Supreme Court Dismisses One of Two Challenges to President Trump's Executive Order 13780

On October 10, 2017, the Supreme Court of the United States dismissed one of the two challenges to President Donald Trump's March 6, 2017 Executive Order 13780. As we explained in our article on the challenges, the Supreme Court had consolidated a decision of the United States Court of Appeals for the Fourth Circuit (Trump v. IRAP) and a decision of the United States Court of Appeals for the Ninth Circuit (Trump v. Hawaii) on appeal [see article]. The Fourth Circuit decision only addressed section 2(c) of President Trump's Executive Order 13780, which suspended the entry of nationals of six enumerated countries for a period of 90 days [see article]. The Ninth Circuit decision addressed both section 2(c) and the provisions of the Executive Order suspending the entry of certain refugees.

Section 2(c) of Executive Order 13780 lapsed on September 24, 2017. President Trump issued a Presidential Proclamation which included new travel restrictions, replacing the ones of section 2(c) [see article]. In light of the fact that the issue ruled upon the Fourth Circuit had “expired on its own terms,” the Supreme Court determined that the issue from Trump v. IRAP was moot. Accordingly, the Supreme Court vacated the judgment of the Fourth Circuit in accord with United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950) [PDF version], and remanded the case with instructions to dismiss the challenge to Executive Order 13780 as moot.

Although the Supreme Court did not reach the merits of IRAP v. Trump, its decision to vacate the judgment under Munsingwear is significant in that the Fourth Circuit decision will have no value as precedent going forward. One Justice, Sonia Sotomayor, actually dissented from the order vacating the judgment in IRAP v. Trump (name of the case in the Fourth Circuit), taking the position that she would have dismissed the writ of certiorari (the Supreme Court's decision to grant review) as improvidently granted. Had the Court opted for Justice Sotomayor's preferred remedy, the judgment of the Fourth Circuit would have not been vacated.

While the Supreme Court dismissed Trump v. IRAP, it left in place the second challenge to Executive 13780 deriving from the Ninth Circuit in Trump v. Hawaii. The different treatment is likely owed to the fact that the refugee provisions of Executive Order 13780 addressed in the Ninth Circuit decision have not yet expired, meaning that there is still a live issue in the case. However, it is possible that once those provisions of Executive Order 13780 expire on October 24, 2017, the Supreme Court will similarly dismiss the case as moot and vacate the judgment of the Ninth Circuit. It is worth noting that the Supreme Court has not re-scheduled oral arguments in the case that had originally been slated for October 10.

Even if the second challenge to Executive Order 13780 in Trump v. Hawaii is dismissed, the fundamental issues regarding travel restrictions may again find their way to the Supreme Court in the form of challenges to President Trump's September 25 Presidential Proclamation. However, the Presidential Proclamation presents a different set of issues to Executive Order 13780, and it is possible that this fact in conjunction with the Supreme Court's handling of challenges to Executive Order 13780 may lead to different results in the lower courts for challengers of President Trump's policy.

We will continue to update the website with information regarding the legal situation surrounding President Trump's travel restrictions.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

USCIS Releases New Statistics After "Hire American" Executive Order

On October 12, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it has posted new data about employment-based nonimmigrant visas and employment authorization documents on its website [PDF version]. The new data has been posted as a result of directives in President Donald Trump's “Buy American, Hire American” Executive Order, which we have written about on site [see article].

First, the USCIS released data on approved L1 intracompany transferee petitions by employer for FY 2015 [PDF version] and FY 2016 [PDF version]. You may learn more about L1 intracompany transferees by seeing our selection of articles on L1 [see category], L1A [see category], and L1B [see category] intracompany transferees.

The USCIS released the list of approved H1B petitions by employer for FY 2015 [PDF version] and FY 2016 [PDF version]. The USCIS also released a PDF discussing the characteristics of H1B workers in FY 2016 [PDF version]. Finally, the USCIS also released a PDF of H1B visa trends for FY 2007 to 2017 [PDF version]. This PDF includes information about the nationalities, age, occupation categories, income, and educational attainment of H1B beneficiaries over this ten year period. To learn more about issues involving H1B visas, please see our full selection of articles on the subject [see category].

Regarding the H2B nonimmigrant visa category, the USCIS released information on the number of petitions and beneficiaries by job code for the special one-time increase in H2B visas for FY 2017 from July 19, 2017 to August 11, 2017 [PDF version]. We discussed the one-time increase in H2B visas for FY 2017 on site.

Finally, the USCIS released statistics on the issuance of employment authorization documents (EADs) from October 1, 2012 to June 29, 2017. The first document details the number of approved EADs by classification and statutory eligibility for this period [PDF version]. The second document displays the number of approved EADs by classification and basis for eligibility for the same period [PDF version].

It is always welcome to see the USCIS make more statistics on nonimmigrant visa programs publicly available. We hope to see the USCIS continue to increase transparency going forward.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Attorney General Jeff Sessions Delivers Remarks to EOIR On "Fraud and Abuse" in the Asylum System

On October 12, 2017, United States Attorney General Jeff Sessions delivered remarks to the Executive Office for Immigration Review [PDF version]. His remarks focused primarily on “fraud and abuse” in the asylum system. In this post, I will briefly examine the key portions of Attorney General Sessions' remarks.

Sessions began by asserting that, although there has been significant improvement since President Donald Trump took office, there remains a “crisis at our borders.” To this effect, he added that “[a] great nation cannot allow this any longer.” Sessions did note that “illegal border entries are down as much as 50 percent…” However, while acknowledging the overall decrease in apprehensions along the Southwest border, Sessions stated that large numbers continue to break in and enter ahead of those who are “following the rules and waiting their turn.” The Attorney General described illegal border crossings as “inequitable, illegal, costly, [and] extremely dangerous.”

Having set the stage, Sessions turned to the primary focus of his remarks: “fraud and abuse in our asylum system.”

Sessions stated that Congress has, over the years, passed a scheme of laws allowing for the admission of aliens and designed to “expedite the removal of aliens who enter the United States illegally.” He then stated that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” Referring specifically to expedited removal, the Attorney General noted that any alien who legitimately establishes that he or she has “an actual, legitimate fear of returning to [his or her] homeland” can seek asylum.

In short, an alien who would otherwise be subject to expedited removal may make his or her case of a fear of persecution to an asylum officer. If the asylum officer determines that the alien has established a “credible fear,” the alien will be placed in removal proceedings in lieu of being subject to expedited removal. If the asylum officer issues a negative decision, the alien may have her claims of fear of persecution considered by an immigration judge. We discuss expedited removal and exceptions to expedited removal on site [see article].

Attorney General Sessions stated that the exception to expedited removal, as codified, is important because many individuals, “through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality.” However, he stated that this important exception “is currently subject to abuse and fraud.” He attributed the “surge in trials, hearings, appeals, [and] bond proceedings” as being, at least in part, attributable to “fake [asylum] claims.”

Sessions explained that in 2009, the Obama Administration implemented a policy which permitted certain aliens who “passed” an initial credible fear interview to be released from immigration custody pending a full hearing on the merits of their claims. Sessions took the position that this policy, in conjunction with other changes stemming from the policy, both contravened Congressional intent and created a new perverse incentive to lodge meritless claims of a fear of return to one's home country. Sessions stated that since 2009, the percentage of asylum claims made by those subject to expedited removal has “skyrocketed,” but the percentage of meritorious asylum claims has decreased. Sessions warned that “[s]aying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing — if the alien even shows for the hearing.”

To support his arguments, Sessions offered the following statistics:

• In 2009, the Department of Homeland Security (DHS) conducted 5,000 credible fear reviews. In 2016, the DHS conducted 94,000 credible fear reviews.
• In 2009, fewer than 4,000 aliens who made claims of fear of persecution were ultimately placed in removal proceedings. In 2016, more than 73,000 aliens who had credible fear reviews were placed in removal proceedings.
• In 2009, there were about 3,000 credible fear claims at the border. In 2016, there were more than 69,000 credible fear claims at the border.
• The EOIR has more than 600,000 cases pending at the present. This is about three times more than were pending in 2009. Please see our recent blog for a discussion of the backlog of cases in the immigration court system [see blog].
• The DHS found a credible fear of persecution in 88-percent of claims that it adjudicated.
• Half of the individuals who pass the initial credible fear screening never file an application for asylum in the United States.
• In 2016, there were more than 700 percent more removal orders issued in absentia for cases that began with a credible fear claim than in 2009. In 2012, there were almost 20,000 removal orders issued in absentia. In fiscal year 2017, there were nearly 40,000 removal orders issued in absentia.

Based on these statistics, Sessions criticized the current policies regarding credible fear claims. Besides asserting his position that many of the claims are fraudulent, Sessions noted that the high percentage of aliens who pass credible fear interviews and then fail to appear for their immigration court hearings “undermines the system and frustrates officers who work to make dangerous arrests in remote areas.” Furthermore, he observed that meritless claims consume time and resources, thus taking away attention from and burying the cases of aliens with bona fide asylum claims.

Sessions stated that “[o]ur asylum laws are meant to protect those who because of characteristics like their race, religion, nationality, or political opinions cannot find protection in their home countries,” listing four of the five protected grounds listed in section 101(a)(42) of the Immigration and Nationality Act (INA) (the last being “particular social group”). However, he stated that asylum is not a catch-all form of relief for “all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects.” Suggesting that an increasing number of claims fall into the latter camp, he stated that these meritless claims “have swamped our system.”

Sessions stated that for many, there is “no cost or risk” in making a baseless asylum claim (note: there are penalties for making frivolous asylum claims, see our article on Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016) [see article] for examples). He added that asylum applicants who make baseless asylum claims are often able to procure employment authorization after their claims have been pending for six months [see article on related issue]. For this reason, he stated that “[t]here are almost no costs, but potentially many rewards, for filing a meritless asylum application.”

To remedy the problems addressed in his speech, Attorney General Sessions called for the following:

• Imposition and enforcement of penalties for baseless asylum applications or fraudulent asylum applications;
• Elevation of threshold standard of proof for credible fear interviews;
• Expand ability to return asylum seekers to safe third countries;
• Close loopholes and clarify asylum laws to ensure that asylum benefits those who it is intended to help; and
• Expand the use of expedited removal.

It is worth noting that many of the Attorney General's points, including the handling of credible fear interviews and the expansion of expedited removal, were addressed in two memoranda issued by the former Secretary of Homeland Security, John F. Kelly, last February [see article]. However, no new rules on these points have been promulgated and are presumably still pending.

Conclusion

The immigration system faces substantial backlogs in both the immigration courts and the adjudication of asylum claims. To that effect, it is important to find a way to reduce the backlog to ensure that everyone has a chance to have their cases fully adjudicated in an expeditious manner. However, it is always important to strike a balance between trying to filter out asylum claims and other claims for relief that are without merit and ensuring that all claims are handled properly, especially those made by individuals with strong cases for relief.

An individual facing removal of any sort, including expedited removal, should consult with an experienced immigration attorney immediately. Regarding asylum claims, a responsible experienced immigration attorney will consider the alien's specific claims and make a determination as to whether he or she has a credible case to present in seeking asylum relief or related forms of relief such as withholding of removal or protection under the Convention Against Torture.

We will update the site with information on any new policies on the issues discussed by the Attorney General in his recent address.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Justice Gorsuch Pens Interesting Statement On Issue Involving Chevron Deference

On October 16, 2017, the Supreme Court of the United States denied a petition for certiorari (to hear the case) in Scenic America, Inc. v. Department of Transportation, Docket No. 16-739. Scenic America sought review of a decision of the United States Court of Appeals for the District of Columbia Circuit [PDF version]. Justice Neil Gorsuch penned an interesting statement respecting the denial of certiorari, in which he was joined by Chief Justice John Roberts and Justice Samuel Alitio [PDF version]. In this post, I will examine aspects of Justice Gorsuch's statement that are significant with respect to Chevron deference, a concept that is important in the immigration context.

In this post, I will not focus on the specific issues of the Scenic America case. However, some context is needed in order to set the stage for Justice Gorsuch's statement. Scenic America had asked the Supreme Court to review, among other issues, whether the Department of Transportation was entitled to Chevron deference for its interpretation of terms in contracts to which it was a party. Under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 866 (1984) [PDF version], administrative agencies are afforded deference in interpreting statutory law where the statutory provision is “ambiguous” and the agency interpretation is “reasonable.” We have discussed Chevron in many articles on site. Please see our article on Matter of D-R-, 27 I&N Dec. 105 for a recent example [see article].

We have discussed on site that Justice Gorsuch had previously written two interesting immigration law decisions touching on Chevron deference while he was a Judge of the United States Court of Appeals for the Tenth Circuit. The first of our articles on the issue was on then-Judge Gorsuch's decision in De Niz Robels, v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [see article]. Justice Gorsuch's most comprehensive discussion of Chevron subsequently came in a concurrence to his own decision in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) [see blog]. In this decision, Justice Gorsuch discussed his concerns with the application of Chevron and questioned whether it is consistent with the separation of powers between the Executive and the Legislative branches. Then, last June, now-Justice Gorsuch wrote an interesting dissent from denial of certiorari on a non-Chevron case that nevertheless would have addressed issues involving deference to an administrative agency [see blog].

With that background in mind, we can examine some of the interesting points of Justice Gorsuch's statement respecting the denial of certiorari in Scenic America.

Justice Gorsuch noted that courts generally resolve contract disputes by applying “the pretty ancient rules of contract construction.” He noted that courts “often resolve contractual ambiguities against the party who wrote the agreement, in part on the theory that the drafter might have avoided the dispute by picking clearer terms.” However, he stated that courts have often adopted a different approach when one of the parties to the contract dispute is an agency of the Federal Government. He describes this approach as one “suggesting that an administrative agency's interpretation of an ambiguous contractual term should always prevail-at least so long as the agency's interpretation falls within a (generously defined) zone of 'reasonableness.'” Beyond Justice Gorsuch's thinly veiled cynicism concerning the breadth of the “zone of reasonableness, we can see that he was alluding to the decisions of some appellate courts to generously apply the principles of Chevron deference to adjudicate contract disputes where the Federal Government is a party.

Justice Gorsuch expressed his clear disagreement with the application of Chevron deference to contract disputes:

But whatever one thinks of that practice in statutory interpretation cases, it seems quite another thing to suggest that the doctrine (or something like it) should displace the traditional rules of contract interpretation too.

Of course, in the immigration context, the issue of the application of Chevron deference is most likely to arise in the statutory interpretation context. Under the current rules, Chevron gives the Board of Immigration Appeals (BIA) and the Department of Homeland Security (DHS) significant latitude in interpreting statutory provisions. However, a narrowing of the breadth of Chevron deference in any context may potentially signal that Federal appellate courts more latitude in reviewing agency interpretations of the immigration statutes. For this reason, it is interesting for our purposes that Justice Gorsuch touches on Chevron in its statutory interpretation context as well, albeit without expressing a definitive opinion on the issue.

First, Justice Gorsuch noted that the very principle of Chevron deference “is often defended on the ground that statutory ambiguities reflect a kind of implicit decision by Congress to delegate lawmaking power to the agency to handle the problem on its own.” In short, Justice Gorsuch takes the position here that one defense of Chevron hinges on the notion that Congress, in writing an “ambiguous” statute, intentionally delegates its lawmaking power to the Executive Branch. He then writes that “even assuming (without granting) the accuracy and propriety of that much, what's the case for supposing that Congress implicitly delegates to agencies the power to adjudicate their own contractual disputes too?” The primary thrust of Justice Gorsuch's concurring opinion in in Gutierrez-Brizuela was that the current application of Chevron may upset the separation of powers between Congress and the Executive. Here, he declines to “grant” the propriety of an argument defending Chevron in the statutory interpretation context that hinges on the notion that Congress can delegate its lawmaking powers. This statement adds further credence to the idea that he may be looking to place limits on Chevron, if not outright overturn it in the appropriate case, although he does not commit himself to this course of action either.

In the same passage, Justice Gorsuch suggested two additional arguments that are often advanced in favor of Chevron. The first is the “theory that agencies are technical experts in the fields they are charged with regulating.” The second is “on the premise that agencies have the public interest at heart when interpreting statutory texts.” However, Justice Gorsuch does not discuss or reference the propriety of these arguments in the statutory interpretation context, instead only questioning their applicability to contract disputes.

For immigration lawyers and those interested more generally in administrative law, Justice Gorsuch's expression of his views on Chevron will continue to be of importance to follow. In his statement, Justice Gorsuch expressed clear cynicism of the use of Chevron in contract disputes, an issue which has caused somewhat of a split among the circuit courts (noted by Justice Gorsuch in his statement). Accepting or limiting Chevron's application to contract disputes could be considered to be a proverbial low-hanging fruit compared to its current broad use in the statutory interpretation context. In the latter context, Justice Gorsuch's tone in his Scenic America dissent evinced that he continues to harbor questions about Chevron deference in general, although it is important to avoid inferring too much from a short statement respecting the denial of certiorari in a case that involved a narrower issue than the general concept of Chevron deference as applied to statutory and regulatory interpretation. Nevertheless, it is interesting to see that Chief Justice Roberts and Justice Alito opted to join Justice Gorsuch's statement. Justice Clarence Thomas has also at times expressed concerns about the scope of Chevron deference, although he did not join this statement from Justice Gorsuch.

For my part, I think that it is important for the Supreme Court to at the very least begin narrowing the scope of Chevron deference. One of the major reasons that I supported Justice Gorsuch's nomination so strongly was that he showed clear concern for the issue as a judge of the Tenth Circuit. Our constitutional system of government depends on the notion that the congress writes the laws and the president executes the laws. It is too often the case today that the Executive Branch tasked with executing the laws has also become the de facto writer of the laws it executes. This does not only do harm to our constitutional system of government, as suggested although not outright stated by then-Judge Gorsuch in Gutierrez-Brizuela, but it also does practical harm to the lives of both American citizens and non-citizens. First, it is inherently dangerous to vest both the lawmaking and law enforcement powers in the figure of the executive. Second, the “delegation” of lawmaking authority from the elected representatives of the people in Congress to unelected bureaucrats staffing the Federal agencies under the purview of the Executive Branch gives often unaccountable functionaries far too much control over the day-to-day lives of Americans.

Justice Gorsuch's elevation to the Supreme Court and his forceful writing while on the Tenth Circuit may have already begun to pay dividends. Since his nomination by President Trump, several lower court decisions have cited to his concurrence in Gutierrez-Brizuela in questioning Chevron. For example, please see the concurring opinion of Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit in Waterkeeper Alliance v. Environmental Protection Agency, 853 F.3d 527, 539 (D.C. Cir. 2017) [PDF version]. However, lower court judges are ultimately bound by Chevron. For this reason, I hope to see Justice Gorsuch not only continue to question the propriety of Chevron, but to hopefully encourage more of his colleagues to do so as well as appropriate cases are brought to the Supreme Court for review.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com