New York Law School

Art Leonard Observations

Posts Tagged ‘Immigration and Nationality Act’

Trump Administration’s 11th Hour Attempt to Restrict Refugee Claims Blocked by Federal Court

Posted on: January 9th, 2021 by Art Leonard No Comments

The Trump Administration’s last-minute rulemaking on refugee law hit a roadblock on January 8 when a federal district court in San Francisco granted a request from organizations that represent refugees to issue a nation-wide preliminary injunction that will stop the rule from going into effect as scheduled on January 11.  District Judge James Donato found that the plaintiffs are likely to prevail on their claim that “Acting” Secretary Chad Wolf of the Department of Homeland Security (DHS) did not have the authority to approve the rule because he was not validly appointed to that position.  The court will schedule a hearing soon to consider the plaintiffs’ further argument that the rule violates the Administrative Procedure Act and is inconsistent with federal immigration statutes and treaty obligations.  Pangea Legal Services v. U.S. Dept. of Homeland Security, No. 20-cv-09253-JD; Immigration Equality v. U.S. Dept. of Homeland Security, No. 20-cv-09258-JD.

The federal Immigration and Nationality Act authorizes asylum in the United States for any foreign national found to be a “refugee,” which includes any person who cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Determining who qualifies as a refugee is up to the Secretary of Homeland Security or the Attorney General.  During the Clinton Administration, Attorney General Janet Reno formally signified that people who suffered persecution on account of their sexual orientation could be considered members of a “particular social group” and since then many LGBTQ people have been awarded asylum in the United States, which allows them to live and work here, to travel abroad and to return.  Those who do not qualify for asylum may avoid being removed from the U.S. by showing that their “life or freedom would be threatened” in their home country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” a status referred to as “withholding of removal.”

In addition, the United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  No party to the treaty “shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.”  In some cases, LGBT petitioners have been able to claim protection under this Treaty due to the severe mistreatment of LGBTQ people in their home countries.

As part of its general policy of reducing the flow of people from other countries into the United States, the Trump Administration has promulgated a variety of policies formally approved by Chad Wolf, all of which are under attack in the courts.  Last June 15, DHS and the Justice Department published a notice of proposed rulemaking in the Federal Register, purporting to establish new rules intended to “streamline” the process of dealing with refugee applicants.  As usual with this Administration, “streamline” is a euphemism for sharply restricting the ability of people to qualify as refugees.

Most harmful for LGBTQ applicants is that the rule would eliminate all gender-based refugee claims, would drastically tighten the list of circumstances under which somebody who came to the U.S. without a visa issued by the State Department could claim refugee status and seek to remain here, and would apparently do away with the class of situations where the persecution is perpetrated by non-governmental actors.  Despite the complexity of the proposed rules, which took up 43 pages of small-type text in the Federal Register, only 30 days were given for public comment.  Judge Donato notes that over 87,000 comments were submitted “and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”

Despite the flood of adverse comments, DHS and DOJ published a final rule in the Federal Register on December 11 that is “substantially the same” as the June 15 proposed rule, and set it to go into effect in one month.  The plaintiffs in this case promptly filed their lawsuits, two of which are combined before Judge Donato.  Immigration Equality, an LGBT rights organization, is one of the lead plaintiffs, with Lambda Legal and private attorneys helping to litigate the case.  The plaintiffs promptly filed a motion to stop the new rule from going into effect while the litigation proceeds.

In granting the motion, Judge Donato described the odd way the Trump Administration failed to comply with established procedures for designating the Secretary of DHS.  By statute, the DHS Secretary is to be nominated by the President and confirmed by the Senate, but the last person confirmed by the Senate, Kirstjen Nielsen, resigned effective April 10, 2019, and no new Secretary has been confirmed.  Under existing rules, Christopher Krebs, the Director of Cyber Security and Infrastructure Security, was supposed to become “Acting Secretary” and the President was to send the Senate a nomination for a new Secretary to be confirmed.  Trump has frequently stated his preference for “Acting” people to head agencies so he could quickly fire them if necessary.  Trump tweeted out a statement bypassing the usual procedures, stating that Kevin McAleenan, the Commissioner of Customs and Border Protection, would be the “Acting Secretary.”  Since this was not in accord with the succession plan spelled out in a 2016 Executive Order, McAleenan’s appointment was arguably not valid.  McAleenan then adopted a succession plan in November 2019 that effectively made Chad Wolf his successor when McAleenan resigned.  Since McAleenan was not legally in his position, he did not have the authority to do this, so Wolf’s appointment is also likely invalid.

Since a new regulation requires the approval of the Secretary and there is no validly appointed Secretary of DHS, the plaintiffs have a strong argument that the regulation was not validly promulgated and cannot take effect.  At least, Judge Donato concluded, they are likely to prevail on this point when the court reaches the merits of the case.  For purposes of deciding on issuing the preliminary injunction that is all he had to decide, putting off to later the plaintiffs’ argument that the regulation is inconsistent with the statute and the country’s treaty obligation.

Judge Donato was scathing in describing the Justice Department’s attempt to justify Wolf’s authority in the face of four previous adverse decisions by federal courts.  The government filed appeals of three of those rulings but withdrew two of the appeals and one is still pending.  “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” he commented.  “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise.  It did not.”  To the judge’s apparent astonishment, the government’s attorney at the hearing on this motion, August Flentje, just argued that the prior court rulings were “wrong, with scant explanation,” which Donato characterized as a “troubling strategy.  In effect, the government keeps crashing the same car into the gate, hoping that someday it might break through.”

“A good argument might be made, at this point in time, the government’s arguments lack a good-faith basis in law or fact,” continued Donato, but he concluded it was unnecessary for him to make such a drastic finding, since his own review of the record indicates that “the latest decision before this order correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.”

This case shows the Trump Administration’s general contempt for the federal judiciary, especially (but not only) when a judge appointed by President Barack Obama (such as Judge Donato) is hearing the case.  Judge Donato found that letting the rule go into effect would irreparably harm the plaintiff organizations in their missions to represent asylum seekers, and that the balance of hardship between the plaintiffs, the government, and the public interest all tilted in favor of issuing the injunction.

Once a final regulation has been published in the Federal Register, it cannot be simply withdrawn by the next Administration, but this preliminary injunction will give breathing room for the Biden Administration’s incoming DHS and DOJ leadership to put the wheels in motion under the Administrative Procedure Act to terminate or replace it, if the court doesn’t dispose of it first by issuing a final ruling on the merits that it was invalidly promulgated.  Issuing the preliminary injunction was a promising first step.

Among the attorneys working on the case are Immigration Equality Legal Director Bridget Crawford and Executive Director Aaron Morris, Lambda Legal attorneys Jennifer C. Pizer, Omar Gonzalez-Pagan and Richard Saenz, and cooperating attorneys Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff and Austin Manes from the law firm Kramer Levin Naftalis & Frankel LLP.

Federal Court Orders State Department to Recognize Birthright Citizenship of Child Born Overseas to Married Gay Male Couple Through Gestational Surrogacy

Posted on: August 29th, 2020 by Art Leonard No Comments

A U.S. District Judge in Georgia issued a ruling on August 27 that a married male couple’s daughter, conceived through donor insemination from a donated egg with an English woman serving as gestational surrogate, should be deemed a natural-born U.S. citizen and entitled to a passport over the objections of the State Department.  The complication in this case is that the spouse whose sperm was used was not a U.S. citizen at the time, although he since has become one through the marriage to his native-born U.S. citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, 2020 WL 5059253, 2020 U.S. Dist. LEXIS 156121 (N.D. Ga., Aug. 27, 2020), presents issues similar to those in Kiviti v. Pompeo, 2020 WL 3268221 (D. Md. June 17, 2020), decided a few months earlier by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Under the 14th Amendment of the Constitution, all persons born in the United States are citizens at birth, regardless of the nationality or citizenship status of their parents.  By statute and court decision, the only people born in the U.S. who are not citizens at birth are children born to foreign diplomats stationed in the U.S. or temporary tourist or business visitors.  The citizenship of children born overseas to U.S. citizens is determined by a statute, the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending whether the child’s U.S. citizen parents are married to each other when the child is born.  One provision concerns the overseas children of married U.S. citizens, and a different provision applies if the children are born “out of wedlock.”  As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them.  If the parents are not married, at least one them who is biologically related to the child must be a United States citizen who has resided in the U.S. for at least five years.

In this case, James Mize, a native-born U.S. citizen, and Jonathan Gregg, a British native, met when Gregg moved to the U.S. in 2014 and they subsequently married.  They then decided to have a child together, and a British woman who was a friend of the couple agreed to be the gestational surrogate.  They obtained an anonymously donated egg which was fertilized in vitro with Jonathan’s sperm, implanted in their friend, who bore the child in England in 2018.  The local authorities issued a birth certificate recognizing the two men as the parents of the child, identified in court papers as SM-G.  The men had moved to England before the child was conceived.  After she was born, they applied for a U.S. passport and citizenship declaration, but the State Department refused to provide it.  The Department treated the child as if she was born out of wedlock, since her biological parents were not married to each other, and found that her biological father, Gregg, had not resided in the United States as a citizen long enough to confer birthright citizenship on her.  Mize is not her biological parent, so the Department was unwilling to recognize birthright citizenship based on Mize’s natural-born citizenship status.

These rules have proved to be a recurring issue for gay male couples who go out of the country to have children through surrogacy, as it has generated several lawsuits, and the State Department, while losing individual cases, has not modified its interpretation of the statute. Unsurprisingly, the Trump Administration has filed appeals of prior cases and there is no definite appellate interpretation yet.

Mize and Gregg sued the State Department, claiming that the denial of the passport and citizenship declaration for their daughter violated their 5th Amendment constitutional rights, violated the INA, and also violated the Administrative Procedure Act.

Meanwhile, however, because of the citizenship status eventually acquired by Gregg through his marriage to Mize, their daughter ultimately acquired naturalized citizenship as the minor child of a naturalized citizen while this case was pending, and is living with the couple in Georgia.  In addition to refusing to change its interpretation of the INA and moving for summary judgment as to that, the State Department also suggested that the case should be dismissed as moot, since the child now has a U.S. passport as a “naturalized” citizen by derivation from her biological father.

U.S. District Judge Michael Brown rejected the mootness argument before turning to the merits of the case in his August 27 opinion.  He said that the dignitary harm suffered by the men in their marriage being deemed irrelevant for the purpose of their daughter’s citizenship status at birth kept this case from being moot.

On the merits, Judge Brown pointed out that as a matter of constitutional law, under the Supreme Court’s decisions in Obergefell v. Hodges in 2015 and Pavan v. Smith in 2017, same-sex marriages are supposed to be treated the same as opposite sex marriages for all purposes of law.  They are entitled to the same rights and have the same responsibilities. However, if the INA can be interpreted to treat their daughter as a child “of the marriage,” then the provision concerning the children of married U.S. citizens would apply and there would be no requirement that the child be biologically related to both parents to be a birthright citizen, and the court would not have to address the constitutional issues.

Judge Brown found that the INA does not define what a child “of the marriage” is, leaving an ambiguity because the statutory language can be interpreted in more than one way.  If the language is interpreted as the State Department insists, he found that would raise constitutional issues under the 5th Amendment.   Federal courts apply a doctrine of “constitutional avoidance.”  They avoid having to decide questions about the constitutionality of a statute or its interpretation by the government if there is a reasonable way to interpret the statutory language to make the constitutional issues go away.

In this case, Judge Brown, in line with several prior district court decisions, concluded that such an interpretation is possible.  The Mize-Gregg marriage is valid and must be recognized by the State Department, and the process by which Mize and Gregg decided to have a child through gestational surrogacy and carried out their plan supports the argument that SM-G is a child “of” their marriage in a practical sense.  Thus, the court concluded, she was not born “out of wedlock,” and the requirement that she be biologically related to as U.S. parent with sufficient duration of residency under the “out of wedlock” provision would not apply.

Judge Brown granted summary judgment to Mize and Gregg as a matter of statutory interpretation, rendering it unnecessary to decide the constitutional questions, and he ordered the State Department to issue the documents for which the men had applied.  He dismissed the Administrative Procedure Act claim as moot.

The State Department could decide to appeal this ruling, which would be consistent with the Trump Administration’s general tendency to fall in line with efforts by Christian conservatives to chip away at the legal status of same-sex marriages.  Unsurprisingly, the Department filed an appeal of the Kiviti decision in the 4th Circuit Court of Appeals on August 14, but in the normal course of things that appeal will probably not be argued for several months and a decision would be unlikely until sometime next year at the earliest.  Meanwhile, the Trump Administration could consistently file an appeal in this case to “protect” its position about how to interpret the statute.

If Joe Biden is elected president, it is possible that the State Department would decide to protect the rights of same-sex couples and their children by revising the Foreign Affairs Manual to adopt an interpretation consistent with  the court’s rulings for the guidance of U.S. consulates and embassies that receive these sorts of applications when children are born to U.S. citizens overseas.

Immigration Equality and Lambda Legal are representing Mize and Gregg, as they are also representing the plaintiffs in the Kiviti case.