Articles Posted in Court Decisions

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Source: Flickr, Attribution: mollyktadams

We are saddened to report that late Friday, July 16, 2021, Federal Judge Andrew Hanen of the United States District Court for the Southern District of Texas, granted the plaintiffs in the case, State of Texas, et al., vs. United States of America, et.al, a permanent injunction, pending ongoing litigation over the legality of the Deferred Action for Childhood Arrivals (DACA) program.

As a result, new first-time applications for the DACA program will no longer be approved by the United States Citizenship and Immigration Services (USCIS) following Judge Hanen’s ruling.  Friday’s decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld, especially by the conservative leaning Supreme Court of the United States.

In his ruling, Federal Judge Hanen declared that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) with the initial creation of the Deferred Action for Childhood Arrivals (DACA) program and its continued operation. Accordingly, he has ordered that the DACA Memorandum and the subsequent creation of the DACA program be vacated and remanded to DHS for further consideration.

This action removes protections from deportation for thousands of undocumented young adults who came to the United States as children, otherwise known as Dreamers, and casts doubt on the future of the program.

Judge Hanen specifically stated that his ruling does not impact the hundreds of thousands of DACA recipients and others who have relied on the DACA program for almost a decade. This means that while new first-time applications for DACA will no longer be adjudicated by USCIS, Hanen’s ruling will not impact current DACA recipients.

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Federal District Judge Rules to Reinstate $500,000 Minimum Investment For the EB-5 Visa Program

In this blog post, we share with you a new landmark court decision affecting the EB-5 Immigrant Investor Visa Program, known as matter of Behring Regional Center LLC V. Chad Wolf et al.

In this case, decided on June 22, 2021, the U.S. District Court of the Northern District of California vacated the controversial 2019 ‘EB-5 Modernization Rule’ that sought to ‘modernize’ the EB-5 visa program, by increasing the minimum investment amount from $500,000 to $900,000.  In her ruling, Judge Corley concluded that the 2019 Modernization Rule should be vacated because the former acting DHS Security, Kevin McAleenan was not properly appointed in his position under the Federal Vacancies Reform Act when he implemented the Regulations.  Therefore, the officials had no legal authority to make and to announce the changes.

The judge’s new ruling means that the district court’s decision will restore the original rules for the EB-5 program, initially established by the Immigration Act of 1990 as a legal pathway to provide qualified foreign/immigrant investors the opportunity to obtain permanent residency in the U.S. (commonly known as the “green card”). The now-defunct EB-5 Modernization Regulations of 2019 had increased the minimum investment amount from $500,000 to $900,000, but with this new ruling the minimum investment amount has again reverted to $500,000.

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On June 4th, 2021, the interim guidance memorandum (“The Memo”) was publicly released. The reason the memo sent many, like me, into a frenzy was because of the million people currently in immigration court limbo who have just had their lives transformed by these thirteen pages.

This memo is proof the Biden Administration has set a new tone towards immigration. The memo beautifully states, “the government wins when justice is done,” reminding OPLA attorneys they should remain mindful that “immigration enforcement obligations do not consist only initiating and conduction prompt proceedings that lead to removals at any cost.” The memo provides internal direction to OPLA attorney’s regarding the following: 1. Removal Priority Cases, 2. Prosecutorial Discretion, 3. Ability to cancel NTAs, 4. Authority to Administrative closure or Continuance of Proceedings, and 5. Authority to Terminate  Proceedings.

(It is important to note this memorandum was released For Official Use Only by the Department of Homeland Security. You should seek the advice and counsel of an attorney to review your case specifically.)

  1. REMOVAL PRIORITY CASES

It is directed that OPLA attorneys prioritize agency resources in the following priority categories:

A. Noncitizens who engaged in or suspect to engage in terrorism or whose apprehension is otherwise necessary to protect the national security of the United States.

B. Noncitizens who were apprehended at the border or port of entry, while attempting to enter unlawfully into the United States after November 1, 2020.

C. Noncitizens convicted of an “aggravated felony” or convicted of an offense related to a criminal street gang and determined to pose a threat to public safety.

The memo also provides a non-exclusive list of civil immigration enforcement and removal decisions where the agency should identify any opportunities of a non-citizens process to ensure just fair and legally appropriate outcomes.

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We are very happy to bring you this late breaking news.

Today December 04, 2020, a federal judge from the United States District Court for the Eastern District of New York, issued a ruling that requires the Trump administration to post a public notice within 3 calendar days that it will accept new initial requests for DACA (Deferred Action for Childhood Arrivals) applications effective immediately.


Overview of DACA Litigation 

This order builds on the judge’s previous ruling which declared the actions of Department of Homeland Security Secretary Chad Wolf unlawful, given the court’s finding that Wolf was not lawfully serving as acting DHS secretary when he signed rules limiting applications and renewals for the Deferred Action for Childhood Arrivals (DACA) program.

As you may recall back in 2017 the Trump administration engaged in aggressive tactics to eliminate the DACA program, however the U.S. Supreme Court successfully blocked such attempts, ultimately allowing DACA renewals to continue to be accepted.

In its opinion, the Supreme Court stated that the government did not follow the law – namely the Administrative Procedure Act – when it sought to eliminate DACA. Thus, the court found that because the government did not go through the appropriate process to dismantle DACA it would remain in place. Interestingly, the Supreme Court made clear that while the government did not go through the appropriate process to eliminate DACA, that it had the power to do so provided the government followed the appropriate procedures. The justices also stopped short of requiring the government to accept initial requests for DACA.

The following year on July 28, 2020, the Trump administration continued to stand its ground in blocking acceptance of initial DACA applications with the release of a scathing memorandum authored by Wolf. In it Wolf directed DHS personnel to (1) reject all pending and future initial requests for DACA (2) reject all pending and future applications for advance parole absent exceptional circumstances, and (3) to shorten DACA renewals to a two-year period.

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Welcome back to Visalawerblog! We hope you had a relaxing thanksgiving weekend. In this blog post we share an important update for K visa applicants impacted by the Coronavirus proclamations.

The Department of State recently issued a statement explaining how the agency will comply with a preliminary injunction issued by a federal judge in the case Daniel Milligan, et al., v. Michael Pompeo et al.

In that case a federal judge issued a preliminary injunction prohibiting the Department of States from relying on the Coronavirus proclamations to suspend K visa adjudications for those residing in the Schengen countries, the United Kingdom, Ireland, China, Iran, and Brazil.

Unfortunately, the judge stopped short of issuing a broad injunction to lift the ban on entry to the United States for K visa applicants impacted by these proclamations.

This means that while the government must proceed with K visa processing, once a K visa has been issued, applicants residing within an impacted area remain barred from entering the United States unless they meet a national interest exception.

To put it simply – the injunction simply stops the government from refusing to process K visas based on the Coronavirus proclamations. It does not allow K visa applicants from impacted areas to enter the United States once K visas have been issued unless the applicant meets a national interest exception. According to the judge, the government may still prevent entry to such applicants as deemed necessary during the pandemic.


What are the Coronavirus proclamations?

Back in January the President began issuing a series of Coronavirus proclamations that restrict and suspend the entry of immigrants and nonimmigrants, who were physically present within Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

These Coronavirus proclamations are as follows:

  • China Visa Ban – Proclamation 9984 issued January 21, 2020 – No termination date
  • Iran Visa Ban –Proclamation 9992 issued February 29, 2020 –No termination date
  • European Schengen Area Visa Ban—Proclamation 9993 issued March 11, 2020—No termination date
  • Ireland and UK Visa Ban –Proclamation 9996 issued March 14, 2020 –No termination date
  • Brazil Visa Ban—Proclamation 10041 issued May 25, 2020 –No termination date

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Happy Friday! Welcome back to Visalawyerblog! In this blog post, we bring you a recent success story and share with you how our office was able to expedite our client’s fiancé visa to help her reunite with her U.S. Citizen fiancé despite being subject to Presidential Proclamation 9993 also known as the “Schengen” visa ban.

We recognize that these are truly challenging times in the world of immigration and would like our readers to know that they are not alone. For many, there are alternatives and solutions that can be explored by our knowledgeable immigration attorneys to help them reunite with their family members. From our staff members to our attorneys, we are with you every step of the way on your immigration journey.

For a comprehensive consultation to discuss solutions to your immigration issues, you may contact us at 619-819-9204.


Overview of the Schengen Ban

To understand our client’s situation let’s first discuss the Schengen visa ban. Beginning in January of 2020, President Trump issued a series of Coronavirus proclamations to combat the rapid spread of Coronavirus cases in the United States.

Specifically, the President signed “Proclamation 9993,” into law on March 11, 2020, which restricts and suspends the entry into the United States of immigrants and nonimmigrants, who were physically present within the Schengen Area, during the 14-day period preceding their entry or attempted entry into the United States.

As a result of P.P. 9993, U.S. Consulates and Embassies around the world have refused to issue visas for those residing in the Schengen area including K fiancé visas until further notice. There is unfortunately no termination date for PP 9993 which means that visa applicants residing in the Schengen area will be stuck in “limbo” at least for the time being.

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Welcome back to Visalawyerblog! We kick off the start of the weekend with some exciting news for K-1 visa petitioners and their foreign fiancés. Yesterday, November 19, 2020, a federal judge from the U.S. District Court for the District of Columbia issued a decision finding that the government acted unlawfully in suspending visa issuance for K visa beneficiaries subject to the Coronavirus Presidential Proclamations. See Daniel Milligan, et al., v. Michael Pompeo et al.

The plaintiffs in this case – 153 U.S. Citizens and their foreign fiancés – brought suit against the United States government challenging a series of Coronavirus proclamations passed by President Trump that prohibit certain foreign fiancés from receiving their K-1 visas and entering the United States. Such K visa applicants who have been impacted by these Coronavirus Proclamations include those who have been physically present in the Schengen countries, the United Kingdom, Ireland, China, Brazil, and Iran, within the 14-day period preceding their entry or attempted entry to the United States. As you may be aware, U.S. Consulates and Embassies worldwide have refused to process visas for this class of immigrants because of these Coronavirus proclamations. The issue has now been settled – the government may not stop visa processing simply because these individuals are subject to these proclamations.

The plaintiffs in the lawsuit also include couples who have been kept apart during the Coronavirus pandemic due to the State Department’s protracted delays in visa processing and Consular refusal to schedule visa interviews worldwide due to the pandemic.


Plaintiffs Arguments 

In their suit, the plaintiffs requested a preliminary injunction to immediately stop the State Department’s visa processing suspension based on two arguments (1) the State Department has unreasonably delayed visa processing for K visa applicants not subject to the COVID proclamations and (2) the State Department has unlawfully stopped visa processing for K visa applicants subject to the COVID proclamations.

Since the start of the pandemic, the majority of K visa applications have been stuck at the National Visa Center awaiting transfer to the Embassy or Consulate for visa scheduling. Still others have completed the interview process and have been awaiting K visa issuance for months on end with no reassurance from the Consulate regarding visa issuance in the near future.

The central issue for the court to resolve was whether the plaintiffs in the case met their burden of proof to demonstrate a likelihood of success with respect to their arguments.

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Welcome back to Visalawyerblog! Happy Friday. In this post we bring you very important yet unfortunate news regarding ongoing litigation in the fight to invalidate the public charge rule known as “Inadmissibility on Public Charge Grounds.”

As we previously reported, on November 2, 2020, a federal judge from the U.S. District Court for the Northern District of Illinois, issued a ruling in the case Cook County Illinois et al. v. Chad Wolf et al. which immediately set aside the public charge rule. The judge’s ruling allowed applicants to proceed with adjustment of status filings without having to include Form I-944 Declaration of Self-Sufficiency.

Now things have changed.

In a stunning rebuke of the lower court’s decision, the Seventh Circuit Court of Appeals has put the public charge rule back in place. As a result, the Department of Homeland Security (DHS) may continue to enforce the public charge rule as before.

What did the appellate court decide?

On November 4, 2020, the appellate court placed an “administrative stay” on the November 2nd decision stopping the lower court from invalidating the public charge rule.

What does this mean for applicants for adjustment of status?

As a result of this decision, the U.S. Citizenship and Immigration Services (USCIS) may continue to implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.

Accordingly, all applicants for adjustment of status must include Form I-944 Declaration of Self-Sufficiency as well as all appropriate fees and supporting documentation.

What does this mean for employers and foreign nationals?

Until further notice, adjustment of status applications and nonimmigrant extension and change of status applications must continue to be submitted with public charge forms and documentation.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand-new week with an important court ruling, decided today, that invalidates the Department of Homeland Security’s (DHS) final rule entitled “Inadmissibility on Public Charge Grounds,” also known as “the public charge,” rule. With this new ruling, the public charge rule has been officially set-aside effective immediately.

As you may recall since October of 2019 the state of Illinois has been involved in a contentious legal battle with DHS over the legality of the public charge rule. In October of last year, a federal court granted residents of Illinois a preliminary injunction temporarily stopping the government from enforcing the public charge rule on its residents. The government thereafter appealed the decision and filed a motion to dismiss Illinois’ lawsuit which was promptly denied.

The Seventh Circuit court later affirmed the issuance of the preliminary injunction holding that the public charge rule was substantively and procedurally invalid under the APA, and the issuance of the injunction was appropriate to stop the government from enforcing the rule.

With the support of the Seventh Circuit, the plaintiffs filed a motion to vacate or “set aside” the public charge rule once and for all in the United States District Court for the Northern District of Illinois. See Cook County Illinois et al. v. Chad Wolf et al.

Today, November 2, 2020, federal judge Gary Feinerman ruled in favor of the plaintiffs vacating the public charge rule effective immediately.

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Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.

Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.

The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.

The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.

The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.

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