On October 16, 2017, the Supreme Court of the United States denied a petition for certiorari (to hear the case) in Scenic America, Inc. v. Department of Transportation, Docket No. 16-739. Scenic America sought review of a decision of the United States Court of Appeals for the District of Columbia Circuit. Justice Neil Gorsuch penned an interesting statement respecting the denial of certiorari, in which he was joined by Chief Justice John Roberts and Justice Samuel Alitio. In this post, I will examine aspects of Justice Gorsuch’s statement that are significant with respect to Chevron deference, a concept that is important in the immigration context.
On October 12, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it has posted new data about employment-based nonimmigrant visas and employment authorization documents on its website. The new data has been posted as a result of directives in President Donald Trump’s “Buy American, Hire American” Executive Order, which we have written about on site.
On October 6, 2017, the U.S. Department of State (DOS) released the November 2017 Visa Bulletin, containing the filing dates and final action dates for both the family-sponsored and employment-based immigrant visa preference categories. On October 13, 2017, the United States Citizenship and Immigration Services determined that, for the second consecutive month, family-sponsored applicants must use the filing dates whereas employment-based applicants must use the final action dates. In this article, we will reproduce the relevant charts from the November 2017 Visa Bulletin for beneficiaries of approved family-sponsored and employment-based immigrant visa petitions.
In order to obtain a nonimmigrant visa at a U.S. consulate, an applicant must satisfy consular officers that he or she is eligible for the status being sought. If an alien obtains an immigration benefit through “fraud or willful misrepresentation of a material fact,” he or she will be inadmissible under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). To help guide consular officers, the Department of State (DOS) adopted through the Foreign Affairs Manual a “30/60 Rule.” In short, consular officers will apply high scrutiny to aliens who violate nonimmigrant status in certain ways within 30 days of entry, or between 31 and 60 days of entry. In this article, we will examine the 30/60 day rule, how it is used by adjudicators, and administrative and judicial precedents regarding aliens who violate their nonimmigrant statuses within 60 days of entry into the United States.
On October 13, 2017, the Department of Defense (DoD) issued a press release titled “DoD Announces Policy Changes to Lawful Permanent Residents and the Military Accessions Vital to the National Interest (MAVNI) Pilot Program.” Before reading, please see our recent articles on security risks that led to the suspension of the MAVNI program and the recommendations within the DoD to terminate the program altogether.
On October 4, 2017, the U.S. Attorney General, Jeff Sessions, and the acting Secretary of Homeland Security, Elaine Duke, chaired a U.S.-China Law Enforcement and Cybersecurity Dialogue along with officials of the Chinese government. Interpreter Releases Daily reported that one of the issues discussed was the repatriation to China of foreign nationals with final orders of removal.
On October 10, 2017, the Supreme Court of the United States dismissed one of the two challenges to President Donald Trump’s March 6, 2017 Executive Order 13780. As we explained in our article on the challenges, the Supreme Court had consolidated a decision of the United States Court of Appeals for the Fourth Circuit (Trump v. IRAP) and a decision of the United States Court of Appeals for the Ninth Circuit (Trump v. Hawaii) on appeal. The Fourth Circuit decision only addressed section 2(c) of President Trump’s Executive Order 13780, which suspended the entry of nationals of six enumerated countries for a period of 90 days. The Ninth Circuit decision addressed both section 2(c) and the provisions of the Executive Order suspending the entry of certain refugees. Although the Supreme Court did not reach the merits of IRAP v. Trump, its decision to vacate the judgment under Munsingwear is significant in that the Fourth Circuit decision will have no value as precedent going forward.
On October 11, 2017, President Donald Trump announced his intent to nominate Kristjen Nielsen as the next Secretary of Homeland Security. If confirmed, Nielsen will replace the current White House Chief of Staff, John Kelly, who left the post at the beginning of August. The position has been filled, since August, in an acting capacity by the Deputy Secretary of Homeland Security, Elaine C. Duke.