Ramifications of White House Green Card Ban

On April 22, 2020, President Donald Trump signed a presidential proclamation suspending the entry of aliens who are outside of the United States, and who either do not currently have a valid immigrant visa, or who do not have an official travel document permitting that alien to travel to the United States.  An immigrant visa is one that permits an alien to live in the United States permanently.  Such immigrants are legal permanent residents, or, colloquially, are said to hold a green card.  The proclamation is effective April 23, 2020 at 11:59pm, eastern daylight savings time.

President issued this proclamation in response to the COVID-19 crisis.  As of April 21, 2020, the Centers for Disease Control and Prevention state that there are currently 802,583 cases of COVID-19 in the United States.  The disease has caused 44,575 U.S. deaths.

To slow the spread of the disease, the vast majority of states have issued stay-at-home orders, closing non-essential businesses.  As a result, over 22 million people have filed for unemployment benefits.  Trump has expressed his desire to begin re-opening the country, and putting people back to work.  He claims that the proclamation banning new green cards is necessary to protect the jobs of those Americans currently out of work.

On one hand, the White House has tailored this proclamation somewhat narrowly.  The green card ban does not affect doctors, nurses, healthcare workers and medical researchers working on combatting the spread of COVID-19, or their spouses and children under age twenty-one.  Certain family-based immigrants also escape Trump's green card ban.  They include: (1) spouses of U.S. citizens; (2) children, under age 21, of U.S. citizens; (3) prospective adoptees of U.S. citizens; (4) members of the U.S. Armed Forces; and (5) spouses and children of U.S. Armed Forces members.

Other immigrants not affected by the ban are: (1) foreign investors (these are foreigners who have either invested $1 million in the United States and employ ten people, or invested $500,000 in a distressed area and employ five people); (2) Iraqi and Afghani translators; (3) Iraqis and Afghanis who provided special services to the U.S. Government; (4) aliens whose entry would be in the national interest of the United States.

The ban does not affect those who already possess an immigrant visa, or those who are in the United States and applying for an immigrant visa.  Thus, an H-1B specialty worker, that is, an alien worker with a temporary employment visa whose job requires a bachelor's degree at a minimum, may still apply for an immigrant visa. There is a question, however, of whether such aliens may leave the United States, have their green card issued at a consulate in a foreign country and return to the United States.  If legally possible, such aliens may want to try to adjust to status while still present in the United States.

The ban also does not affect those currently in removal proceedings in the United States, or people who are seeking asylum, withholding of removal, or protection pursuant to the Convention Against Torture.  Moreover, law enforcement agencies may still request that individuals necessary for their objectives be permitted to enter the United States.

This is due to the limits to the president's immigration power.  In 2018, the Supreme Court held, in the case of Trump v. Hawaii, that the president has broad powers to suspend the entry of aliens who are trying to come into the United States.  With respect to aliens already present in the United States, Article I of the U.S. Constitution gives Congress the power to regulate immigration and nationality.

In the introduction to the proclamation, Trump notes that while the U.S. Department of Labor  is responsible for issuing labor certifications, such certifications take time to adjudicate, and therefore do not reflect the current U.S. labor market.  A labor certification is a determination that there are no U.S. workers who are ready, willing and able to accept a specific job with a U.S. employer.  U.S. employers must obtain a labor certification before petitioning for an alien worker to receive an employment-based visa.  The employer is required to demonstrate, by engaging in certain recruitment methods, that it is not able to fill a needed position with a U.S. worker.  It is a challenging and rigorous process, that can take over a year for the Labor Department to grant.

The proclamation is set to expire sixty days after the effective date.  However, it may be extended as necessary.

The President has further called on the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, other measures that may be appropriate to stimulate the U.S. economy, ensuring that U.S. workers get priority.  This may mean that while temporary employment visas are unaffected by this proclamation, such visas in the future may be subject to restriction.

By: William J. Kovatch, Jr.

References

Proclamation Suspending Entry of Immigrants Who May Present a Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak (April 22, 2020).

Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018).

Centers for Disease Control and Prevention, "Coronavirus Disease 2019."

Chapman, Steve, "Trump's immigration ban won't help fight COVID-19," Chicago Tribune (April 22, 2020).

Chalfant, Morgan and Bernal, Rafael, "Trump signs executive order limiting immigration," The Hill (April 22, 2020).

Kapur, Shahil, "Trump Halts Immigration for 60 Days.  Here's What the President's Order Means," NBC News (April 22, 2020).

Perper, Rosie, "Trumps signs executive order suspending immigration into the U.S. for 60 days," Business Insider (April 22, 2020).

Williams, Pete, "Does Trump have the authority to halt immigration?", NBC News (April 21, 2020).

It's Not Going to Be Popular to Say This Around Some Circles, But the Supreme Court Did the Right Thing in Striking Down the U.S. District Court's Attempt to Alter Wisconsin's Voting Framework

I don't think it's any secret that I don't like Donald Trump.  He's got an authoritarian streak, he can't stand criticism, and he does try to grab power he doesn't have.  But, I'm not going to join those who have a knee-jerk reaction every time some branch of the U.S. Government takes an action or makes a decision that has the effect of decreasing the opportunities to cast or count votes and claim that it's part of some vast right-wing conspiracy to suppress the vote and keep Trump in power.  There are times when lower courts, in an effort to do what the trial judge subjectively thinks is the morally right, overstep their authority.  When that happens, the Supreme Court is within its authority to remind those lower courts that they need to work within the framework of the law and the Constitution.  Among those constitutional principles that is important to uphold are the separation of powers and federalism.  This is why the Supreme Court's decision on Monday, April 6th,addressing the election in the State of Wisconsin, although poorly written, was the right thing to do.

The Supreme Court's decision did not elaborate on the facts too well.  For that, I had to go back to the decision of the U.S. District Court for the Western District of Wisconsin dated April 2, 2020.  That decision addresses three consolidated cases, in all of which the plaintiffs challenge Wisconsin's election framework, within the context of the current COVID-19 crisis.

The entire world is the middle of a pandemic, from a virus which heretofore had not been identified, and had not infected humans.  That is SARS-CoV2, which many have been identifying by using the shorthand, the coronavirus.  It is actually just one, and indeed the newest, of many different types of coronaviruses, which, unfortunately, is confusing some people.  The virus causes the disease that the World Health Organization calls COVID-19.  COIVD-19 appears to cause mild symptoms in the vast majority of people.  But in some people, it can cause serious respiratory issues, and death.  There is some dispute over the death rate, but it appears to be between 1% and 3%, which is a much higher death rate than the flu.  In addition, the virus appears to be more contagious than the flu.  Because humans have not developed natural immunity to this virus yet, and because we currently do not have a vaccine against the virus, it has swept across the globe.  With the first case in humans being identified in December of 2019, as of the time of writing, over 1.2 million people have been infected worldwide.  Over 72,000 people have died from COVID-19.

COVID-19 has the potential to overwhelm the medical resources throughout the world.  The recommendation of medical professionals has been to isolate those who have the virus, quarantine those who have come in contact with those who have the virus, and generally practice social distancing and safe personal hygiene for everyone else.  Governors across the United States have issued stay-at-home orders, to prevent people from congregating and giving the virus more opportunities to spread.  Surfaces are being cleaned more often, and people are being advised to wash their hands often, to wear masks in public and to try not to touch their faces.  Most importantly, medical professionals have advised that we avoid large public gatherings.

However, this is an election year in the United States.  In November, Americans will go to the polls to either to choose a new president, or re-elect President Trump.  This spring, we are in the midst of primary season.  That is, the separate states and territories are holding primaries or caucuses to nominate the Democratic candidate for president.  In some states, they are holding elections for local and state offices at the same time as the primaries.  The COVID-19 crisis has caused numerous states who had elections scheduled for April to postpone them, or to expand the opportunity for mail-in absentee ballots, due to the risk of spreading the virus.  Wisconsin is not one of those states.

Wisconsin scheduled its election to be held on April 7, 2020 long before the current crisis. More well over a month, the Governor has been calling on the Wisconsin Legislature to postpone the election, or make it easier for people to cast mail-in absentee ballots.  The Legislature has not responded.  Meanwhile, because so many election workers are over the age of sixty, a category who is at a high risk of developing the severe symptoms of COVID-19, the rise in absentee ballots as well as opening the polls for the regular in-person voting, threatened to overwhelm Wisconsin election officials.  Many voters requested absentee ballots in the last month leading up to Election Day.  It was almost certain that thousands of applicants would not receive their absentee ballots before Election Day.

This is the situation where the U.S. District Court found itself.  Three different lawsuit lawsuits were filed to do something about the Wisconsin election, such as extending deadlines, and waiving witness requirements for mail-in ballots.  Under Wisconsin election law, ballots had to be received by April 7th in order to be counted.  Wisconsin law also gave the municipal canvassing boards until April 13th to certify the vote count to the counties.  The District Court, in a decision entitled Democratic National Committee, et al., v. Marge Bastelmann, et. al., issued a preliminary injunction which, among other things, permitted absentee ballots received by April 13th to be counted, regardless of when the ballots were postmarked.  A party submitted a request to stay the preliminary injunction (i.e. to prevent the injunction from taking effect) to Supreme Court Justice Brett Kavanaugh (submitting such a request to a Justice on the Supreme Court is normal Court procedure), who in turn referred the matter to the full Court.  In a decision that pitted the five conservative members of the Court against the four liberal members, the majority issued a per curiam opinion, meaning the five member majority spoke as one, granting the stay of the preliminary injunction.  The sole issue for the Court was whether the District Court overstepped its authority by permitting ballots postmarked after April 7th to be counted so long as they were received by April 13th.  That is, the Supreme Court permitted Wisconsin to continue to count ballots received by April 13th, so long as they were postmarked by Election Day, April 7th.

Many liberal pundits saw the Supreme Court's action as one of intentional voter suppression, aimed specifically at helping the Republican Party, and in particular Donald Trump, stay in power once the November presidential and congressional elections come around.

I read the Supreme Court's decision much differently.

Let me be clear, I am all in favor of taking action now to prepare for the November elections, and the possibility that the current crisis may still be around.  I, too, have some fear that Trump and the Republican Party may take some action that may negatively affect the elections.  After all, not only did Russia interfere in his favor in 2016, Trump has already been impeached for seeking Ukrainian interference in the 2020 election.  The only thing that saved him from removal was the fact that the Republicans control the Senate, and Senate Majority Leader Mitch McConnell made sure that the Senate trial was a farce with no witnesses being called at all.  I would love it if state legislatures acted now to address the November elections to expand the availability of early voting and mail-in voting just in case the coronavirus still has us sheltering in our homes at that time.

But let's be clear on some things.  Trump has no authority to do anything directly to change, postpone or cancel the November elections.  There is nothing in the Constitution, or any of the numerous federal statutes addressing the president's emergency powers that grant the president such authority.  How the November elections are to be run is a matter for the people of the several states, through their legislatures, to address.  Many Trump opponents fear he will nonetheless attempt to use the declaration of a national emergency to seize a power that is otherwise not granted to the presidency.

Yet, as I read the U.S. District Court decision, I noticed that the very thing that Trump's critics fear that he will do in the abstract, grab power that he doesn't have, is exactly what the District Court did.  In its opinion, the District Court essentially states, "There is a crisis out there that nobody is doing anything about, so I'm going to create a solution, whole cloth, despite their being no statute or constitutional provision giving me the authority to do so."  It is quite amazingly.  The decision is bereft of any citation to law or constitutional provision giving it the authority to interfere and fundamentally alter Wisconsin's election framework.  The District just says, "Voting is a fundamental right, so here's what you need to do."  That is, the District Court just assumed that it had the authority to make its own deadlines and impose them upon Wisconsin's state government as a whole.  Put another way, the U.S. District Court thought that it could act as if it were a legislature.

Again, if Trump had done this, those very same liberal pundits complaining about the Supreme Court would be up in arms over Trump's action.

Our Constitution engages in a dispersion of powers among not only the three branches of government, but also between the federal government and the government of the several states.  This is known as separation of powers when it refers to the three branches of the federal government, and federalism when it refers to the division of powers between the federal government and the governments of the several states.  They are the fundamental principles upon which our system of government is created, in order to avoid any one part of the government becoming too powerful and acting tyrannically.  In this regard, a court that oversteps its authority can be just as tyrannical as an authoritative executive.  The Supreme Court was absolutely within in prerogative to slap down a decision by a U.S. District Court that overstepped its power.

The lesson is two-fold.  First, all branches of government need to respect the limits placed on their authority by the Constitution.  Second, the state legislatures, as the law-making branch of government in their respective states, need to address the November elections now, before it becomes a crisis where well-intentioned courts will feel obligated to step in, regardless of the limits on judicial power.

By:  William J. Kovatch, Jr.

References

For general facts about the virus, I referred to the World Health Organization's website.

Information can also be found on the Centers for Disease Control's website.

The U.S. Supreme Court Decision can be found here:  Republican National Committee, et al., v. Democratic National Committee, et al., Slip Op. Crt. No. 19A1016 (U.S. Supreme Court April 6, 2020).

The U.S. District Court decision can be found here:  Democratic National Committee, et al., v. Marge Bostelmann, et al., Slip Op. Crt. No. 20-cv-249-wmc (W.D. Wis. April 2, 2020).

Johnson, Jake, "'One of the Most Brazen Acts of Voter Suppression in Modern Times,' as US Supreme Court Blocks Absentee Ballot Extension in Wisconsin," Common Dreams (April 7, 2020).

Liptak, Adam, "Supreme Court Blocks Extended Voting in Wisconsin," The New York Times (April 6, 2020).

Litman, Leah, "The Supreme Court's Wisconsin Decision Is a Terrible Sign for November," The Atlantic (April 7, 2020).

Perrett, Connor, "'Voter suppression on steroids': Wisconsin's decision tohold the state's in-person primary amid the COVID-19 pandemic will suppressvoters, advocates warn," Business Insider (April 7, 2020).

Stern, Mark Joseph, "The Supreme Court's Wisconsin Election Decision is 2020's Bush v. Gore," Slate (April 7, 2020).

Celebrities, Big Corporations, and Copyright Strikes: Are YouTube Functions Being Abused to Silence Critics and Competitors

I'm not a copyright lawyer.  I don't play one on TV.  I know a little about copyright law from my law schools days.  So, definitely don't take anything I write here as legal advice. 

Dr. Drew Pinsky appears to have joined the list of celebrities and organizations who have abused a system created by YouTube, and other social media sites, supposedly to fight copyright infringement, in order to shut down criticism.  Pinsky, a practicing M.D. and Diplomat of the American Board of Addiction Medicine and the American Board of Internal Medicine, cultivated a celebrity persona over the decades with his appearances on various radio and television shows discussing medical issues.  He was recorded recently stating that from the beginning, he considered the coronavirus, SARS-CoV2 which causes the disease COVID-19, could be worse than the flu.  However, a YouTuber called DrDoops published a montage of clips dating back to February 4, 2020, where Dr. Pinsky claimed that the virus was "way less virulent than the flu."  The video on YouTube lasted a little less than five minutes.  A Twitter user, named, "Flatten the curve, not the webrant," going by the Twitter handle @web_rant, posted a two-minute version of the video on April 5, 2020.  YouTube had pulled the video off of its platform, citing copyright violations.  On Twitter, Dr. Drew responded to a user who had retweeted the video, stating, "Infringing copywrite [sic] laws is a crime.  Hang onto your retweets.  Or erase to be safe."  Some have interpreted Dr. Drew's response to be a veiled threat to seek criminal legal action against those who spread the video.

(To YouTube's credit, the company reinstated the video on April 7, 2020.)

YouTube raises revenue by selling ads to run before and during the videos posted to its site.  YouTube shares this revenue with users who obtain a certain amount of subscribers, and induce other users to view their videos for a minimum number of minutes.  However, users have, at times, incorporated materials copyrighted by others in their videos.  Copyright holders argue that it is unfair, and indeed illegal, for YouTube users to profit from copyrighted materials that the users do not own.  YouTube has responded with a method to report when a user has posted a video that contains copyrighted material.  The purported copyright holder fills out a copyright removal webform, and submits it to YouTube.  YouTube then removes the video from its platform.  YouTube gives the user a "copyright strike."  If YouTube gives that user three copyright strikes, it will terminate the user's account, delete all videos from that account, and ban the user from creating any new accounts.

Users who disagree with the action can challenge the copyright strike.  The user submits a counter notification.  YouTube will then determine whether the original copyright claim was valid.

Copyright law, however, can be complex.  Whether a video amounts to infringement may not be a matter of black and white.  The Fair Use Doctrine, for example, permits a person to use copyrighted material for commentary, criticism, parody, education and research.  What constitutes fair use is often a matter of detailed analysis of facts of circumstances.

Similarly, content may fall into the "Public Domain."  The public domain is the legal term for when a creative work may be freely used by anyone, without obtaining permission or a license from the creator.  This can happen because the legal protection granted to copyrighted material lasts for only a limited period of time.  When a copyrighted work falls into the public domain can be complicated, due to legislative action taken because certain entertainment outlets have lobbied Congress to keep their work protected.  A work can also be part of the public domain because the author intended it to be.  A work created by the federal government is also in the public domain.

The problem, many users claim, is that YouTube's system is subject to abuse.  Filing a copyright webform will almost immediately result in the video being removed.  YouTube's appeal process, these users claims, usually takes days, if not longer, to resolve.  In the meantime, the user is robbed of the ability to accumulate view time, and therefore ad revenue.  Where the video in question concerns a fast-moving current event, it effectively prevents the YouTube user from capitalizing on that event.  The process can also be abused by those who wish to silence critics.  More alarmingly, the lengthy process can be abused to drive competitive outlets, who are small users lacking the resources of multi-million dollar corporations, out of business.  Unscrupulous entities have been charged with buying the copyright of certain content, and then threatening small YouTube users with the possibility of a copyright strike, to demand exorbitant payments in order to avoid having the user's channel deleted.

David Pakman, for example, complained that big media outlets, such as CNN and NBC, filed copyright strikes against him when he broadcast live streams of congressional hearings through social media.  During the lead up to the impeachment of President Donald Trump, for example, Pakman would live-stream hearings before the House of Representatives, which were originally broadcast through C-SPAN, the congressional cable TV organization.  Because such public hearings show the workings of the government, they are in the public domain.  Nonetheless, large media outlets filed copyright removal webforms against Pakman, claiming the live-streams infringed on their copyrighted broadcast of the same material.

Pakman, who is a liberal political commentator, alleged that because of the actions of the media outlets, his live-streams of the hearings were removed from YouTube immediately.  He thus lost the opportunity to realize the revenue generated from the ads on those live-streams, upon which Pakman claimed he depended in order to be able to continue to broadcast his podcasts and other forms of commentary as his job.  Pakman charged that YouTube was in the back pocket of the big corporations, which engaged in this predatory behavior in order to drive small political commentators like him out of business.

YouTube users PewDiePie and Retroblasting have complained that celebrities and other YouTubers have filed copyright complaints with YouTube when they have disliked the criticism they have received through videos published on the platform.

Dr. Drew has apparently joined the list of those unhappy with criticism aired on social media, and responded by making copyright claims.  Ironically, Pinsky wrote a book entitled, "The Mirror Effect: How Celebrity Narcissism is Seducing America."  Now it appears to be his narcissism that is playing a role in shutting down free speech on social media sites.

By:  William J. Kovatch, Jr.

References

DrDroops, "Compilation of all of the inaccurate, contradictory things that Dr. Drew has said about the Coronavirus," YouTube Video (April 2, 2020).

French, Leonard, "Dr. Drew DMCAs Critical Montage, Was It Fair?", Legal Masses with Leonard French (April 6, 2020).

French, Leonard, "The Injustice of Copyright - MxR Plays Extortion," Legal Masses with Leonard French (January 9, 2020).

Fuster, Jeremy, "Dr Drew Supercut of COVID-19 Gets YouTube Copyright Takedown," The Wrap (April 5, 2020).

Lee, Timothy B., "15 tears ago, Congress kept Mickey Mouse out of the public domain," The Washington Post (October 25, 2013).

Pakman, David, "CNN AND NBC Drop Hammer on David Pakman," David Pakman Show (November 18, 2019).

Pakman, David, "We.re SHUT DOWN by Political Consultant OR Right-Wing Troll," David Pakman Show (February 26, 2020).

PewDiePie, "STOP DOING THIS! - Copyright Striking Criticism Etc," YouTube Video (January 11, 2019).

Pinsky, Drew, "About Dr. Drew," drdrew.com.

Retroblasting, "You Had Your Chance, Danoby," YouTube Video (February 10, 2020).

Retroblasting, "Danoby Doesn't Want You to Know This, I Have the Receipts," Bit Chute Video (February 10, 2020).

Stim, Rich, "What is Fair Use?", Copyright & Fair Use (Stanford University Libraries).

Stim, Rich, "Welcome to the Public Doman," Copyright & Fair Use (Stanford University Libraries).

Weiss, Norman, "YouTube reinstates viral video of Dr. Drew downplaying coronavirus that he had removed claiming copyright infringement," Primetimer (April 7, 2020).

Wodinsky, Shoshana, "YouTube's copyright strikes have become a tool for extortion," The Verge (February 11, 2020).

World Health Organization, "Naming the coronavirus disease (COVID-19) and the virus that causes it."

YouTube, "Copyright Infringement Notification Requirements," YouTube Help.

YouTube, "Copyright Strike Basics," YouTube Help.

Immigration Court Decision Concerning the Return to Mexico Program Raises More Questions than it Answers

On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program.  The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens."  The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.

The decision, however, raises more questions than it answers.

The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum.  Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings.  In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview. 

President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings.  Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.

Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview.  If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge.  Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.

The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA.  That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings.  This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.

Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court.  Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension. 

Currently, the MPP is subject to litigation in federal court.  Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception.  The Government replies that it has discretion on whether to apply expedited removal.  If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.

The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP.  Indeed, Immigration Courts lack the authority to address such litigation.  Immigration Courts are not part of the Judiciary Branch of Government.  They are instead more akin to administrative courts, and are part of the Executive Branch.  As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.

The Immigration Judge did address a different issue raised by the MPP.  Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien.  An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border.  The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States.  That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory.  This is a separate category of aliens.  The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States.  Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.

However, the Immigration Judge noted that it was a court of limited authority.  The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico.  The only authority it had was to terminate the removal proceedings, without prejudice.  This means that the Government could refile the Notice to Appear and being new removal proceedings.  But the court could not order that the Government do so.

Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers.  It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States.  Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings.  Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights.  The ultimate success of such litigation remains in doubt.

Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals.  The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.

By: William J. Kovatch, Jr.

Are Expedited Removal Orders Reviewable by the Courts?

On Friday, October 18, 2019, the U.S. Supreme Court agreed to hear an appeal to determine whether expedited removal orders are ever reviewable by federal courts.  The case is Thuraissigiam v. U.S. Department of Homeland Security, No 18-55313 (March 17, 2019). 

Decided by the Ninth Circuit Court of Appeals, the case involves a citizen of Sri Lanka who was apprehended in the United States 25 yards from the U.S.-Mexican border.  Undocumented, Thuraissigiam was issued an expedited removal order.  However, he claimed a fear of persecution if returned to his home country.  Accordingly, an asylum officer conducted a credible fear interview, to see if he had a basis to file an asylum application.  The asylum officer found no credible fear.  This was affirmed by a supervisor, and then an Immigration Judge.  Thuraissigiam filed for a habeas corpus review in the U.S. District Court, which was denied on jurisdictional grounds.  The U.S. Court of Appeals heard the case, and found that the law creating expedited removal was unconstitutional, because it violated the Suspension Clause of the U.S. Constitution.

There is a lot there to unpack.  Starting with expedited removal, Congress passed a statute providing that any alien who arrives at a port of entry without proper documentation, or with documentation based on fraud, could be order removed from the United States in an expedited fashion without resorting to the Immigration Courts.  This expedited removal can apply to any alien who is apprehended within 100 miles of the border, who cannot prove that he or she has been in the United States for greater than two weeks.  An officer from Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) may issue the expedited removal order, and summarily remove the alien from the United States, without permitting the alien a hearing before an Immigration Judge.  The law provides that an order of expedited removal is not directly reviewable by any federal court.  Moreover, habeas corpus review is limited by statute to three situations:  (1) where the alien claims he or she is a citizen; (2) whether an expedited removal order was in fact issued covering the alien (that is, only whether the order was issued may be reviewed, and not the substance of the order itself); and (3) whether the alien is a permanent resident or possesses some other legal status that exempts him or her from expedited removal.

When the Government issues an expedited removal order, the alien may still avoid removal if he or she claims that he or she fears persecution if returned to his or her home country.  Under these circumstances, the Government is legally obligated to conduct a credible fear interview.  An asylum officer conducts an interview with the alien to determine whether he or she has a credible basis to file an asylum petition.  If the asylum officer finds that the alien has a credible fear, the alien is then placed in regular removal proceedings, where he or she will have an opportunity to file an asylum application and have it adjudicated before an Immigration Judge.  If the asylum officer finds no credible fear, then the decision is reviewed by a supervisor.  If a supervisor affirms the decision, the alien may have the credible fear determination reviewed by an Immigration Judge.  That review must take place as soon as possible, and efforts must be taken to try to adjudicate whether the alien has a credible fear within twenty-four hours of the asylum officer's decision.  If the Immigration Judge finds a credible fear, the alien is placed in removal proceedings for full adjudication.  If the Immigration Judge finds no credible fear, then the expedited removal order stands, and the alien is removed from the United States.  There is no direct appeal from the Immigration Judge in this situation, and a habeas corpus review, as discussed earlier, is only available in limited circumstances. 

Returning to the case at hand, Thuraissigiam filed for a habeas corpus review after the Immigration Judge found that there was no credible fear.  A habeas corpus review is one where a person challenges the legality of a physical detention by the Government.  It is a type of review that is available in addition to the direct review of a judgment.  Habeas corpus proceedings most often come into play after a criminal conviction, and usually involve a claim that something was wrong with the procedure leading to the conviction.  Although immigration detentions occur pursuant to civil law, and not criminal law, they can also be subject to a habeas corpus review.

The U.S. District Court originally held that it lacked jurisdiction to hear the habeas corpus challenge, because the statute specifically limited such review to three situations, none of which applied to Thuraissigiam.  On appeal before the Ninth Circuit, the Court of Appeals agreed with the District Court that the statute did not permit Thuraissigiam a basis for a habeas corpus review.  However, the court did not stop its analysis there.  Rather, the court went on to determine whether the expedited removal statute provided sufficient judicial relief to pass constitutional muster.

Specifically, Article I, Section 9, Clause 2 of the U.S. Constitution provides, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."  This is called the Suspension Clause.  To address whether the statute violated the Suspension in this case, the Ninth Circuit engaged in a two step analysis.  In step one, the court analyzed whether Thuraissigiam was entitled to a habeas corpus review.  In this regard, the court noted that he was apprehended on U.S. soil, thus the constitutional guarantee of a habeas corpus review applied.

In the next step, the court analyzed whether the statute provided sufficient relief to satisfy the requirements of a habeas corpus review.  In this regard, the court noted that the statute did not provide for a review of whether proper procedures were followed in issuing the expedited removal order, or in making the credible fear determination.  Because this type of review was foreclosed by the statute, the Ninth Circuit concluded that the statute violated the Constitution.

This is now the issue that will be argued before the U.S. Supreme Court.

Congress has gone to great lengths in its attempt to preclude those subject to expedited removal from challenging the removal order in federal court.  The expedited removal process has been met with criticism that it deprives people of constitutional rights, such as Due Process.  The Ninth Circuit decision had opened the door to permit a greater degree of judicial review of some expedited removal cases.  The question now is whether the door will remain open, or whether the Supreme Court will shut that door, again foreclosing habeas corpus relief to those subject to expedited removal.

By:  William J. Kovatch, Jr.

Asylum for Victims of Domestic Abuse

Some of my proudest moments representing clients before Immigration Courts has been when I have won asylum for women from Central America who have been the victims of domestic abuse.  Unfortunately, in the Trump Administration's crack down on immigration, the future of such cases are seriously in doubt. 

Through asylum, the United States grants protection to people who find their life or well-being in jeopardy in their home country.  The legal standard for asylum is whether a person was a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.

Congress established the asylum standards through the Refugee Act of 1980.  In that Act, Congress did not define the term "particular social group."  The term, therefore, has been the subject of much litigation in asylum cases.  An entire set of cases from the Board of Immigration Appeals ("BIA), which is the administrative agency that normally hears appeals from Immigration Court decisions, has addressed this term, and developed case law establishing how it is to be defined in individual asylum cases.

In 2014, the "BIA" issued a decision in a case called Matter of A-R-C-G-.  Through that case, the BIA held that "married women in Guatemala who are unable to leave their relationship" constituted an appropriate particular social group upon which an asylum claim can be based.  After the BIA issued its decision, immigration lawyers would slightly modify the approved particular social group to fit the facts of their case.  Thus, a lawyer could define the particular social group to fit the country of origin, such as "married women from El Salvador . . . ."  Or, if the woman was in a committed relationship, but not legally married, the particular social group could be defined as "women in a committed relationship . . . ."

In June of 2018, however, Attorney General Jeff Sessions issued a decision in the immigration appeal of Matter of A-B-.  By statute, the Attorney General can choose to adjudicate an appeal from the Immigration Court himself, and issue a decision that is binding on all Immigration Judges.  Like Matter of A-R-C-G-, Matter of A-B- involved an asylum claim based on a Central American woman who was the victim of domestic violence.  The Attorney General overruled Matter of A-R-C-G-, contending that the BIA did not do an appropriate analysis of the term "particular social group."  Instead, according to the Attorney General, the BIA merely issued a decision based on a concession by both parties.  That is, the lawyers from the Department of Homeland Security, who represent the U.S. Government in appeals from Immigration Courts, served under the Obama Administration, and agreed with the asylum applicant that "married women in Guatemala who are unable to leave their relationship" was an appropriate particular social group.  Attorney General Sessions believed that it was not appropriate for a decision which did not go through the full analysis as set forth in the previous BIA to establish a general rule concerning the particular social group.

While that holding alone was dispositive of the case in Matter of A-B-, the Attorney General went further, proclaiming that any case based on private criminal activity, such as domestic violence and gang activity, were not likely to qualify for asylum.  This statement was not necessary to decide the case at hand, and thus lawyers would call it dicta.  Dicta is not a binding principle of law for lower courts.  However, many Immigration Judges read the Attorney General's statement as more than just mere dicta, and began using it as a rule to decline asylum applications based on domestic violence.

Matter of A-B- had consequences beyond the Immigration Court context.  Pursuant to U.S. law, if an alien is apprehended within 100 miles of the border less than 14 days after entering the United States, that alien can be expeditiously removed from the United States by an officer from Customs and Border Protection.  This is called expedited removal.  However, if that alien has a credible fear of persecution if returned to his or her home country, expedited removal does not apply, and the alien is referred to Immigration Court to have an asylum petition adjudicated.

U.S. Citizenship and Immigration Services ("USCIS"), which administers asylum claims made outside of the Immigration Court system, created a process to determine when an alien has a credible fear of persecution.  Called "credible fear determinations," an asylum officer interviews the alien in a non-adversarial setting, and determines if that alien would likely be successful in filing an asylum application.  After Matter of A-B-, USCIS issued policy guidance that victims of gang violence or domestic violence could not receive a positive credible fear determination.

Twelve aliens who had been denied a positive credible fear determination sued the Attorney General in the U.S. District Court for the District of Columbia.  In December of 2018, U.S. District Judge Emmet G. Sullivan issued a decision in the case of Grace v. Whitaker, 344 F.Supp. 3d 96 (D.D.C. 2018).  Judge Sullivan held that the general rule that an asylum applicant whose claim was based on domestic violence or gang violence could not qualify for a positive credible fear determination was arbitrary and capricious.  He therefore issued an injunction preventing the U.S. Government from applying that portion of Matter of A-B- in credible fear determinations.  The Government has, of course, appealed from this decision.

Specifically, the Judge found that there was no legal basis for a categorical denial of asylum claims based on domestic violence or gang related activities.  Furthermore, such  a rule would run counter to the individualized analysis required in every case by the statute.

Thus, the future of asylum claims based on domestic violence and gang violence remains in question.  On the one hand, a federal court has found a categorical ban, at least in the context of credible fear determinations, to be arbitrary and capricious.  On the other hand, the Trump Administration continues to fight for the ability to deny such asylum claims.

At the heart of Attorney General Sessions' reasoning was that domestic violence and gang-related activities were private crimes, and not the result of government action.  The basis of this argument is that asylum is meant to address persecution perpetrated by a foreign government, not a private citizen.  However, the legal standard in asylum cases is whether the persecution would be perpetrated by the government, or whether the government would be unable or unwilling to control the actions of the perpetrators.

In this regard, the argument in favor of granting asylum to victims of domestic violence centers on proving that the society is one where domestic violence is accepted, and which the government does nothing to address the problem, or is unable to address the problem.  That is, the government cannot turn a blind eye to the problem of domestic violence.

With respect to Central American countries, such as Honduras and El Salvador, the argument has been that the culture of machismo dominates society.  That is, women in such cultures are viewed as mere property of the male with whom they have a relationship.  Therefore, the government does not interfere when a woman becomes the victim of domestic violence.  Whether the applicant can prevail depends on the quality of evidence that can be presented demonstrating a patriarchal culture, and the acceptance of violence against women as a norm.  Assuming the applicant can demonstrate such government inaction on the issue of domestic violence, that applicant should be able to receive the protection of the United States through asylum.

By: William J. Kovatch, Jr.