Top of the Ninth: Fiancé Visas, Rodriguez Remand, and Nationwide TRO

The genius of American society (at least one aspect of the genius of American society) is how we have integrated refugees into our country. (Other genius aspects of America include birth-right citizenship, the Bill of Rights, and Chicago-style pizza). People come to this country, they apply for asylum, they obtain work permits and they are allowed to work and contribute to this country in safety. I volunteer at a pro bono clinic for refugees and while the parents might be working at grocery stores or as janitors; their children are going to college. The families are integrating and assimilating into the United States. We do not have people living in refugee camps in our country or on our borders waiting and waiting for generations on end to integrate into the society. As I said, the refugees might be working as janitors, but their children are Sergey Brin (Google); Andrew Grove (Intel); and, Steve Jobs (Apple). This system is genius. But it is becoming more and more evident that the Trump Administration seems to have decided that refugee camps in the United States or on the U.S./Mexican border might be the way of the future.

That said, during the week of Thanksgiving we seem to have a lot to be thankful for in the immigration community. I am thankful for the states (e.g., Hawaii, Washington, Massachusetts, California…); and, the nonprofit agencies that are working overtime to ensure immigrant rights; and for the courts that are protecting those rights. In a decision that I am not going to blog about, the U.S. District Court for the Eastern District of Michigan, held that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them where there is no significant likelihood of repatriation in the reasonably foreseeable future. That case revolves around the arrest and detention of Iraqi nationals who are or were subject to removal orders. In June 2017, ICE started arresting hundreds of Iraqi nationals, the majority of whom are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq. The District Court granted a preliminary injunction enjoining the indefinite detention of this class of people. Hamama v. Adducci, No. 17-cv-11910 (E.D. Mich. Nov. 20, 2018).

Closer to home, the District Court of the Northern District of California issued a nationwide temporary restraining order enjoining the Trump Administration from enacting a new policy that provides that noncitizens who entered the United States without inspection from the southern border are permanently precluded from applying for and obtaining asylum. In Ninth Circuit news, the Ninth Circuit remanded what is essentially Jennings v. Rodriguez (when is mandatory detention prolonged detention?) to the district court to adjudicate the issues the Supreme Court found troublesome. In reading the remand order, I discovered that the preliminary injunction prohibiting prolonged detention is still intact while the district court adjudicates the case. I had thought the Supreme Court had vacated the injunction. So, there is good news on that front. Finally, in Board of Immigration Appeals (BIA) news, (in a decision that I am less thankful for) the BIA held that a noncitizen who enters the United States on a fiancé visa, who marries the U.S. citizen spouse within the ninety-day window and who applies for adjustment of status as a result of that marriage, must submit an affidavit of support (I-864) from the petitioning spouse to overcome the public charge ground of inadmissibility; even if the couple is now divorced.

BOARD OF IMMIGRATION APPEALS

The U.S. Citizen Petitioner Must File an Affidavit of Support for the Adjustment of Status Application of a Beneficiary Who Entered the United States on a Fiancé Visa Even if the Couple Later Divorced

This week the BIA issued a decision in which the internal logic reads like an absurdist short story by Franz Kafka. The BIA could have simply cited to the regulations which states that the U.S. citizen petitioner must submit an affidavit of support for the beneficiary of a fiancé visa and have been done with the case. Instead, they used a circuitous path to arrive at that conclusion with a lot of nonsense thrown in.

Here’s the bottom line, the BIA held that a noncitizen who came to the United States on a fiancé visa and otherwise met the requirements of the fiancé visa, could adjust status even if the couple divorced, as long as the U.S. citizen spouse filed an affidavit of support for her. “Although the respondent may still adjust her status, she is inadmissible on the grounds that she is likely to become a public charge unless she provides an affidavit of support from the petitioner.” Matter of Song, 27 I.&N. Dec. 488, 492-93 (BIA 2018) (emphasis added). Now, you might be saying to yourself, why didn’t the noncitizen simply submit an affidavit of support from someone else; wouldn’t that satisfy the public charge ground of inadmissibility? The answer is, she did; and no, it didn’t. The BIA found that under the regulations, the U.S. citizen who initially filed the fiancée visa petition must file the affidavit of support for the adjustment of status application. 8 C.F.R. § 213a.2(b). Because the petitioner had withdrawn the affidavit of support, the BIA found that she was inadmissible under public charge grounds. The decision expands on the BIA’s decision Matter of Sesay, 25 I.&N. Dec. 431 (BIA 2011); but in a really bad way.

Sothon Song is a native and citizen of Cambodia. On November 25, 2011, she entered the United States on a K-1 nonimmigrant fiancée visa. She and her U.S. citizen fiancé married within the requisite ninety days. On February 3, 2012, Ms. Song applied for adjustment of status and her spouse filed an affidavit of support (I-864) on her behalf. The marriage fell apart. On July 10, 2012, the USC spouse sent a letter to USCIS withdrawing the affidavit of support. On November 21, 2012, USCIS denied Ms. Song’s adjustment application finding that she was inadmissible under INA § 212(a)(4) as a noncitizen who is likely to become a public charge. On December 12, 2012, the couple divorced. The government placed Ms. Song in removal proceedings and she renewed her application for adjustment of status before the immigration judge. Ms. Song submitted a new affidavit of support from a family friend. The immigration court found that while Ms. Song’s divorce did not render her ineligible for adjustment of status; she was required to provide an affidavit of support from the original petitioner, her ex-husband, to overcome the public charge ground of inadmissibility. Her ex-husband refused to file an affidavit of support on her behalf and the BIA found that she was inadmissible as a public charge. Now, just think about that for a moment. This woman submitted a binding affidavit of support, but neither the immigration court nor the BIA found the affidavit of support sufficient to establish that she was not likely to become a public charge.

As I said, this case expands on Matter of Sesay. In Sesay, the noncitizen had entered the United States on a fiancé visa. He married the U.S. citizen petitioner, and the couple filed for adjustment of status. INS had mistakenly denied the adjustment application. The couple subsequently divorced and after the divorce DHS placed Mr. Sesay in removal proceedings. While Mr. Sesay was in removal proceedings, he married a different U.S. citizen. The BIA found that while Mr. Sesay could not adjust his status through his new wife; he could still adjust his status through his ex-wife who had filed the fiancé visa for him. The BIA held that a noncitizen who entered the United States on a fiancé visa, who timely married the petitioner, remains eligible to adjust status outside the conditional residence period even after the dissolution of the bona fide marriage. But where the BIA issues a decision that seemingly expands rights for immigrants, it now appears under the Trump Administration, they must contract that right. As Kafka writes:

Try to realize that this vast judicial organism remains, so to speak, in a state of eternal equilibrium, and that if you change something on your own where you are, you can cut the ground out from under your own feet and fall, while the vast organism easily compensates for the minor disturbance at some other spot – after all, everything is interconnected – and remains unchanged, if not, which is likely, even more resolute, more vigilant, more severe, more malicious.

Franz Kafka, The Trial Chapter 7 Paragraph 2.

In support of its decision, the BIA looked to the regulations and to USCIS memorandum. But truly all the BIA had to do was cite to the regulation that states that the petitioning spouse must file an affidavit of support for the beneficiary of a fiancé visa. Back to the decision, the BIA held that Congress intended to require that an affidavit of support survives divorce. By extension, the US citizen petitioner for a fiancé visa must file the affidavit of support to enable the noncitizen to adjust status, even after the couple divorces. The BIA cited to the commentary to the regulations and noted that the commentary provides that an affidavit of support remains binding even if the couple later divorces. In a mindboggling sleight of hand, the BIA cited to the commentary on the regulation, and held, “[t]his lends support to the understanding that Congress intended the affidavit of support to be a legally binding commitment unaltered by the circumstances of divorce. Matter of Song, 27 I.&N. Dec. at 491. Do these people not know the difference between statutes and regulations? Do they not know that agencies promulgate regulations to provide guidance on the statutes and that Congress enacts the statutes? Do they not recognize that you cannot possibly discern Congressional intent through the commentary to the regulations!!!!!!!

Anyhow, the BIA then decides to dabble in family law and suggests that in divorce proceedings, the noncitizen spouse make it a condition of the divorce that the U.S. citizen petitioner not withdraw the affidavit of support. They helpfully suggest that the noncitizen could surrender the right to sue the sponsor to enforce the affidavit of support and the U.S. citizen sponsor could agree not to withdraw the affidavit of support. Song, 27 I.&N. Dec. 491. Of course, the U.S. citizen sponsor would still be liable to any costs owed to the government, should the government choose to sue; but details.

What seemed to be the strongest argument in support of the BIA’s decision is that the regulations themselves require that the U.S. citizen petitioner file an affidavit of support for the fiancée beneficiary. The regulations provide:

(b)Affidavit of support sponsors. The following individuals must execute an affidavit of support on behalf of the intending immigrant in order for the intending immigrant to be found admissible on public charge grounds:

(1)For immediate relatives and family-based immigrants. The person who filed a relative, orphan or fiancé(e) petition, the approval of which forms the basis of the intending immigrant‘s eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or a family-based immigrant, must execute a an affidavit of support on behalf of the intending immigrant.

8 C.F.R. § 213a.2(b). Based on that regulation alone, you can see how the BIA arrived at its decision and maybe I should stop slagging on them about this decision. This opinion is yet another reason to discourage your clients from filing fiancé visas where any other alternative is available.

Matter of Song, 27 I.&N. Dec. 488 (BIA 2018).

NINTH CIRCUIT

The Ninth Circuit Issued an Order Remanding Rodriguez v. Marin [Jennings v. Rodriguez] to the District Court to Answer Questions and Create a Record but the Preliminary Injunction Enjoining Prolonged Detention Remains in Place

Last February, in a 5-3 decision, the Supreme Court remanded Jennings v. Rodriguez, 138 S. Ct. 830 (2018) to the Ninth Circuit. The Supreme Court held that the Ninth Circuit misapplied the canon of constitutional avoidance to hold that certain immigration detention statutes implicitly contained a reasonableness determination after which due process concerns require that persons in prolonged mandatory detention are entitled to an individualized bond hearing. The Supreme Court remanded the case to the Ninth Circuit to determine the constitutional issues associated with prolonged detention. The Supreme Court also asked the Ninth Circuit to look at the following issues the parties did not raise in the original litigation including: (1) whether a Rule 23(b)(2) class action remains the appropriate vehicle given the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Duke 564 U.S. 338 (2011)? (A class action lawsuit was not the appropriate vehicle for gender-based discrimination claim against Wal-Mart where the 1.5-million-member plaintiff class presumably lacked common claims). (2) Was a class action law suit proper as a means for resolving petitioners’ due process clause claims? (3) Were the subclasses in Jennings v. Rodriguez proper? But, of utmost importance to our clients, the Supreme Court did not vacate the preliminary injunction enjoining prolonged detention of immigrants. And the Ninth Circuit pointed out that salient piece of information in its remand order.

The Ninth Circuit remanded the case to the district court to review the issues the Supreme Court found to be problematic. They directed the district court to determine the minimum due process requirements for each subclass. The Ninth Circuit ordered the district court to reassess and reconsider both the clear and convincing evidence standard and the six-month bond hearing requirement. The Ninth Circuit did not remand the question of jurisdiction over the habeas claim; finding that both the district court and the Ninth Circuit have jurisdiction. Most importantly, for our clients’ purposes, the Ninth Circuit held that the injunction remains in place during the pendency of these cases. They held:

While this case is pending, the preliminary injunction remains in place.

Like the Supreme Court, we do not vacate the permanent injunction pending the consideration of these vital constitutional issues. We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government. “[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).

Rodriguez v. Marin, No. 13-56706, slip op. at *6 (9th Cir. Nov. 19, 2018) (emphasis added). Don’t you just love good writing and humane law?

The Ninth Circuit remanded the case to the district court to answer these questions:

1. Whether the class certified by the district court should remain certified for consideration of constitutional issue and available class remedies?
2. Whether class wide injunctive relief is available under INA § 242(f)(1)?
3. Whether a Rule 23(b)(2) class action remains the appropriate vehicle in light of Walmart Stores Inc. v. Duke, 564 U.S. 338 (2011); and whether such a class action is appropriate for resolving the Petitioners’ due process claims?
4. Whether the composition of the previously identified subclasses should be reconsidered?
5. What are minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be heard? And,
6. They ordered the district court to reassess and reconsider both the clear and convincing evidence standard and six-month bond hearing requirement.

Rodriguez v. Marin, No. 13-56706 (9th Cir. Nov. 19, 2018).

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

U.S. District Court for the Northern District of California Issued a Nationwide Temporary Restraining Order Enjoining the Federal Government from Allowing Asylum to be Granted Only to Those Who Enter the United States at a Port of Entry

In a case remarkable for, among other things, its speed, the District Court for the Northern District of California issued a temporary restraining order enjoining the federal government from categorically denying asylum to those who enter the United States without inspection from the southern border.

The District Court starts its decision with a two-sentence history lesson:

The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it “give[s] statutory meaning to our national commitment to human rights and humanitarian concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).

Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States.

East Bay Sanctuary Covenant v. Trump, No. 18-cv-06810-JST, slip op. at *1 (N.D. Cal. Nov. 19, 2018). After framing the decision, the Judge writes,

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

East Bay Sanctuary Covenant slip op. at 1-2. The decision explains asylum law and the statutory bars to asylum, withholding of removal, and the protections under the Convention Against Torture. I love district court decisions because they provide me with much needed context in understanding the law.

The court explains the ‘one-two punch’ that the administration sought to administer to asylum law. On November 9, 2018, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) published a joint interim final rule that states that after November 9, 2018, a noncitizen is categorically ineligible for asylum if they entered the United States without inspection along the southern border of the United States with Mexico. The rule also amends the regulations governing the credible fear determination in expedited removal proceedings. Where the noncitizen is subject to this bar, the asylum officer shall enter a negative credible fear determination with respect to the noncitizen’s application for asylum. To translate it into immigration legalese, if a noncitizen EWI’ed from the southern border, they are deemed not to have a credible fear of persecution. That is whack! But if the asylum officer finds the noncitizen is ineligible for asylum, the officer must screen the noncitizen for withholding of removal or protection under the Convention Against Torture (CAT). If the asylum officer determines that the noncitizen does not qualify for withholding or CAT relief, DHS will remove the noncitizen unless an immigration judge determines that either the noncitizen is not subject to the categorical bar (they did not enter without inspection from the southern border after November 9, 2018); or the noncitizen satisfies the reasonable fear standard. One of the interesting things about this new rule and presidential proclamation is that it only applies for the next ninety days. Needless to say, the Trump Administration can extend the bar at will.

The same day that the Trump Administration issued these new rules, the plaintiffs sued in the Northern District of California requesting a Temporary Restraining Order (TRO) arguing that the new policy is inconsistent with the Immigration and Nationality Act and that it violates the notice and comment rulemaking provision of the Administrative Procedure Act. Thank goodness for the nonprofits, they will save this country yet. The district court found that the organizations had standing to bring the suit and that they established the need for a nation-wide temporary restraining order. If you have any money lying around during this holiday season, please consider donating to the East Bay Sanctuary Covenant. They are a wonderful nonprofit operating on a shoestring budget out of a church basement in Berkeley, California.

East Bay Sanctuary Covenant et al. v. Trump et al., No. 18-cv-06810-JST (N.D. Cal. Nov. 19, 2018).

If you have any comments about the blog, please feel free to contact me at mkahn@immigration-defense.com. I look forward to hearing from you.