International Law and Immigration

Immigration Update: June 2021

A monthly publication of the International Law and Immigration Section of the California Lawyers Association.

Editor-in-Chief, Payal Sinha

Supreme Court Judgements

Supreme Court held that a non citizen must meet all three requirements under 8 U.S.C. § 1326(d) for bringing a collateral attack against a removal order

On May 24, 2021, the U.S. Supreme Court decided in United States (U.S.) v. Palomar-Santiago, No. 20-437, that defendants charged with unlawfully reentering the U.S., following an order of removal must prove each of the statutory requirements for bringing a collateral attack against a removal order under 8 U.S.C. § 1326(d) is mandatory.

In 1998, Palomar-Santiago was removed from the U.S., based on a conviction for felony driving under the influence (DUI) after a hearing before an immigration judge, pursuant to 8 U.S.C. § 1227. 

In 2017, Palomar-Santiago was charged with unlawfully reentering the U.S., following a removal order, in violation of 8 U.S.C. § 1326(a) and found guilty. § 1326(d) provides that defendants charged with criminal reentry “may not challenge the validity of the deportation order . . . unless” they show that they (1) exhausted any administrative remedies to challenge the order, (2) that the deportation proceeding at which the order was issued improperly deprived them of the chance for judicial review, and (3) that the order was fundamentally unfair. 

Resolving the circuit split, the Supreme Court reversed, holding that defendants challenging their original removal orders must meet all three requirements of § 1326(d), because the use of the word “and”  in the statute is “mandatory language” that courts have no power to override.

The Supreme Court rejected the argument that administrative review is not practically “available” when an immigration judge erroneously informs a noncitizen that his prior conviction renders him removable. The Supreme Court reasoned that “the substantive complexity of an affirmative defense” cannot “alone render further review of an adverse decision unavailable.” The Supreme Court also rejected the argument that the requirements under §  1326(d) apply only to claims of procedural rather than substantive flaws in a prior removal order, because the plain meaning of “challenge” and “collateral attack” includes claims of substantive invalidity.

Detailed Court decisions can be found here.

The Supreme Court held that “Temporary Protected Status (TPS)” does not constitute an “admission” for purposes of obtaining Legal Permanent Residency, for those who entered the U.S. unlawfully

On June 7, 2021, the U.S. Supreme Court decided Sanchez v. Mayorkas, No. 20-315, holding that a foreign national with TPS was not entitled to an adjustment of status to make him a Lawful Permanent Resident because he had originally entered the country unlawfully and had not been admitted as required by the adjustment of status statute.

The Supreme Court looked to the plain language of §1255, noting that it requires that a petitioner for an adjustment of status must be “inspected and admitted or paroled into the U.S.” or otherwise be present in the U.S “pursuant to a lawful admission.”, and the Supreme Court concluded that because the defendant had not been lawfully admitted into the U.S., he was not eligible for an adjustment of status, despite holding Temporary Protected Status.

Detailed Court Order can be found here.

Supreme Court unanimously rule against asylum seekers on question of credibility

On June 1, 2021, the Supreme Court unanimously concluded that the 9th Circuit’s rule “cannot be reconciled” with the terms of the Immigration and Nationality Act (“INA”), which mandates a “highly deferential” standard of review when federal courts review decisions of the Board of Immigration Appeals. The Supreme Court rejected the 9th Circuit’s approach, which had previously taken asylum seekers’ testimony as credible when reviewing cases where immigration courts were silent on applicants’ credibility in the matter of Garland v. Dai[1] and Garland v. Alcaraz-Enriquez[2].

The cases involved the claims of Ming Dai, who sought asylum from China after authorities targeted him and his wife for violating its one-child policy; and Cesar Alcaraz-Enriquez, who sought permission to remain in the U.S. based on a fear of persecution in his home country of Mexico. In both cases, an immigration judge or the Board of Immigration Appeals failed to make a finding on credibility, and the 9th Circuit treated the asylum seekers’ testimony as credible in its own review. The 9th Circuit ruled Dai was eligible for asylum and ordered the immigration court to reconsider Alcaraz-Enriquez’s case.

“Nothing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted,” Justice Gorsuch wrote in his opinion. “And it is long since settled that a reviewing court is ‘generally not free to impose’ additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel.”

The Supreme Court vacated the lower-court decisions in both cases and remanded for further proceedings consistent with its opinion.

[1]  Garland v. Dai, Docket No,19-1155; can be found here.
[2] Garland v. Alcaraz-Enriquez, Docket No,19-1156;can be found here.

Business Immigration

USCIS Temporarily Suspends Biometrics Requirement for Certain Form I-539 Applicants

USCIS began collecting biometrics from Form I-539 applicants in March 2019. Processing times increased for H4, L-2 and E extension applications and for corresponding Form I-765 applications for work authorization. These delays were then exacerbated by the pandemic and USCIS local office closures. This policy change resulted  from the negotiations in a lawsuit challenging the lengthy processing delays affecting spousal work authorization applications[3]. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director. 

Click here for more information.

[3] Edakunni, et al. v. Mayorkas, Case No. 2:21-cv-00393-RAJ

DHS Re-Initiated International Entrepreneur Parole Program

On May 10, 2021, USCIS announced the DHS withdrawal of 2018 Notice of proposed rulemaking, during the previous administration, to “remove the International Entrepreneur program”. The International Entrepreneur (IE) parole program, first introduced in 2017, is a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the U.S.,  and help strengthen and grow the U.S. economy through increased capital spending, innovation, and job creation, and these entrepreneurs may be eligible to apply for up to five years of authorization to stay in the U.S. under such Program. The Biden Administration is relaunching the program to fill a gap in the U.S. immigration system and indicated that the parole may be granted to up to three entrepreneurs per start-up entity, as well as their spouses and children. 

Click here for more information.

Department of Labor (DOL) Extends Delay of Regulation Increasing PERM and H-1B Wage Minimums

On March 12, 2021, the DOL published a final rule delaying the effective date of the January 14, 2021 rule entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the U.S (the Final Rule), that would raise prevailing wage rates for the H-1B, H-1B1, E-3 and the PERM programs, from March 15, 2021 until May 14, 2021. The DOL proposed to further delay the effective date of the rule by eighteen months from May 14, 2021 until November 14, 2022.  The DOL proposed an additional delay to provide a sufficient amount of time to thoroughly consider the legal and policy issues raised in the rule, and offer the public, through the issuance of a Request for Information, an opportunity to provide information on the sources and methods for determining prevailing wage levels covering employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, or E-3 nonimmigrant visas. 

Click here for more information. 

DHS and DOL Issue Joint Rule Supplementing H-2B Visa Cap

DHS and DOL issued a Joint Rule increasing the numerical limitation on H-2B Visa Cap with an additional 22,000, to assist those employers who are likely to suffer irreparable harm without these additional workers during this period. Of the supplemental visas, 6,000 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala. The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020).

Click here for additional information on the “US Department of Homeland Security and Labor Issue Joint Rule Supplementing H-2B Visa Cap”. 

Humanitarian Immigration

DHS Announces Open Registration for Temporary Protected Status for Burma

On May 24, 2021, DHS published a Federal Register notice (FRN) designating Burma for Temporary Protected Status (TPS) for 18 months, effective May 25, 2021, through November 25, 2022. Secretary of Homeland Security, Alejandro N. Mayorkas, previously announced on March 12 that Burma would be designated for TPS. This designation allows an estimated 1,600 Burmese nationals (or individuals having no nationality who last habitually resided in Burma) who have been continuously residing in the U.S. since March 11, 2021, and continuously physically present in the U.S., since May 25, 2021, to file initial applications to obtain TPS.

Click here for additional information on the procedures necessary to submit an initial registration application. 

State Department Ended Policy Denying Citizenship to Children Born Abroad to Same-Sex Couples

On May 19, 2021, the State Department announce that  it would grant U.S. citizenship to children born abroad to married couples via in vitro fertilization or surrogacy, making it easier for same-sex parents to transmit citizenship to their child. Under the new policy, children born outside the U.S., to married parents must be biologically related to at least one parent and have at least one parent who is an American citizen.

Click here for more information.

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