The significance of this is that it explicitly implicates the US’s international responsibilities for the fair treatment of refugees under the Refugee Convention and its Protocol, which Australia has arguably skirted by preventing asylum-seekers from entering its waters.

Advocates are far more likely to be successful in adjudicating these human rights claims in domestic courts. Indeed, our robust courts have proved effective at preventing some of Trump’s most egregious policies. While violations of international law can be raised in a lawsuit to block an egregious policy, it would not result in criminal liability for the perpetrators. Advocates should begin to look into criminal prosecution avenues to hold these officials accountable. Advocates should be cautioned, however, that they can only raise those claims that arise under treaties to which the United States has ratified. As explained above, the ability to raise these human rights claims in domestic courts prevents suit at the ICC under Article 17 of the Rome Statute. However, should advocates exhaust all domestic remedies, an ICC investigation (which is unlikely to ever result in a prosecution) remains an option. Another option is to pursue action in the Inter-American Court for Human Rights, which has the authority to make recommendations to, but not punish, the violating State. And finally, other countries may also bring suit against the Trump administration in one of their courts under the principles of universal jurisdiction.

The United States is not immune from liability for its wrongdoings. No one, not even the president or his cabinet, are above the law. Advocates should continue to consider these global litigation strategies should domestic litigation fail to find Trump administration officials culpable.

By: Cyrus D. Mehta, ABIL Lawyer and Sophia Genovese
The Insightful Immigration Blog

The desperate sobbing of children who have been separated from their parents is horrific and shocking. As the children scream “Mami” and “Papa” over and over again, a Border Patrol agent booms above the crying: “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.”

The practice of separating families at the border is not only cruel and unconscionable, but it is in direct violation of the United States’ obligations under international and US law. As has been argued by the American Civil Liberties Union (ACLU) in its most recent lawsuit against the government, Ms. L v. ICE, this practice of forcibly separating families violates “the Constitution’s due process clause, federal law protecting asylum seekers, and of the government’s own directive to keep families intact.” The Texas Civil Rights Project, the Women’s Refugee Commission, the University of Texas School of Law Immigration Clinic, and Garcia & Garcia Attorneys at Law, P.L.L.C., have filed an Emergency Request for Precautionary Measures with the Inter-American Commission on Human Rights (“IACHR”), arguing that the United States is “violating internationally-recognized human rights and well-established Inter-American standards, including the rights to family, to seek asylum and protection, to minimum due process, among others.”

For those parents seeking asylum in particular, it is permissible under the Immigration and Nationality Act to apply for asylum even if you entered the US without inspection. Supporters of the zero-tolerance policy have decried that these asylum-seekers and migrants should “get in line” or “do it the right way” by applying at Ports of Entry (POEs). However, even when asylum-seekers present themselves at POEs, they are often prevented from making an asylum claim and are turned away. This is in direct violation of International Refugee law, where countries are required to refrain from “expel[ling] or return[ing]  (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Others ‘lucky’ enough to get through to credible fear interviews are systemically found to not possess such a fear and are swiftly removed from the United States despite being eligible for asylum. Attorney General Sessions has now made this even more difficult after he overturned Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and in a footnote gratuitously asserts that few claims based on domestic violence or gang based persecution would satisfy the legal standard to determine whether a foreign national has a credible fear of persecution. And now these individuals seeking asylum, both at the POEs and who have entered without inspection, are being violent separated from their families before they can even attempt to adjudicate their claims.

The Trump Administration understands that what they are doing is shameful, and has deployed every public relations stunt in the book to try and distract the public from what is really going on. From blaming Democrats and the Obama Administration for the existence of a supposed law that mandates this violent separation, to claiming that a separation policy does not exist, to then defending such a policy – it is difficult to keep up. No matter which way you paint it, though, the policy is disgraceful and unlawful, and the Trump Administration has the power to stop its enforcement.

There is no law that requires the separation of immigrant families. The Administration has made the explicit decision to prosecute parents who enter the United States without inspection and to separate them from their children in the process. The government has appeared to bunker down on INA § 275 and 8 USC § 1325, which allow for the prosecution of the misdemeanor violation of illegal entry. Under Session’s so-called zero-tolerance policy, every person who crosses the border illegally is now being prosecuted under INA § 275.  The rationale is that those being prosecuted must be separated from their children during the pendency of the trial. Despite supposedly only separating those families who enter without inspection, there are also a number of caseswhere immigrant families are being separated after lawfully presenting themselves at POEs. Indeed, in  Ms. L v. ICE, supra, the federal judge presiding over the case determined that the plaintiff-parents had asserted sufficient facts and legal basis to establish that separation from their children while they are contesting their removal and without a determination they are unfit or present a danger to their children violates due process under the Fifth Amendment.

This Administration has made the choice to immediately subject asylum-seekers to prosecution prior to adjudicating their asylum eligibility. The UN and human rights advocates have rightfully called this practice unlawful. But more than that, the combination of being punished for fleeing violence and being violently separated from one’s children takes an ineffable mental toll and prevents them from effectively adjudicating their asylum claims, with one recent story of a father taking his own life under the stress of this policy and others discussing the developmental consequences of this separation to children. Once an asylum-seeker finally gets to adjudicate their asylum claim, after weeks or months of separation from their children, they are often so broken down that they cannot effectively argue their claims. If they do not have access to counsel, their chances of obtaining relief – despite clear eligibility – are next to none.  What also makes this practice so egregious is that the underlying motive of the Trump administration is to use the children as political fodder so that Trump can get what he desires in an immigration bill, including his wall and a reduction in legal immigration.  The whole crisis has been manufactured by Trump himself and he has the power to stop it right now.   Indeed, the separation of children as young as eight months old is so horrific that it is important to start viewing them as crimes against humanity, punishable under an international tribunal, rather than a shift in policy.

If you’re like us, and believe that this separation is wrong, we urge you to put pressure on your Congressperson to propose/support emergency legislation to stop the Trump Administration from cruelly separating children from the parents. Call the congressional switchboard at (202) 224-3121. There’s a Senate bill (S. 3036 – Keep Families Together Act) and a House bill (H.R. 5950 – the HELP Separated Children Act), which you can ask your Senators and Representatives to support. If your member is conservative and not likely to support any of these bills, then at least have the member speak out in order to urge the President to reverse the policy.  This violent policy of separating families at the border is not in line with the law and is not in line with American values. The United States has historically taken in hundreds of thousands of refugees from Eastern Europe, the Soviet Union, Haiti, Cuba and Vietnam, among many other countries. We can easily take in people fleeing persecution and violence in Central America once they qualify for asylum under our laws.  The Trump Administration and its supporters ought to take a good, long look in the mirror and ask themselves whether they in good conscience believe that separating children from their families is in-line with those values.

Update: The solution to family separation is not family incarceration.

On June 20, 2018, President Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly resolving the issue of the separation of immigrant families. The EO maintains support for the zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the immigration proceedings themselves. This EO is in contravention of international norms and standards in regards to the detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days. Although the Flores settlement only applies to children, past practice (admittedly, inconsistent practice) has been to release the whole family after 20 days to ensure family unity. The EO directs the Attorney General to file suit in the Central District of California to modify the Flores settlement to allow for indefinite detention of children.
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The struggle to end mass incarceration of families is not over, and the new EO should not be seen as a victory. Practitioners should continue to litigate these detention practices in the courts and allies should continue to advocate for the eradication of this egregious practice. Nor should President Trump gloat and claim victory. He along with his cabinet members  and advisors who masterminded a gulag for children, toddlers and infants – with the goal of using them  as political fodder – have inflicted irreparable damage on them and should ultimately pay the price.
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There is a clear prohibition to the foreign national beneficiary paying attorney fees and costs associated with labor certification. Similarly, fees and costs associated with the preparation of an H-1B petition and Labor Condition Application are considered unauthorized deductions from the beneficiary’s wage. These prohibitions are set forth in regulations of the Department of Labor that require the employer to bear such fees and expenses. Do these prohibitions extend to situations where the beneficiary seeks federal court review of a denial of an H-1B petition or labor certification application without the employer under the Administrative Procedures Act and pays the fees and costs of such litigation? Should not the Administrative Procedures Act trump DOL regulations that hinder the ability of a beneficiary to initiate and seek review by a federal court of an erroneous denial?

When a beneficiary sues without a petitioner, he or she must assert standing as well as whether the beneficiary’s claim fell within the zone of interests that the statute was supposed to protect. Under Article III of the Constitution, the plaintiff must have suffered an injury in fact that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff also has the ability to sue when his or her claim is within the “zone of interests” a statute or regulation protects. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

For example, in the H-1B context, Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016) held that H‐1B petition beneficiaries have standing because approval gives them “the right to live and work in the United States, and imposes obligations such as complying with “extensive regulations” on their conduct; they also have the potential for future employment with a new petitioner. Still, there is no guarantee that every court will recognize that a beneficiary has standing in a lawsuit challenging the denial of a nonimmigrant petition. In Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348 (D.D.C. 2016), the court decided that H-2A sheepherders lack standing because congressional intent was to protect U.S. workers.

With respect to labor certifications, in  Ramirez v. Reich, 156 F.3d 1273 (D.C Cir. 1998) the DC Circuit Court of Appeals recognized the foreign national’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, in Gladysz v. Donovan, 595 F. Supp. 50 (N.D. Ill. 1984)  where the non-citizen sought judicial review after the employer’s labor certification had been denied, the court held that the beneficiary was in the zone of interests, but the labor certification denial was upheld as it was not arbitrary and capricious.

If the foreign national seeks review of the denied labor certification in federal court, would the DOL still expect the employer to bear the fees of the litigation pursuant to 20 CFR § 656.12(b)? It can be argued that 20 CFR § 656.12(b) should be limited to activity related to obtaining labor certification and not while appealing a denial to federal court where the employer has dropped out as a plaintiff.  If that is not the case, the DOL would be obliterating the alien’s ability to seek review in federal court assuming that the employer still had a job offer open for the alien. 20 CFR § 656.12(b) barring the alien from paying the attorney’s fee ought to also be challenged by the foreign national who has standing to seek review of the denied labor certification in federal court. Based on the above, it is both necessary and proper  to avoid any interpretation of  § 656.12(b) that conflicts with the beneficiary’s right under the APA from seeking judicial review in federal court, a right that Congress has not taken away. It can be argued that DOL cannot condition or restrict the full and complete exercise of the foreign national’s APA rights in any way. That being the case, the courts should be properly reluctant to impose by judicial fiat that which is not already found in the law with unmistakable clarity. See National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)(“Chevron’s premise is that it is for the agencies, not courts, to fill statutory gaps”). Here, when we look at INA § 212(a)(5)(A) there is nothing for DOL to add. The statute is clear and unambiguous. If Congress wants to prevent the alien from going into court under the APA to challenge the denial of a labor certification, then Congress knows how to do it. If DOL wanted to stipulate that an employer always had to go to BALCA or forget about the APA, it could have said too.

Neither Congress nor the DOL has done so despite the fact that the INA has been amended many times and DOL has reinvented the labor certification process more than once. Their silence speaks volumes.  There is no need for DOL to clarify what Congress has made crystal clear. That being the case, it is even more transparent that a federal court must honor the intent of Congress and stay its hand against any temptation to take the APA arrow out of a beneficiary’s quiver. The silence of those most directly responsible for the creation and administration of the labor certification process suggests, indeed commands, that the foreign national’s rights under the APA not only be respected but nurtured and encouraged

The situation is somewhat analogous to the purported regulatory limitations period for federal court review of a naturalization denial, which the Tenth Circuit rejected in Nagahi v. INS, 219 F.3d 1166 (10th Cir. 2000).

The Tenth Circuit said of the INA’s broad grant of authority to the Attorney General to make rules that “while this delegation is a broad grant of authority, it does not extend to creating limits upon judicial review.”  Nagahi, 219 F.3d at 1170.  The Secretary of Labor has, if anything, less broad authority, and what authority the Secretary does have also does not extend to creating limits on judicial review, even indirect ones.

The regulation should not strictly apply to a situation where the attorney is representing the foreign national only and not the employer, which could happen if the alien is the only plaintiff in the APA action that we are contemplating.  20 CFR § 656.12(b)-(c) states:

(b) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer’s attorneys’ fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person’s or entity’s established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.

(c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person’s or entity’s established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency’s procedures, and may be grounds for denial under § 656.32, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.

In this scenario, the employer is not seeking or receiving any payment.  The only sentence which that fact does not take out of the picture immediately is the one stating that “an alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer.”

But even when the employer is the plaintiff, along with the beneficiary, or both the employer and the beneficiary are plaintiffs, it can be argued with equal force that the prohibition against the foreign national paying the fees in a DOL regulation cannot override a claim under the APA that falls within the “zone of interests” that the statute was intended to protect. The beneficiary is paying attorney fees not to obtain labor certification but to seek redress against the DOL for erroneously denying his or her labor certification.

The same analysis can extend to prohibition of payments by the foreign national in the H-1B context. The relevant regulation involves the definition of authorized deduction at 20 CFR § 655.731(c)(9)(ii), which states in relevant part:

[T]he deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition).

Unlike 20 CFR § 656.12(b)-(c), there is no absolute prohibition towards payment of attorney fees and costs relating to the preparation and filing of an LCA and H-1B petition. They are treated as business expenses and have the effect of deducting the beneficiary’s wage. If the beneficiary’s wage falls below the required wage, it would result in violation.  A similar analysis would apply as in the PERM labor certification context.  If the lawsuit is being filed by the employee only, then it does not make sense to describe it as among the “H-1B program functions which are required to be performed by the employer”, because almost by definition, an employee-only APA action cannot be something required to be done by the employer. Even if the lawsuit is being filed by the employer on behalf of the employee, and the employee pays, it can be forcefully argued that the prohibition against this sort of unauthorized deduction is limited to the preparation and filing of an LCA and H-1B petition, and not when the fee is paid to challenge an arbitrary and capricious denial of an H-1B petition in federal court.

An action in federal court is authorized under the APA and should be distinguished from an administrative challenge of a denial to the Board of Alien Labor Certification Appeals or the Appeals Administrative Unit. Those challenges are not governed by the APA but by agency regulations, which insist that only the employer or petitioner may seek administrative review. The APA, on the other hand, allows the plaintiff, which may include both the petitioner and the foreign national beneficiary, to show that the claim falls within the “zone of interests” that the statute was intended to protect and the plaintiff has suffered injuries “proximately caused” by the alleged statutory violation. See Lexmark supra.  Even in the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). While there has never been a prohibition against beneficiaries paying fees and costs associated with I-140s, and so the welcome development under Matter of V-S-G is not relevant to this discussion regarding fees, the DOL may still argue that it has latitude to prohibit payment of fees by the beneficiary whose employer is seeking administrative review at BALCA or the AAO of a denied labor certification or H-1B petition. However, this supposed latitude arguably diminishes or evaporates in the context of an APA action is filed in federal court where the beneficiary’s zone of interests that the statute was intended to project have been violated.

Under the Trump administration, there have been an increasing number of H-1B denials of petitions that were routinely approved previously. The stakes are extremely high for such beneficiaries who are caught in the crippling employment-based preference backlogs, and need to seek H-1B extensions well beyond the six year limitation. A denial of a routine H-1B extension can have a devastating impact on the beneficiary and the family. A beneficiary caught in this predicament may have no choice but to resort to suing the agency in federal court. An employer may be gun shy to sue or pay for the litigation, and thus the beneficiary would need to take the initiative and pay the fees and costs associated with such litigation. While we have not yet seen an increase in labor certification denials, they do happen and the stakes are equally high, if not higher, for the foreign national beneficiary who would need to seek redress in federal court. DOL regulations prohibiting payment of fees and costs associated with the preparation of applications should logically not apply to lawsuits in federal court against government agencies to challenge their denials. This is an issue of first impression, and if the DOL continues to assert that fees and costs paid by the foreign national relating to such litigation are prohibited, those rules – especially 20 CFR § 656.12(b)-(c) and 20 CFR §655.731(c)(9)(ii) – ought to also be challenged alongside the lawsuit to set aside a wrongful denial.

(The author thanks David Isaacson for his invaluable input).

By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, if and when it does become a rule, foreign nationals who rely on government benefits will be more at risk of being found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the Trump administration’s proposed regulatory change is winding its way through bureaucratic channels, the State Department’s Foreign Affairs Manual (FAM), which is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad, has already made it easier to find visa applicants inadmissible under the public charge ground. The State Department can freely change the FAM at its choosing without even providing notice to the public or an opportunity to comment.

Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills.

Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government. See INA 213A(a)(1)(B).

The State Department at 9 FAM 302.8-2 (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new 9 FAM 3012.8-2(B)(2) provides:

Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). Pursuant to the old FAM guidance, the credibility of an offer of support from a person who met the definition of a sponsor and who had verifiable resources was not a factor. A DOS official at the Federal Bar Association’s Immigration Conference on May 18 and 19, 2018 in Memphis, TN confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations. By way of an example, according to the DOS official, if a co-sponsor has already executed other I-864s in the past, then that will be viewed as an adverse factor. (See Lily Axelrod’s excellent summary of the proceedings of the FBA immigration conference on the Cool Immigration Lawyers page on Facebook).

The I-864 has always been thought of as a binding contract between the sponsor and the government, and thus discrediting an I-864 that is otherwise non-fraudulent seems to undermine the contractual nature of the I-864. Even if a sponsor has executed other I-864s in the past, that should not result in an adverse credibility determination if the sponsor has sufficient documented income to meet 125% of the federal poverty guidelines based on his or her household size. Under the new FAM provisions, deeming a properly executed I-864 as overcoming public charge will no longer be the case.

Indeed, the change to the public charge definition in the FAM is causing additional havoc to otherwise eligible applicants for immigrant visas. Those who already got approved I-601A provisional waivers to overcome the 3 or 10 year bars under INA 212(a)(9)(B)(i) and have proceeded overseas to process their immigrant visas are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4). If the visa applicant is found inadmissible for another ground other than under INA 212(a)(9)(B)(i), the I-601A waiver is revoked and the applicant has to file a new I-601 to again overcome the 3 or 10 year inadmissibility bars under INA 212(a)(9)(B)(i) even if the applicant is able to overcome the public charge ground by providing additional evidence. This can cause a delay of at least a year and result in uncertainty until the new I-601 is approved. One suggested way to ameliorate this unnecessary hardship is to issue an INA 221(g) letter requesting evidence to overcome the public charge ground rather than a flat out refusal under INA 212(a)(4).

The new FAM assessment of public charge also appears to run contrary to 8 CFR 213a.2(c)(2)(iv), which provides:

While it may be permissible under 8 CFR 213a.2(c)(2)(iv), to find public charge inadmissibility despite a proper affidavit of support, it has to be based on “evidence of specific facts” that “support a reasonable inference that the alien is likely . . . to become a public charge.” The new FAM guidance on the other hand considers a non-fraudulent I-864 only as a positive factor in the totality of circumstances, which includes the foreign national’s age, health, family status, assets, resources and financial status and education and skills.
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Applicants should no longer assume when they process an immigrant visa at a US consulate that an I-864 will be deemed to overcome a public charge finding. The visa applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable. Nothing should be taken for granted under the Trump administration, whose avowed objective is to restrict legal immigration to the United States. Until the administration can get its way in Congress by restricting immigration to only a select few under a Merits-Based immigration system, it will try every other way to restrict immigration, including expanding the definition of public charge.

By: David Isaacson, Partner of Cyrus D. Mehta, ABIL Member
The Insightful Immigration Blog

Attorney General Jefferson B. Sessions III recently ruled in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), that immigration judges cannot under most circumstances “administratively close” cases before them (other than in a few instances where this is specifically authorized by regulation or court-approved settlement), even though the practice has been followed for many years.  Administrative closure had previously allowed immigration judges to avoid spending time on cases that were awaiting action by another agency or were otherwise lower-priority, but Attorney General Sessions has generally removed this option.  Instead, he has insisted that Immigration Judges must either resolve cases before them promptly, or grant a continuance “for a fixed period” where justified.  Matter of Castro-Tum, 27 I&N Dec. at 289.

The Attorney General’s decision in Castro-Tum has been the subject of a great deal of justified criticism from various sources, including AILA Secretary Jeremy McKinney, the American Immigration Council, the National Immigrant Justice Center, retired Immigration Judge Paul Wickham Schmidt, and Judge Ashley Tabbador, the president of the National Association of Immigration Judges.  All of that criticism is worthy of review.  In this blog, however, I want to focus on something which struck me about Castro-Tum that has not been addressed as much in the public criticism to date: the degree to which it ignored the rationale of the leading case it overturned.  By ignoring the reasons that justified the expansion of administrative closure in the first place, Attorney General Sessions has set the table for a potentially substantial increase in the immigration courts’ backlog of cases that may defeat whatever goal he believed the abolition of administrative closure would accomplish.

As Attorney General Sessions recognized in Castro-Tum, the use of administrative closure expanded when, in its 2012 decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the Board of Immigration Appeals held that cases could be administratively closed over the objection of one of the parties.  Notably absent from the Attorney General’s decision in Castro-Tum, however, is any discussion of the facts in Avetisyan that had led the BIA to come to this conclusion.

The respondent in Matter of Avetisyan had a U.S. citizen husband, who had naturalized during the first half of 2007 (after a January 29 hearing and prior to a June 14 one), and had previously filed an I-130 petition with USCIS to sponsor her for lawful permanent residence as his spouse.  This would have been the basis for the respondent to seek adjustment of status before the Immigration Judge, had the petition been approved.  As of September 2007, the respondent and her husband had been interviewed and had evidently provided all documents requested of them, but were waiting for USCIS to make a final decision on the petition.

Despite “five additional continuances” granted by the Immigration Judge, however, the I-130 petition at issue in Avetisyan was not adjudicated by USCIS.  “During the December 11, 2007, hearing, counsel for the DHS indicated that she did not have the file and that it was possibly with the visa petition unit.  On April 15, 2008, counsel for the DHS explained that the file was being transferred back and forth for each hearing before the Immigration Judge.”  Matter of Avetisyan, 25 I&N Dec. at 689–690.  That is, it appeared to be the repeated immigration court hearings themselves that were preventing the I-130 petition from being adjudicated: in preparation for each hearing, the file was being shifted from the USCIS unit which would have adjudicated the petition, to the attorneys representing DHS in the immigration court.  The Immigration Judge in Avetisyan, affirmed by the BIA, sought to avoid this conundrum by administratively closing the case, so that the I-130 petition could be adjudicated without the file being diverted to a DHS attorney in preparation for yet another hearing.  The case could then have been restored to the Immigration Court’s calendar once the I-130 petition had been adjudicated.

The Attorney General’s decision in Matter of Castro-Tum does not address this fact pattern at all, and does not suggest what an Immigration Judge or the Board ought to do under circumstances similar to those at issue in Matter of Avetisyan.  Continuances for a fixed period of time would not solve the problem if each continued hearing caused the file to be pulled away from USCIS petition adjudicators, just as appears to have occurred five times in Avetisyan before the Immigration Judge called a halt to the absurdity.  The cycle of continuances and file movement could literally go on indefinitely.

The alternative which this author suspects Attorney General Sessions might prefer, ordering the respondent removed because USCIS had not yet finished adjudicating a petition on his or her behalf, would be even more absurd, and unlikely to survive review in an appropriate Court of Appeals.  USCIS, after all, is a branch of DHS, the very agency which takes the prosecutor’s role before the Immigration Court to argue that someone should be removed.  In opposing a continuance under the sort of circumstances at issue in Avetisyan, DHS would be in the position of asking that someone be removed from the United States because they, DHS, had not yet deigned to adjudicate a petition filed on that person’s behalf.  Even in Avetisyan itself, DHS did not dare go that far (instead requesting a further continuance).  The possibility brings to this author’s mind Leo Rosten’s classic definition of chutzpah, relayed in the ABA Journal as “a person charged with killing his parents who pleads for mercy because he’s now an orphan.”

In a different context relating to motions to reopen, the Court of Appeals for the Second Circuit, in Melnitsenko v. Mukasey, rejected “the imposition of a mechanism by which the DHS, an adversarial party in the proceeding, may unilaterally block [that relief] for any or no reason, with no effective review by the BIA.”  The same objection would apply if DHS, a party to the removal proceedings, could seek to block relief and effect removal simply by delaying adjudication of an I-130 petition indefinitely.  But in the Avetisyan scenario, absent administrative closure, it may be that the only other option besides allowing this sort of deeply problematic unilateral blockade by DHS would be an indefinite cycle of continuances.

Philosopher George Santayana wrote in The Life of Reason that “Those who cannot remember the past are condemned to repeat it.”  Notwithstanding his expressed desire in Matter of Castro-Tum for more expeditious adjudication of immigration court cases, Attorney General Sessions may have put himself in the position described by Santayana.  He has abolished the tool used in Matter of Avetisyan to avoid an indefinite delay, without addressing, or seemingly remembering, the scenario which had caused that tool to be necessary in Avetisyan.  He may thereby have condemned himself, and the immigration court system, to repeat the sort of indefinite delays that gave rise to Avetisyan in the first place.

By: Jennifer Howard, Associate of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

Just over one year ago, we reported that a bipartisan bill related to the expansion of Colorado driving privileges for undocumented residents failed to pass in the state senate for the second year in a row. If passed, the bill would have closed a loophole in the law to allow undocumented Colorado residents to obtain Colorado driver’s licenses. Now, we are happy to report that, just last week, on May 11, 2018, a comparable bill introduced in the 2018 legislative session was passed by both the Colorado Senate and the House and sent to the Governor for signature.

Currently, Colorado residents who cannot provide proof of lawful presence in the United States, but have an Individual Taxpayer Identification Number (ITIN) issued by the U.S. Internal Revenue Service (IRS), can request an appointment and often wait months to obtain a “special” Colorado driver’s license, permit, or identification (ID) card from the state Department of Motor Vehicles (DMV). However, the law as it was written left out undocumented residents who could not provide proof of lawful presence but who held valid Social Security Numbers (SSNs) rather than ITINs and, in effect, prevented them from obtaining any type of license or permit to drive in the state of Colorado.

Now, to close the gap and to allow persons with valid SSNs to be eligible for a special license, the Colorado legislature passed the Eligibility Colorado Road and Community Safety Act (SB-18-108). This bill will also change the law to allow undocumented residents to renew or replace their current driver’s licenses, permits, or ID cards online or by mail rather than in person— for example if the license, permit, or ID card is approaching expiration or is lost or stolen. The bill will become law once Governor Hickenlooper either approves the bill or allows it to become law without his signature.

Thanks to the passage of this bill, once signed into law by Governor Hickenlooper and put into effect, more Colorado residents “will be able to … register … vehicles in [their] own name[s], obtain insurance, and renew [their] driver’s licenses,” thus increasing driver accountability and making the roads safer for all Colorado drivers. Additionally, with the enactment of this law, a number of Colorado residents who were previously left without the option to obtain a valid driver’s license and purchase automobile insurance will now be eligible to do so, including certain out-of-status temporary workers, international students, recipients of Temporary Protected Status (TPS), recipients of Deferred Action for Childhood Arrival (DACA) status, and those formerly in non-immigrant status who have previously been issued work authorization and an SSN by the Department of Homeland Security (DHS), as well as certain immigrants who received SSNs prior to the 1996 Personal Responsibility and Work Opportunity Act.

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If you are eligible for a special Colorado license, permit, or ID card and you have an ITIN, you may make an appointment* with the DMV by following the instructions on their website at https://www.colorado.gov/pacific/dmv/node/48731/ or by calling them at (303) 205-2335. If you need at ITIN number, visit http://www.irs.gov to obtain the Form W-7 and for more information. If you already have a valid SSN, then you can use that to apply for the special Colorado driver’s license, permit, or ID card with the DMV once the new law goes into effect and the DMV begin accepting those applications.

*Any person who has falsified documents or used a “fake” SSN, ITIN, driver’s license, permit, or ID may be subject to criminal charges and should consult with an immigration attorney before applying for a Colorado license, permit, or ID card under the law currently in place.

By: Charles Kuck, Past ABIL President
Musings on Immigration

​[1] In 2012, President Obama issued an executive order for the implementation of the DACA program. This immigration program shields qualified immigrants who entered the U.S. illegally as children, protecting recipients from deportation from the U.S. for two years (and then subject to renewal). While DACA does not provide a pathway to U.S. citizenship, DACA recipients do receive benefits such as the ability to legally remain in the country and the opportunity to get work permits. With the ability to legally work, DACA recipients have been able to pay for higher education and in some states legally drive. Also, in some states, the DACA program has opened up access to in-state tuition and state-funded grants and loans. And depending on where they live, DACA recipients may also qualify for state-subsidized health care. DACA status has been issued to approximately 800,000 people, whose ages now fall between 14 and 35.



[2] https://www.npr.org/sections/thetwo-way/2018/04/25/605573039/federal-judge-upholds-daca-calling-white-house-decision-to-rescind-it-capricious

[3] https://www.npr.org/sections/thetwo-way/2018/04/25/605573039/federal-judge-upholds-daca-calling-white-house-decision-to-rescind-it-capricious

[4] https://www.nilc.org/issues/daca/dc-court-orders-daca-termination-memo-vacated/

[5] https://www.nilc.org/issues/daca/dc-court-orders-daca-termination-memo-vacated/

[6] http://lawprofessors.typepad.com/conlaw/2018/04/another-federal-judge-enjoins-presidents-daca-recission.html
[7] http://time.com/5253724/donald-trump-daca-judge-unlawful/

[8] https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv2325-70 (see pp.53)

By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

​U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo abruptly revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance is effective August 9, 2018, and after reading this blog, it is hoped that readers are sufficiently shocked and motivated to submit comments as the radical departure from previous policy will jeopardize the ability of many nonimmigrants, mainly foreign students, from returning to the United States for unwitting or inadvertent status violations.

There has always been a strict distinction between violating status and being unlawfully present in the United States. One can be in violation of status without being unlawfully present. Even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence. This is because an F, M and J nonimmigrant is usually admitted for a Duration of Status (D/S) rather than up to a certain date. An F, M or J can maintain status so long as they remain enrolled in the educational institution or participate in activities pursuant to that status, which is why they are admitted under D/S.  On the other hand, one who is the beneficiary of an approved H-1B or L nonimmigrant petition is admitted only up to the validity date of the petition. F, M and J nonimmigrants are not beneficiaries of prior approved petitions filed by sponsors.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios under the prior policy discussed below.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA 212(a)(9)(C)(i)(1).

The new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

By contrast, one admitted under an approved H-1B or L visa petition up to a certain date starts accruing unlawful presence after remaining beyond that date while a student who was admitted under D/S did not unless there was a violation of status finding by the USCIS or by an immigration judge. This holds true even with respect to a nonimmigrant admitted under a date certain visa. If the H-1B or L nonimmigrant violates status during the validity period of the admission, he or she will be in violation of status but will not accrue unlawful presence unless there is a formal finding by the USICS or an immigration judge.

The prior policy made more sense, and maintained the important distinction between maintenance of status and lawful or unlawful presence. The 3 and 10 year bars, or the permanent bar, are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under 212(a)(9)(B)(ii), which provides:

“….an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled”

The new policy blurs the difference between being out of status and unlawfully present. Unlawful presence ought to only trigger when one goes beyond an expiration date and not when there is a contestable violation of status. If a student in F status is in violation of that status, he or she can be placed in removal proceeding and may contest the allegation in the proceeding. If the Immigration Judge orders the person removed based on the violation, then the unlawful presence period may commence upon the order. Similarly, when one who is in F status applies for a change of status, and the USCIS finds that the applicant violated status, which the applicant may have been able to contest,  unlawful presence may commence after such a finding.

Under the new policy, a nonimmigrant in F, J or M status may have unwittingly violated that status by not pursuing a full course of study or engaging in an unauthorized activity, and may never get notice of it until much later. Even F-1 students in post-completion practical training could potentially be deemed later to have engaged in unauthorized activity, such as not working in an area consistent with their field of study or a STEM trainee being placed at a third party client site, which USCIS has without notice abruptly disfavored,   or if a school’s curricular practical training does not meet the USCIS’s subjective interpretation of whether the school was in compliance when it authorized such training.   In the meantime, this person would have started accruing unlawful presence and triggered the 10 year bar to reentry upon departing the United States. The dependent spouse would also unfairly accrue unlawful presence as a result of a status violation by the principal spouse. This individual may never get a chance to contest the violation of status after the fact. Unlawful presence should only trigger when there is clear notice of remaining beyond an expiration date of authorized stay in the United States and not when there is a contestable allegation of violation of status. An F, J or M nonimmigrant is now in a worse off position than say an H-1B nonimmigrant admitted under a date certain validity period. A violation of status by the H-1B nonimmigrant during the period of authorized stay would not trigger unlawful presence.  Even after 9/11, when immigration policies concerning students were tightened, we did not see such a cynical change in policy for students as now under the Trump administration where they may not know in time of a status violation only to later realize they have unwittingly accrued unlawful presence triggering the 10 year bar.

This is my preliminary reaction to the new unlawful presence policy relating to F, M and J nonimmigrants. There will be many other good arguments that will be developed and interested persons, along with those who will be potentially affected by 3 and 10 year bars,  are strongly urged to send in comments before June 11, 2019. The memo will take effect on August 9, 2018, but the abrupt change in policy without any proper rationale or justification also potentially makes it ripe for litigation.

By: Sophia Genovese, Associate of Cyrus D. Mehta, ABIL Lawyer
​The Insightful Immigration Blog

The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the EOIR, formally announced these metrics, which require IJs to complete at least 700 cases per year, have a remand rate of less than fifteen percent, and meet half of the additional benchmarks listed in the evaluation plan, which can be found here. As pointed out by the Association of the Bar of the City of New York, “this quota translates into each judge hearing testimony and rendering decisions almost three cases per day, five days per week, 52 weeks per year.” According to several retired IJs and Former Board of Immigration Appeals (BIA) Members, such quotas raise serious due process concerns and will result in a system that is less focused on justice and appearing “more like an assembly line.”

There are a number of issues with the EOIR case completion quotas. First, these quotas may force IJs to breach their ethical obligations. Specifically, the new completion quotas are tied to the financial incentives of IJs, where the performance evaluations affect IJs’ job security and eligibility for raises. IJs are not given life appointments and can be easily removed from the bench by the Attorney General if he finds them to not be meeting these performance thresholds. Thus, IJs may be encouraged to render hasty decisions in order to satisfy these case completion quotas and receive a good review (and thus a raise) instead of making decisions based on what is proper for the cases in front of them. Having such a financial incentive in the completion of a case arguably forces an IJ to violate 5 C.F.R. §§ 2635.401 to 2635.403,[i] which prohibits IJs from participating in proceedings where he or she has a financial interest. Additionally, IJs must be impartial in their decision-making under 5 C.F.R. § 2635.101(b)(8). It is hard for an IJ to remain impartial when pressured with impossible case completion standards especially when a case is meritorious but an IJ may not grant a continuance for legitimate reasons.

The case completion quotas also violate 8 C.F.R. § 1003.10(b), which provides: “In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgement and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” For example, an attorney may have been only recently retained by an asylum-seeker, and may request a continuance in order to gather and assemble evidence that is vital for the asylum-seeker’s claim. Under ordinary circumstances, an IJ would likely grant such a continuance as it would be considered proper under INA § 240(b)(4)(B) which affords a “reasonable opportunity…to present evidence” on one’s behalf. However, under the quota system, an IJ may feel pressure to deny the motion for continuance and may ultimately deny the asylum claim because the asylum-seeker was not afforded sufficient time to present their case. Such an outcome clearly violates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B) where the IJ is stripped of their independent decision-making authority where they feel pressured to quickly close out a case despite compelling reasons to grant a continuance, and where the asylum-seeker is not afforded a reasonable opportunity to be heard.

Another example is an individual placed in removal proceedings who is the intending beneficiary of a pending I-130 with USCIS. Typically, USCIS takes several months to adjudicate an I-130, and thus, attorneys for respondents file motions for continuance with the IJ until the USCIS has rendered a decision which will determine the respondent’s eligibility for relief from removal. Under the new case quota system, IJs will be less inclined to grant such continuances. This hypothetical similarly implicates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B), as described above. Moreover, the IJ’s denial of the continuance here would violate Matter of Hashmi, 24 I&N Dec. 785, 793-94 (BIA 2009) where the Board held that compliance with a IJ’s case completion goals “is not a proper factor in deciding a continuance request” where there is an meritorious pending I-130. We’ve previously blogged about AG Sessions’ stripping of judicial independence through his self-referral of  Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018), which can be found here.

The case completion quotas will also lead to an unprecedented number of BIA and federal court appeals. This would needlessly increase the BIA’s backlog and indeed affect the dockets of the federal court systems, resulting in the tremendous waste of taxpayer’s dollars where a proper decision could have been rendered at the IJ level. In addition, the number of remanded cases may exceed fifteen percent, and thus, the IJ would again fail to meet the performance metrics in their performance evaluation.

There is no denying that the Immigration Courts face tremendous pressure to address the ballooning backlog of cases. As of this writing, there are 692,298 pending cases in Immigration Courts across the country, with only approximately 330 judges to hear them. Advocates during the Obama-era consistently advocated for the appointment of more IJs to address the backlog. However, in the Trump-era, advocate are now skeptical of such a move where it is clear that this Administration seeks to deport as many people as possible. Indeed, the Department of Justice, headed by Jeff Sessions, has celebrated deportations under the Trump Administration. Such an emphasis on deportation, as opposed to fair adjudication of claims, undermines the independence and impartiality of IJs. The implementation of the DOJ/EOIR case completion quotas will undoubtedly lead to a rise in unfair hearings and erroneous deportations, which is exactly what this Administration wants. The appointment of Trump-supporting IJs will only exacerbate the problem.

For many years, the NAIJ has advocated for the creation of an Article I Immigration Court that is independent of the political whims of the Department of Justice. Under the current Administration, and in light of the newly imposed DOJ/EOIR performance quota metrics, these calls have never been more relevant. The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws. The case completion quotas will undoubtedly undermine the integrity of our immigration system and should be vigorously challenged by IJs and practitioners.

[i] The author acknowledges that 5 CFR § 2635.402 directly implicates 18 U.S.C. 208(a), a criminal statute. This author suggests that the EOIR case completion quotas may jeopardize an IJ’s ethical obligations where their financial interests are directly and predictably impacted by blind adherence to such arbitrary quotas. Criminal liability for these actions, however, goes beyond the scope of this article.

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By: Courtney Sommer, Associate of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

International students wishing to study in the U.S. have a few options for visas. The two most common student visas are a J-1 and an F-1 student visa.

A J visa is an exchange visitor visa for students participating in approved exchange programs within the U.S. Some nonimmigrants under the J visa are required to return to their home country for two years at the end of their program before they can return to the U.S. unless they are eligible to waive that requirement. A student under the J visa program is allowed to work in on-campus employment during the course of study and in approved off-campus employment related to the academic program for a period of 18 months.

An F1 visa is a non-immigrant visa for students in a full-time course of study who must be proficient in English or enrolled in English language courses and who must have sufficient funds available to support themselves during their entire course of study. They must also have a residence abroad to return to after the expiration of their non-immigrant status. A student in the F visa program may only work on-campus during the first academic year and then may accept certain off-campus employment related to his or her academic program.

While many students studying in the U.S. have been living in the country for many years, often in the same state for most or all of those years, those students are almost never eligible for in-state tuition at a public university. For instance, Colorado law prohibits state-funded schools from offering in-state tuition to those in the country on a J-1 or F-1 visa, stating the students’ residency in Colorado must be for purposes other than their education.

International students are also often excluded from most forms of financial aid. Without a U.S. citizen co-sponsor, international students are usually ineligible to apply for a public or private student loan. As nonimmigrants, they are also often excluded from most scholarships. And while international students are eligible to work, that work is limited to part-time work during the academic term and is unlikely to cover the higher fees they pay for out-of-state tuition. For example, at Colorado State University, in-state undergraduate students can expect to pay $12,000 for tuition, while out-of-state students will pay $30,000.  CU Boulder estimates an in-state undergraduate student will pay nearly $28,000 for tuition and housing, and out-of-state student will pay $52,000, and an international student will pay nearly $58,000.

International students are nonimmigrants with no direct path to permanent residency or citizenship. But while those students are living and working in the U.S., they are contributing to the economy and their communities. Many of these same hurdles apply to students protected under DACA, as many states have yet to provide in-state tuition to undocumented immigrants.

As we head into graduation season, take note of the accomplishments of international students and the extra hurdles they had to face to get there.