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).

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.