Immigration Law Ramifications of Unlawful Presence Litigation

Because the Judge has ordered an accelerated briefing schedule (commencing on May 13 and ending on May 30), and since the Judge has already considered the legal challenges that are the basis for plaintiffs’ Motion for Summary Judgment in determining the plaintiffs’ “likelihood of success”, it may be reasonable to expect a final decision from the court in the month of June or shortly thereafter. Of course, the decision of the court on each party’s Motion for Summary Judgment, as well as issues of whether the government will appeal the Preliminary Injunction and, if the Judge rules in favor of the plaintiffs, any final order, remain speculative.

Background of D/S Unlawful Presence Issue

A brief background of the issue is helpful before I explore some of the ramifications of the Judge’s decision. When IIRAIRA became law in 1996, I was General Counsel of AILA. IIRAIRA introduced a new concept into the law – – “unlawful presence” – –  which triggered a 3-­year or 10-year bar to admissibility to the U.S. AILA’s General Counsel Liaison Committee engaged in a high level series of meetings with 3 different INS General Counsels during which we advocated that the new term “unlawful presence” means something different than other terms that had previously been used in the Immigration and Nationality Act – – violations of status, unauthorized employment, unauthorized alien, among others – – and that “expiration of a period of stay” authorized by the Attorney General in section 212(a)(9) refers to a specific date and not to a status. Because of that, foreign nationals in “D/S” (duration of status) should not incur unlawful presence until a specific date – – a date on which they are notified that the government believes they have violated status. This would give F, J, and M foreign nationals 180 days to depart the U.S. without incurring a 3‑year bar. INS, and the Department of State, agreed to this interpretation, embodied it in multiple memoranda and followed it uniformly for 21 years. For various reasons, INS and USCIS chose not to issue regulations to implement the 3 and 10-year bars.

On August 9, 2018, USCIS issued a Policy Memorandum that purported to overturn 21 years of consistently enforced policy. It did so without notice and comment rulemaking under the Administrative Procedure Act. Four universities, the American Federation of Teachers and two individual plaintiffs filed a complaint in federal court seeking to enjoin and overturn this Policy Memorandum. I served as co-counsel and immigration subject matter expert in this litigation (Paul Hughes of Mayer Brown was lead counsel). The complaint alleged that the Policy Memorandum should be invalidated for both procedural reasons (failure of the USCIS to comply with the APA) and substantive reasons (the Policy Memorandum is inconsistent with the law in section 212(a)(9)).

With that as background, this alert and practice pointer will discuss the ramifications of the May 3 Memorandum Opinion and Order of Judge Biggs.

Ramifications of Court’s Decision

Until Judge Biggs’ decision, no federal court had ruled on the validity of the interpretation of unlawful presence to mean something different than violation of status, and the interpretation that foreign nationals in D/S do not accrue unlawful presence until they are expressly notified that they have violated their status. Judge Biggs considered this issue directly and concluded that “plaintiffs will likely succeed on their claim that the August 2018 Memorandum conflicts with the INA.” She agreed that unlawful presence must mean something different than violation of status since Congress chose to use a different term when establishing for the first time a 3 or 10-year bar for “unlawful presence”. Her critical finding on this point is as follows: “It appears likely that, based on the statutory text of the IIRIRA, unlawful presence for a nonimmigrant alien does not begin to accrue until an adjudicator determines that the individual is out of status…The Court, therefore, concludes that Plaintiffs have demonstrated a likelihood of success on their claim that the August 2018 Policy Memorandum’s method for calculating unlawful presence conflicts with existing law and is therefore invalid.”

In addition to the obvious impact on students and scholars, the decision is significant for nonimmigrants in all other statuses. As we indicated in our briefing, if USCIS could prevail in establishing a policy that any violation of status can trigger the 3 or 10-year bar for Fs, Js and Ms, it would be a small step to extend that policy to Hs, Ls and all other nonimmigrants. This would be a sea change with untold ramifications.

In addition, section 222(g) of the INA utilizes the same language as in section 212(a)(9). Pursuant to that section, staying beyond the “period of stay authorized by the Attorney General” voids all visas for any nonimmigrant who has incurred even one day of unlawful presence and requires such nonimmigrant to obtain visas only in the country of nationality for the rest of their lives (absent extraordinary circumstances). If the USCIS policy as embodied in the August 9, 2018 Memorandum were to prevail and be applied to all nonimmigrants F, J and M nonimmigrants, and immigrants in all statuses, would be at risk of appearing at U.S. consulates worldwide and being told that they must return to their country of nationality to apply for a visa because the consular officer believes they may have violated status at some point in their immigration history.

The Judge’s decision as it relates to the statutory construction of the term “unlawful presence” is significant for another reason. If the Judge were to rule that the August 9, 2018 Policy Memorandum should be overturned solely because of failure to comply with notice and comment rulemaking, USCIS could then engage in rulemaking to enforce the unwise policy embodied in the Memorandum (even if such rulemaking would likely take years). However, if the interpretation of unlawful presence embodied in that Memorandum conflicts with the INA as a matter of law, that defect could not be addressed even by properly promulgating regulations. Rather, it would require a statutory change from Congress.

The decision is also significant as it relates to ongoing initiatives of AILA’s Administrative Litigation Task Force. Our Task Force has been working hard to encourage immigration lawyers and parties to petition denials that are based on legal interpretations that are contrary to decades of INS and USCIS interpretations to challenge those denials in federal court. The Decision of Judge Biggs will hopefully encourage litigation challenging the myriad of unprecedented (and arguably unlawful) USCIS interpretations and adjudications that are meant to reduce legal immigration without any change in the law or regulations. The following are some key takeaways:

• The Court found that the Policy Memorandum is a “legislative rule” and not an “interpretive rule”. This is significant because a legislative rule requires APA notice and comment rulemaking. There are many other recent changes of USCIS policy that, arguably, constitute “legislative rules” that may be subject to challenge.
• The Court found it relevant that USICS attempted to change a policy that it “voluntarily followed for over 20 years.” There are many other examples of such policies that may be subject to challenge in federal court.
• The Court held that the American Federation of Teachers has “representational standing” to sue on its members’ behalf. This could be significant for other litigation where it is difficult to find plaintiffs (because of fear of retaliation or other reasons), but where an organizational plaintiff may be willing to litigate on its members’ behalf.
• The Court granted a nationwide injunction. This is significant because individual actions by individual plaintiffs challenging USCIS adjudications often result in approvals of the previously-denied petitions without ever resulting in a court issuing a decision that could impact future USCIS adjudications. The Administrative Litigation Task Force is contemplating litigation strategies on other issues of great importance that could have nationwide impact.
• The Court held that the litigation was “ripe” even though the individual plaintiffs had not yet departed the U.S. and become subject to 3 and 10-year bars (which decisions would likely not be subject to judicial review). The Court held that the Policy Memorandum itself is a final action of the agency that creates “an immediate threat and burden” on foreign nationals and, as such, is ripe for judicial review.

One word of caution. Attorneys need to consider carefully how they advise students and scholars regarding travel during the interim period between the May 3 issuance of the injunction and a final decision of the Court on the merits. Even though the Judge has issued the injunction based on the “likelihood of success” on the merits, there is no certainty regarding the ultimate decision on the merits. If a student or scholar were to travel and the Court were to ultimately uphold the Policy Memorandum, it is unclear what the USCIS and Department of State policies would be regarding travel that triggered the bars during the period that USCIS was enjoined from enforcing the bars. Although we would vigorously contend in court that any travel during the injunction could not result in action being taken against a student or scholar, out of an abundance of caution, counsel may choose to advise clients who could possibly be subject to provisions of the August 9, 2018 Policy Memorandum from deferring international travel at least until the Court rules on the Summary Judgment Motions, hopefully as soon as the month of June.