On February 6, 2020, Judge Loretta Biggs of the United States District Court for the Middle District of North Carolina granted the plaintiffs’ Motion for Summary Judgment and issued a nationwide permanent injunction enjoining USCIS from enforcing its August 9, 2018 Policy Memorandum entitled “Accrual of Unlawful Presence and F, J and M Nonimmigrants.” The decision – – Guilford College, et al v. Wolf – – is of inestimable importance to foreign students and exchange visitors; to universities, hospitals and research institutions; and to immigration lawyers. Here are some of the reasons:
- At its most basic level, the decision saves likely tens of thousands of F, J and M nonimmigrants from suffering 3 and 10-year bars to admission to the U.S. based on technical, often unknowing violations of status that may have happened many years ago. Specifically, the decision upholds the interpretation of “unlawful presence” for nonimmigrants in D/S status that has existed for over 20 years; viz., that no unlawful presence accrues until the D/S nonimmigrant has received formal notification that the U.S. government believes he/she has violated status, at which point the nonimmigrant has 180 days to leave the country to avoid incurring a 3-year bar.
- The court’s decision is based on two independent reasons – – one procedural and one substantive. The procedural reason is that USCIS violated the provisions of the Administrative Procedure Act that require notice and comment rulemaking prior to issuing a substantive policy enforcement change such as this change in 20 years of interpretation of a statutory provision. If that were the only basis for the decision, USCIS could remedy the problem by now issuing a notice of proposed rulemaking. However, such a notice would not enable USCIS to implement this new interpretation since the judge added a second, substantive basis for her decision. That basis is that USCIS’ new interpretation violates Section 212(a)(9) of the Immigration and Nationality Act. USCIS agreed with the position of the plaintiffs that when Congress chose a new term – – “unlawful presence” – – to trigger 3 and 10-year bars, it could not have meant for unlawful presence to be defined in the same way as other provisions in the statute that already existed, such as “violations of status”, “unauthorized employment”, “unlawful status”, etc. The court expressly agreed that the definition of unlawful presence in the statute that requires the “expiration of a period of stay authorized by the Attorney General” cannot mean a violation of status and must mean the end of a specific period of time. This cannot be rectified by the issuance of a notice of proposed rulemaking.
- There is no doubt in the author’s opinion that, if USCIS were able to get away with this new interpretation of “unlawful presence” as being the same as a violation of status, the next shoe to fall would have been applying the same concept to violations of status of other nonimmigrants, including H and L nonimmigrants. This would have wreaked a new level of havoc on companies and foreign national employees. This decision forestalls that consequence.
- The judge provided a cogent analysis regarding the reasons why a permanent nationwide injunction is appropriate and necessary in this case. This has become a hot topic recently given comments made by at least two Supreme Court justices, who have challenged the ability of federal court judges to issue nationwide injunctions. This remedy is critical to avoid inconsistent interpretations throughout the country and to avoid lawsuits having to be filed throughout the country to stop nefarious USCIS policies such as the unlawful presence memo.
- USCIS has on many occasions enacted very substantive changes of policies and legal interpretations by issuing policy memos or changes to the Policy Manual without engaging in notice and comment rulemaking. In doing so, USCIS takes the position that these constitute “interpretive rules” and not “substantive rules”. The decision of Judge Biggs is comprehensive and definitive in explaining why the unlawful presence memo constitutes a substantive rule because it represents the agency’s effort to “implement a statute” rather than “merely opine on its meaning” and because it “effects a substantive change in existing law or policy.” Without doubt, the language and reasoning of this decision will be applied in other cases challenging the plethora of USCIS changes in policy without notice and comment rulemaking.
- USCIS regularly argues in litigation challenging its policies that the plaintiff lacks standing to challenge the policy or that the issue is not “ripe” because no one has yet been harmed by the change of policy. The court held that the American Federation of Teachers has “representational standing” to sue on its members’ behalf, which will likely be significant for other litigation where an organizational plaintiff is litigating on its members’ behalf. With respect to “ripeness”, 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. The court held that the Policy Memorandum itself is a final action of the agency that is ripe for judicial review before any individual is harmed. This is also likely to be highly significant in other litigation.
- If this litigation had been unsuccessful and USCIS policy had been allowed to stand, one might imagine many significant negative impacts on universities. The hostile attitude toward immigrants has already affected negatively enrollment of foreign students in U.S. universities. Also, it is not a stretch to speculate that students and scholars whose futures would have been jeopardized and deleteriously changed by being barred from the U.S. for up to 10 years for actions or inactions that may have been attributed to university international office personnel could have resulted in both negative publicity to universities and claims for liability by the barred former members of the university community. Thankfully, this result has been averted.
- The decision is clear proof of the importance of universities and other institutions being willing to step up as plaintiffs in litigation challenging improper and unlawful government actions. If three universities had not been willing to step up and be plaintiffs in this litigation, the enjoined policy would be in force today; and many thousands of students and scholars would be barred from the U.S. or afraid to leave the U.S. for fear of being unable to return.
The government has 60 days to appeal this decision. If it does not appeal the decision, the decision, including the permanent nationwide injunction, is final. If it does appeal, the government would have to be successful in overturning both the procedural APA defect and the substantive statutory interpretation defect in the Policy Memorandum. Hopefully, the government will decide that an appeal is not a wise course of action, either because of a realization that issuing the Policy Memorandum was ill-advised or because it concludes that its chances of overturning the decision on not one but both of the substantive and procedural defects might be legally tenuous.
H. Ronald Klasko is Chairman of AILA’s Administrative Litigation Task Force. He served as co-counsel in the case of Guilford College vs. Wolf, which is the subject of this article. Mr. Klasko previously served as General Counsel of AILA, in which capacity he advocated for the position that F, J and M nonimmigrants do not accrue unlawful presence unless and until there is a finding that they are out of status. He negotiated with 3 INS General Counsel to adopt and maintain this legal interpretation, which has remained USCIS policy since 1997.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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