Author: Arthur Lee

As published in the Immigration Daily on January 11, 2021

Notwithstanding the debacle in the Capitol this past week and fears that an unstable president will unleash actions to further endanger or divide the country during his last nine days in office, the victory of the Democrats in the two senatorial races in Georgia promises hope to immigrants as well as others affected by the steady parade of regulations that the Trump administration has been marching out in the last months.

Some of the regulations that could be canceled under the Congressional Review Act or an immediate regulatory freeze are the H-1B rule tying lottery selection to highest wages offered (86 FR1676 finalized on 1/8/21 with implementation date of 3/9/21); the no traditional administrative closure rule as used by immigration judges and the BIA despite over 1 million plus pending asylum cases (85 FR 81588 in effect on 1/15/21); the DHS/ EOIR joint rule tying eligibility for asylum to health concerns as affecting the security of the US (85 FR 84160 effective 1/22/21); the DHS/DOJ joint rule barring asylum to those who transit third countries without applying for asylum in one of the countries (85 FR 82260 effective 1/19/21); and the USCIS/EOIR rule imposing seven mandatory bars on asylum (85 FR 67202 effective 11/19/20).

1. The Congressional Review Act:

The Congressional Review Act, established in 1996, allows a joint resolution of Congress to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. Now that the Senate is in the hands of the Democrats, a simple majority of both houses of Congress allows a joint resolution of disapproval to be made and signed by the president. This is the expedited procedure envisioned by Congress in 1996 to cancel midnight regulations of the previous administration.

60 legislative days are not the same as 60 calendar days, and although the author does not have complete calendars of the days that Congress was in session in 2020, the look back conceivably affects all passed regulations since August 2020. In looking forward and seeing the Congressional calendar for 2021, and taking into account that changes can be made and that the counting of the 60 days does not begin until January 15, Congress could conceivably pass joint resolutions through April 2021. An example of the applicable timeline is that on March 27, 2017, a Department of Defense, General Services Administration, and National Aeronautics and Space Administration rule amending the Federal Acquisition Regulation (FAR); Fair Pay and Safe Workplaces (81 Fed. Reg. 58,562 (Aug. 25, 2016)) was overturned (see Pub. L. No. 115-11 (March 27, 2017)).

The Act can also be used to nullify other agency memos, guidance documents, statements of policy, and interpretive rules that are in effect rules but were never submitted to Congress. In such case, the General Accountability Office (GAO) would verify that such qualify as rules, and Congress then has 60 legislative days to pass a joint resolution of disapproval. This is another tool by which agency rulemaking without going through the regulatory process during the Trump years can be further nullified. Since a “rule” is not legally a rule without being submitted to Congress, another choice of the Biden administration in that situation would be to publish a notice that the rule not being in effect is being withdrawn or abandoned.

2. The Regulatory Freeze:

Implementation of a regulatory freeze on January 20, the day of inauguration, would immediately stop whatever regulations have not yet been finalized as of that date. Jen Psaki, a Biden spokesperson, said that the Biden-Harris White House would issue a memo to take effect on the afternoon Eastern time on January 20 to halt or delay midnight regulations, actions taken by the Trump administration that will not have taken effect by Inauguration Day. If it is similar to the memos put out by Rahm Emanuel in January 2009 and Reince Priebus in January 2017, the memo would have three components:

• Subject to some exceptions for emergencies, no regulation should leave the Office of Information and Regulatory Affairs (OIRA) or agencies to be published in the Federal Register.
• For regulations sent for formal publication, they should be withdrawn and reviewed.
• For recent regulations that have been published, temporarily postpone the effective date by 60 days, subject to certain exceptions. In addition, agencies should consider proposing for notice and comment a rule to delay the effective date beyond 60 days.

With reference to published regulations yet not implemented, an agency like DHS could temporarily postpone the effective date of the regulation by 60 days while reopening the regulation for further notice and comment, and upon receiving comments, either withdraw the final rule or extend the effective date of it.

3. The Dawn of a New Day?

Joe Biden and Kamala Harris have great opportunity early in the administration to capture many goals, especially with Republican legislators not so beholden to Trump and his agenda after the bloodshed and violence incited by the president against the Congress on January 6. Memories are short, however, and action should be quick as Republican legislators voicing outrage now may be less inclined to go against the Trump agenda dependent upon time and Trump’s ability to hold onto his base. Also the Democrats’ hold on power in the Congress is tenuous, one vote in the Senate and a few votes in the House. A major difficulty of introducing any bill related to immigration now of course is the pandemic and the ability to move the legislation in the face of an out-of-control pandemic and so many Americans out of work. The question is also whether the Democrats can have a united caucus in both houses of Congress on immigration issues. Added into the mix on employment-based matters is the willingness of the Biden administration to rescind the Trump changes given that Democrats in the past have been the party sounding the clarion call against foreigners taking jobs in this country. The recent designation of Boston mayor Marty Walsh, a former union leader, to become the Secretary of Labor is not inspiring as he has been described as a “lifelong champion of the working people.” The lessons of the past, however, have shown that the best chances for immigration reform success are in the first days of an administration. So we urge the Biden administration to take its cue from history and act accordingly – not just on the huge ticket items of legalization for 11 million undocumented immigrants and a pathway to citizenship for the Dreamers, but also on the smaller items such as outlined above.

 

As published in the Immigration Daily on October 27, 2020

Many deportable aliens utilize voluntary departure as a form of relief that allows them to leave the U.S. on their own in order to avoid the stigma of an order of removal on their record and certain bars to readmission, and eliminate risk of detention prior to departing the U.S.. During ordinary times, it is reasonably easy for a noncitizen who agreed to voluntary departure to leave the country within the time allowed to depart. As such, the penalties for not departing on time are understandably unforgiving. However, the U.S. government should consider leniency toward those who were granted voluntary departure during the time of coronavirus and not able to leave on time despite their best efforts.

Voluntary departure was codified in 1940 to help the U.S. government reduce costs on litigation by giving certain aliens an option to leave with less consequences on their future applications for immigration. Immigration Judges were given authority to schedule the alien’s departure date. When IIRIRA passed in 1996, IJs were divested of discretion in setting departure dates, and could only give a maximum of 120 days to an alien to depart under voluntary departure. This change was made with the goal of speeding up removal proceedings.

If an alien fails to depart by his/her voluntary departure deadline, he/she faces a plethora of harsh penalties including a final order of removal, civil fines of up to $5,000 and ineligibility for, among other things, adjustment of status, further voluntary departure, and cancellation of removal for 10 years. These severe penalties were enacted to deter aliens from violating their voluntary departure orders, and conceived in the context of relatively normal times where it would be easy to find a way out of the United States, and a failure to leave except for severe medical reasons was often viewed as a person flouting court orders and not making a legitimate effort to depart. In 2019, the last “normal” year, for instance, there was an average of 188,901 flights per day around the world. The world was inter-connected, and if one’s goal was just to leave the United States, that was easy to do. This would have certainly been doable in a 120 day period barring exceptional circumstances. By contrast, in 2020, many countries have closed or severely limited their borders to mitigate the spread of the virus. The number of daily flights cratered to approximately 64,523 on March 29 of this year with many cancellations due to travel bans and lack of passenger demand. Last minute cancellations on flights have become very common, and countries have enacted travel bans—some changing with high frequency so passengers could not know for sure whether they would be able to take their desired route until the day they board their flight. During the global peak of the pandemic, many countries did not even allow nationals of other countries to transit through their airports to reach a certain destination. As such, those with connections were often not allowed to board their flights as they would not be able to land at their connecting stops. Also, many countries, such as China, had and continue to have policies discouraging their nationals from moving back home during the pandemic. All of these factors have created an environment in 2020 in which departing the United States is far more difficult than any other time since the introduction of voluntary departure.

Since March 2020, booking a flight out of the U.S. and getting on it successfully has become a challenge layered with not only unpredictability but exorbitant costs. Take, for example, a national of China given 120 days to depart the U.S. in mid-February. In February, China and many other regions of Asia were the coronavirus hot spots. That national, very reasonably, could have decided to wait until the virus came diminished in China before departing the U.S.—as such, he/she would have pushed the booking window to sometime in April-June 2020. Then, once this national saw that the COVID situation in the U.S. became worse than that of China in March-April, then he/she decided to book a flight to China. To his/her dismay, the flight to China was canceled by the airline last minute as the flight operator decided to eliminate some flights due to lack of demand and budget cuts. Or perhaps the Chinese government compelled the airline to cancel that flight as it wanted to reduce flights from outside of the country to prevent the spread of the virus. Regardless, now it is May 2020 and he/she is stuck without a flight. He/she then books a flight to China leaving at the beginning of June, transiting through Taiwan (direct flights to China were already scarce at this time). However, the day before his flight, he/she is informed by the airline that he/she would not be able to get on the flight to transit in Taiwan because Taiwan is not accepting transit passengers. It is late May, and the Chinese national is stuck without a flight. At this point, his/her options are very limited. Chinese nationals are generally not allowed entry to many countries without visas (this is the case for the nationals of many countries). He/she must now fly to a country which will allow a Chinese national without a visa, and is allowing transit or entry during the coronavirus. At this point, all direct flights to China are booked out. All routes through connecting third countries must be researched as to whether they would allow a Chinese national to transit—and flights through countries that would allow transit are all booked out. At this point, the only options for this Chinese national are to fly to a country that would allow Chinese nationals without a visa, and would not bar him/her due to coronavirus restrictions. The option is to pay an exorbitant price to fly to a third country, one in which the Chinese national is a stranger, and in which he/she would not be able to get around. The options are therefore to either jeopardize safety in flying to unfamiliar territories or missing the voluntary departure date.

Voluntary departure was never intended to be such a challenge to a noncitizen to make the date or be barred from most forms of immigration relief for 10 years. Rather, it was seen as a plea deal option to expedite the country’s removal operations and provide a reasonable solution for a noncitizen to depart on his or her own to avoid many of the consequences of a deportation. In 2020 during the pandemic, departure from the country is a significant challenge on its own marred with unpredictability, cancellations at no notice, ever-changing travel rules of all countries, and exorbitant cost. As such, failure to meet the 120 day voluntary departure deadline during the COVID-19 pandemic should be forgivable, and certainly should not carry such harsh penalties as the inability to gain most immigration benefits and relief for the next 10 years, so long as the noncitizen is able to show that he or she undertook a good faith effort to leave on time.

The authority to alleviate the consequences of a violation of voluntary departure under the circumstances lies with Congress which wrote the law, the President through a possible executive order (since we have seen many statutes “trumped” by executive order in the past few years), or by DHS itself in extending an individual’s time to depart the US through devices such as satisfactory departure or deferred departure and divorcing the VD penalty until the end date of the other program’s extension. By whichever method, the present situation, although admittedly not affecting millions of people, should not stand.