Putting the 9th Circuit's Decision Concerning Trump's Travel Restrictions into Perspective

On the evening of February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Government’s motion for a stay of a temporary restraining order from a U.S. District Court in Washington State preventing the Government from enforcing an executive order signed by President Trump which put a temporary halt to the admission of refugees, and to the admission of aliens from seven countries which have been deemed to be a danger to national security.  The case is entitled, The State of Washington, et al. v. Donald Trump, et al.

Immediately, both sides took to the airwaves and to the Internet attempting to turn the decision into a bigger deal than it really is.  Both sides have an incentive to engage in a publicity war and court public opinion.  The opponents of the executive order have an interest in giving the impression that this decision is a major victory against the Trump Administration.  Likewise, the proponents have an interest in creating a public perception that the judiciary needs to be reigned in with more favorable presidential appointees.

In this publicity battle, it is important to keep the 9^th Circuit’s decision in perspective, and consider what it is that the Court did and didn’t do.

This is not a decision on the ultimate merits of the executive order.  That is, the 9^th Circuit did not find conclusively that the executive order was unconstitutional.  The sole issue before the Court was whether the temporary restraining order (TRO) should remain in place while the case is pending for a decision on the merits before the U.S. District Court.

A TRO is meant solely to maintain the status quo while a case is pending.  That is, where there is an allegation that an action is illegal and that the action will cause irreparable harm, a TRO is meant to prevent one side from engaging in that act until the court can decide the merits of the case.  When a TRO is granted, a party can seek a stay from an appellate court.  That is, the party can go to a higher court, and argue that the TRO should not be enforced because the TRO will cause that party harm pending litigation.

With that perspective in mind, it is important to note that the 9^th Circuit itself recognized that its decision was only preliminary, and issued at a very early stage in the litigation, before a full record could be created on the merits.  Nonetheless, the 9^th Circuit’s decision did make some very important points.

First, the 9^th Circuit determined that the states of Washington and Minnesota had standing to establish the lawsuit.  U.S. federal courts do not issue advisory opinions.  That is, federal courts will not weigh in on whether an act by Congress or the President is constitutional in the abstract without there being a case or controversy.  To have a case or controversy, some party must suffer some harm because of the act.

In this instance, the Court recognized that state run colleges were branches of the state governments.  State run colleges have an interest in presenting a quality educational program, which includes foreign students, professors and lecturers.  Indeed, the state schools act as the petitioner in student visas.  Many of the students, professors and lecturers found themselves aggrieved by executive order, as they could not travel abroad and return, or they could not enter the United States to be part of the school’s program.  Therefore, the states, through state-run schools, presented a case or controversy.

Second, the 9^th Circuit ruled that the Executive Branch’s actions in the area of national security were not entirely unreviewable by the courts.  If an Executive action in the area of national security affected individual rights protected by the Constitution, that action could be reviewed by the courts.

Next, the Court addressed the elements necessary for granting a stay.  In doing so, the Court considered:  (1) the likelihood of success on the merits; (2) would the party suffer irreparable harm absent the stay; (3) whether a stay would cause substantial injury to other interested parties; and (4) where the public interest lies.  The Court found that the Federal Government’s showing on the first two factors was lacking.

When considering the likelihood of success on the merits, it is important to remember that decisions concerning a stay are issued at an early stage of the litigation.  The appellate court recognizes that the record has not been fully developed.  And thus it should not be taken as an authoritative sign that one party will ultimately prevail.

Nonetheless, the 9^th Circuit did find that the executive order deprived certain parties of the constitutional right to due process before an interest can be taken away from the government.  Due process requires, at a very minimum, a party with a protected interest must have the right to notice and an opportunity to be heard.  The executive order made no provisions for notice and opportunity.  Therefore, to the extent that a party had a protected interest, the Federal Government could not carry its burden that the state governments’ arguments would necessarily fail.

The Court noted that the right to due process is not limited to citizens, but rather applies to all persons within the United States (whether present legally or illegally), as well as to certain persons seeking re-entry into the United States.

Specifically, permanent residents have an interest in traveling and re-entering the United States.  Likewise, those who have been issued non-immigrant visas (these are visas allowing a person entry for a temporary time for example to work or go to school) have an interest in having that visa honored and being permitted entry into the United States.  Before infringing on those interests, permanent residents and visa holders must be given notice of the Government’s intent and an opportunity to be heard.

In this regard, the Court found that statements made by White House counsel to the effect that the executive order would not affect permanent residents was not sufficient.  Interpretations by White House counsel are not authoritatively binding.

The Court declined to narrow the impact of the TRO, either in terms of who the TRO covered or the fact that the TRO was national in scope.  The Court stated that the Federal Government had not offered an alternative set of people that the TRO would cover that would include all persons with a protected interest.  Additionally, uniformity of enforcement with respect to immigration issues was desirable on a national level.

Concerning the argument that the executive order infringed on religious rights, the 9^th Circuit merely stated that it was too early in the litigation to make such a determination.

Finally, with respect to the balancing of hardships and the public interest, the Court found that while the Federal Government has an interest in combatting terrorism, the Government had not shown an immediate need to implement the order.  Specifically, there was no showing that any alien from one of the seven countries had perpetrated an attack against the United States. This was in contrast to the substantial injury that persons with protected interests would suffer if the travel restrictions remained in place. Regarding the discretionary waiver provisions of the executive order, the Federal Government offered no explanation as to how they would function.

There is much in this decision that is useful to the immigration law practitioner.  Specifically, the recognition of a protected interest in those who already hold permanent residency or visas to re-entry to the United States, and the requirement that such interests cannot be infringed upon without due process is helpful.  Likewise, the recognition that the Federal Government cannot shield its actions from judicial review merely by claiming it is a matter of national security is in line with prior Supreme Court precedent.

But it should be noted that the case is far from over.  Litigation over the merits, wherein both sides will better develop the factual record and their arguments, continues at the U.S. District Court level.  After that, there would still be an opportunity for an appeal to the 9^th Circuit and potentially the Supreme Court.  It may take a long time before the case is ultimately decided.

By:  William J. Kovatch, Jr.

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Political Wrangling Over Immigration Reform Begins

In the aftermath of the 2012 presidential election, some Republicans began pressing to change the party's stance on immigration reform as a way to change the party's image with Latino voters.  Over 70% of Latinos voted for President Obama, and was seen by many as a key reason for the President's victory.

Comprehensive immigration reform will take time and negotiations.  Some Republicans eager to start changing the party's image have introduced smaller proposals in Congress now, during the lame duck session, in an effort to give the GOP some credibility.

One such proposal is the expansion of the number of permanent residency visas available for workers in science, technology, engineering and math, so-called STEM workers.  I have already discussed the arduous process of hiring foreign-born STEM workers and applying for their visas on this blog.

While Republicans may not be completely unified on comprehensive immigration reform, STEM worker visas is one area where the GOP does have a degree of unity.  One Republican proposal on STEM worker visas was brought to a vote in September of this year.  The plan would have increased the number of visas available for STEM workers by 50,000, while eliminating the diversity visa program.  The diversity visa program, also known as the visa lottery, makes 50,000 visas available to people born in areas of the world that have sent the fewest immigrants to the United States in the past five years.

The GOP bill was brought to the floor in September under the suspension calendar, and needed a two-thirds majority to pass in the House of Representatives.  While the proposal failed to gain the required support in September, the bill to expand the number of STEM visas came to the floor on the regular calendar, and passed the House on November 30, 2012.  The bill passed, and was introduced in the Senate.

In the Senate, Republican John Cornyn sought unanimous consent to bring the bill on STEM worker visas to a vote.  Democrat Chuck Schumer objected, noting that while Democrats favored expanding the number of visas available for STEM workers, that Democrats did not believe it had to be done by eliminating the visas available under other immigration programs.

The political wrangling over immigration reform has therefore begun.  There is a question over whether the Democrats will even permit immigration reform to pass.  If immigration reform were to pass, it would rob the Democrats of a political issue where they believe they have an advantage over Republicans. 

This first foray into the issue of immigration reform, therefore, does not bode well for the passage of comprehensive reform.  If political parties cannot agree on the specifics of this one issue, where there is general agreement for the need to expand the visas available for STEM workers, then finding common ground on a host of other immigration topics could prove elusive.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

An Overview of the Process to Hire Foreign Science, Technology, Engineering and Math Workers

In the push for comprehensive immigration reform, U.S. businesses are pressing for more visas for science, technology, engineering and math ("STEM") workers.  Even on the campaign trail, Governor Romney stated that every science and math student graduating from a U.S. institution should have a green card stapled to the diploma.

But how difficult is it to get a visa for a foreign STEM worker?  The fact is that the process is tedious.  Moreover, a foreign worker can wait years for a permanent residency visa to become available.

In the article linked here, I give an overview of the process of hiring a foreign STEM worker, both on a temporary visa and on a permanent residency visa.  The process takes planning, resources and effort.  Most STEM workers start off with an H-1B temporary visa for specialty workers.  Annual quotas are tight, and deadlines are important.

Hiring a foreign worker permanently requires an effort to show that there are no U.S. workers who are ready, willing, able, and available to fill the position.  This is called the labor certification process, and requires that the employer go through a recruiting process.

Even after a visa petition is granted, because of annual limits, it may take years for the visa to be available.  If a worker is employed through an H-1B visa, it takes coordination and timing to make sure that the worker can remain in the United States until the permanent residency visa is available.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Do I Need a Lawyer to Apply for Citizenship?

While attending a class with other immigration lawyers, I heard a presenter express her experience that USCIS is reviewing the basis of a person's permanent residency in many more cases when that person has applied for citizenship.  Indeed, I have personally come across a number of people who found themselves in trouble after submitting a naturalization application because USCIS had uncovered some problem with their permanent residency.  Indeed, other immigration lawyers stated that the situation had gotten to a point that when a person comes to them for assistance in filing a naturalization application, the lawyers are now going in depth in questioning the potential client on how they became a permanent resident.

When a person submits a naturalization petition, USCIS does not simply adjudicate whether that person should become a citizen.  Quite the contrary, USCIS sees this a its last opportunity to look into the background of the applicant, and be sure that everything in the applicant's background is in order.  This means that the adjudicator routinely reviews the applicant's basis for applying for permanent residency in the first place, to ensure that the applicant was granted permanent residency properly.

While it may no seem fair, if, during the naturalization application process, the adjudicator finds something was wrong with the way that the green card was issued, he or she can recommend that the green card be revoked.

For example, if an adult child of a permanent resident was granted an immigrant visa, he or she must remain unmarried until being admitted to the United States as a permanent resident.  If that person were to get married at some point after the U.S. consulate issued the visa, but before actually entering the United States, then that person would have been unqualified to have been admitted as a permanent resident.  When applying for naturalization, that person will be required to disclose the details of all marriages.  A thorough adjudicator could notice that the date of marriage preceded the date of admission, conclude that at the point of admission the person did not qualify for the green card, and then recommend that the green card be revoked.

Similarly, there is a requirement that an applicant for citizenship show five years of good moral character.  Applicants should be aware that the FBI will be conducting a background check on them.  That means that any convictions will likely be brought to the Government's attention if a naturalization application is filed.

The bottom line is that sometimes it may be the better course simply not to apply for citizenship.  But, in order to know that, a person would likely need to consult with a knowledgeable immigration lawyer.  Thus, while the application process would appear simple, consulting with a lawyer beforehand can avoid some disastrous consequences.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com