I spoke to Allissa Wickham of Law360 regarding the biggest immigration cases of 2016: DAPA, the EB-5 visa program, refugee resettlement issues, the definition of “aggravated felony”, and others. A transcript of the article is included below.


The Biggest Immigration Cases Of 2016

December 16, 2016
Law360
Author: Allissa Wickham
https://www.law360.com/articles/873157/the-biggest-immigration-cases-of-2016 (subscription required)

There was no shortage of immigration litigation this year, with the U.S. Supreme Court deadlocking in the case over Obama’s executive actions, federal securities regulators bringing a major suit over alleged EB-5 visa program fraud, and courts hearing challenges to work authorization rules for immigrants.

Here, Law360 looks back at some of the biggest immigration cases from 2016.

The Executive Action Showdown: United States v. Texas

Without a doubt, one of the biggest immigration cases this year was U.S. v. Texas, the blockbuster legal dispute over President Barack Obama’s executive actions, which would have allowed potentially millions of immigrants to defer deportation and apply for work permits.

The case specifically dealt with a possible expansion of the popular Deferred Action for Childhood Arrivals program for immigrants who came to the U.S. as children, as well as a new program for immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents.

The initiatives — which Obama announced in 2014 after Congress dropped the ball on immigration reform — would have allowed immigrants to defer deportation and apply for work permits for three-year periods, and could have affected an estimated 4.4 million people. But a host of states sued over the policies, and the policies were soon blocked by a Texas court.

The dispute eventually landed at the Supreme Court, but by the time the justices ruled on the appeal in June, their bench had been reduced to just eight members, following the death of Justice Antonin Scalia. The lack of a ninth justice proved crucial, as the justices tied in the case, thereby upholding a lower court’s block against the immigration policies, and delivering a major blow to Obama’s immigration legacy.

“Obama’s immigration legacy is diminished greatly because of the failure to win that battle,” said Ian Macdonald of Greenberg Traurig LLP, adding that DAPA, “as a result of that, is dead.”

Indeed, it seems highly unlikely that the Trump administration will fight for DAPA in the lower courts, as Trump has said he will end Obama’s executive actions on immigration. Perhaps sensing the writing on the wall, the government recently said the lower court case challenging the executive actions should be halted until after President-elect Donald Trump is inaugurated.

Additionally, with its tie decision, the Supreme Court didn’t create any new precedent about the scope of the president’s authority, meaning there are still lingering questions about the scope of the president’s power, on top of the unsure future laying ahead for DAPA and DACA.

“I think in addition to leaving the specific state of DACA uncertain, it also leaves large questions about the general scope of the president’s authority to use prosecutorial discretion,” said Stephen Legomsky, professor emeritus at Washington University School of Law, and a former Chief Counsel with U.S. Citizenship & Immigration Services. “Not just in immigration, but generally.”

Trouble at Jay Peak: SEC v. Ariel Quiros

In a jaw-dropping development, the U.S. Securities and Exchange Commission sued Jay Peak, Vermont, ski resort owner Ariel Quiros and CEO William Stenger in April, with regulators saying they engaged in an eight-year scheme that raised $350 million from investors hoping to obtain visas through the EB-5 program.

The SEC claims that Quiros and Stenger, through various companies, used $200 million raised from hundreds of EB-5investors in a “Ponzi-like fashion” to cover losses in unrelated projects, and to pay for $50 million in Quiros’ personal expenses. The case stunned the EB-5 community, not only because of its high stakes, but also because it involved Stenger, a well-known figure in the field, who ultimately settled in September.

The suit is perhaps the most high-profile case to date regarding the EB-5 visa program, which gives green cards to immigrants who invest $500,000 and create new jobs in the U.S. But the suit is far from the only controversy surrounding EB-5, as the SEC has also brought other suits over the program in Florida and Washington.

“I think Jay Peak was the … most noteworthy litigation in the EB-5 area, but there were several other cases that were brought,” said Stephen Yale-Loehr of Miller Mayer LLP, and a professor of immigration law practice at Cornell Law School. He pointed not only to the case involving the Pacific Proton regional center in California, but also suits from EB-5 investors themselves.

The EB-5 cases may also play out against a backdrop potential legislative and regulatory changes this spring, as efforts to reform the EB-5 program could finally gain traction before its regional center component faces expiration once again in April.

Battles Over Immigrant Work Authorization: H-4 and OPT

Challenges to work authorization for certain immigrants also saw plenty of action this year, for both people on student visas and for the spouses of skilled immigrant workers.

First, the fight over a program that lets foreign nationals on student visas work after their studies — known as optional practical training — took an interesting turn this spring, when the D.C. Circuit found that a challenge to a rule extending the program for certain students by 17 months was moot.

The ruling came just three days after a new rule went into effect, which allows certain foreign students with science and technology degrees to extend the length of the work program by 24 months. Undaunted, the same union lodged a new complaint in June, challenging the revised regulation, and that case is still ongoing.

Meanwhile, in September, a judge sided with the government in a challenge to a rule letting H-4 visa holders, who are married to H-1B visa holders, seek work authorization. A group of information technology workers who claim they were replaced by H-1B visa holders is appealing the decision, setting up another battle at the D.C. Circuit.

Notably, whether it’s lawful to release a regulation stating that H-4 visa holders can work hinges on the interpretation of a certain statutory provision, known as Section 274(A)(h)(3) of the Immigration and Nationality Act, according to Legomsky. This could therefore be one issue to keep on eye during the appeal.

“There are certain groups of noncitizens the statute expressly authorizes to work, and there are certain ones that it expressly prohibits from working,” he explained. “And it seems to me that for all others, 274(a)(H)(3) is the provision that says: for all other people, the person who’s in charge of the of implementing the immigration laws — the Secretary of Homeland Security — has the discretion to allow work.”

Refugee Rulings, Attorneys For Immigrant Kids & An Aggravated Felony Case

In June, a Texas federal court threw out a suit over the resettlement of Syrian refugees in the state, ruling that a Texas agency didn’t have a basis to enforce a consultation requirement of the Refugee Act. The ruling was yet another setback for states seeking to restrict refugee resettlement as another court had previously blocked Indiana from interfering with the resettlement of Syrian refugees in the state.

Another significant development in the humanitarian realm of immigration came when the Ninth Circuit handed a major setback to immigrant kids seeking attorneys. Specifically, the Ninth Circuit ruled that since the children’s claims over the right to an attorney stemmed from their deportation cases, they could only raise the claims through the “petition for review” process, which means going through the immigration court system first. Attorneys representing the immigrant children are seeking rehearing.

And finally, it’s also worth noting a May ruling from the Supreme Court in Torres v. Lynch, in which the Supreme Court ruled against George Luna, a Dominican immigrant who has been a green card holder for more than 30 years. The Supreme Court held that a state violation does, in fact, count as an aggravated felony when it contains every aspect of a federal crime except one element that requires a link to interstate commerce.

The case was somewhat technical, but it has has widespread implications for immigrants hoping to avoid removal, since being convicted of an aggravated felony has major consequences for deportation relief. And it also highlighted the complexity of the term “aggravated felony” itself, according to Yale-Loehr.

“I think that it shows that Congress needs to probably try to refine the definition, if possible,” he said.