Judge grants a Preliminary Injunction barring DHS from ordering one of our clients removed while their lawsuit is pending in what it is a BIG WIN for the Immigration Law Office of Los Angeles, but most importantly, for the numerous other persons around the country whom USCIS has denied adjustment of status on the same grounds.
Whenever literal application of the law, no matter how unreasonable, undermines the hopes and dreams of a potential immigrant, the United States Citizenship and Immigration Services (USCIS) is always quick to say that it’s only enforcing the law as its written. But if it’s written in such a way that someone can actually obtain some benefit the government doesn’t want them to have, then the agency’s response is often to say “forget what’s actually written – the law means what we say it says. And what we say it says is that ‘You Lose!’”. We could offer many examples of this, but a particularly egregious one is section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act. This section provides that a person who is unlawfully present in the United States for a year or more, then departs, will be inadmissible for the next 10 years following her departure. Fair enough. But what happens if someone is unlawfully present for a year or more, leaves the US, and then, for some reason, is admitted back into the country less than 10 years after leaving, waits, and then applies for adjustment of status after 10 years have passed since her last departure? A literal reading of the plain language of the statute gives a clear answer: it’s been more than 10 years since his last departure from the United States so he is no longer inadmissible and, if otherwise eligible, can be granted adjustment of status.
This is where the USCIS invariably steps in and says “hold on, we don’t care what the law actually says. WE say it means that only if you entered with a waiver or parole are you no longer inadmissible 10 years after departure. Otherwise you remain inadmissible to the United States until you spend 10 years OUTSIDE the country, regardless of what the law actually says.” This is such a common ground of denial of adjustment of status that just this year alone our office has had two such cases. One of them decided she wasn’t going to accept USCIS’ nonsense reading of the statute and authorized us to sue upon her behalf in federal court.
Immediately however, we faced a severe procedural problem. Our client entered the United States with a visa waiver. Since her 90 day period of stay in the US expired many years ago, she could be arrested and put on the plane back to her home country at literally any moment, Worse, due to the visa waiver program’s notorious requirement that anyone entering the US with such a waiver gives up their right to contest a removal order (the “no contest clause”), she probably couldn’t even ask a judge to stop that removal long enough for the courts to decide whether she had been properly denied adjustment of status. Worse still, once removed, she would have a second and more recent departure from the United States, and therefore be inadmissible for ANOTHER 10 years! Therefore it seemed likely that if we sued the USCIS, the Department of Homeland Security (of which USCIS is, of course, a component) would simply order her removed (without even giving her hearing before an immigration judge, as it can for visa waiver overstays), thus mooting her lawsuit. And again, due to the “no contest clause”, there was probably nothing we could do about it.
Having thought about this we came up with what might seem to be an unlikely solution. The “no contest clause” prohibited a person who entered the United States on a visa waiver from fighting a removal order, once it was issued against her, but nothing prevented her from asking a court to stop a removal order from being issued in the first place. Of course, normally even asking a court to stop the Department of Homeland Security (DHS) from doing something requires that it be given advance notice of your request , once more practically inviting the DHS to issue the removal order before a court could stop it. The only solution we could see was to seek an “Ex Parte Temporary Restraining Order” asking the judge to stop the DHS from ordering our client removed without even telling it about it. I knew that it would be considered unusual and extreme to ask a judge to issue an order without notice to the US government. I wondered if we would find a judge unconventional – and brave – enough to do it.
Fortunately, we did find such a judge in Consuelo B Marshall, an 83-year-old senior United States District Judge of the United States District Court for the Central District of California who had been appointed by then Pres. Jimmy Carter way back in 1980. This judge agreed that since we had “raised a substantial question going to the merits” of whether our client was eligible for adjustment of status, and that the client would lose her chance to have her case heard if she was removed before that issue could be decided, Judge Marshal would grant an ex parte temporary restraining order prohibiting DHS from ordering our client removed pending a hearing on our request for a preliminary injunction ( asking that the DHS be barred from removing our client until there was a decision on her lawsuit).
Restraining order in place, we then moved to a preliminary injunction. The attorneys for the government trotted out the same lame arguments upon which the USCIS had based its decision, and which the judge had already rejected in issuing a temporary restraining order. Therefore it was both amazing and yet not surprising that on August 20, 2020, Judge Marshall issued a decision rejecting the government’s arguments again as being against the plain language of section 212(a)(9)(B)(i)(II). The Judge held that we were likely to prevail in our argument that a person who remains unlawfully in the United States for over a year and then departs is inadmissible only for the 10 years following that departure, even if she has spent most of it in the United States.
Still, although we’ve now won two battles, we won’t have officially won the war until the judge rules upon our motion for summary judgment and finds that the denial of our client’s application for adjustment of status was not in accordance with law and sets it aside, directing the USCIS to go back and make the decision again correctly. Further, even if she does issue such an order, the government always has the right, (as we would if the decision were unfavorable) to appeal to the Ninth Circuit Court of Appeals. But we don’t expect the government to do this since it generally does not do well in that court and a decision against it on this issue would be binding on the USCIS throughout the jurisdiction of the Ninth Circuit, which includes most of the Western United States.
We believe that our experience demonstrates the absolute necessity of not accepting nonsensical USCIS decisions as final. It is time to teach the agency that the law says what it says even when that law is favorable to immigrants. Only through a concerted effort to seek judicial review of improper USCIS decisions will we force it to obey the law.