Back in February 2020, we discussed a case at the U.S. Supreme Court involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally. The question, as it was presented to the Supreme Court, was whether the federal statute is unconstitutional because it tends to criminalize protected free speech.
On May 7, 2020, the U.S. Supreme Court issued a unanimous decision, concluding that the lower appeals court – the U.S. Court of Appeals for the Ninth Circuit – had impermissibly stepped in to shape the legal questions in the case. The Supreme Court vacated the Ninth Circuit’s decision and sent the case back to the Ninth Circuit to consider the case as the parties had presented it, and not as the Ninth Circuit had redesigned the case.
The Supreme Court did not decide the question that the Ninth Circuit had crafted – whether the federal statute unconstitutionally restricts free speech. The Supreme Court did not decide that question because it concluded that the Ninth Circuit abused its discretion by crafting the question and then answering it.
The attorneys representing the criminal defendant, Evelyn Sineneng-Smith, had presented arguments to the Ninth Circuit that Sineneng-Smith was not guilty of the crime under the federal statute. The Ninth Circuit decided to appoint three amicus groups, or “friends of the court,” to present arguments on a question that neither Sineneng-Smith’s lawyers nor the government had raised: whether the federal statute is “overbroad” under the First Amendment. The Ninth Circuit then issued an opinion stating that the federal statute is overbroad, and thus invalid because it violates the Constitution.
The U.S. Supreme Court concluded that the Ninth Circuit should not have made up its own legal question on the case. Instead, the Ninth Circuit should have decided the legal questions that the lawyers for Sineneng-Smith and the government had presented. The U.S. Supreme Court sent the case back to the Ninth Circuit for a do-over.
Among the eight immigration cases pending at the U.S. Supreme Court is one involving the First Amendment. On February 25, 2020, the Supreme Court heard oral arguments in U.S. v. Sineneng-Smith, a case involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally. The Supreme Court will decide if this federal statute is unconstitutional. A decision is expected by June 30, 2020.
The case stems from a California woman, Evelyn Sineneng-Smith, who ran an immigration consulting business serving Filipino home health care workers. From 2001 to 2008, she collected more than $3 million from clients applying for an adjustment of their immigration status. But the particular program Sineneng-Smith was filing under had ended in 2001, so the clients she applied for were not actually eligible.
Sineneng-Smith was convicted of mail fraud and tax violations. She was also charged with the crime that is at issue in the case at the Supreme Court: illegally encouraging an alien to remain in the United States.
The legal question in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is unconstitutional.
During oral arguments, only Justice Samuel Alito seemed to believe that the government could actually punish anybody who ‘encourages’ undocumented immigration. “If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense.”
Representing the government, Deputy Solicitor General Eric Feigin asserted that the law covers only criminal conduct or ‘solicitation’ of a crime, not mere advocacy or expression.
Justice Sonia Sotomayor asked Feigin how “an average person” could possibly know about “all of the limitations you’re suggesting to us.”
A ruling for the First Amendment right to free speech this case would establish that the government cannot punish people for wanting to help immigrants in need.
Stayed tuned to see what the U.S. Supreme Court ultimately decides in this case.
On February 6, 2020, a federal judge permanently blocked a DHS policy shift regarding persons who entered the United States on student visas and who later fell out of valid status.
Many noncitizens who enter the United States on certain nonimmigrant visas – including F, J, and M student visas – are permitted to remain in the United States for the time during which they are pursuing their educations at accredited schools or engaging in authorized training after the completion of their studies. When persons with these visas are admitted to the United States, they generally are admitted not for a specific period of time, but rather for the “duration of status.” When DHS issues an I-94 to these persons, they generally state that they are permitted to remain through “D/S,” which stands for “duration of status.”
Noncitizens who accumulate “unlawful presence” in the United States suffer certain penalties when they depart the United States: They are prohibited from returning to the United States for either 3 or 10 years, depending on the length of their “unlawful presence” in the United States before they departed.
For more than 20 years, DHS has maintained that persons with F, M, or J visas who fall out of valid status – who stop attending school or who stop authorized training – do not begin to accumulate unlawful presence unless or until a U.S. government official formally determines that they have lost their valid status.
DHS Policy Shift in 2018
DHS announced an abrupt change in this policy in August 2018, by stating that, effective immediately, persons with F, J, or M visas who stop going to school or who stop their training immediately begin to accumulate unlawful presence, without the requirement of any formal determination by a DHS official.
Federal Court Decision
A number of colleges, organizations, and noncitizens filed a federal lawsuit in North Carolina against DHS, asserting two main things: (1) that DHS’s policy shift was a “rule” change that required that they give advance notice of the proposed change and give the public a chance to provide comments on the proposal, and (2) that the policy shift is unlawful because it conflicts with established immigration laws that Congress has passed.
In May 2019, the court issued a preliminary injunction against the DHS policy shift while the court considered the merits of the case.
On February 6, 2020, the court issued a final decision, agreeing with the colleges, organizations, and noncitizens that the DHS policy shift is unlawful for both reasons described above: (1) the policy shift was a “rule” that requires the notice-and-comment procedure, and (2) the policy shift conflicts with federal immigration law. The court permanently blocked DHS from implementing the policy shift against anyone, anywhere in the world.
We will need to wait and see if DHS appeals the court’s decision. For now, the DHS policy is permanently blocked.
In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”
That new rule was set to take effect on October 15, 2019, but courts issued orders blocking the implementation of the new rule while the cases challenging it were processed.
But on January 27, 2020, by a 5-4 vote, the Supreme Court lifted the injunction. This means that USCIS may begin using the new rule while it is still being challenged in the courts. There is one exception: USCIS may not implement the new rule for green-card applicants in Illinois, because of an ongoing legal challenge in that state.
For now, we don’t know exactly if or how USCIS will begin to implement the new rule. And it’s important to remember that lawsuits challenging the new rule are still moving forward. The Supreme Court’s decision on January 27, 2020 simply states that USCIS may use the new rule (except in Illinois) while the lawsuits are pending.
As we noted earlier, among the eight immigration cases pending at the Supreme Court is the question of whether the current administration’s attempt to end DACA was legally proper. The Supreme Court heard oral argument on November 12, 2019.
The case focuses on two questions: (1) Are the courts even allowed to review the government’s decision to end DACA? (2) Did the government violate the law in the way that it went about ending DACA?
Are courts able to review the decision to end DACA?
The administration’s first argument is that the courts may not review the decision to end DACA, because that decision was within the federal government’s discretion, and so may not be second-guessed.
One weakness of the government’s argument is that the original justification that the administration provided for ending DACA is that the program was illegal, and so the administration had no choice but to end the illegal program. Justice Ginsburg pointed out the problem: on the one hand, the government says that it had the discretion to end the program, while on the other hand, the government says it had no discretion because the program was illegal.
Did the government attempt to end DACA in a lawful way?
Both sides agree that the current administration could end DACA if it chose to do so in a legally proper way – by providing sufficient reasoning behind the decision.
The government’s original justification for ending DACA was a brief memo that stated that the program was illegal, and so it must be ended. Those supporting the DACA program argue that the government’s original reasons were not sufficient to justify the decision to end the program.
The government later provided an additional memo that attempted to more fully address all of the factors involved, including the reliance of about 700,000 persons who have DACA. One question that the justices must sort out is, if the DACA program is legal (despite the current administration’s argument that it isn’t), then is the administration’s justification for ending DACA sufficient?
We expect the Supreme Court to issue a decision any time between now and the end of June 2020.
The U.S. Supreme Court has eight pending immigration cases, and we are likely to see decisions on most or all of them by June 2020, when the Supreme Court ends its current session. Here is a run-down of the eight cases:
- Perhaps the most anticipated case involves the future of DACA. The Supreme Court will decide whether the Trump Administration’s decision to end DACA was legal. Based on the oral argument, held in November 2019, the Court is likely to be sharply divided on the question. If the Supreme Court decides that President Trump legally ended DACA, the next question will be exactly how the Administration will end the program. Because the future of DACA is very uncertain at this time, we suggest that all persons who currently have DACA to consider applying to renew DACA as soon as possible, before the Supreme Court issues a decision. Our reason for making this suggestion is that, if the Court rules that President Trump legally ended DACA, then there will no longer be any opportunity to renew DACA.
- In Kansas v. Garcia, the Court will decide whether states may prosecute undocumented persons who use stolen data such as Social Security numbers to obtain work, or whether such prosecutions are only permitted by federal officials. The federal I-9 form, which job applicants must complete in order to obtain employment, states that the information put on the form may only be used for federal law purposes.
- Another case before the Supreme Court focuses on whether certain noncitizens may appeal certain decisions to federal courts of appeals. Congress has enacted a law that specifically allows federal courts to review “questions of law.” But federal appeals courts generally do not have the power to review “questions of fact.” In cases before the Supreme Court this term, two noncitizens filed late motions to reopen their deportation cases. The Board of Immigration Appeals denied their motions. The question that the Supreme Court must answer is whether federal appeals courts may review the decisions of the Board of Immigration Appeals.
- In Nasrallah v. Barr, the Supreme Court will decide whether or not federal courts have authority to review certain decisions. As we just noted, generally federal appeals courts do not have the power to review “questions of fact.” But the United States has agreed to follow a document called the Convention Against Torture, and the federal government has laws that state that federal government officials may not send any persons to any countries in which they are likely to be tortured. In this case, the Supreme Court will decide whether federal appeals courts have the authority to review factual findings that resulted in denying requests for protection under the Convention Against Torture.
- The Constitution contains a right to file a habeas corpus petition, which is a challenge to being detained by any government authority. In DHS v. Thuraissigiam, a noncitizen entered the United States and asked for asylum. A federal immigration official concluded that he did not have a valid asylum claim, and ordered his deportation. He filed a habeas corpus petition in federal court, challenging his detention by federal officials as unlawful. Congress passed a law restricting the power of federal courts to hear habeas corpus cases in certain immigration matters, such as this one. The Supreme Court will decide whether Congress’s law is valid, or whether it violates the Constitution’s right to file a habeas corpus petition.
- Congress passed a law making it a crime to encourage illegal immigration for financial gain. A woman in California was convicted of helping noncitizens apply for immigration benefits that they were not entitled to receive. A federal appeals court concluded that Congress’s law violates the First Amendment because it applies too broadly, potentially making it a crime for a lawyer to advise a client to remain in the United States while her case is pending in Immigration Court. The Supreme Court will decide whether Congress’s law violates the Constitution.
- When a noncitizen applies for certain immigration benefits in Immigration Court, there is a question of whether certain criminal convictions disqualify the person from seeking the benefit. Some minor offenses, such as driving without a license, generally do not disqualify a person, while more serious offenses do. Most criminal convictions occur in state courts, while lists of disqualifying crimes are based on federal law, listing federal offenses. Sometimes, it’s unclear whether a conviction under a state law fits within the federal law definition. In this case, the Supreme Court will decide who bears the burden of this question: Is it the noncitizen’s responsibility to show that the state conviction is not a disqualifying federal crime? Or is it the federal government’s job to show that the state conviction is a disqualifying federal crime?
- Finally, the Supreme Court will decide a case that focuses on a legal distinction between being “deportable” and being “inadmissible.” A permanent resident (green-card holder) in the United States was convicted of a crime in the United States. In Immigration Court, he was in danger of losing his permanent resident status as a result of the conviction, and so he applied for a certain benefit that, if approved, would allow him to keep his green-card status. Immigration law indicates that his criminal conviction makes him “inadmissible,” and so he’s not eligible to apply for the benefit. He argues, on the other hand, that he’s not asking to be admitted to the United States – he’s already been admitted – and so he should be able to request the benefit. The Supreme Court will decide whether a permanent resident can be considered “inadmissible” when he is not seeking admission to the United States.
Decisions are expected by the end of June 2020.
There are a number of different ways in which you might need to have a federal court action in order to resolve your immigration matter.
Three Branches of Government
Many of us are probably familiar with the three branches of the federal government, as described in the Constitution. The three branches are the Legislative (Congress), Executive (President), and Judicial (federal courts).
If you have a case in Immigration Court, you might guess that the Immigration Court is part of the Judicial branch. After all, the judicial branch is about courts, right?
But actually, the Immigration Court system is entirely under the Executive Branch of the federal government. If you want to appeal a decision from the Immigration Court, the appeal goes to the Board of Immigration Appeals (BIA), based in Falls Church, Virginia. The BIA, like the Immigration Courts, is part of the Executive Branch of the federal government.
Getting from the Executive Branch to the Judicial Branch
If you wish to appeal a decision of the BIA, the appeal is called a “petition for review,” and that petition is filed with a U.S. Court of Appeals for the district in which your Immigration Court hearing took place. For example, if your Immigration Court hearing was in the Immigration Court in Detroit, Michigan, then your petition for review of the BIA’s decision would go to the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, Ohio. The Sixth Circuit has jurisdiction over cases that arise in the states of Michigan, Ohio, Kentucky, and Tennessee. The Sixth Circuit, and all of the federal circuit courts of appeals, are in the Judicial Branch of the federal government.
So, as you can see, if your case is in Immigration Court, in order to get your case heard by judges in the Judicial Branch, you first need to go through two levels of process in the Executive Branch.
By the way, if you wish to appeal the decision of a U.S. circuit court of appeals, you may file a petition with the U.S. Supreme Court. It’s quite difficult to convince the U.S. Supreme Court to agree to hear a case. Our office was fortunate to be involved in the case of Esquivel-Quintana v. Sessions, a case in which the U.S. Supreme Court agreed with our position and ruled in our favor, by a vote of 8-0.
Other Types of Federal Court Actions
In some situations, the procedural process is different. Perhaps you are being held in jail by U.S. immigration officials, and you believe that federal officials do not have the legal authority to keep you in jail. You may file a petition in a U.S. district court to seek to be released from jail. This type of petition is called a “writ of habeas corpus.” You file this petition in a federal district court, which is part of the Judicial Branch of the federal government.
Perhaps you have filed an application with U.S. Citizenship and Immigration Services (USCIS) for permanent residence, or for naturalization. And, perhaps USCIS is taking a really long time to make a decision about your case. You may file a petition in a U.S. district court (part of the Judicial Branch of the federal government) to ask the court to order USCIS to make a decision on your case. This type of petition is called a “writ of mandamus.” If the federal court agrees with you, then the court will order USCIS to make a decision. Please note that the federal court will not dictate what the decision of USCIS will be. The federal court would simply order USCIS to issue a decision. That decision could be an approval of your application, but it could also be a denial.
Obtain Good Legal Assistance
Whatever is happening with your own immigration matter, it’s probably the most important thing that is going on in your life at this time. It is crucially important that you find an immigration lawyer whom you trust and who has a thorough knowledge of the legal issues and the ability to represent you in a way that maximizes your chance of success.
By federal law, an immigrant may seek asylum at any port of entry or from anywhere inside the United States. Immigrants seeking asylum have been allowed to remain in the United States, pending a decision on their case. A new Trump Administration policy threatens this process.
On January 24, 2019, the Department of Homeland Security (DHS) began carrying out the “Remain in Mexico” policy, formally known as the Migrant Protection Protocols, at the San Ysidro port of entry. This policy forces immigrants seeking asylum at the southern border to wait in Mexico until an asylum hearing is scheduled before an Immigration Judge.
There are few exceptions to the policy. Unaccompanied minors, citizens and nationals of Mexico, and anyone who fears persecution in Mexico may remain in the United States. However, the burden is on the asylum seekers to establish that they are “more likely than not” to face persecution on the account of a protected ground in Mexico if they wish to remain in the United States.
In addition to imposing a more stringent standard for asylum seekers, the “Remain in Mexico” policy jeopardizes an asylum seeker’s access to legal counsel. United States Citizenship and Immigration Services (USCIS) has stated that they are unable to provide access to immigration attorneys during the assessment of an asylum claim between the asylum seeker and a USCIS officer. An asylum seeker may not apply for appeal or reconsideration of the assessment made by USCIS.
Asylum seekers awaiting their hearing in Mexico will face difficulties in finding a U.S. based immigration attorney to guide them and prepare them for their hearing. The “Remain in Mexico” policy also imposes increased burdens on U.S. based immigration attorneys who wish to represent asylum seekers who are forced to remain in Mexico. Finding a means of communication between clients and attorneys will prove difficult across international borders.
The “Remain in Mexico” policy jeopardizes the safety of asylum seekers while they remain in Mexico. It is likely that they will face exposure to kidnapping, murder, assault, and other types of harm based on the current country conditions in Mexico. While the Mexican government has announced that it will give protection to asylum seekers affected by the policy, no additional details have been given including where asylum seekers will live or in what type of housing.
On April 8, 2019, a federal judge in San Francisco halted the “Remain in Mexico” policy, following a legal suit brought by asylum seekers and other organizations represented by the American Civil Liberties Union (ACLU). The judge issued a preliminary injunction, ruling that the plaintiffs were likely to show that the policy violated federal regulatory law.
The Ninth Circuit appeals court reinstated the policy on April 12, 2019. This reinstatement will remain in force while the parties submit arguments to the court addressing the government’s desire that the policy remain in place throughout the whole appeals process. Whether the government at this time will continue returning asylum seekers to Mexico remains to be seen.
The process of seeking asylum in the United States already imposes a high burden on asylum seekers who seek refuge in this country. The “Remain in Mexico” policy places additional hurdles that jeopardize the safety of asylum seekers as well as their access to legal counsel. This policy sets forth a more stringent standard that asylum seekers must face in order to establish their fear of return. Whether this policy will eventually be struck down by the federal courts hangs in the balance.
A recent decision by the U.S. Supreme Court makes it easier for the U.S. government to arrest and detain without bond noncitizens who have been convicted of certain crimes.
The statute that was the focus of the Supreme Court’s decision in Nielsen v. Preap is Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Section 1226(c). The statute states that the federal government “shall take into custody” a noncitizen who has been convicted of certain crimes “when … released.”
Many U.S. district courts around the country, including the federal district court in Detroit, interpreted the “when … released” language to mean that U.S. officials needed to arrest and detain a noncitizen when he or she is released from custody as a result of the criminal conviction, or at least shortly after release from criminal custody. If there was a significant gap in time between the release of the noncitizen from criminal custody and the federal government’s arrest of the noncitizen, many federal district courts ordered the federal government to release the noncitizen, because of the government’s failure to arrest and detain the noncitizen “when … released.”
But the U.S. Supreme Court, by a 5-4 decision, concluded that the federal government may arrest and detain a noncitizen in this situation at any time, including years or even decades after release from criminal custody.
In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote that Congress “did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”
Unfortunately, the Supreme Court’s 5-4 decision clears the way for the federal government to detain certain noncitizens without providing them the possibility of a bond hearing.
On May 30, 2017, the U.S. Supreme Court issued the opinion in Esquivel-Quintana v. Sessions. The Court unanimously reversed the decision of the Sixth Circuit, agreeing with us that a conviction for having consensual sex with a person at least age 16 is NOT “sexual abuse of a minor” under federal immigration law.
Justice Neil Gorsuch did not participate in this case, because he was not yet confirmed as a justice when the case was argued on February 27, 2017.
The other 8 justices all agreed that the immigration law at issue in this case – the defintion of the phrase “sexual abuse of a minor” – is not ambiguous with respect to whether consensual sex with a person age 16 or older is “sexual abuse of a minor.” According to the unanimous decision of the Court, written by Justice Thomas, a conviction for such conduct is not an aggravated felony. As a result, the Court did not need to address the competing demands of defence to the Board of Immigration Appeals (BIA) under Chevron, on the one hand, and the doctrine of lenity, on the other hand, which would lead to the conclusion that an ambiguous statute should be read in the manner most favorable to the person convicted of the crime.
The Court reaffirmed the importance of the categorical approach to determine whether a conviction is an aggravated felony under the immigration statute. Most importantly, for our case, the Court emphasized the importance of determining the generic definition of the crime at issue, as explained in Taylor v. United States.
As we had urged, the Court looked to the criminal laws of the 50 states and the District of Columbia to aid in the process of determining what the generic definition of “sexual abuse of a minor” should be in the context of consensual sex between two persons who do not share a position of trust or authority (such as teacher and student). And, as we had explained in our briefs, most states set the age of sexual consent at 16, meaning that sex is only prohibited when the younger person is under age 16.
The Court declined to decide whether “sexual abuse of a minor” under the immigration statute requires a certain age difference between the persons, for example, 4 years. The Court held squarely that, for consensual sex in which no special relationship of trust between the persons is involved, if the younger person is age 16 or older, then the conviction is NOT “sexual abuse of a minor,” regardless of the age difference between the persons.
For Juan Esquivel Quintana, the decision means that he is NOT an “aggravated felon” under immigration law. His permanent resident status should be restored, retroactively. We are making arrangements to help Juan to return to the United States as a permanent resident, a status he has held since he was 12 years old.