Week 38: Special Edition—visa restrictions, expedited removal, asylum unreviewability
Immigration news, in context.
This is the thirty-eighth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses. This week, we’ll be publishing a Q&A regarding the president’s recent ban on non-immigrant visas.
This week’s edition:
It’s been a week of significant immigration policy developments, starting on Monday with a presidential proclamation that extended the immigrant visa ban and added additional restrictions on nonimmigrant visas, followed a federal court decision that permitted a planned expansion of expedited removal to move ahead, a Supreme Court decision limiting the reviewability on habeas grounds of adverse credible fear findings for people subject to expedited removal. We explain each of these developments below.
The presidential proclamation
On Monday, the day before the prior immigration visa ban was set to expire, President Trump issued a new proclamation that both extended the provisions of the ban through the end of the calendar year and added significant restrictions on the issuance of certain nonimmigrant visas. (As a recap, immigrant visas are only those that are issued to people who are to become U.S. permanent residents; the vast majority of visas issued any given year are “nonimmigrant,” which means they are intended to allow a temporary stay for specific purposes, such as tourism, education, or work.)
The original ban had included language instructing the Secretaries of State and Homeland Security to develop additional recommendations to “stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers,” and this seems to be the end result of that. As we had mentioned in our breakdown of that ban, it managed to anger both pro- and anti-immigrant groups, the latter of which felt that the measure—which affected a comparatively small number of people abroad—did not go anywhere near far enough. It’s likely that this came into play when determining how to shape the new order.
Generally, the proclamation blocks people abroad from receiving H-1B, H-2B, L, and J type visas and using them to travel to the United States; this would also include people who would be accompanying those affected.
A breakdown of what each of these visas are used for: H-1Bs are for people in specialty occupations that require formal education and some particular technical abilities. They are sponsored by an employer, many of which are in tech, finance, engineering, and other fields necessitating some special training. There are 65,000 visas available per year, with an additional 20,000 for individuals with advanced degrees. Given that the demand exceeds the supply every year, qualified applicants are entered into a lottery that determines whether they will receive the visa. As a dual intent visa, it is technically nonimmigrant with the understanding that it can be converted into permanent residency (though per-country caps on employment-based residency mean nationals of certain high-usage countries, particularly India, must join long waiting lists).
H-2Bs are not dual intent and are meant for temporary non-agricultural work (agricultural work has its own visa type). This runs the gamut from jobs like logging to hospitality and recreation. The jobs must be related to a temporary need, such as a seasonal peak or a one-time event, and are capped at 66,000 per year, with half of each allocated for each half of the fiscal year (unused visas can roll over from one half to the next, but not to the next fiscal year). Both H-type visas require employers to obtain certifications from the Department of Labor that they were unable to fill their labor shortage with local workers.
L-type visas are for people who are coming to the country to work as an executive or managerial employee (L-1A) or specialized knowledge (L-1B) for a company that has a presence in both the U.S. and abroad. The U.S. employer can be a branch of a foreign company or vice versa, a subsidiary, or an affiliate, and the employee has to have worked for it abroad in some capacity for at least one year in the three years preceding their arrival in the U.S. Like the H-1B, it is dual intent.
The J visa is for what are known as “exchange visitors,” which encompasses a grab bag of activities including studying at a college or university, interning, conducting a medical program and residency, and being an au pair. Unlike the blanket restrictions for the other visas, J applicants are only excluded if they would be entering as an “intern, trainee, teacher, camp counselor, au pair, or summer work travel program,” meaning J visas could still be used by students, physicians, and others.
The restrictions would only apply to people who were outside of the United States and did not have valid visas as of its effective date of June 24. People who have or obtain other types of travel documents, such as advance parole, would not be blocked, nor would children and spouses of U.S. citizens. There are additional exemptions for people seeking to enter the country to “provide temporary labor or services essential to the United States food supply chain,” as well as those whose entry “would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”
A process for determining who falls under this national interest exemption is to be developed by the Secretaries of State, Labor, and Homeland Security, who are specifically directed to include people “critical to the defense, law enforcement, diplomacy, or national security” as well as people involved with medical research or treatment involving COVID-19 or are “necessary to facilitate the immediate and continued economic recovery of the United States.” The specific contours of these exemptions are yet to be seen. There is also an exemption for children who would age out of visa eligibility while the provisions are in place.
The cabinet officials are also directed to develop additional guidance on restrictions ostensibly to avoid the spread of COVID-19 and to promulgate regulations that would “ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit” under the H-1B visa or the EB-2 and EB-3 immigrant visa categories, which are employment-based paths to permanent residency.
This is notable because it mentions individuals who have already been admitted to or given a visa to enter the United States. Up until now, all of the pandemic-related bans on entry have been issued under section 212(f) of the Immigration and Nationality Act which we’ve written about extensively before. This provision only allows the executive to restrict entry of classes of people to the United States on national interest grounds, and so people already in the country have been unaffected. However, restrictionists have been clamoring for action against people already here, and now the government has been directed to take such action.
There are also demands for officials to determine ways to block others from obtaining any work authorization, including anyone who has “been arrested for, charged with, or convicted of a criminal offense in the United States.”
As with the extended immigrant visa ban, this order is in effect at least until the end of this calendar year.
D.C. Circuit Court decision
In July 2019, the Trump administration issued a final rule expanding expedited removal—a fast-tracked deportation process ostensibly intended for people who have been in the U.S. for a relatively short period of time—to its fullest potential.
Prior to the rule’s implementation, expedited removal applied to anyone apprehended within 100 miles of the border who had been in the country for less than two weeks, as well as anyone who arrived by sea who had been in the U.S. for less than two years. (A quick note: within “100 miles of the border” doesn’t mean within 100 miles of the U.S.-Mexico border; it means within 100 air miles of any land or sea border. According to a 2018 analysis by CityLab, more than 65% of Americans live in the 100-mile border zone.)
The 2019 rule drastically expanded expedited removal, applying the practice to any unauthorized apprehended anywhere in the country who can’t prove they’ve been in the U.S. for two continuous years. A group of immigrant rights organizations quickly sued the government over the rule, arguing that it violates the Administrative Procedure Act (APA), the Fifth Amendment, and the Suspension Clause. In September, a federal judge issued a preliminary injunction against the rule on APA grounds, finding that the administration didn’t go through the proper protocols before issuing the rule. (Last week’s Supreme Court decision on DACA, which we covered here, was also based on the APA.)
But this week, a federal appeals court reversed the lower court’s ruling, finding that the administration didn’t violate the APA at all. “[B]ecause Congress committed the judgement whether to expand expedited removal to the [Homeland Security] Secretary’s ‘sole and unreviewable discretion,’ 8 U.S.C. § 1225(b)(1)(A)(iii)(I), the Secretary’s decision is not subject to review under the APA’s standards for agency decisionmaking,” the majority opinion reads.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act, the massive immigration law that created the concept of expedited removal, is pretty clear on this. The law gave the DHS secretary the power to determine who, if anyone, would be subject to a sped-up deportation process. It first applied to a small group of people: those arriving at ports of entry or apprehended in international waters. It was expanded twice, first in 2002 and again in 2004, to apply to people apprehended at sea and within 100 miles of the border, respectively. (As mentioned above, those apprehended at sea could be subject to expedited removal if they had been in the U.S. for less than two years; for those found on land, expedited removal would apply if they had been in the country for fewer than 14 days.) But these changes weren’t the subject of additional legislation; they were all made at the discretion of the DHS secretary. The July rule was a similar effort to increase the scope of expedited removal—and the most dramatic one yet.
This week’s ruling doesn’t mean the legal challenge is over. The appeals court only ruled on one aspect of the lawsuit: the APA justification. A lower court still has to determine whether the further expansion of expedited removal violates immigrants’ due process and habeas corpus rights, and it very well may rule in their favor.
When the rule was first published, the Migration Policy Institute estimated that it could affect approximately 297,000 unauthorized immigrants in the U.S.—about 2 percent of the total undocumented population. If the rule goes into effect, however, it’s very likely that it will ensnare people who have been in the country for longer than 2 years, or even to people who are authorized to be in the U.S.
As we wrote when a court first blocked the rule in 2019, expedited removal lets immigration agents order people removed from the country “without further hearing or review.” The average time from apprehension to deportation under expedited removal is just 11.4 days. That narrow timeframe makes it nearly impossible for immigrants to find a lawyer or attempt to challenge their deportation—not that the statute lets them do so anyway. Notably, the onus is on immigrants to prove that they have either legal status or have had a continuous presence in the U.S.; if not, they can be quickly deported.
In practice, this could mean that anyone who fails to carry a document proving their lawful presence in the U.S., be it a passport, green card, or visa, could be subject to expedited removal. It also means that undocumented immigrants who can’t immediately prove they’ve been in the U.S. for two years lose the ability to fight their deportation cases in court.
Supreme Court decision
Vijayakumar Thuraissigiam, an asylum seeker from Sri Lanka, went through the same process as hundreds of thousands of other migrants. He was apprehended by a Border Patrol officer shortly after crossing into the U.S. without authorization, which put him into expedited removal proceedings. Thuraissigiam told the officer he was afraid to go back to his country, triggering an asylum case. But first he had to pass a credible fear screening, the initial step in the lengthy asylum process. The purpose of these interviews is to determine whether a migrant has a “credible fear of persecution” in their home country, which Thuraissigiam, a member of the persecuted Tamil ethnic group, said he did.
Thuraissigiam told the asylum officer that a group of men had kidnapped and beaten him back in Sri Lanka. According to the ACLU, which argued the case before the Supreme Court, the men who abducted Thuraissigiam were government officers, but Thuraissigiam couldn’t identify them by name and didn’t know why they targeted him. As such, Thuraissigiam didn’t know if the Sri Lankan government could—or would—protect him from future harm. Despite being a member of a persecuted ethnic group, he said he didn’t fear persecution based on any of the protected grounds for asylum: race, religion, nationality, membership in a particular social group, or political opinion. Because of this, he failed the credible fear screening, nullifying his asylum claim and putting him on track for expedited removal. The asylum officer’s supervisor and an immigration judge agreed: Thuraissigiam didn’t pass the screening, therefore he was subject to expedited removal.
But the ACLU described the review process as “cursory,” arguing that the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, the law that created the expedited removal process, had unconstitutionally been applied to Thuraissigiam and violated his rights, including the due process clause and suspension clause of the Fifth Amendment. Thuraissigiam wanted his case to be reviewed by a federal judge and applied for a writ of habeas corpus.
Here we run again into the concept of reviewability, which we came into play in the Supreme Court’s DACA decision as well. Certain statutory powers of the executive branch are not reviewable by the federal courts, as Congress has given the executive the power to undertake discretionary processes that themselves carry the weight of due process. At issue here was whether Thuraissigiam’s negative credible fear finding was reviewable by the federal courts under habeas, which is supposed to prevent detention without due process.
A panel of federal judges in the 9th Circuit Court of Appeals agreed with him. They ruled that IIRIRA, as it had been interpreted, violated Thuraissigiam’s rights under the suspension clause. The Trump administration appealed the ruling, taking it to the Supreme Court.
This week, the court ruled against Thuraissigiam. The majority opinion, written by conservative justice Samuel Alito, said Thuraissigiam was improperly claiming habeas review. Habeas, Alito wrote, is typically used “to secure release from unlawful detention.” Thuraissigiam, meanwhile, applied for habeas “to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.” Essentially, such review was appropriate on narrow questions of fact that could make the difference between him being detained and not being detained, but not when he was asking for a reevaluation of the government’s discretionary determination that he was ineligible for protections. This, Alito argued, was in keeping with the original intent of the habeas doctrine, which was not drafted to take into account something like an asylum determination.
It’s important to note that this decision affects only similar habeas claims and doesn’t necessarily mean that there aren’t any grounds in which an asylum seeker who has been denied relief in an expedited removal case can escalate the claim to the federal courts, but it does close a significant door.
Moreover, the court ruled that although Thuraissigiam had “succeeded in making it 25 yards into U.S. territory,” he he was essentially still a candidate for entry as opposed to someone who had for legal purposes entered the country, and therefore was not entitled to the same due process protections as an immigrant who had was already in the United States. This unprecedented claim could have enormous consequences for asylum seekers who cross the border between ports of entry, who now might presumably be functionally treated as if they were standing just outside the border as opposed to on U.S. soil
Taken together with the Circuit Court decision allowing the expansion of expedited removal to go forwards, this sets up a potentially dangerous situation in which individuals who are not able to prove, to the satisfaction of executive branch employees, that they are not subject to expedited removal will be cut off from seeking habeas relief with the federal courts, provided, even if they dispute certain factual determinations.