Jared Culver's Picture


  by  Jared Culver

Mayorkas and company are at it again with perhaps their most brazen attempt to dismantle immigration enforcement yet. This time it is a United States Citizenship and Immigration Services (USCIS) policy memo that effectively repeals a statute designed to deter illegal immigration into the United States. Because, of course, we all know the best time to remove all deterrence of illegal immigration is when you are experiencing the worst immigration crisis in the country’s history.

The statute in question establishes a 3 and 10 year bar, respectively, for aliens unlawfully present in the United States. The statute says:

(B) Aliens unlawfully present

(i) In general

any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) 3 of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,

is inadmissible.”

In summary, if an alien remains unlawfully present in the United States for 180 days or more they are inadmissible to the United States for either 3 or 10 years from the date of departure or removal. This is clearly designed to deter illegal immigration by adding a strong punishment. If aliens are coming to the United States illegally thinking it is a golden ticket to stay permanently, this statute can disabuse them of that notion. But that only works if it is being faithfully enforced by the current presidential administration that is required by the Constitution to enforce it.

Which brings us to the rubber meeting the road moment, wherein USCIS discards the laws of Congress with the flick of a pen. We can start with quoting USCIS on what they are doing:

“Explains that USCIS does not consider a noncitizen who has accrued more than 180 days of unlawful presence and has departed or been removed (whichever applies) inadmissible under INA 212(a)(9)(B) unless the noncitizen again seeks admission to the United States within the statutory 3-year or 10-year period after departure or removal (whichever applies) following accrual of the requisite period of unlawful presence.

States that the statutory 3-year or 10-year period begins to run once the noncitizen departs or is removed (whichever applies) and continues without interruption from that date until 3 or 10 years after such departure or removal.

States that a noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility under INA 212(a)(9)(B).”

To translate this into plain language, USCIS is stating as a matter of policy that the 3-year and 10-year bars are not actually bars at all. They are saying an illegal alien can remain unlawfully present in the United States while the statute has barred them from being admitted. And their continuing unlawful presence (which itself is the trigger of the bar in the first place) is, in the words of USCIS “irrelevant” to determining their inadmissibility. In practical terms, an illegal alien can remain in the United States while they wait for the end of their statutory bar from being in the United States. We are falling into an intricate Alice in Wonderland trap of contradictory lines of illogic weaved by Mad Hatter Mayorkas..

USCIS admits to breaking new ground. This statute has been around for decades and this is the first policy memo addressing this interpretation:

“USCIS has not previously issued guidance on this specific issue in a policy memorandum, the Adjudicator’s Field Manual, or the Policy Manual. USCIS is now issuing this policy guidance to memorialize clear, express, and public-facing policy guidance in the Policy Manual regarding the impact of returning to the United States during the statutory 3-year and 10-year periods of inadmissibility under INA 212(a)(9)(B). This policy guidance, which is consistent with two recent district court decisions and an unpublished BIA decision on this issue, will ensure efficient and consistent adjudication in such cases, and enable the government to preserve significant resources.”

Their justifications for this interpretation are that it creates “efficient and consistent adjudication” and that it will “preserve significant resources.” They also say it is consistent with recent district court decisions. Now they are listening to recent district court decisions. I wonder when we get policy memos to reflect the string of district court judges that have enjoined or vacated multiple Biden Administration immigration actions as plainly unlawful? I will not be holding my breath.

However, since USCIS cites a 2020 district court case in justification for a nationwide policy memo it is helpful to see what amazing legal reasoning is now used as the USCIS policy guidance. The case is Neto v. Thompson, 506 F.Supp.3d 239 (D.N.J. Dec. 10, 2020). Neto entered the United States on a tourist visa in 1993 and overstayed. He was ordered removed in 1994, but did not depart until six years later in 2000. He was admitted to the United States again in 2002 after allegedly not disclosing the fact that he had been in the United States illegally for six years. Once he arrived in 2002, Neto never left the United States. Remarkably, even though he had flouted immigration law basically since 1994, Neto applied for adjustment to legal permanent residence status in 2016. From this immigration backstory, the judge decided:

“If Congress wanted to say that the past act of having sought admission within the 10-year period renders an alien inadmissible forever after, as the Service would have it, Congress could have said "seeks admission or has sought admission." Because Congress did not do that, and because reading inadmissibility in conjunction with the present tense of "seeks admission" is more natural, I reject the Service's reading of the statute's text. The text of the statute, then, most naturally reads as a categorical bar to admissibility which applies for 10 years after the alien departed, but not thereafter. As to comings, goings, or other events during that 10-year period, the statute is silent.”

First, let’s start with a brief aside before examining the reasoning. USCIS, in the policy memo enshrining this opinion, stated that while this memo was the first time addressing this statutory question, they did not make clear that the memo was changing their prior practice. It is clear from the case they cite that USCIS interpreted the statute for years as barring actions like Neto and clearly took unlawful presence as relevant.

Second, let’s look at the chain of reasoning. The judge USCIS is citing even knows how absurd the ramifications are:

“Now admittedly, this specific situation may not have been addressed by the statute's drafters. Applying the statute literally to this situation may even be bad policy. If so, the legislature, not the court, should fix it.”

Always a great thing when the judge USCIS is citing in their policy memo admits his logic is “bad policy.” So now we have non-binding judge-admitted “bad policy” as binding official USCIS policy. During the case, both the judge and USCIS agreed that it was bad policy to let Neto skate by the statute, but the judge said Congress made him do it and now USCIS is saying the judge made them do it. The end result is we will get more and more Neto migrants that can remain in the United States unlawfully for years with the end result being the benefit of legal permanent residence. Hurray?

It is all the more frustrating because this is clearly unreasonable as an interpretation of the statute. Even if you agree with the judge and USCIS that the statute itself does not expressly discuss situations precisely like Neto’s, that does not mean we cannot apply the law’s tenets to his specific case. The 3-year and 10-year bar are designed to add penalties to unlawful presence to discourage aliens seeking unlawful presence. The law expressly bars admission of aliens for 3 or 10 years. If the statute is interpreted such that an alien can remain in the United States unlawfully while they wait for the time limit on their bar to expire, then the foundational purpose of the statute is defeated. Yet that is what the judge, and now USCIS claim Congress did. Essentially, the court and USCIS have interpreted the bars as surplusage and void of any actual meaning. The statute that bars admission to illegal aliens as punishment for accruing unlawful presence actually does nothing to deter or punish accruing unlawful presence. USCIS is tumbling down the rabbit hole with glee.

Alternatively, you could try and interpret the statute in a manner that still provides it with force and effect, even though Congress did not anticipate every eventuality within the language. You could start with the context of the immigration laws as a whole. Within a context of a complicated and comprehensive enforcement scheme, it is impossible to conclude that unlawful presence is ever irrelevant. While our laws have exceptions where illegal aliens can request waivers from removal, seek parole, and claim asylum to avoid removal, it is not the case that, prima facie, being in the United States illegally is irrelevant. Concordantly, being in the country illegally renders aliens inadmissible and deportable. So, why, within this statute where unlawful presence is being punished, would Congress draft it so that unlawful presence is irrelevant? The obvious answer is that they clearly did not. Saying otherwise leads to voiding the statute and causing absurd results.

Then why is USCIS issuing a nationwide policy memo based on a non-binding judicial opinion that the judge himself was clearly ambivalent about? Why change course based on such a thin reed of justification? This goes back to the principle that is informing all of the Biden Administration: That our immigration laws are immoral. Remember the ICE enforcement priority memos where Secretary Mayorkas said “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them?” From that tiny acorn, the mighty oak grows. Now, it is official policy that being in the country illegally both does not warrant removal nor does it warrant a bar on admissibility. The statutes that say otherwise are morally deficient in the eyes of Secretary Mayorkas and his minions and thus unenforceable.

There are a multitude of legal problems that hopefully will get resolved in a lawsuit. For one, this is a major policy change expanding eligibility for admissibility such that USCIS must go through the mandated Administrative Procedures Act (APA). The Supreme Court stopped the Trump Administration from acting merely because they didn’t explain their reasoning well enough and didn’t adequately consider alternatives. Under that precedent, this policy memo is doomed. Second, it is clearly ignoring the statutes and their plain meaning within the broader context of the statutory enforcement scheme. Third, the statutory interpretative method employed to reach this absurd conclusion impermissibly turns the statutory language into surplusage. Finally, we also see USCIS claiming that this policy change is justified because it preserves resources without any elaboration on how it would do so. Taken on its face, the new policy will actually make more illegal aliens potentially admissible which requires more resources used by USCIS to adjudicate more applications. How does creating more work for USCIS, in defiance of the law, preserve resources?

So there is good reason to believe this memo won’t survive serious judicial review. The courts cannot keep up with the dizzying pace of Biden’s unlawfulness, but when they catch things like this it has not gone well for the government. The more concerning question regards the Biden Administration’s zeal. The bold and brazen repeal of immigration enforcement persists despite all evidence of the consequences. They are actually still saying with a straight face, and sometimes under oath, that the border is secure and they are enforcing our laws faithfully. It is increasingly clear that the migrants flooding the border don’t believe it and the polls suggest a significant majority of Americans have a different idea of what a secure border means. However, no amount of death, drugs, and sexual assaults seems to shake the fanatical devotion to open borders that has enthralled President Biden and Secretary Mayorkas.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Wed, Jul 13th 2022 @ 3:13pm EDT

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