Visa Lawyer Blog

Articles Posted in Litigation

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In President Trump’s latest legal battles, a federal judge from the U.S. District Court of Massachusetts has dealt a blow to the administration’s plans to fast-track the deportations of thousands of undocumented migrants with final orders of removal.

Today, federal judge Brian Murphy issued a nationwide temporary restraining order immediately blocking U.S. Immigration and Customs Enforcement (ICE) from deporting migrants from the United States to countries with which they have no existing relationship, without first providing them written notice and a meaningful opportunity to claim relief under the Convention Against Torture (CAT) for immigrants fearing persecution.

This decision was made in response to a lawsuit filed by a group of migrants challenging ICE policies that expedite the removal of undocumented immigrants released from detention to third countries.

The judge’s court order specifically prohibits the U.S. government from:

“Removing any individual subject to a final order of removal from the United States to a third country, i.e., a country other than the country designated for removal in immigration proceedings, UNLESS and UNTIL [the government] provide[s] that individual, and their respective immigration counsel, if any, with written notice of the third country to where they may be removed, and UNTIL Defendants provide a meaningful opportunity for that individual to submit an application for CAT protection to the immigration court, and if any such application is filed, UNTIL that individual receives a final agency decision on any such application.”

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ai-generated-8775948_1280Last month, San Diego’s Board of Supervisors passed a resolution ending the use of county resources aiding federal immigration enforcement actions.

The measure was made ahead of President Trump’s inauguration and puts an end to the cooperation between law enforcement agencies and Immigration and Customs Enforcement (ICE). Previously, local law enforcement agencies cooperated with ICE officials by facilitating the transfer of detainees to ICE custody and notifying ICE of their release from custody to aid in their removal from the United States.

In response to San Diego’s actions, the America First Legal Foundation (founded by Trump advisor Stephen Miller) issued a letter to 249 elected officials including the Chair of San Diego’s Board of Supervisors, Nora Vargas. In the letter, the organization warned Vargas that she could be subject to criminal prosecution and civil liability for what the organization considered to be “obstruction” of federal immigration law.

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ai-generated-8489042_1280New details have emerged relating to a pending lawsuit before the U.S. District Court for the Eastern District of Texas known as  Texas et. al. vs. DHS et. al., Case No. 6:24-cv-00306 (E.D. Tex.), which is currently blocking the approval of applications filed under the Biden administration’s parole in place program.

Litigation Updates

On August 26th eleven individual intervening parties who stood to benefit from the parole in place program filed a motion to intervene in the Texas lawsuit.

Thereafter, on September 3rd the Texas district court judge denied the motion to intervene. As a result, the intervening parties filed an appeal before the U.S. Court of Appeals for the Fifth Circuit claiming the lower court’s denial of the motion to intervene was unjustified.

On September 11th  the Fifth Circuit Court ordered the lower court to freeze all proceedings until they have had the opportunity to hear the intervenors appeal.

A hearing date of October 10th has been set and the court has said that no further action can be taken in the lower court until that date.

The appellate court’s order states as follows, “Meaning no criticism of the district court’s recognition of the need for prompt resolution, this panel must have an opportunity to consider the merits briefs, scheduled to be received by September 16, and to hear argument on the appeal of the denial of intervention. Accordingly, we administratively STAY proceedings in the district court pending a decision on the merits or other order of this court. The stay issued by the district court will remain in effect pending further order of this court.”

What does this mean for parole in place applications?

In the meantime, USCIS can continue accepting and processing parole in place applications under the Keeping Families Together program, but it cannot approve cases until further notice.

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united-states-supreme-court-6330563_1280The recent Supreme Court decisions handed down in Loper Bright v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, have overturned a longstanding rule known as the “Chevron” doctrine, which eliminates the need for federal courts to defer to federal agency decisions and regulations moving forward. This move essentially strips power away from federal agency interpretations of the law and gives it back to the courts.

This is positive news in the world of immigration, considering that a federal agency’s interpretation of the Immigration and Nationality Act (INA) will no longer automatically prevail when litigating cases in court and filing immigration challenges to visa denials.

This will benefit many immigrants and businesses who for many years have been blocked by federal agencies from obtaining employment-based visas and green cards based on ambiguous agency interpretations of their cases.

For instance, in removal cases, those seeking review of decisions previously made by immigration judges’ or the Board of Immigration Appeals (BIA) will now have a clean slate, since courts no longer have to rely on an agency’s standpoint and can now interpret unclear laws with a new set of eyes.

These rulings could also pave the way for new litigation to be filed to defend challenges to previous visa denials. Where interpretations of the law once made by the U.S. Citizenship and Immigration Services (USCIS) were automatically upheld in court, they will now be challenged forcefully.

U.S. employers seeking a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also have greater opportunities to argue their cases in court and win on behalf of their clients.

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A recent appellate court decision handed down on June 25th has reversed a lower court’s decision which previously allowed the State Department to adjudicate and approve diversity visa cases from the 2020 and 2021 fiscal years.

The case Goodluck v. Biden, No. 21-5263 (D.C. Cir. June 25, 2024) dealt with the COVID-era presidential proclamation 10014 signed by former President Trump in April 2020, which suspended the entry to the United States of certain immigrant visa applicants following the Coronavirus outbreak.

The suspension had a devastating impact on the Diversity Immigrant Visa program because the State Department refused to issue diversity visas while the presidential proclamation remained in effect. The Department took the position that because the presidential proclamation rendered certain aliens inadmissible to the U.S., it also made them ineligible for visas.

Later, the State Department suspended all routine visa services including the processing of applications for diversity visas due to COVID-19 shelter in place orders.

In response, a class of diversity visa applicants selected in the DV 2020 and 2021 diversity visa lotteries sued the government, arguing that the Department’s policies prevented them from receiving their immigrant visas before the mandated fiscal-year-end deadlines.

As the case moved through litigation, the district courts agreed with the DV selectees ordering the State Department to prioritize processing and issue diversity visas past the end of the fiscal year deadlines.

In subsequent court orders, DV selectees were granted equitable relief which ordered the State Department to reserve diversity visas for DV 2020 and 2021 selectees for processing and issuance after the end of the fiscal year.

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smile-5621670_1280-1On Tuesday June 4, 2024, President Joe Biden’s rumored executive action on immigration was unveiled by the White House.

Among its sweeping provisions, effective Wednesday June 5, 2024, the order will limit the number of migrants who can claim asylum at ports of entry along the southern U.S. border, while there are high levels of illegal crossings at the southern border.

Specifically, migrants seeking asylum will be turned away at the border when the seven-day average of daily border crossings exceeds 2,500 daily encounters between ports of entry. Since the number of encounters currently exceeds this figure, the order will go into effect immediately.

This means that starting June 5th U.S. border officials will stop conducting credible fear interviews for asylum claims and will instead quickly expel migrants seeking asylum at the border.

Migrants who are expelled under the order will receive a minimum five-year bar on reentry to the United States and potentially be subject to criminal prosecution.

The government will only accept asylum claims at the border if 14 days have passed, and the number of daily encounters has declined to 1,500 migrants or less at U.S. ports of entry.

Apart from unaccompanied minors, the order applies to all noncitizens, encountered along the southern border, irrespective of their country of origin.

What does the order do?

This executive order will temporarily suspend the entry of noncitizens who cross the border without prior authorization, or a legal basis to do so, including those claiming asylum at the border during periods of high border crossings.

Can migrants still claim asylum through scheduled appointments on the Customs and Border Protection’s One App?

Yes. The executive order does not prohibit migrants from using the CBP One app to make appointments at the border where they are able to claim asylum. The executive order only prohibits “unscheduled” asylum claims at the border.

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In this blog post, we share with you the latest regarding the controversial immigration law from the state of Texas known as SB-4.

In a stunning turn of events, on Tuesday March 19th the Supreme Court of the United States cleared the way for the state of Texas to enforce its controversial immigration law SB4, which would allow state officials to arrest and detain those suspected of entering the country illegally.

The Supreme Court rejected the Biden administration’s request to intervene and keep Texas’s strict immigration enforcement law on hold pending litigation.

The legal challenges however did not stop there. Later that day, a federal appeals court put the controversial law back on hold, just hours after the Supreme Court would have allowed Texas to begin enforcing the new law.

The order came down from the 5th U.S. Circuit Court of Appeals in which a three-judge panel voted 2-1 to vacate a previous ruling that had put the law into effect.

The future of the law still hangs in the balance as the 5th Circuit prepares to hear arguments over the controversial law to decide once and for all whether the law is unconstitutional.

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The Supus-supreme-court-building-2225766_1280reme Court of the United States has issued an important but temporary victory to the Biden administration. On Monday, the court temporarily halted the enforcement of a controversial immigration law from the state of Texas known as SB4, which would authorize state law enforcement officials to arrest and detain those suspected of entering the country illegally, while imposing harsh criminal penalties.

The administrative hold issued by Supreme Court Justice Samuel Alito blocks the law from taking effect in the state of Texas until March 13. This temporary pause will give the court enough time to review and respond to court proceedings initiated by the Biden administration. Alito has ordered Texas to respond to the government’s lawsuit by March 11.

U.S. Solicitor General Elizabeth Prelogar has argued that SB4 violates the law by placing the authority to admit and remove noncitizens on state law enforcement when these matters fall under the jurisdiction of the federal government, and not individual states.

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Welcome back to Visalawyerblog! In this blog post we share with you some recent news regarding a new class action lawsuit that has been filed by 49 plaintiffs against the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS), seeking relief from the extreme processing delays currently taking place for I-765 applications for employment authorization (EADs) filed by individuals seeking adjustment of status (AOS) in the United States, and for I-765 applications filed by E-2 dependent spouses with USCIS.

Currently, USCIS reports that I-765 work permit applications based on a pending I-485 adjustment of status application are taking between 20 to 21.5 months to process at the California Service Center; while it is taking 9 to 9.5 months to process work permit applications at the National Benefits Center; and 9.5 to 10.5 months to process such applications at the Nebraska Service Center.

The new legal challenge against the government has been mounted by the American Immigration Lawyers Association (AILA), Wolfsdorf Rosenthal LLP, Joseph and Hall PC, Kuck Baxter Immigration LLC, and Siskind Susser PC.

The lawsuit seeks to hold the government accountable once and for all for the exorbitant processing times taking place for work permit applications to be adjudicated, especially those at the California Service Center. Under the law, applicants for adjustment of status are afforded the option of applying for temporary employment authorization while their green card applications are pending with USCIS, through what is supposed to be an easy procedure that involves filing a simple I-765 application for employment authorization. In normal circumstances, such employment authorization applications took on average 7 to 9 months to be adjudicated. Since the onset of the pandemic however USCIS has not been able to adjudicate these applications within reasonable timeframes.

Processing times have gotten worse and worse to the point that applicants are receiving their green card interview appointments before even coming close to receiving an approved employment authorization document. This has resulted in applicants being unable to seek employment while waiting for their green card applications to process. This has caused great cause for concern for individuals who have a job offer lined up or who need to work to maintain their households. Further, the American economy is experiencing more and more labor shortages as they struggle to get individuals back to work. The situation at the USCIS level is making it even more difficult for American businesses to find qualified workers.

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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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