Wake Forest Law Review

By Agustin Martinez

Across the globe, the COVID-19 pandemic has devastated many lives,[1] including those of immigrants living in the United States.[2]  U.S. Citizenship and Immigration Services (“USCIS”) recently announced that it “will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination . . . even if such treatment is provided or paid for by one or more public benefits” as defined by the new public charge rule.[3]  USCIS’s announcement came days after several congressional leaders asked the Trump Administration to rescind the new public charge rule altogether, in light of the rule’s chilling effect on immigrants seeking COVID-19-related medical assistance.[4]

USCIS’s announcement clarified that obtaining COVID-19-related testing and treatment will not factor into a future public charge analysis, even if such testing or treatment is publicly-funded.  But what about the payments that millions of Americans will receive as part of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) that was recently signed into law by President Trump?[5]  Some immigrants, for example, recipients of Deferred Action for Childhood Arrivals, are expected to receive CARES Act payments.[6]  Will accepting these federally-funded payments negatively affect these immigrants’ chances of obtaining lawful permanent resident status (i.e., a green card) in the future as a result of the new public charge rule?  Although USCIS has not yet directly answered this question,[7] the answer is “no” based on existing law.  Immigrants who are eligible for CARES Act payments should rest assured that receiving this economic relief will not negatively impact any public charge determination in the future.[8]   

Under American immigration law, a person deemed likely to become a public charge is inadmissible, meaning that the person can be denied a green card, visa, or admission into the country.[9]  The new public charge rule does not change this basic principle.[10]  But it does significantly expand the types of publicly-funded programs that USCIS may take into account when assessing whether a person is likely to become a public charge in the future.[11]  Consequently, the new rule may cause immigrants who are eligible for CARES Act payments to think twice before accepting these publicly-funded payments.

The new public charge rule’s definitions[12] and USCIS’s policy manual[13] help answer whether an immigrant’s acceptance of a CARES Act payment will, in turn, be deemed acceptance of a public benefit as defined by the new rule.  Under this regulatory guidance, CARES Act payments are not public benefits, and therefore, USCIS should not consider acceptance of such payments during future public charge determinations.

The new public charge rule generally defines a public benefit as “[a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits),” “Supplemental Nutrition Assistance Program (SNAP),” “Section 8 Housing Assistance under the Housing Choice Voucher Program,” “Section 8 Project-Based Rental Assistance,” “Medicaid,” or “Public Housing under section 9 of the U.S. Housing Act of 1937.”[14]  At first glance, it would seem that CARES Act payments fall within the “Federal, State, local, or tribal cash assistance for income maintenance” public benefit category.  That, however, would be an incorrect interpretation of the new rule for the simple reason that CARES Act payments are considered tax credits under the Act.[15]  Indeed, Congress specifically referred to these payments as tax credits within the CARES Act’s text.[16]  Thus, since the new public charge rule expressly excludes “tax credits” from its definition of public benefit, a CARES Act payment is not a public benefit as defined by the rule.[17]

USCIS also confirms, in its policy manual, that tax credits are not public benefits under the new rule.[18]  The agency further explains that “[c]ash emergency disaster relief – Stafford Act disaster assistance including financial assistance provided to persons and households under the Federal Emergency Management Agency’s Individuals and Households Program and any comparable disaster assistance provided by State, local, or tribal governments” does not mean “cash assistance for income maintenance”[19]  This “cash emergency disaster relief” carveout, along with USCIS’s decision to exclude COVID-19-related testing and treatment from future public charge determinations,[20] likely means that the agency will not interpret CARES Act payments as public benefits.

But even if a CARES Act payment was erroneously deemed a public benefit in an individual case, it is highly unlikely that the payment, alone, would result in the recipient being deemed a public charge.  That is because public charge determinations are, by law, forward-looking and based on the totality of the immigrant’s circumstances.[21]  It would be quite surprising—not to mention, inconsistent with both the Immigration and Nationality Act and the CARES Act—for a one-time payment, authorized by Congress to provide assistance in the midst of a global pandemic, to negatively impact a person’s green card eligibility in the future. To remove any chilling effect[22] and alleviate fear in the immigrant population, USCIS should confirm, like it did for COVID-19-related testing and treatment, that CARES Act payments are not public benefits as defined by the new public charge rule.  Even without this additional guidance, however, the law is clear that there should be no public charge repercussions when eligible immigrants receive CARES Act payments.


[1]  See Ed Yong, How the Pandemic Will End, Atlantic (Mar. 25, 2020), https://www.theatlantic.com/health/archive/2020/03/how-will-coronavirus-end/608719/.

[2]  See Miriam Jordan, ‘We’re Petrified’: Immigrants Afraid to Seek Medical Care for Coronavirus, N.Y. Times (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/us/coronavirus-immigrants.html.

[3]  Public Charge, U.S. Citizenship & Servs. [hereinafter Public Charge] (emphasis added), https://www.uscis.gov/greencard/public-charge (last visited Apr. 4, 2020).  There are actually two new public charge rules.  One, which was promulgated by the Department of Homeland Security (“DHS”), applies to cases adjudicated by USCIS.  Public Charge, Immigrant Legal Res. Ctr. [hereinafter Immigrant Legal Res. Ctr.], https://www.ilrc.org/public-charge (last visited Apr. 4, 2020).  The other, which was promulgated by the Department of State (“DOS”), applies to cases involving individuals who go through a process outside the United States, at a consulate or embassy, to obtain lawful permanent resident status.  Id.  This article refers to a single “new public charge rule,” since both the DHS rule and the DOS rule are virtually identical.  Id.

[4]  Press Release, Torres: As USCIS Ends Public Charge Rule for Coronavirus Cases, Every American is Safer, Congresswoman Norma Torres (Mar. 16, 2020), https://torres.house.gov/media-center/press-releases/torres-uscis-ends-public-charge-rule-coronavirus-cases-every-american

[5]  See Tara Siegel Bernard & Ron Lieber, F.A.Q. on Stimulus Checks, Unemployment and the Coronavirus Plan, N.Y. Times (Apr. 3, 2020), https://www.nytimes.com/article/coronavirus-stimulus-package-questions-answers.html.  These cash payments are known by different names, including “economic impact payments,” “recovery rebates,” and “stimulus checks.”  Libby Kane & Tanza Loudenback, Everything We Know About the Coronavirus Stimulus Checks that Will Pay Many Americans Up to $1,200 Each, Bus. Insider (Apr. 3, 2020), https://www.businessinsider.com/personal-finance/coronavirus-stimulus-check-questions-answers-2020-4.

[6]  See Understanding the Impact of Key Provisions of COVID-19 Relief Bills on Immigrant Communities, Nat’l Immigration Law Ctr. 12 (Apr. 1, 2020) [hereinafter Understanding the Impact of Key Provisions], https://www.nilc.org/wp-content/uploads/2020/04/COVID19-relief-bills-understanding-key-provisions.pdf?fbclid=IwAR2yiNB-kyhr-33bQTVp7YcdNBZ4LeBbia6JUIzbGOhf6d1jJYY9Rzgjs_c (explaining the eligibility requirements for CARES Act payments, which include having a valid social security number); see also Monique O. Madan, Millions of Immigrant Families Won’t Get Coronavirus Stimulus Checks, Experts Say, Miami Herald (Mar. 26, 2020), https://www.miamiherald.com/news/local/immigration/article241531211.html (“Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) holders would be able to qualify for the money because they are issued Social Security numbers.”).

[7]  See Public Charge, supra note 3 (explaining USCIS’s position as to COVID-19-related testing and treatment, but not CARES Act payments).

[8]  The question of which immigrants are eligible for CARES Act payments is beyond the scope of this article, but the sources cited supra note 6 provide some guidance on this question.

[9]  See 8 U.S.C. § 1182(a)(4)(A) (2018) (“Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”); 8 C.F.R. § 212.21(a) (2019) (“Public charge means an alien who receives one or more public benefits, as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”); Immigrant Legal Res. Ctr., supra note 3 (“[Immigration] law says that those who are viewed as likely to become dependent on the government in the future as a ‘public charge’ are inadmissible.”).

[10]  See Immigrant Legal Res. Ctr., supra note 3 (providing basic background of public charge law before the new rule was implemented).

[11]  See 8 C.F.R. § 212.21(b) (listing the benefits that are considered “public benefits” for purposes of the new public charge rule); Immigrant Legal Res. Ctr., supra note 3 (“The rules expand the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rules, federally-funded Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.”).

[12]  8 C.F.R. § 212.21.

[13]  Chapter 10 – Public Benefits, U.S. Citizenship and Servs. [hereinafter Chapter 10 – Public Benefits], https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10 (last visited Apr. 4, 2020).

[14]  8 C.F.R. § 212.21(b)(1)–(6) (emphasis added).

[15]  See Coronavirus Aid, Relief, and Economic Security Act, H.R. 748, 116th Con. § 2201 (2020) (providing that the Internal Revenue Code will be amended to state that “[i]n the case of an eligible individual, there shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2020 an amount equal to the sum of—(1) $1,200 ($2,400 in the case of eligible individuals filing a joint return), plus (2) an amount equal to the product of $500 multiplied by the number of qualifying children (within the meaning of section 24(c)) of the taxpayer”) (emphasis added); see also Kane & Loudenback, supra note 5 (“The payment . . . is technically an advance tax credit meant to offset your 2020 federal income taxes.”) (emphasis added).

[16]  See H.R. 748 § 2201.

[17]  8 C.F.R. § 212.21(b)(1).

[18]  Chapter 10 – Public Benefits, supra note 13 (“Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to . . . Tax Credits . . . .”) (emphasis added).

[19]  Id. (footnote omitted).

[20]  Public Charge, supra note 3.

[21]  See 8 C.F.R. § 212.22(a) (“The determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances by weighing all factors that are relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36–month period (such that, for instance, receipt of two benefits in one month counts as two months).”).

[22]  See Jordan, supra note 2.

By Nicole Tronolone

While for many February 29 is a normal day—simply a quirk of our system of leap-years—for lawyers and “Leapers” alike it presents a host of complexities and anomalies.  The variance between an astronomical year and the calendar year has plagued leaders and lawyers for millennia.[1]  Dating back to 46 B.C., the lengthy history of Leap Year and the corresponding uncertainty in date and measurements of time have created a multitude of problems including uncertainty in dates of birth, sentencing requirements, contractual obligations, and filing dates.[2]  Despite its calendrical predictability, Leap Day continues to serve as a basis for litigation, providing an intriguing, if not confusing, discussion of mankind’s ability to correctly, and continuously, measure time.[3]

In contrast to the 365-day calendar taught in primary schools, the Earth’s orbit around the sun takes 365.2422 days to complete.[4]  Because this is not an even number, the length of Earth’s orbit results in a “drift” of calendar years, with the date losing sync with holidays and seasons.  Efforts to address this problem through the use of an abbreviated calendar year date back to the ancient Sumerian calendar that divided the year into twelve equal months of thirty days.[5]  Ancient Egyptians modified this calendar, tacking on five additional days of festivals to the end of the year to ensure it matched the astronomical calendar.[6]  Prior to the reign of Julius Caesar, Romans observed a 355-day year; this approach, however, had caused the seasons to drift by about three months by the time Caesar ascended to power.[7]  In response, Caesar implemented the Julian calendar.  In 46 B.C. he decreed a single 445-day long year, appropriately called the “Year of Confusion,” and mandated all following years to be 365.25 days long with an additional day observed every four years.[8]  Although this solution greatly alleviated the problem, the discrepancy between the calendar and astronomical year persisted, with the astronomical year remaining eleven minutes longer than the calendar.[9]  This variation increased over time, resulting in a divergence of an entire day between the calendars every 128 years.[10]

By the 16th century, the accumulation of these extra days had caused the Catholic holidays to shift by ten days, with Easter losing its proximity to the Jewish Passover.[11]  In the papal bull Inter gravissimus, issued on February 24, 1582, Pope Gregory XIII implemented the Gregorian Calendar to resolve the situation.  Under the decree, October of 1582 lost ten days, as October 4, 1582 was directly followed by October 15, 1582.[12]  The Gregorian Calendar kept the 365 day-year used in the Julian calendar but modified the calculation of Leap Years.  Today, the current calculation of Leap Days and Years follows the Gregorian Calendar.  Every year divisible by four is a leap year, except for years divisible by 100.[13]  However, years divisible by 400 are leap years.[14]  The Gregorian calendar results in an average calendar year length of 365.2425 days, only twenty-six seconds longer than an astronomical year.[15]  This minimal divergence means that it will take over 3,300 years before the Gregorian calendar deviates a single day from the seasonal cycle.[16]

The Gregorian calendar was quickly adopted by Roman-Catholic countries, while Protestant states initially rejected the change.[17]  Great Britain and its colonies, including what is now the United States, did not adopt the Gregorian Calendar until 1752, instead relying on the Julian calendar.[18]  Once Great Britain adopted the Gregorian calendar, an eleven day discrepancy remained between the two calendar system.[19]  To correct this difference Parliament accelerated the calendar “overnight” so that September 2, 1752 was immediately followed by September 14, 1752.[20]  The 200 year period of divergence from 1582 to 1752, however, created long-lasting discrepancies in interstate communication.  For example, correspondence between Britain and France anytime between 1582 to 1752 written on the same day would actually carry a date discrepancy of between ten to eleven days.[21]  Perhaps one of the mostly widely known consequences of this overnight jump is the celebration of George Washington’s birthday.  Although Washington’s birthday was initially reported as February 11, because he was born prior to 1752 the eleven-day skip imposed in 1752 changed his birthday to February 22.[22]

Under the Gregorian calendar the probability of being born on February 29, Leap Day, is one in 1,461.[23]  For these “Leapers” information regarding their date of birth can become a challenging exercise in patience and ingenuity.  Hospitals report mothers scheduling caesarean sections and requesting to be induced either before or after Leap Day as a result of concerns over the complexities of celebrating Leap Day birthdays with small children.[24]  Doctors have even offered to change the birth certificates of babies born on Leap Year either back dating to February 28 or forward dating to March 1, a practice that is not entirely legal.[25]

The issues surrounding date of birth information are easily overlooked by those with birthdays that occur every year.  Leapers, however, often face business and organizations registrations that do not list their birthday as an option.  Even more extreme, previous healthcare IT systems have rejected February 29 as a valid date of birth.[26]  The nuisances faced by those with Leap Day birthdays include challenges regarding the effectiveness of a driver’s license that expires on February 29 or a life insurance policy that is calculated based on a birthday rather than the actual number of years lived.[27]  To address this ambiguity, most states have enacted statutes that explicitly define which date is to be used for age purposes, including the right to vote, purchase alcohol, and receive a driver’s license.  In states that exclude the day of birth from such calculations, Leapers are deemed to be a year older on March 1, whereas in states that include the day of birth, a Leaper’s legal date of birth is February 28.[28]

The confusion created by Leap Day extends far beyond birthdays, with the date a continuous source of litigation.  For example, Leap Years have the potential to create additional paydays if a company’s payroll is weekly or biweekly.  As a result, salaried employees who are paid on these schedules may experience one more payday in Leap Years than in others.[29]  Leap Day can also complicate the determination of timely filings and statute of limitations.  Federal Rule of Civil Procedure 6(a) adopts the “anniversary method,” under which the leap day is ignored, and the final day to file is the anniversary of the event that starts the clock.[30]  Interest calculations have also been challenged, with arguments premised on the notion that interest rates based on a 360-day year, a standard bank year, leave borrowers with higher effective interest rates in Leap years.[31]

More recently, Leap Day litigation has focused on the implications of a 366-day year on sentencing provisions.  In Habibi v. Holder,[32] the 9th Circuit addressed whether a prison term served over a Leap Year “qualifies as a ‘term of imprisonment [of] at least one year.’”[33]  Habibi, a lawful permanent resident, was convicted of a Battery of a Current or Former Significant Other in November 1999 and received a 365-day sentence that was to be served over the year 2000, a leap year.[34]  8 U.S.C. § 1101(a)(43)(F) provides that a lawful permanent resident who commits an “aggravated felony” is ineligible to apply for cancellation of removal.[35]  As a result, the Department of Homeland security served him with a Notice to Appear, under the argument that his conviction and sentence, “made him removeable under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of violence.”[36] An immigration judge denied his request for cancellation of removal holding his conviction qualified as an “aggravated felony” under § 1101(a)(43)(F).  The Immigration Judge rejected Habibi’s argument that his 365-day sentence, served during a 366-day leap year, did not qualify as an aggravated felony”[37] because “aggravated felony” is defined as a “crime of violence . . . for which the term of imprisonment [is] at least one year.”[38]  After analyzing the complexities of calculating Leap Years, the 9th Circuit held, “In the context of § 1101(a)(43), the BIA [Board of Immigration Appeals] correctly concluded that the phrase “‘term of imprisonment [of] at least one year’ means a sentence of at least 365 days, regardless of whether any part of the sentence was served during a leap year.”[39]  The court reasoned that adopting Habibi’s argument that a “one year” sentence during a Leap Year should require 366 days would “lead to unjust and absurd results.”[40]

Although many will regard February 29, 2020 as just another day, for some, the Leap Day presents unique complexities.  438 years after Pope Gregory XIII’s implementation of the Gregorian calendar, the variance between the astronomical and calendar year continues to generate uncertainty and legal challenges.  2020, a Leap Year, is unlikely to be an exception, witnessing a host of new and creative arguments regarding the unexpected implications of Leap Day. 


[1] Leap Year: 10 Things About 29 February, BBC (Mar. 1, 2012), https://www.bbc.com/news/magazine-17203353.

[2] See, e.g., State v. Mason, 66 N.C. 636, 637 (1872); Habibi v. Holder, 673 F.3d 1082, 1084 (9th Cir. 2011); Kreisler & Kreisler, LLC v. Nat’l. City Bank, 657 F.3d 729, 732–33 (8th Cir. 2001); United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).

[3] See, e.g., Habibi, 673 F.3d at 1084 (“How many days are in a year?  The answer is more complicated than it may first appear. . . . Despite its precision, the astronomical definition of a year does not help us answer the question of how long ‘one year’ is for purposes of 8 U.S.C. § 1101(a)(43)(F).”).

[4] Leap Year: 10 Things About 29 February, supra note 1.

[5] See Brian Handwerk, The Surprising History Behind Leap Year, Nat’l Geographic (Feb. 26, 2016), https://www.nationalgeographic.com/news/2016/02/160226-leap-year-science-time-world-cultures-february/#close.

[6] See id.

[7] Leap Year: 10 Things About 29 February, supra note 1; see also Handwerk, supra note 5.

[8] Handwerk, supra note 5.

[9] Id.

[10] See id.

[11] See id.; see also L.E. Doggett, Calendars, NASA: Goddard Space Cent. (last visited Feb. 11, 2020), https://eclipse.gsfc.nasa.gov/SEhelp/calendars.html#Greg.

[12] See Doggett, supra note 11.

[13] Id.

[14] Id.

[15] Id.

[16] See Handwerk, supra note 5.

[17] Doggett, supra note 11.

[18] See Julian/Gregorian Calendars, U. Nottingham: Manuscripts & Special Collections (last visited Feb. 11, 2020),  https://www.nottingham.ac.uk/manuscriptsandspecialcollections/researchguidance/datingdocuments/juliangregorian.aspx.

[19] See Julian/Gregorian Calendars, supra note 18.

[20] Id.

[21] See id.

[22] George Washington’s Birthday, Nat’l Archives (last updated June 19, 2019), https://www.archives.gov/legislative/features/washington?mod=article_inline.

[23] Leap Year: 10 Things About 29 February, supra note 1.

[24] See Meg Bryant, ‘Leap Year Babies’ Still Face Medical Records Challenges, Healthcare Dive (Feb. 29, 2016), https://www.healthcaredive.com/news/leap-year-babies-still-face-medical-records-challenges/414660/.

[25] See id.; see also Katie Bindley, Leap Year Babies: Expecting on February 29?, HuffPost (Feb. 28, 2012), https://www.huffpost.com/entry/leap-year-babies-2012_n_1307506.

[26] See Bryant, supra note 24.

[27] See id.

[28] The Leap Year and the Law, Thomson Reuters: Legal Solutions Blog (Feb. 29, 2016), https://blog.legalsolutions.thomsonreuters.com/events/the-leap-year-and-the-law/.

[29] See Samantha Koeninger Rittgers, 2020 is a Leap Year. Is This a Trick or Treat?, Graydon (Oct. 31, 2019), https://graydon.law/2020-is-a-leap-year-is-this-a-trick-or-treat/.

[30] Fed. R. Civ. P. 6(a); see also United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003) (citing United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)) (“Under this rule, when a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the relevant act.  The anniversary date is the ‘last day to file even when the intervening period includes the extra leap year day.’”).

[31] See Kreisler & Kreisler, LLC v. Nat’l. City Bank, 657 F.3d 729, 732–33 (8th Cir. 2001) (upholding 365/360 interest rate calculation included in promissory note).  A 366-day year would result in 0.278% more interest paid than in a 365-day year.

[32] 673 F.3d 1082 (9th Cir. 2011).

[33] See Habibi, 673 F.3d at 1086.

[34] Id. at 1088.

[35] 8 U.S.C. § 1101(a)(43)(F).

[36] Habibi, 673 F.3d at 1088.

[37] Id. at 1085.

[38] 8 U.S.C. § 1101(a)(43)(F).

[39] Habibi, 673 F.3d at 1086.

[40] Id.

By Olivia Rojas

On November 5, 2018, the United States Department of Justice filed a petition for writ of certiorari before judgment from the Supreme Court of the United States asking the court to review three cases from different circuits relating to the Deferred Action for Childhood Arrivals program (“DACA”).[1] These cases, DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal (collectively “Consolidated Cases”), directly addressed the validity of the Trump Administration’s attempt to halt DACA, and in June of 2019, the Court granted certiorari.[2]

On November 12, 2019, the Court heard oral arguments regarding the future of DACA. In reviewing the Consolidated Cases, the Court is asked to analyze two questions (1) whether the “phasing out” of the DACA program is eligible for judicial review in the first place and (2) whether the termination of the DACA program is legal.[3]

In June of 2012, former Secretary of Homeland Security Janet Napolitano submitted plans for an administrative program which would allow a select group of undocumented individuals who were born outside of the United States but immigrated as juveniles, to apply for deferred action.[4]  These individuals have since been referred to as Dreamers.[5] Deferred action refers to the ability of a federal immigration judge or an agent with the United States Citizenship and Immigration Service to postpone the deportation of an individual as an act of discretion.[6] While deferred action does not adjudicate an individual as a “lawful” citizen, it awards that individual the status of “lawfully present” during the deferral period.[7] Under Napolitano’s plan, individuals were able to apply for a deferral with the potential for work authorization and the option to renew if a request was granted.[8] Unable to gain enough support for the program in Congress, then-President Barack Obama adopted the DACA plan by executive memorandum.[9] Since its establishment, nearly 800,000 people have deferred their pending deportations.[10]

Under the initial plan for DACA, people could apply for deferred action if: (1) they came to the United States before their 16th birthday; (2) they were 31 years old or younger; (3) they uninterruptedly resided in the United States since June 15, 2007; and (4) they were currently in school, graduated school, had a certificate of completion from a high school, had a General Educational Development (“GED”) Certificate, or were an honorably discharged veteran of the United States Coast Guard or Armed Forces.[11] Persons convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors were ineligible.[12] Additionally, if an applicant had “lawful status” on June 15, 2012, they were also ineligible.[13]

Following the inauguration of President Trump, then-Attorney General Jeff Sessions wrote a letter to the Department of Homeland Security, expressing his concern over the broad reach of the program. Essentially, Sessions argued that the program lacked the necessary statutory authority, had no end date, and lacked support from Congress. Sessions argued it was an “unconstitutional exercise of authority.”[14] Subsequently, then-Homeland Security Secretary Kjersten Nielsen issued a memorandum which sought to rescind DACA and set forth a method for “phasing out” the program in its entirety.[15] The Administration planned to stop accepting new applications and began to only process renewals for those DACA recipients whose status expired before March 5, 2018.[16] 

The Arguments

Can the Court even review this matter?

In a brief submitted to the Court, the government contested that its termination of DACA is not judicially reviewable.[17] While lower courts ruled that the termination was “arbitrary and capricious,” the Administration argued that the Court could not review this standard if the termination was a form of permissible discretion under the Administrative Procedure Act.[18] The Administrative Procedure Act identifies the processes in which federal agencies may develop and enforce regulations.[19] As such, the government argued that it possesses the discretion to terminate DACA.  

The challengers in the Consolidated Cases argue, however, that this issue is a perfect example of what the Court can review, and one that has been reviewed in the past.[20] Further, the challengers maintain that even if their first argument failed, the Court has the power to review the matter because the Administration argued its reasoning for termination was the illegality of DACA as a whole.[21]

In oral argument, the Administration again argued that its termination of DACA was not reviewable because it was a discretionary decision, even though it also argued the DACA program was illegal. Justice Ruth Bader Ginsburg questioned this argument: if the Administration reasoned that it terminated DACA because the program was illegal, it would not be a matter of discretion, but a legal one, and therefore clearly within the purview of the Court.[22] Justices Samuel Alito and Neil Gorsuch were less skeptical of this argument: where was the line between reviewable and non-reviewable decisions?[23]

Is the termination of DACA legal?

Relying on the Fifth Circuit’s decision to strike the Deferred Action for Parents of Americans (“DAPA”) and an expanded DACA program, the Administration, in its brief, reasoned that the implementation of DACA in the first place was “highly questionable” [24] and “an ongoing violation of federal immigration law.”[25] The challengers, on the other hand, argued that if terminating DACA was of incredible importance, the Administration would not have waited seven months before attempting to terminate the program.[26] Further, they argued that anticipation of potential litigation is not sufficient enough to justify the termination of DACA and doing so would undermine nearly every agency decision to date.[27] Finally, the challengers highlighted the public policy implications for terminating the program, including the displacement of hundreds of thousands of people who are actively working and studying in the United States.[28]

In oral argument, the parties conceded to the fact that the Administration had the authority to terminate DACA.[29] As a result, the Court was asked to review the method in which the Administration terminated DACA, rather than if it could terminate DACA.[30] The argument appeared to break down along traditional conservative-liberal lines, although commentators noted that many justices appeared “torn” and it was unclear how the case would ultimately be decided.[31]

The holding in these Consolidated Cases is expected to be released in June 2020.[32] While the future of DACA remains unclear until then, various district court injunctions prevent the complete cessation of the DACA program prior to a decision.[33] While the Administration does not foreshadow a mass deportation should DACA be eliminated,[34] the loss of the program would immediately strip recipients and potential applicants of their rights to work, attend school, and even drive.[35]


[1]Amy Howe, Argument Preview: Justices to Review Dispute over Termination of DACA, SCOTUSBlog (Nov. 5, 2019, 5:02 PM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-review-dispute-over-termination-of-daca/.

[2] Id.

[3] Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016), https://immigrationforum.org/article/deferred-action-basics/; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/

[4] Deferred Action for Childhood Arrivals (DACA), Homeland Security, https://www.dhs.gov/deferred-action-childhood-arrivals-daca (last updated Sept. 23, 2019).

[5] What is DACA and Who Are the DREAMers, Anti-Defamation League, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-are-the-dreamers (last updated Oct. 17, 2019).

[6]Deferred Action Basics, supra note 3.

[7] Id.

[8] Id.

[9] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[10] Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/daca-supreme-court.html.

[11] What Are the Eligibility Requirements for DACA?, CitizenPath, https://citizenpath.com/faq/daca-eligibility-requirements/.

[12] Id.

[13] Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018), https://www.factcheck.org/2018/01/the-facts-on-daca/.

[14] Id.

[15] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[16] Dara Lind, March 5 Is Supposed to Be the DACA “deadline.” Here’s What That Means for Immigrants, Vox, https://www.vox.com/policy-and-politics/2018/2/16/17015818/daca-deadline-trump-dreamers-march-5 (last updated Mar. 5, 2018, 10:31 AM).

[17] Lomi Kriel, Trump’s Decision to End DACA Faces Supreme Court Scrutiny, Houston Chron. (Nov. 11, 2019), https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-s-decision-to-end-DACA-faces-Supreme-14827072.php.

[18] Howe, supra note 3; 5 U.S.C § 551 (2012).

[19] 5 U.S.C. § 551.

[20] Howe, supra note 3.

[21] Id.

[22] Amy Howe, Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA, SCOTUSBlog (Nov. 12, 2019, 2:07 PM), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/.

[23] Id.

[24] Howe, supra note 3.

[25] Id.

[26] Howe, supra note 1.

[27] Id.

[28] Id.

[29] Howe, supra note 22.

[30] Id.

[31] Id.

[32] Supreme Court Grants Cert in Three DACA Cases, Nat’l Immigr. L. Ctr. (June 28, 2019), https://www.nilc.org/issues/daca/alert-supreme-court-grants-cert-in-three-daca-cases/.

[33] Lind, supra note 16.

[34] Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017), https://www.cnbc.com/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html.

[35] Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019), https://www.washingtonpost.com/outlook/2019/11/12/losing-daca-would-top-everything-else-double-my-college-tuition/.

By Elliott Riches

On September 11, the Trump Administration received a major victory in the Supreme Court.[1] No, the Court hadn’t granted certiorari or heard oral argument; this win came in what the legal community refers to as the “shadow docket.”[2] Most law students or legal practitioners will likely be familiar with the Supreme Court’s primary method for deciding cases: petition for certiorari, certiorari granted, oral argument, months of waiting, and finally a written opinion.[3] The Court has operated this way for years. The Trump Administration, though, has found a new, quicker way to resolve issues in its favor. It uses extraordinary measures such as a petition for certiorari before judgment or application for a stay pending appeal before the case even makes its way through the appellate process.[4]

The Supreme Court Rules do provide for this sort of relief. Supreme Court Rule 11 provides that litigants may seek relief in the Supreme Court before a lower court has issued its ruling.[5] The Court also allows for the issuance of a stay pending appeal.[6] But the Court’s own rules specify that “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”[7] In order to receive this sort of stay, the applicant must carry an “especially heavy” burden.[8] To meet this burden, it “must demonstrate (1) ‘a reasonable probability’ that [the] Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’”[9] The Trump Administration has filed at least twenty applications for a stay before judgment, not to mention other forms of extraordinary relief including petitions for certiorari before judgment and applications for writs of mandamus.[10] In contrast, Presidents Barack Obama & George W. Bush sought this sort of extraordinary relief a combined total of only eight times.[11]

That takes us to the administration’s most recent victory. On July 16, 2019, the United States, through the Departments of Justice and Homeland Security, promulgated a rule that would deny asylum to all Central Americans who passed through Mexico unless they first were denied asylum in either Mexico or another country.[12] The day they issued the rule, several organizations that represent immigrants seeking asylum sued the administration seeking both a temporary restraining order and a nationwide preliminary injunction.[13] The district court granted the preliminary injunction finding that the rule was “likely inconsistent with the existing asylum laws,” might violate the Administrative Procedure Act’s (APA) notice-and-comment rules, and was likely invalid as arbitrary and capricious.[14] In response, the administration appealed the ruling to the Ninth Circuit Court of Appeals and also sought a stay in that court pending the disposition of the appeal.[15] The Ninth Circuit instead narrowed the scope of the injunction to only apply within that Circuit, but allowed the District Court to examine additional factors to expand the injunction, which the District Court subsequently did.[16] Unsatisfied with the result in both the District Court and the Court of Appeals, the government sought a stay pending appeal in the Supreme Court.[17]

The Supreme Court chose to grant the stay without any explanation, simply writing, “The application for stay presented to Justice Kagan and by her referred to the Court is granted.”[18] The Court did not elaborate on its reasoning but instead merely issued procedural rules regarding the stay.[19] Two justices noted their dissent from the ruling; Justice Sotomayor was joined by Justice Ginsburg in her written dissent.[20] Among other reasons, Justice Sotomayor noted the frequency with which the Trump Administration had sought this sort of extraordinary relief in the Supreme Court.[21] She writes, “The Government has treated this exceptional mechanism as a new normal.”[22] Justice Sotomayor went on to comment that, in contrast to historical precedent, the Trump Administration now seeks extraordinary relief “reflexively.”[23] She urged her fellow Justices to exercise “restraint” in allowing the administration to take “shortcuts,” a plea that apparently fell on mostly deaf ears.[24]

The Court would have been wise to heed Justice Sotomayor’s plea and deny extraordinary relief. This is not an issue of whether the policy is right or wrong; it is an issue of process. For years, extraordinary relief has only been asked for, let only granted, in truly extraordinary circumstances. The current administration’s consistent asking for relief weakens the institutional legitimacy of the Supreme Court. As Justice Gorsuch wrote, “This Court often speaks most wisely when it speaks last.”[25] By granting this sort of relief the Court is not allowing the appellate process to play out. Instead, it is choosing to circumvent the Courts of Appeal and make decisions about a case well before they have the kind of developed record and analysis traditionally seen in Supreme Court cases.

One potential argument those who support the administration’s drastic measures may make is that extraordinary relief is necessary against the trend of nationwide injunctions.[26] Justice Thomas discussed the issue of nationwide injunctions in the travel ban case writing that “they appear inconsistent with longstanding limits on equitable relief” and that if the trend continues, the Court “must address their legality.”[27] However, Thomas was not joined by any other justices in his lengthy concurrence on this issue. Therefore, until the Court does address the issue of nationwide injunctions, neither the Court nor litigants should attempt to prevent these injunctions using the shadow docket.

This is obviously not the first time, nor will it likely be the last time, that the Trump Administration seeks extraordinary relief in the Supreme Court. While the process for obtaining an opinion from the Supreme Court can sometimes take months or even years, extraordinary relief can be obtained in very short order.[28] Extraordinary relief is therefore a much more efficient solution for the Trump Administration’s desire to implement its administrative agenda, as opposed to waiting for the traditional Court process to unfold. Given the frequency with which the Trump Administration has filed for extraordinary relief, it is only an issue of when, not if, they next request it. Meanwhile, courtwatchers and the American people are left to wonder: how many more times will the Court give the administration what it wants?


[1] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781 (U.S. Sept. 11, 2019) (mem.), https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf (granting request for a stay pending appeal of injunction of immigration rule).

[2] See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] See Sup. Ct. R. 12, 16, 24, 28, 41.

[4] See, e.g., Application for a Stay Pending Appeal, E. Bay Sanctuary Covenant, 2019 WL 4292781 (U.S. Sept. 11, 2019) (No. 19A230), https://www.supremecourt.gov/DocketPDF/19/19A230/113613/20190826132549423_East%20Bay%20II%20Stay%20FINAL.pdf.

[5] 28 U.S.C. § 2101(e) (2012); Sup. Ct. R. 11.

[6] Sup. Ct. R. 23.

[7] Id.

[8] Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers).

[9] Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (quoting Conkridght v. Frommert, 566 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)).

[10] Ian Millhiser, Justice Sotomayor Warns the Supreme Court is Doing “Extraordinary” Favors for Trump, Vox (Sept. 12, 2019, 11:20 AM), https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump; Steve Vladeck (@steve_vladeck), Twitter (July 12, 2019, 4:11 PM), https://twitter.com/steve_vladeck/status/1149773351784726528.

[11]Id.

[12] Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835, 33,840 (Jul. 16, 2019) (to be codified at 8 C.F.R. pts. 208, 1003, 1208).

[13] E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 935 (N.D. Cal. 2019).

[14] Id. at 930.

[15] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781, at *2 (U.S. 2019) (mem.).

[16] Id.; E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 2019 WL 4265078, at *1 (N.D. Cal. 2019).

[17] Application for Stay Pending Appeal, supra note 4.

[18] E. Bay Sanctuary Covenant, 2019 WL 4292781, at *1 (U.S. 2019) (No. 19A230).

[19] Id.

[20] Id.

[21] Id. at *3 (Sotomayor, J., dissenting).

[22] Id.

[23] Id.

[24] Id.

[25] Maslenjak v. U.S., 137 S. Ct. 1918, 1932 (2017) (Gorsuch, J., concurring).

[26] Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas, J., concurring) (“Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions—have become increasingly common.”)

[27] Id. at 2425.

[28] In the East Bay case, the application for stay was filed on August 26, 2019. See Application for Stay Pending Appeal, supra note 4. As mentioned above, the Court issued the stay on September 11, 2019.

R.F. v. Cecil County Public Schools

This case is a civil case where the parents of a child with disabilities challenged an administrative law judge’s determination that Cecil County Public Schools (“CCPS”) had fulfilled its obligation to provide the child with a free appropriate public education under the Individuals with Disabilities Education Act (“IDEA”). There were four issues on appeal: (1) whether CCPS failed to educate the “least restrictive environment” (usually, alongside children who are not disabled); (2) whether CCPS failed to sufficiently implement classroom placement in the child’s Individualized Education Program (“IEP”); (3) whether CCPS denied the child’s parents the right to participate in her education; and (4) whether CCPS provided an appropriate IEP for the child. The administrative law judge and the district court both found that any procedural violations CCPS committed did not substantively deny the child from a free appropriate public education. The Fourth Circuit held that CCPS did violate some procedural requirements of the IDEA, but that overall CCPS did not deny the child a free appropriate public education under the IDEA. Thus, the Fourth Circuit affirmed the district court’s decision. 

Lance Belville v. Ford Motor Company

Ford Motor Company (“Ford”) was sued by a group of individuals and corporations (“Plaintiffs”) for an alleged defect in Ford vehicles manufactured between 2002 and 2010. In total there are twenty-seven individual and two corporate Plaintiffs who had purchased or leased Ford vehicles with these alleged defects. The district court excluded the opinions of the Plaintiffs’ experts, dismissed various claims of certain Plaintiffs and ultimately granted summary judgment to Ford on all remaining claims. The Fourth Circuit affirmed the district court judgment. The district court excluded the opinions of Plaintiff’s three experts based on their lack of relevance and reliability. The Fourth Circuit held that the district court provided a well-reasoned analysis of the experts’ theories and testing based on consideration of the appropriate Daubertfactors for the case. Those appropriate Daubertfactors included general acceptance of a theory within a relevant field, peer review, and the scientific valid of underlying methodologies used. Therefore, the Fourth Circuit held that the district court did not abuse its discretion when they excluded the experts from the proceeding. Ultimately, the Plaintiffs could not prove their theory of defect when their experts were excluded and thus the Plaintiffs could not meet the essential element of causation. Therefore, the district court’s grant of summary judgment on all claims to Ford was appropriate.

United States v. Justin Hawley

            In this criminal case, Defendant Justin Hawley (“Hawley”) pleaded guilty to two counts of distributing heroin and to two counts of being a felon in possession of a firearm. Hawley was sentenced to fifty-seven months in prison, in part because Hawley’s prior criminal history included a sentence of thirty days imprisonment for an uncounseled misdemeanor offense. The uncounseled misdemeanor offense that Hawley was imprisoned for thirty days for was for providing false information to a police officer and for failure to wear a seatbelt. Hawley argued “that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment.” The Fourth Circuit affirmed Hawley’s fifty-seven month sentence. The Sentencing Guidelines (“Guidelines”), under U.S.S.G. § 4A1.2(c)(1), require the district court to count certain prior offenses when computing a defendant’s criminal history for sentencing, “only if (A) the sentence was a term or probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Therefore, under the plain language of Guidelines, Hawley’s offense should be counted in calculating his prior criminal history. Based on this information, the Fourth Circuit held that the district court did not err in counting Hawley’s prior voluntarily uncounseled misdemeanor offense for which he was sentenced to 30 days imprisonment in calculating his criminal history and therefore the Fourth Circuit affirmed the imprisonment term for Hawley in this case.

United States v. Michael Smith

            In this criminal case, defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt all participated in the illegal activities of a Baltimore street and prison gang named the Black Guerilla Family. All three defendants were convicted because of their involvement in the gang’s drug dealing and violent acts they committed as members of the gang. The district court sentenced Bazemore to life, Hurtt to 324 months and Smith to 210 months. Bazemore and Hurtt were convicted for, among other things, first-degree murder and attempted murder. Smith was convicted of extortion and drug distribution under a racketeering conspiracy. Defendants sought to reverse their convictions for two main reasons. First, Defendants argued that “the district court improperly handled the fears some jurors expressed to the court after learning of this gang’s predilection for violence and retaliation.” Second, Defendants claimed that the district court should have excluded the expert testimony of an FBI agent regarding the decoding of intercepted phone calls. The Fourth Circuit rejected the challenges of the Defendants. The district court had excused three different jurors that were scared because of the nature of the case and the potential for violence against them or their families after the trial if Defendants were convicted. During the trial, the Government called an Agent James to provide expert interpretations of phone calls of gang members that had been recorded as part of an FBI investigation. Agent James was qualified as an expert in drug and gang terminology in Maryland and at trial he explained the meanings of several coded gang terms used in the recorded conversations. The Fourth Circuit found that the district court in questioning each juror individually after learning that Juror No. 5, one of the juror’s ultimately excused, was experiencing great fear from being on the jury. It is the job of the trial judge to determine if affected jurors can remain fair and impartial. In the opinion of the Fourth Circuit, the trial judge acted well within his discretion in denying the request for a mistrial after excusing the three jurors he believed could not be fair and impartial and keeping those jurors that assured him of their continued impartiality. The Fourth Circuit rejected the argument that the district court abused its discretion in admitting portions of Agent James’s expert testimony and that even if any improper opinion testimony from Agent James was heard by the jury it was harmless.

U.S. v. Jose Guzman-Velasquez

            This case is a criminal case in which Jose Benjamin Guzman-Velasquez (“Defendant”) was charged with the crime of illegal reentry when he returned to the United States after being deported. Defendant was removed from the United States in 2007, but sometime after returned and was convicted of three crimes. Subsequently, in 2016, a grand jury indicted Defendant for illegal reentry in violation of 8 U.S.C. § 1326(a). Guzman made a motion to dismiss the indicted, but the district court denied the motion. Guzman plead guilty and appealed. The issue was whether United States Citizenship and Immigration Services’ (“USCIS”) denial of Defendant’s Temporary Protected Status (“TPS”) application violated his Due Process rights, and whether under the Supreme Court case United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the due process principle extends beyond removal orders to TPS denials. The Fourth Circuit did not reach the question regarding the Mendoza-Lopezcase because they determined Defendant had not asserted a due process violation that resulted in fundamental unfairness. The Fourth Circuit held that USCIS did not error in denying Defendant’s TPS application and therefore affirmed the district court’s judgment. 

By Matthew Hooker

Spencer v. Virginia State Univ.

            In this civil case, the Fourth Circuit affirmed a grant of summary judgment in favor of Virginia State University concerning the plaintiff’s claim that she was sexually discriminated against with respect to her salary. The plaintiff, a sociology professor, earned a median salary when compared to men who were also full professors in the same department. But the plaintiff argued that the court should compare her pay to that of two former university administrators who earned at least $30,000 more than her. But the Fourth Circuit held that because the plaintiff and these two men did not perform “equal” work requiring “equal skill, effort, and responsibility,” she could not prevail under the Equal Pay Act. “Professors are not interchangeable like widgets.” The two men taught in different departments than the plaintiff, taught at a higher class level, and worked more hours. The Fourth Circuit also held the plaintiff could not prevail under Title VII because the university had explained the pay disparity by showing its practice of paying administrators 9/12ths of their previous salary, which was a nondiscriminatory reason.

United States v. Davis

            In this criminal case, the Fourth Circuit held that the district court did not abuse its discretion in admitting certain pieces of evidence when the defendant was ultimately convicted for distribution of over 50 grams of methamphetamine. The defendant had also objected to the use of coconspirator testimony for sentencing purposes after the jury had acquitted him on a charged conspiracy count.

            The Fourth Circuit first held that the admission of an out-of-court statement of an informant was not an abuse of discretion because the testimony was offered as an explanation or motive for the officers’ use of the informant, so the testimony was not hearsay under Federal Rule of Evidence 801(c). The Fourth Circuit next held that the government properly authenticated certain photos introduced at trial because, even though there was no direct evidence to authenticate, the context was sufficient to authenticate since “the burden to authenticate under Rule 901 is not high.” The Fourth Circuit also held that an officer’s familiarity with the defendant’s voice was enough to authenticate a recording of a telephone conversation since the officer had in-person conversations with the defendant such that the officer would be able to recognize his voice.

            Finally, the Fourth Circuit held that the district court properly explained the sentence imposed, even though the court considered acquitted conduct in establishing the drug amounts. Since it has long been acceptable to consider such conduct, and because the district court did explain its consideration and the defendant’s contrary arguments, the explanation was adequate.

Duncan v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) applied the incorrect standard of review in reviewing an immigration judge’s (“IJ”) determinations. The IJ had concluded that the petitioner was not in his father’s physical custody under the Child Citizenship Act of 2000 (“CCA”), subjecting the petitioner to removal proceedings. In a case of first impression, the Fourth Circuit concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law, requiring a bifurcated approach. The Fourth Circuit held that the application of the facts to the relevant state law in determining whether an individual satisfies the physical custody requirement is a legal judgment subject to de novo review by the BIA. Since the BIA reviewed for clear error, remand of the case was necessary for application of the correct standard.

Vasquez v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) failed to fully consider all relevant evidence in support of the petitioner’s claim for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petitioner had expressed great fear that she and her son would be tortured or even murdered by the 18th Street gang if they were removed and sent back to El Salvador. In reviewing the immigration judge’s (“IJ”) denial of relief, the BIA did not adopt the IJ’s opinion but instead offered its own reasons for denying relief, so the Fourth Circuit reviewed the BIA’s reasons. Although the BIA had considered country condition reports, it had ignored the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. Since the BIA wholly failed to consider this evidence, the Fourth Circuit remanded the case for review of all relevant evidence.

Attkisson v. Holder

            In this civil case, the Fourth Circuit affirmed a dismissal for failure to state a claim where the plaintiffs sued a number of government officials and corporate entities for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance. The Fourth Circuit first held that the plaintiffs failed to state a Bivens claim. Although Bivens itself recognized a remedy for Fourth Amendment violations, the Fourth Circuit viewed the plaintiffs’ claim as presenting a “new Bivens context” because of the rank of the government officials here and the use of electronic surveillance. Since this was a new Bivens context, the Fourth Circuit had to consider whether there were special factors suggesting denying a cause of action. Here, the Fourth Circuit held such factors were present since Congress had already explicitly legislated in this area without authorizing damages for a Fourth Amendment violation.

            The Fourth Circuit next held that the plaintiffs failed to state a claim under the Electronic Communications Privacy Act (“ECPA”) because the defendants in question were entitled to qualified immunity. In doing so, the Fourth Circuit declined to review the district court’s interpretation of the ECPA and instead held that qualified immunity was appropriate since there was a “lack of settled precedent supporting the plaintiffs’ ECPA claim.”

            Finally, the Fourth Circuit upheld dismissal of the complaint against certain Verizon entities and John Doe agents. Because the plaintiffs had failed to identify or serve any of the John Doe agents, had failed to prosecute their claims, and had failed to respect court orders, the Fourth Circuit held there was no abuse of discretion for the district court to dismiss the complaint as to these final parties.

Brundle v. Wilmington Trust, N.A.

            In this civil case, the Fourth Circuit affirmed a judgment finding that an Employee Stock Ownership Plan (“ESOP”) trustee breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Fourth Circuit noted that, under ERISA, there need not be proof that the fiduciary acted in bad faith, but only that the fiduciary failed to act solely in the interest of the ESOP participants. The defendant primarily challenged the district court’s findings of fact during the bench trial, but the Fourth Circuit held that there was no clear error in those findings. The Fourth Circuit also held that there was no clear error in the district court’s damages award.


By Hayley Degnan

Factual Background

         In 2005, the Appellant, Eduardo Rodriguez-Arias (“Rodriguez”), fled his native country of El Salvador and unlawfully entered the United States at only twelve-years-old.[1] Before fleeing El Salvador, Rodriguez witnessed local gangs perpetuate violence against members of his family and experienced gang-related crimes firsthand; local gangs extorted his grandparents, killed his teenage cousin, and robbed him on two separate occasions.[2] After arriving in the United States, Rodriguez moved to Maryland and joined Sueños 13, a United-States based gang with no presence in El Salvador.[3] Although Rodriguez left Sueños 13 in 2011 or 2012, tattoos he procured to demonstrate his affiliation with the group, covering his chest, stomach, left hand, legs, and back remained on his person.[4] After Rodriguez entered removal proceedings, he sought relief under the United Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (“CAT”), and applied for both asylum and withholding from removal.[5]

Procedural History

         On May 16, 2016, Rodriguez testified at an evidentiary hearing before an Immigration Judge (“IJ”).[6] To support his claims for relief, Rodriguez explained that he feared returning to El Salvador because he believed violent gangs would target him as a rival gang member due to his tattoos.[7] He also suggested that anti-gang vigilante groups, who participate in the extrajudicial killing of gang members, and the police, who use excessive force against gang members in their efforts to protect communities, would likely target him for his apparent affiliation with Sueños 13.[8] Rodriguez further alleged that the aforementioned groups would automatically perceive his tattoos as a sign of gang affiliation and would not question the status of his membership before harming him.[9] As evidence to support this assertion, Rodriguez testified that a friend of his, who also belonged to Sueños 13 for a period of time, was killed within a week of his deportation to El Salvador.[10] Additionally, Rodriguez testified that Salvadorian gangs operating in the United States targeted him even after he left Sueños 13.[11] Rodriguez alleged that members of Mara Salvatrucha, or MS-13, chased him, hit him with a bat, and struck him with a chair on different occasions, and members of the 18th Street gang told him that 18th Street planned to look for him and have “fun with his body” once he returned to El Salvador.[12] Aside from his own testimony, Rodriguez also called five expert witnesses to testify about the violence former gang members experience in El Salvador and produced approximately thirty scholarly articles and news reports depicting the current state of violence in El Salvador.[13]

         Despite this evidence, the IJ denied Rodriguez’s application for relief, writing less than a page on his CAT claim and limiting her analysis of his risk of torture to that at the hands of gangs and the police.[14] Rodriguez appealed the IJ’s decision on his CAT claim, and although the Board of Immigration Appeals (“BIA”) remanded the case, finding that the IJ needed to address Rodriguez’s risk of torture at the hands of vigilante groups, nowhere did the BIA state that it vacated or reversed the IJ’s initial decision.[15] On remand, the IJ incorporated her initial opinion by reference and added analysis on the topics that the BIA ordered; yet, she again denied Rodriguez relief.[16] Rodriguez appealed the IJ’s decision on remand, and the BIA upheld her decision, analyzing Rodriguez’s CAT claim within its opinion in under two pages.[17] Rodriguez then petitioned for review of the BIA’s decision.[18] The central issue argued before the Fourth Circuit concerned whether a factfinder must aggregate all individual risks of torture and expressly state that it did so to determine if an individual met his or her burden of proof to succeed on a CAT claim.[19]

Plaintiff-Appellant’s Arguments

         On appeal, Rodriguez made two interrelated arguments: (1) that the IJ and BIA failed to aggregate the different sources of torture he would face if subject to removal, as required when reviewing a CAT claim, and (2) that the IJ erred by limiting her review on remand to just the issues raised by the BIA and not all of the issues as they were initially presented.[20] In regard to this first argument, Rodriguez asserted that he feared torture at the hands of three different groups: gangs, anti-gang vigilante groups, and the police.[21] Yet, the IJ considered the risk of torture Rodriguez faced at the hands of the gangs and the police in her initial opinion and the risk of torture Rodriguez faced at the hands of anti-vigilante groups in her opinion on remand.[22] Accordingly, because the IJ did not consider the sources of torture altogether by aggregating each individual source, she could not adequately determine whether he satisfied his burden of proof to succeed on a CAT claim for relief.[23] Additionally, Rodriguez asserted that when considering the risk of torture posed by these groups in the aggregate, he meets his burden to prove it is more likely than not he would face torture in El Salvador.[24]

         In his second argument on appeal, Rodriguez contended that the IJ erred by limiting her review on remand to only the issues raised by the BIA.[25] He argued that the purpose of a remand is to review of all of the issues presented at the outset of the case unless the appellate authority reserved any of the issues presented.[26] Moreover, in this case, the BIA did not reserve any issues.[27] Thus, Rodriguez asserted that the IJ not only had authority to review all of the issues initially presented to her, but she actually had a duty to review all of the issues on remand.[28] Rodriguez additionally suggested that the IJ failed to adequately account for the evidence of torture in her initial opinion and on remand.[29] Rodriguez noted that the IJ merely dismissed the expert evidence presented as overly broad.[30] Rodriguez claimed that the IJ not only erred because the evidence presented was not overly broad, but also because in order to discount the expert evidence, the IJ needed to provide a cogent reason to do so.[31]

Defendant-Appellee’s Arguments

         In contrast, the Government argued that the IJ considered all of the possible evidence of torture together, even though she did not explicitly state that she considered all of the separate of evidence in the aggregate within her opinions.[32] The Government specifically noted that in the decision on remand, the IJ incorporated her previous decision by reference and stated that she considered all evidence relevant to the possibility of torture.[33] Thus, while the IJ may have divided her opinion as a matter of organization to address each independent source of threat separately, her ultimate conclusion incorporated all of the sources of risk of torture to determine that Rodriguez did not meet his burden of proof.[34] Moreover, the Government asserted that in the alternative, even if the IJ did not aggregate all risks of torture, the BIA did so when it reviewed the IJ’s opinions.[35] The Government also noted that the BIA heard the argument raised by Rodriguez that a factfinder needs to aggregate all risks of torture before it issued its decision.[36] Accordingly, the Government argued that the absence of the “magic words” stating that the IJ or BIA aggregated the risks did not take away from the fact that they used all forms of evidence before them to render their decisions.[37]

         Further, the Government suggested that Rodriguez’s claim relied on a speculative chain of events, including if these groups saw his tattoos, if they scrutinized the tattoos, and if they responded with violence.[38] Lastly, the Government asserted that while Rodriguez may have presented some persuasive evidence, including the expert testimony, the record did not compel the finding that it was more likely than not Rodriguez himself would face torture as a result of his tattoos.[39]

Outcome on Appeal

         The Fourth Circuit held that under a CAT claim of relief, the factfinder must combine all risks of torture to determine whether a CAT applicant is more likely than not to face torture in a particular country.[40] The Court reasoned that the regulations implementing CAT state that when “assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered.”[41] Further, the Court noted that the Ninth Circuit read this requirement to mean that CAT claims “must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims,” and the Third Circuit agreed with the Ninth Circuit’s interpretation.[42] The Fourth Circuit also reasoned that the interpretation which it now adopted is more consistent with its treaty obligation not to return individuals to countries where they face a substantial risk of torture.[43]

         Moreover, the Court disagreed with the Government’s contention that the IJ and BIA considered the evidence cumulatively in this case.[44] It reasoned that at no point in either of the IJ’s decisions did the IJ consider the risk caused by the gangs, the anti-vigilante groups, and the police by adding them together and determining whether the sum of all three exceeded the 50% likelihood that Rodriguez needed to prove.[45] In addition, the Court also noted that the BIA failed to devote any of its opinion to aggregating the separate risks.[46] The Court surmised that the BIA merely stated: “Rodriguez has not shown that his hypothetical chain of events is more likely than not to happen.”[47] Further the BIA did so without reviewing any of the evidence presented by Rodriguez.[48] Lastly, the Court reasoned that Rodriguez did not attempt to prove a hypothetical chain events, making the BIA’s response improper.[49]

         Additionally, the Court held that both the IJ and BIA in this case failed to meaningfully engage with the evidence Rodriguez presented at the initial hearing and failed to meaningfully consider the additional evidence he presented on remand.[50] It reasoned that because it is the Court’s duty to ensure that legally significant evidence is not arbitrarily ignored by the factfinder, the IJ and BIA’s failure to consider evidence of country conditions constituted a reversible error.[51] Furthermore, the Court reasoned that in her first opinion, the IJ merely acknowledged that the country conditions evidence did not support a finding that Rodriguez would more likely than not face torture in El Salvador.[52] In her second opinion, while she noted that some evidence indicated that vigilante groups used violence against gang members, she did not address any evidence presented about the government’s willingness to use violence against gang members or turn a blind eye on others do.[53] Finally, the Court reasoned that the BIA did not remedy the IJ’s failure to engage with the evidence on appeal.[54] The Court articulated: “When a man’s life is on the line, he is entitled to know that the court deciding his claim reviewed all his evidence, understood it, and had a cogent, articulable basis for its determination that his evidence was sufficient.”[55]Accordingly, the Fourth Circuit vacated the BIA’s decision with respect to Rodriguez’s CAT claim and remanded for further proceedings.[56]

Conclusion

         The Fourth Circuit joined the Third and Ninth Circuits in holding that a factfinder must aggregate all sources of the potential risk of torture facing an individual in a particular country when the individual claims relief from removal. The Court suggested that the factfinder must expressly demonstrate in its opinion that it considered the individual risks cumulatively to determine whether the individual claiming relief met his or her burden of proof to show that it is more likely than not he or she will face torture. 


[1] Rodriguez-Arias v. Whitaker, No. 17-2211, 2019 U.S. App. LEXIS 4196, at *2 (4th Cir. Feb. 12, 2019).

[2] Id.

[3] Id.

[4] Id at *2–3.

[5] Id.

[6] Id. at *3.

[7] Id.

[8] Id.

[9] Id. at *4.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at *4–5.

[14] Id. at *5.

[15] Id.

[16] Id.

[17] Id. at *6.

[18] Id.

[19] Id.

[20] Oral Argument at 0:59, Rodriguez-Arias v. Whitaker, No. 17-2211, 2019 U.S. App. LEXIS 4916 (4th Cir. Feb. 12, 2019), http://www.ca4.uscourts.gov/OAarchive/mp3/17-2211-20181030.mp3.

[21] Id. at 1:02 (referencing 8 C.F.R. § 1208.16(c)(2) (2012)).

[22] Id. at 2:05.

[23] Id.

[24] Id. at 1:15.

[25] Id. at 1:30.

[26] Id. at 1:37.

[27] Id. at 1:49.

[28] Id. at 1:49.

[29] Id. at 10:37.

[30] Id.

[31] Id. at 11:05.

[32] Id. at 14:08.

[33] Id. at 15:32.

[34] Id. at 20:56.

[35] Id. at 16:48.

[36] Id. at 16:51.

[37] Id. at 18:37.

[38] Id. at 28:11.

[39] Id. at 23:56.

[40] Rodriguez-Arias v. Whitaker, No. 17-2211, 2019 U.S. App. LEXIS 4196, at *9 (4th Cir. Feb. 12, 2019).

[41] Id.at *8(citing 8 C.F.R. § 1208.16(c)(2) (2012)).

[42] Id. (citing Quijada-Aguilar v. Lynch 799 F.3d 1303, 1308 (9th Cir. 2015)).

[43] Id. at *9–10.

[44] Id. at *10.

[45] Id. at *11.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id. at *12.

[51] Id. at *12­–13.

[52] Id. at *13.

[53] Id. at *13–14.

[54] Id. at *14.

[55] Id. at *15.

[56] Id.

By Thomas Cain and Noah Hock

Wood v. Arnold

In this civil case, Appellant Wood claimed teaching and assessment materials from a high school world history class violated her First Amendment rights under either the Establishment Clause or the Free Speech Clause.  At issue were a statement comparing Islamic and Christian faiths and a worksheet requiring Wood to demonstrate her knowledge of some of the tenets of Islam.  Considering the challenged materials within the context of the world history curriculum, the Fourth Circuit found the materials did not violate the Establishment Clause because they did not impermissibly endorse any religion and did not violate the Free Speech Clause because they did not compel Wood to profess any religious belief.  As such, the Fourth Circuit affirmed the District Court’s ruling granting summary judgment in favor of the defendants.

Rodriguez-Arias v. Whitaker

In this case, Petitioner Rodriguez-Arias sought review of the final order of the Board of Immigration Appeals (BIA) which denied his claim for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  The Fourth Circuit joined the Ninth and Third circuits in holding that when deciding a CAT case, the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.  The Court held that the BIA failed to properly aggregate the risks of torture and failed to meaningfully engage with the documentary and additional evidence about the risk of torture that Petitioner faces in El Salvador.  Thus, the Court vacated the BIA’s order and remanded the case for further proceedings consistent with this opinion.

Norfolk Southern Railway Company v. City of Roanoke

In this civil case, Appellant Norfolk Southern Railway sought review of the district court’s order granting summary judgment for the City of Roanoke on Appellant’s claims of discriminatory taxation in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act).  The case hinged on the characterization of the “stormwater management charge” as either a tax or a fee.  After weighing the relevant factors, the Fourth Circuit ultimately held that the charge was a fee, as it was more so a part of a regulatory scheme with the purpose whose purpose is to remedy the environmental harms and to hold stormwater dischargers responsible.  Thus, the Fourth Circuit affirmed the district court’s decision granting summary judgement for the defendants because only taxes are subject to challenge under the 4-R Act.

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

By: Ashley Collette & Evan Reid

Jimenez-Cedillo v. Sessions

A Mexican citizen present in the United States without authorization pled guilty to sexual solicitation of a minor.  The Board of Immigration Appeals determined that this offense was a crime involving moral turpitude and ordered him removed from the United States.  In doing so, the Board departed from its rule “that an offense must require proof of a culpable mental state as to the victim’s age to qualify as a crime involving moral turpitude.”  The Board did not adequately explain its reasoning for “abandon[ing] the requirement of mental culpability as to a victim’s age”, and thus the Fourth Circuit held its decision was arbitrary and capricious.  The case was remanded for a more adequate explanation.

U.S. v. McCollum

In this criminal case, the defendant, Taison McCollum, appealed the district court’s decision applying a sentence enhancement based on his prior conviction for conspiracy to commit murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) after McCollum pled guilty to the possession of a firearm by a convicted felon.  The Fourth Circuit reluctantly vacated the judgment of the district court and remanded the case back to the district court for resentencing.  In holding that the district court erred in enhancing McCollum’s sentence, the Fourth Circuit followed the Supreme Court precedent in Taylor v. United States, which held “an enhanced sentence is lawful only if the prior conviction necessarily establishes that the defendant ‘has been found guilty of all the elements’ of the enumerated offense” because the crime of conspiracy under § 1959(a)(5) does not require an overt act and thus is broader than generic conspiracy.

 

By: Evan Reid and Ashley Collette

On February 13, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion in Salgado-Sosa v. Sessions, a highly anticipated immigration case.  With the increase in Honduran nationals claiming persecution and seeking asylum in the United States, this case will likely have a far-reaching impact on the broader immigration conversation.   

Facts and Procedural History

Reynaldo Salgado-Sosa is a native and citizen of Honduras who entered the United States without inspection in August 2005.  In September 2010, Salgado-Sosa was charged with violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”) and became subject to removal.  Salgado-Sosa conceded removability but applied for asylum, withholding of removal, and protection under the Convention Against Torture.

Salgado-Sosa feared that if he returned to Honduras he would be persecuted at the hands of a violent gang, Mara Salvatrucha (“MS-13”).  MS-13 gang members have repeatedly attacked Salgado-Sosa’s family for failing to pay them to protect the family’s convenience store and automobile repair shop in Tegucigalpa, Honduras.  Salgado-Sosa’s family attempted to fight back and contacted the police in order to have the gang members arrested.  However, all of the suspected gang members were eventually released without charges.

At Salgado-Sosa’s removal hearing, both Salgado-Sosa and his stepfather presented testimony and evidence regarding the events that led to his fleeing Honduras for the United States.  Salgado-Sosa noted that his family warned him that MS-13 continues to question his whereabouts, which causes him to remain in fear of returning to Honduras.  

Even though the immigration judge (“IJ”) found Salgado-Sosa’s claims of fear credible, the IJ denied his asylum application as untimely filed because under the INA, individuals applying for asylum must file their application within one year of arriving in the United States.  Salgado-Sosa argued that he qualified for a statutory “changed circumstances” exception.  The IJ rejected that argument, finding that because the attacks by MS-13 remained the basis for Salgado-Sosa’s fear of return, he had not shown a material change in circumstances.

The IJ also found that Salgado-Sosa was not entitled to withholding of removal because he did not establish a clear probability that his life would be threatened because of one of several protected grounds.  While family can be considered a cognizable particular social group, the IJ noted that Salgado-Sosa did not satisfy the “nexus” requirement that he feared persecution on account of those family ties.

The IJ also denied relief to Salgado-Sosa under the Convention Against Torture as it requires the finding that if Salgado-Sosa was removed then he would more likely than not be tortured.

Salgado-Sosa appealed the decision to a one-member panel of the Board of Immigration Appeals (“Board”), which affirmed the IJ’s findings and dismissed Salgado-Sosa’s appeal.  The focus of the proceedings before the Board was on whether Salgado-Sosa was able to show that MS-13’s threats were related to his membership in a cognizable “particular social group.”  The Board found that Salgado-Sosa had not established the required nexus between his membership in a particular social group and MS-13’s threats and thus denied his request for withholding of removal.  Separately, the Board denied Salgado-Sosa’s asylum application as it was untimely and there was insufficient evidence to justify protection under the Convention Against Torture.

Salgado-Sosa petitioned the United States Court of Appeals for the Fourth Circuit to review the Board’s decision.  The primary issues on appeal were Salgado-Sosa’s application for asylum and withholding of removal.

Timeliness of Application for Asylum and Withholding of Removal

The appeal reviewed both the Board’s decision as well as the IJ’s opinion because the Board affirmed the IJ’s decision with an opinion of its own.  In reviewing the decisions, the court noted that while there are some differences between asylum and withholding of removal, the core condition of eligibility is the same:  “that there be a nexus between threatened persecution and a protected status.”

The court concluded that the IJ and the Board erred in finding that Salgado-Sosa had not met the nexus requirement because one of the main reasons for Salgado-Sosa’s persecution by MS-13 was based on his membership in his family, which is a protected social group under the INA.  The court looked to ample evidence that corroborated the centrality of family ties to the fear of persecution.  Specifically, “Salgado-Sosa’s relationship to his stepfather (and to his family) is indisputably ‘why [he], and not another person, was threatened’ by MS-13.”  Accordingly, the court vacated the denial of withholding of removal and remanded for further proceedings on this particular claim.

Turning to the asylum claim, the United States Court of Appeals for the Fourth Circuit stated that while the court “generally lack[s] jurisdiction to review discretionary determinations that an asylum application failed to establish changed circumstances,” it does have jurisdiction when the appeal presents a constitutional question of law.  However, the question of law at issue here was not raised before the IJ and thus the Board did not reach the claim and Salgado-Sosa did not exhaust his administrative remedies.  While this would normally end the inquiry, in light of the court’s recent decision in Zambrano v. Sessions the court remanded the asylum claim separately for consideration.

Conclusion

This opinion highlights the complexities in immigration issues and the role that semantics play in determining those issues.  With immigration matters a top priority for the Executive Branch, more opinions wading through the INA are sure to follow.

 

by: Marcia Zug

Men and women are not equal in immigration law, and the Supreme Court has long upheld these distinctions. In fact, since 1977, the Court has heard four immigration-based sex discrimination cases and sustained the challenged provision every time.[1]  The Court even upheld one provision twice, just so it could more fully articulate the basis for its decision.[2]  This summer, the Court decided a fifth immigration-based sex discrimination challenge.[3]  The case, Sessions v. Morales-Santana[4], concerned an Immigration and Nationality Act (INA) provision distinguishing between unmarried fathers and mothers with regard to the transmission of citizenship.[5]  The Court had not previously considered this particular provision. Nevertheless, given the Court’s history of upholding similar gender distinctions, Morales-Santana seemed poised to become the fifth case affirming the constitutionality of immigration law’s gender distinctions. Instead, the Court declared the challenged provision unconstitutional.[6]

As the cases on transmission of citizenship demonstrate, gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread.[7] However, prior to Morales-Santana the Court consistently upheld these distinctions.[8] Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination.

Immigration law’s long history of gender bias, means the possibilities for discrimination claims are numerous. Accordingly, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project.[9] International Refugee limited the scope of the government’s proposed travel ban[10] and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights. Nevertheless, it is the Morales-Santana decision that provides the means to actually challenge the application of these restrictive immigration policies.[11]

The relevance of a gender discrimination claim to the travel ban is not immediately obvious. Both the ban and its exemptions are gender neutral.[12] However, family-based exceptions to immigration restrictions, similar to the ones applicable to the travel ban, have long been based on prejudices and stereotypes about the relative benefits of male versus female immigrants.[13] If the State Department’s visa determinations mimic these historic practices, this could serve as the basis for a gender discrimination challenge, and there are already strong indications that gender will play an important role in the visa decision-making process.

Initially, the travel ban excluded all travelers from six countries: Yemen, Somalia, Iran, Libya, Sudan, and Syria.[14] This blanket ban was then challenged in International Refugee, and the Court held it must include exemptions for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”[15] The Court then added that employment, educational, or familial relationships could all potentially meet the definition of “bona fide relationship.”[16]

After receiving the International Refugee Court’s decision, the State Department issued a memo declaring the family relationship exemption limited to “close family.”[17] It then defined “close family” as “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships.”[18] Other family relationships including “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members” were excluded.[19] When asked where these distinctions originated, the government stated they were based on the long-standing family preference categories of the INA.[20]

The State Department’s focus on the family relationship category, as opposed to the educational or employment category, is understandable.[21] Most U.S.-bound immigrants and refugees have at least one family member in the U.S.,[22] and it is likely that the majority of travel ban exemptions will arise under this group.[23] Consequently, by limiting the class of qualifying relationships, the State Department can significantly reduce the number of aliens eligible for these exemptions.[24]

Critics of the ban were quick to condemn this strategy. They objected to the government’s narrow definition of close family relationships and to the exclusion of fiancés and grandparents in particular.[25] The State Department’s reaction to these criticisms was revealing. Shortly after issuing the memo, the State Department revised the qualifying relationship definition to include fiancés,[26] but it refused to consider including grandparents.[27] It then defended this distinction by arguing that the inclusion of fiancés, but not grandparents, was supported by immigration history.[28] This is correct.[29] However, the history the Department relied upon is highly problematic.

Historically, fiancé exemptions were limited to females and grounded in gender stereotypes that deprived women of their rights and agency.[30] Beginning in 1855, U.S. immigration law granted foreign women married to American men automatic American citizenship.[31] The 1855 Act was based on the doctrine of coverture, which decreed that married women had no right to a legal or political identity of their own. According to this doctrine, a husband and wife were legally one person and that person was the man. [32] A married woman’s identity was treated as “covered” by her husband’s; thus, when a foreign woman married an American citizen she became an American citizen as well.[33] Similarly, because the law of coverture stated that a woman’s primary loyalty was to her husband, marriage to an American man was seen as a demonstration of her commitment to America and her worthiness to become a citizen.[34]

Tellingly, the reverse was never true. Under the doctrine of coverture, the male identity was considered legally dominant. As a result, marriage to an American woman could not change a foreign man’s citizenship.[35] Foreign husbands still needed to earn their citizenship through further proof of loyalty to the U.S.[36] In 1907, coverture’s ideas regarding marriage and female citizenship were codified in The Expatriation Act, which declared that American citizen women married to foreign men must share their husband’s alien status.[37] The Act treated these wives as having voluntarily relinquished their citizenship through marriage, and it only permitted them to regain their citizenship if their husbands became citizens.[38]

The Expatriation Act was repealed in 1922,[39] but the belief that female patriotism and loyalty was derivative did not disappear.[40] In fact, throughout the twentieth century, Congress repeatedly passed laws exempting foreign women, particularly those in relationships with American men, from otherwise applicable immigration restrictions. Some of the most notable examples include the 1924 Quota Act, which imposed draconian quotas on immigration from certain countries but exempted foreign-born wives,[41] and the 1945 the War Brides Act, which allowed soldiers’ alien wives to enter as non-quota immigrants and also made exceptions for racially excludable Japanese and Korean wives.[42] In the 1950s, the spousal and fiancé exemptions became gender neutral, but they still disproportionately benefitted female immigrants.

Women are more likely than men to immigrate through family connections.[43] Consequently, by prioritizing family connections, gender-neutral immigration laws continued to ensure that foreign women remained the primary beneficiaries of America’s family-based immigration system.[44] Some examples of modern female-benefitting immigration laws include the 1952 INA, which set up the current family-based immigration system;[45] the 1970 INA amendments creating the K-1 fiancé visa;[46] and the current version of the INA which continues to prioritize family-based immigration through benefits such as quota exemptions,[47] special visas,[48] and fast-tracked citizenship.[49]

Women have been the majority of arriving immigrants since the 1930s[50] and, as the above examples demonstrate, the change to gender-neutral family preferences has made little difference.[51] Modern immigration law’s family preference remains mired in America’s long history of coverture and the belief that female immigrants are more trustworthy than foreign men. These stereotypes benefit female immigrants, but they also make the family preference provisions constitutionally suspect.[52] In addition, laws relying on these provisions, such as the travel ban, should also be viewed with suspicion.

The Supreme Court has long held that laws distinguishing between men and women based on outdated understandings of their “talents, capacities, or preferences” are contrary to constitutional gender principles.[53] Immigration exemptions that benefit women based on the belief that women have no national allegiances of their own violate these constitutional principles. Yet, despite these well-settled principles, for decades, the Court shielded immigration law from gender-based challenges. This is finally no longer the case. In Morales-Santana, the Court clearly held that immigration law does not exempt the government from the rule that “overbroad generalizations about the way men and women are” are unconstitutional.[54]

If the travel ban exemptions result in a highly uneven distribution of male and female visa denials, this disparity, combined with the gendered history of family-based preferences, should be enough to support a class action by the American family members of rejected aliens. The President’s own statements[55] and policies[56] indicate that the true focus of the ban is Arab men, and consequently, there is a strong argument that the travel ban is a continuation of immigration law’s long-standing and constitutionally problematic preference for female immigrants based on their presumed greater loyalty to the U.S.

While a class action challenge to the application of the travel ban would be difficult, it could succeed because it would not focus on any individual visa denial. Rather, it would challenge the overall visa decision-making process. This distinction is crucial because under Supreme Court case law, once the State Department has made a visa determination, it is almost impossible to contest. As recently as 2015, the Court reaffirmed the doctrine of consular non-reviewability, which bars judicial review of visa denials. The case, Kerry v. Din[57], concerned an Afghani husband denied a visa to join his American citizen wife. According to the government, the husband presented a national security risk. Din and her husband disagreed with this assessment, and they requested access to the information upon which it was based. The government refused, and the couple then brought suit challenging the husband’s visa denial. The district court held the doctrine of consular non-reviewability prevented review of their case, and the Supreme Court agreed. According to the Court, visa determinations, even ones that are potentially unjust or incorrect, are unreviewable.

Without more information, it is impossible to know if the visa decision in Din was reasonable. However, similar cases have shown how the doctrine of consular non-reviewability can shield erroneous or biased decisions from review. One of the most famous visa denial cases is Knauff v. Shaughnessy.[58] In this case, the foreign-born wife of a returning American citizen soldier was denied the right to view the evidence used to bar her entry into the U.S.[59] According to the government, Knauff had been a Nazi collaborator and provided the German military with classified information.[60] Knauff denied these claims, but without access to the government’s information, she was unable to effectively refute the charges.[61] Luckily, Knauff’s case garnered national attention, and Congress eventually conducted a hearing to review the claims against her.[62] This review revealed that the source of the information was a spurned girlfriend of Knauff’s husband who desired revenge.[63] After obtaining this information, Knauff was able to demonstrate the falsity of the accusation, and she was then granted permission to enter the U.S.[64]

Knauff’s case has a happy ending, but it reveals how easily visas can be unjustly denied and how difficult it is for aliens to contest these decisions. Knauff involved a single unfair visa denial; the travel ban creates the possibility of hundreds or thousands. Kerry v. Din confirms that these individual decisions are shielded from judicial review, but it does not prevent them from being challenged as a group. Consequently, the best, and perhaps only, means of challenging the application of the travel ban will be through a class action based on gender discrimination.

Initial travel ban lawsuits focused on racial and religious discrimination, but changes to the current ban weaken these arguments. Moreover, if the ban goes into effect, such arguments will be entirely inapplicable. The newest version of the travel ban, which was released after the previous version expired, attempts to avoid charges of race and nationality discrimination by including two non-Muslim majority countries, Venezuela and North Korea.[65] Opponents argue that the addition of these two countries does not solve the ban’s constitutional problems. They argue that the ban’s primary purpose remains the prohibition of Muslim immigrants,[66] and they further add that the inclusion of Venezuela and North Korea does nothing to alleviate concerns that the ban discriminates based on national origin.[67] For the moment, these challenges are succeeding[68], but many experts believe the ban will ultimately be upheld.[69] Once that happens, arguments based on religious or national origin discrimination will be ineffective.

The majority of people affected by the ban will be both Arab and Muslim, making it difficult—or maybe impossible—to demonstrate religious or racial discrimination in the pattern of visa denials.[70] Gender discrimination claims do not have this problem. Significant numbers of both men and women are likely to apply for visas. Consequently, a substantial gender difference in the issuance of visas, combined with the history of discriminatory female preferences and the government’s acknowledged focus on Arab men, provides a strong basis for a gender discrimination challenge.

Whether such a challenge would ultimately succeed is unclear, but the possibility of such a suit demonstrates the new opportunities created by the Morales-Santana decision. For too long, the Court has allowed stereotypes about the relative desirability of male and female immigrants to influence immigration law. The result is an immigration system that favors women and can be manipulated and exploited to exclude men. The State Department’s implementation of the travel ban is likely to proceed in this fashion. However, Morales-Santana suggests that the Court might find such actions unconstitutional. This is heartening. As U.S. immigration becomes increasingly restricted, it is encouraging to realize the tools to fight these restrictions are expanding.


[1] See Flores-Villar v. United States, 564 U.S. 210 (2011) (splitting 4-4 and refusing to recognize an equal protection challenge to former provisions of the Immigration and Nationality Act (INA) which imposed an additional residence requirement for an unwed citizen-father to confer U.S. citizenship on a child born abroad); Nguyen v. INS, 533 U.S. 53, 70–71 (2001) (finding the paternity obligations were “minimal” and that the governmental interest in these distinctions served “important objectives.”); Miller v. Albright, 523 U.S. 420, 441 (1998) (finding the different treatment of unwed citizen mothers and unwed citizen fathers was “eminently reasonable” and “justified by important Government interests”); Fiallo v. Bell, 430 U.S. 787, 798 (1977) (reasoning that since these distinctions were “policy questions entrusted exclusively to the political branches of our Government,” the Court had “no judicial authority to substitute [its] political judgment for that of Congress”).

[2] Nguyen concerned the same statutory provision as Miller. See Michelle L. Sudano, Note, Crossing the Final Border: Securing Equal Gender Protection in Immigration Cases, 21 Wm. & Mary Bill Rts. J. 957, 968 (2013) (“[B]oth cases addressed the constitutionality of the same statute and the Nguyen court did not specify which issue was novel to the Nguyen case; it is more likely that the Court chose to hear Nguyen three terms after hearing Miller because it meant that the Court would have a chance to clarify the Miller ruling and eliminate the circuit split caused by the fractured opinion therein.”).

[3] In Kerry v. Din, 135 S. Ct. 2128 (2015), Justice Scalia did hint that future gender discrimination challenges might be different. Specifically, while discussing the history of the different treatment of male and female citizens, he wrote, “Modern equal-protection doctrine casts substantial doubt on the permissibility of such a symmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order.” Id. at 2136.

[4] 137 S. Ct. 1678 (2017).

[5] The statute in effect at Luis Morales-Santana’s birth in 1962 required that an out-of-wedlock father have ten years of physical presence in the U.S., five years of which had to be after the father’s fourteenth birthday. Id. at 1686-87. In contrast, an out-of-wedlock mother had to have continuous physical presence in the U.S. for only one year at any time prior to the child’s birth. Id. at 1687.

[6] To reach its decision, the Court did not overrule the previous line of cases upholding these gender distinctions. Instead, it carved out an exception for the challenged provisions. As the Court noted, there were two ways it could fix the provision’s discriminatory result: either have the more lenient residency requirements apply to American citizen fathers or apply the more stringent one to mothers. See id. at 1698. The Court chose the latter, leading a number of commentators to dub the decision the “mean remedy.” See, e.g., Will Baude, The Judgment in ‘Morales-Santana’ (and a Supreme Court Symposium), Wash. Post (June 13, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/13/the-judgment-in-morales-santana-and-a-supreme-court-symposium/?utm_term=.8dfecf900579. See also Ian Samuel, Morales-Santana and the “Mean Remedy,” PrawfsBlawg (June 12, 2017, 5:04 PM), http://prawfsblawg.blogs.com/prawfsblawg/2017/06/scotus-symposium-morales-santana-and-the-mean-remedy.html.

[7] See, e.g., Charles Roth, Immigration Symposium: Prelude to a Turning Point, SCOTUSblog (June 29, 2017, 12:25 PM), http://www.scotusblog.com/2017/06/immigration-symposium-prelude-turning-point/ (“The INA allows a citizen parent to convey American citizenship automatically, under technical rules that have shifted over the years. One consistent rule for the past 70 years is that it has been easier for an unmarried U.S.-citizen mother to convey automatic citizenship to her child than for an unmarried father or married parent. The difference is the length of time that the parent must have been present in the U.S. before having the child.”).

[8] In these cases, the Court upheld the distinctions as justified by the biological differences between men and women or as part of Congress’s plenary power over immigration. Both justifications have been subject to significant criticism, particularly plenary power, which is seen as judicial permission for the government to violate constitutional norms. Scholarly criticism of the doctrine is significant. See, e.g., T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 151 (2002); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 189 (1996); Kif Augustine-Adams, The Plenary Power Doctrine after September 11, 38 U.C. Davis L. Rev. 701, 705 (2005); Nora V. Demleitner, How Much Do Western Democracies Value Family and Marriage?: Immigration Law’s Conflicted Answers, 32 Hofstra L. Rev. 273, 299–300 (2003); Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens’ Rights, 41 Vill. L. Rev. 725, 734 (1996).

[9] 137 S.Ct. 2080 (2017).

[10] Given the closeness of the two decisions, it may also be significant that the Morales-Santana Court refused to accept a quasi-national security justification for the different treatment of men and women. The government argued that the distinctions between mothers and fathers were justified based on legitimate concerns regarding foreign influence over American citizens. Specifically, the government argued the distinctions are justified because if a child has only one parent and that parent is a U.S. citizen, the child will be influenced only by a person with U.S. citizenship. But if the child has two parents, one of whom is not a U.S. citizen, the child will be subject to the parental influence of a person with the interests of a “foreign citizenship.” Presuming that mothers have greater influence over their children than fathers, the government argued that the different treatment was justified. Brief for Petitioner at 10, Lynch v. Morales-Santana, 136 S. Ct. 2545 (2016) (No. 15-1191), 2016 WL 4436132, at *5.

[11] In addition to instituting the travel ban, the President has also increased the arrest of undocumented immigrants. See Aria Bendix, Immigration Arrests Are Up, but Deportations Are Down, The Atlantic (May 17, 2017), https://www.theatlantic.com/news/archive/2017/05/under-trump-immigrants-arrests-are-up-but-deportation-is-down/527103/. He has also announced his intention to reduce legal immigration by half. See Andrew Soergel, Report: Trump Pushing to Cut Annual Immigration by Half, U.S. News, (July 13, 2017, 11:35 AM), https://www.usnews.com/news/national-news/articles/2017-07-13/report-trump-pushing-to-cut-annual-immigration-by-half.

[12] See Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

[13] See generally Patricia Hatch, U.S. Immigration Policy: Family Reunification, League of Women Voters, http://lwv.org/files/ImmigrationStudy_FamilyReunification_Hatch.pdf (ranking the family based exceptions by preference to award visas).

[14] Initially, Iraq was also included but was removed in the revised version of the order. See Kevin Liptak, Why Iraq Was Removed from the Revised Travel Ban, CNN.com (Mar. 16, 2017, 5:06 PM), http://www.cnn.com/2017/03/06/politics/iraq-travel-ban/index.html.

[15] Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088 (2017).

[16] Id.

[17] See Gardiner Harris & Ron Nixon, Stepsister, Yes; Grandma, No: U.S. Sets Guidelines for Revised Travel Ban, N.Y Times (June 28, 2017), https://nyti.ms/2uk1M2w.

[18] Id.

[19] Id.

[20] Carol Morello, Travel Ban Takes Effect as State Department Defines “Close Family”, Wash. Post (June 29, 2017), http://wapo.st/2toCVxB?tid=ss_mail&utm_term=.f88bd8519383 (“Senior administration officials said they drew up the list of close relationships based on the definition of family in the Immigration and Nationality Act of 1965.”).

[21] See Jessica Feinberg, The Plus One Policy: An Autonomous Model of Family Reunification, 11 Nev. L.J. 629, 630 (2011) (“The majority of individuals able to immigrate can do so because they share relationships with U.S citizens or lawful permanent residents (LPRs) that render them eligible under the ‘family reunification’ admission category.”); William L. Pham, Comment, Section 633 of IIRIRA: Immunizing Discrimination in Immigrant Visa Processing, 45 UCLA L. Rev. 1461, 1466 (1998) (“Family-sponsored immigration is by and large the most significant category of visa issuance: It comprises over 70% of all immigration to the United States.”).

[22] Morello, supra note 20 (“More than half of all U.S.-bound refugees typically have some family members in the United States, although in some cases the relatives may be in the excluded category.”).

[23] Some scholars have even suggested these exceptions could encompass the majority of travelers. Most travelers entering the U.S. do so for work, school, or to visit family. See id.

[24] See id.

[25] See S.M., The Grandma Ban: The Travel Order Rules Face a Court Challenge, The Economist (June 30, 2017), https://www.economist.com/blogs/democracyinamerica/2017/06/grandma-ban.

[26] Explaining the change, a state department official simply stated, “Upon further review, fiancé will now be included as close family members.” Melanie Zanona, White House Reverses Course on Including Fiancés in Travel Ban, The Hill (June 29, 2017, 9:39 PM), http://thehill.com/policy/transportation/340193-white-house-reverses-course-on-including-fiances-in-trump-travel-ban.

[27] This decision was eventually appealed to the Supreme Court, which held that the travel ban exemptions must be broader than the INA categories and could include grandparents. Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088­–89 (2017).

[28] See generally Naturalization Act, ch. 71, § 2, 10 Stat. 604 (1855) (securing U.S. citizenship for any alien woman who is lawfully married to a man of U.S. citizenship).

[29] Id.

[30] Cf. Sabrina Balgamwalla, Bride and Prejudice: How U.S. Immigration Law Discriminates Against Spousal Visa Holders, 29 Berkeley J. Gender, L. & Just. 25, 65 (2014) (acknowledging that mail-order brides lack information about their future spouse, the U.S. legal system, and their rights). See generally Marcia Zug, Buying A Bride: An Engaging History of Mail-Order Marriage (2016) (describing the history of mail-order marriage in the United States and the laws encouraging foreign wives and fiancées).

[31] Naturalization Act, ch.71, § 2, 10 Stat. 604, 604 (1855).

[32] See generally Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (“[I]t became a maxim of [the common law] that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state . . . .”).

[33] “One congressional sponsor of the 1855 Act, Francis Cutting of New York, asserted that ‘by the act of marriage itself the political character of the wife shall at once conform to the political character of the husband.’” Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405, 421 (2005). “[M]arriage to a U.S. citizen husband was considered an act of political consent to the U.S. nation state” and, in fact, it was considered the only way a married woman could “relate to the state.” Id. at 421–22.

[34] See Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship 33-38 (1998).

[35] Balgamwalla, supra note 30, at 31–32.

[36]Tanya Ballard Brown, That time American Women Lost Their Citizenship Because They Married Foreigners, NPR: Code Switch (Mar. 17, 2017), http://www.npr.org/sections/codeswitch/2017/03/17/520517665/that-time-american-women-lost-their-citizenship-because-they-married-foreigners.

[37] The law required women to submit to their husbands’ authority and adopt his political allegiances. Consequently, foreign women married to citizen men were considered incapable of presenting a national security risk because, regardless of their previous loyalties, once married, they would naturally adopt their husbands’ views and loyalties. See, e.g., Brief for Professors of History, Political Science and Law as Amici Curiae for Respondents at 14, Morales-Santana v. Lynch, 136 S. Ct. 2545 (2016) (No. 15-1191), 2016 WL 5800340 (stating, “In the very design of the derivative citizenship statute, as it applied to mixed-nationality married couples, one can see the imprint of the male headship principle and the corresponding belief that the wife and children derived their political and cultural character from the husband-father”).

[38] Expatriation Act, ch. 2534, § 3, 34 Stat. 1228, 1228 (1907) (providing that “any American woman who marries a foreigner shall take the nationality of her husband”). See also Mackenzie v. Hare, 239 U.S. 299, 311 (1915) (upholding the constitutionality of the Expatriation Act).

[39] Cable Act, ch. 411, § 3, 42 Stat. 1021, 1022 (1922). This Act did not apply to women who married men unable to naturalize; these women still lost their citizenship. Volpp, supra note 33, at 433 (noting this group was primarily Asian men).

[40] Tied up in nineteenth-century notions about female loyalty and duty was the view that women were a civilizing influence and that they could help alleviate the threat of lawless or shiftless men. In the immigration context, wives were also seen as reducing the perceived racial purity threat posed by unmarried foreign-born men. Female immigrants tended to marry men of the same ethnic backgrounds while foreign-born men often did not. Consequently, foreign wives and fiancées reduced the number of foreign men marrying American-born women (particularly those of a different ethnic background) and were viewed as a solution to an immigration threat rather than contributing to it. For example, one study on German immigration between 1870 and 1910 noted “among immigrants who were single at migration, endogamy registered around 95% for German women, while it fluctuated closer to 50% for German men.” Donna Gabaccia, Seeking Common Ground 71–72 (1992).

[41] Under the Quota Act, immigrant wives were considered non-quota immigrants while immigrant husbands only received preferential status. Quota Act, ch. 190, §§ 4(a), (d), 13(c), 43 Stat. 153, 155, 162 (1924) (exempting wives and fiancées from race-based and national-origin immigration restrictions).

[42] The initial act was passed in 1945 and was amended in 1947 to make exceptions for racially excludable wives. In addition, in 1946, the Act was amended to include fiancées of war veterans. See GI Fiancées Act of June 29, 1946, ch. 520, 60 Stat. 339 (1946); War Brides Act of Dec. 28, 1945, ch. 591, 59 Stat. 659 (1945). See also Act of June 28, 1947, ch. 160, 61 Stat. 190 (1947) (extending the Attorney General’s authority to admit the fiancées of members of the American armed forces as temporary visitors); and see Act of July 22, 1947, ch. 289, 61 Stat. 401 (1947) (amending the War Brides Act).

[43] See e.g., Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 593, 614 (1991) (citing Marion F. Houstoun et al., Female Predominance of Immigr. to the United States Since 1930: A First Look, 18 Int’l Migration Rev. 908, 909 (1984)); Nancy Root & Sharyn Tejani, Undocumented: The Roles of Women in Immigration Law, 83 Geo. L.J. 605, 613 (1994) (noting that “women account for the majority of spouse-based immigration”); Katherine Donato & Donna Gabaccia, Gender and Internal Migration 26 (2015) (noting that “heavily female migrations to the United States are from countries with major U.S. military bases, suggesting that family formation and unification…offer a powerful explanation for feminization”); and Ariel G. Ruiz et al., Immigrant Women in the United States, Migration Pol’y Inst. (Mar. 20, 2015), http://www.migrationpolicy.org/article/immigrant-women-united-states (noting men tend to immigrate for work and are a higher percentage of the undocumented population).

[44] See, e.g., Congr. Budget Office, Immigration Policy in the United States: An Update (2010) (demonstrating that the majority of immigration is family based).

[45] See, e.g., Stephen H. Legomsky, Immigration and Refugee Law and Policy 131 (2d ed. 1997) (stating that immigration laws enacted in 1952 promoted, for the first time, a comprehensive group of preferences in support of family unity).

[46] Immigration and Nationality Act § 101(a)(15)(K)(i), 8 U.S.C. § 1101 (2012).

[47] Spouses of citizen are non-quota immigrants while spouse of LPRs receive preference. See 8 U.S.C. § 1151(b) (2012) (noting the aliens not subject to numerical limitations). See also Peter H. Schuck, The Re-Evaluation of American Citizenship in Challenge to the Nation-State: Immigration in Western Europe and the United States 191, 205 (Christian Joppke ed., 1997) (“‘[I]mmediate relatives’ of citizens receive a preferred immigration status without regard to numerical quotas, and citizens’ siblings and adult children have a preferred status under the numerical quota system. In contrast, the spouses and unmarried children of resident aliens qualify for a numerically limited preference, and their siblings receive no preference at all.”).

[48] Some of these include the K-1 fiancé visa, 8 U.S.C. § 1101(a)(15)(K) (2012); U visas, 8 U.S.C. § 1101(a)(15)(U) (2012), for spouses that have been subject to domestic violence by a U.S. citizen or permanent resident; and the V visa, 8 U.S.C. § 1101(a)(15)(V) (2012), for spouses and minor children of permanent residents who have been waiting more than three years for admission (these spouses are not normally exempt from the yearly quotas).

[49] Spouses of U.S. citizens need only wait three years after receiving a green card before applying for citizenship rather than the normal five. INA § 319(a), 8 U.S.C § 1430(a) (2012).

[50]The feminization of immigration is not universal. As immigration scholar Donna Gabaccia has noted, “In none of the other major receiving nations, for example Canada, Australia, New Zealand, and Israel, does this pattern prevail.” Gabaccia, supra note 40, at 25.

[51] See, e.g., Sabrina Balgamwalla, Bride and Prejudice: How U.S. Immigration Law Discriminates Against Spousal Visa Holders, 29 Berkeley J. Gender L. & Just. 25, 32 (2014) (“[A]lthough the INA provisions are now gender-neutral on their face, most family-based immigrants are still women.”). See also Silvia Pedraza, Women and Migration: The Social Consequences of Gender, 17 Ann. Rev. Soc. 303, 306 (1991) (summarizing literature attributing global female migration, including to the U.S., to family relationships).

[52] See, e.g., Martha L. A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 Va. L. Rev. 2181, 2182 (1995) (suggesting that immigration law replicates the antiquated gender norms of coverture by recreating the traditional conception of the family; one that is headed by a husband who “performs as the head of the household, providing economic support and discipline for the dependent wife and children, who correspondingly owe him duties of obedience and respect).” See also Balgamwalla, supra note 51, at 31 (arguing “that the rights of immigrant women, including dependent spouses, are still limited by regulations that uphold antiquated gender norms”).

[53] United States v. Virginia, 518 U.S. 515, 533 (1996). Since the 1970s, the Court has repeatedly held sex-based distinctions based on presumed societal roles are highly suspect. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 682–83 (1977); Craig v. Boren, 429 U.S. 190, 198–99 (1976); Reed v. Reed, 404 U.S. 71, 76–77 (1971).

[54] 137 S. Ct. at 1700-01.

[55] In a 2016 interview Bill O’Reilly asked Trump, “You want to profile Arab or Muslim men. How would that work?” To which Trump replied, “Well, we have no choice.” See Aaron Blake, Donald Trump Doesn’t Call his Position Racial Profiling. It is., Wash. Post: The Fix (Sept. 20, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/09/20/donald-trump-doesnt-call-his-position-racial-profiling-it-is/?utm_term=.8bfa614cb43a.

[56] The focus on Arab men, particularly in relation to women, can be seen in the fact that the travel ban contains a provision for the study and publication of information about honor killings in the U.S. The purpose of this provision is not a concern about domestic violence. The administration has slashed the budgets of other domestic violence programs, ones that affect far more women. According to a 2014 study, there are fewer than thirty honor killings a year while more than 1,500 women are murdered as a result of general domestic violence. Given these numbers, the administration’s focus on honor killings is clearly an attempt to cast Muslim men, particularly those in close family relationships, as especially dangerous. See Jesse Singal, Here’s What the Research Says About Honor Killings in the U.S., N.Y. Mag.: Daily Intelligencer (Mar. 6, 2017), http://nymag.com/daily/intelligencer/2017/03/heres-what-the-research-says-about-american-honor-killings.html.

[57] 135 S. Ct. 2128, 2132 (2015).

[58] 338 U.S. 537 (1950).

[59] Id. at 551 (Jackson, J., dissenting)

[60] Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 960–64 (1995).

[61] Id. at 550 (Jackson, J., dissenting)

[62] Weisselberg, supra note 60, at 958–59.

[63] See generally Ellen Raphael Knauff, The Ellen Knauff Story (1952).

[64] Weisselberg, supra note 60, at 962–64.

[65] Chad, which is Muslim majority, was also added to the list, while Sudan was dropped. In addition, unlike earlier versions of the ban, this one has no set expiration date although it must be reviewed every 180 days. See Peter Margulies, Travel Ban 3.0: The Hawaii TRO is Right on the Statute, Lawfare, (Oct. 17, 2017, 8:20 PM), https://www.lawfareblog.com/travel-ban-30-hawaii-tro-right-statute.

[66] Judge Theodore Chang of the Maryland District Court issued a nationwide TRO of the ban based on a finding that it violated the Establishment clause. Steven Dinan, Judge Theodore D. Chang Rules Against Donald Trump’s Muslim Ban, Wash. Times (Oct. 18, 2017) https://www.washingtontimes.com/news/2017/oct/18/judge-theodore-d-chang-rules-against-donald-trumps/. See also Marjorie Cohen, Trump’s Muslim Ban 3.0 is Still Unconstitutional, Salon (Oct. 2, 2017, 3:58 AM) https://www.salon.com/2017/10/02/trumps-muslim-ban-3-0-is-still-unconstitutional_partner/ (quoting Becca Heller, director of the International Refugee Assistance Project, stating “‘Of [the newly added] countries, Chad is majority Muslim, travel from North Korea is already basically frozen, and the restrictions on Venezuela only affect government officials on certain visas.’ She added, ‘You can’t get any more transparent than that.’”).

[67] Judge Derrick Watson of the Hawaii Federal District Court found the ban “plainly discriminates based on nationality” and as a result, violates 8 U.S.C. § 1152(a)(1)(A) which prohibits discrimination based on national origins in the issuance of immigrant visas. See Dahlia Lithwick, Trump’s Travel Ban Gets Blocked Again (Again), Slate (Oct. 17, 2017, 5:37 PM) http://www.slate.com/blogs/the_slatest/2017/10/17/federal_judge_temporarily_blocks_trump_s_latest_travel_ban.html.

[68] The 9th Circuit Court of Appeals recently upheld the Honolulu District Court’s ruling that the travel ban was unconstitutional. However, that ruling has been put n holding pending an appeal to the Supreme Court. In addition, the Supreme Court has also ruled that the travel ban may be enforced while legal appeals are pending in the various lower courts. Max Greenwood, 9th Circuit Rules Against Trump’s Third Attempt at Travel Ban, The Hill (Dec. 22, 2017) http://thehill.com/homenews/administration/366268-9th-circuit-rules-against-trumps-third-travel-ban.

[69] The ban also includes a number of other changes from the previous version including providing reasons for banning entrants from certain countries and treating different countries differently. Together these changes may make the ban constitutionally permissible. See Elie Mystal, Travel Ban 3.0 Could Work, Slate (Sept. 26, 2017, 3:01 PM) http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/trump_finally_achieved_a_patina_of_legalism_in_his_new_travel_ban_to_cover.html (explaining why this version of the ban is “probably going to be considered legally fine”).

[70] The inclusion of North Korea and Venezuela is unlikely to change this fact. Regardless of the ban, travel from North Korea was already exceedingly rare and the restrictions on travel from Venezuela are limited to a small group of governmental officials traveling on specific visas. See Cohen supra note 68.