By Jordan Carlson

Eagle Pass, Texas has become the latest battleground in the perennial struggle between the federal government and the states.[1] In a January 22, 2024 order, the Supreme Court vacated an injunction that had prevented federal agents from cutting wire placed on the Texas-Mexico border by Texas.[2] The case is one of several recent disputes between Texas and the federal government.[3] However, the Supreme Court’s laconic order vacating the injunction, consisting of only fifty-five words,[4] is unlikely to shed any light on the constitutional concerns that have emerged.

Federal Prerogatives Along the Border

Control over the borders of the United States is traditionally viewed as a fundamental federal function.[5] The Constitution expressly grants the federal government the ability to establish rules regarding citizenship,[6] the power to regulate commerce with foreign nations,[7] and broad authority over foreign affairs.[8] As recently as 2012, the Supreme Court held that “the Government of the United States has broad, undoubted powers over the subject of immigration and the status of” noncitizens.[9] Consequently, in a conflict between a federal immigration law and a state law, the status quo says the conflicting state law must yield to federal authority.[10]

To enforce its immigration policies, Congress established the federal Border Patrol, a law enforcement agency under the control of the Department of Homeland Security.[11] Border Patrol agents are empowered by Congress under 8 U.S.C. 1357(a)(3), to access any private land within twenty-five miles of an international boundary for the purpose of patrolling the border and executing its functions.[12]

Operation Lone Star

In 2021, Texas launched “Operation Lone Star” to aid federal authorities, including the Border Patrol, in securing the Texas-Mexico border.[13] The operation included the placement of concertina wire along the border on known entry points for illegal migrants, including a twenty-nine-mile stretch near Eagle Pass, Texas,[14] which the state claims is an effective deterrent to curb such illegal crossings.[15]

However, federal authorities are concerned that the wire restricts the federal government’s access to sections of the border.[16] The wire stretches along the riverbank on the U.S. side of the Rio Grande, and runs across gates and boat ramps which federal authorities use to access to the river and surrounding areas.[17] The federal government claims the wire hinders Border Patrol agents in their duties and prevents them from rendering emergency aid to endangered migrants.[18] As a result, Border Patrol has adopted a practice of cutting the wire in the course of its duties, much to Texas’s chagrin.[19]

On October 24, 2023 Texas filed an action against the United States for conversion and trespass of chattels for damage to its concertina wire fences.[20] The district court found that Texas had a likelihood of success on its claims as the federal government lacked the right to cut the wire, and granted a temporary restraining order preventing the Border Patrol from further damaging it.[21] However, the district court later denied Texas’s request for preliminary injunction on grounds that the federal government possessed sovereign immunity against Texas tort law.[22] The Fifth Circuit reversed on appeal and enjoined the federal government from “damaging, destroying, or otherwise interfering with Texas’s [concertina] wire fence.”[23] The federal government soon after applied to the Supreme Court to vacate the injunction.[24]

Arguments Presented to the Supreme Court

In support of its application to vacate, the federal government argued that 8 U.S.C. 1357(a)(3) requires the Border Patrol to have access to the border, including the areas around Eagle Pass.[25] Because the Supremacy Clause prohibits state law from restraining federal agents from carrying out their federally authorized activities,[26] Texas cannot use its state tort law to restrict Border Patrol agents from accessing the border.[27]

In opposition, Texas argued that no Supremacy Clause issue was presented in this case, as there is no conflict between Texas’s immigration laws and the immigration laws of the federal government.[28] Rather, Texas is asserting its rights as the property owner of the destroyed concertina wire.[29] While federal law preempts state law under the Supremacy Clause, the Supremacy Clause does not permit the federal government to take any unbridled action to achieve its goals.[30] Texas argues that to allow federal agents to needlessly destroy Texas’s property under the pretext of federal law would permit the government to destroy any obstruction within twenty-five miles of an international border at its convenience.[31]

The Supreme Court’s Lackadaisical Order

This case gave the Supreme Court an opportunity to analyze whether a state law may lawfully, though incidentally, impede the functions of a federal agency carrying out its congressionally granted responsibilities.[32] A Texas victory would have provided state’s with a potent tool to use against the federal government on matters of immigration.

However, the Supreme Court issued a terse order simply vacating the Fifth Circuit’s injunction with no further explanation.[33] While the Border Patrol is once again permitted to cut Texas’s wire, the 5-4 split on the order may indicate the Court’s wariness over the outcome.[34] In the context of the Texas’s other pending battles with the federal government,[35] Greg Abbott’s novel argument on the Constitution’s Invasion Clause,[36] and the recent impeachment attempt of the Secretary of Homeland Security,[37] perhaps the Supreme Court is simply saving its breath for other matters in the near future.

[1] See Valerie Gonzalez, How a Small Texas City Landed in the Spotlight During the State-Federal Clash Over Border Security, AP News (Feb. 3, 2023 6:31PM)

[2] Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577, at *1 (U.S. Jan. 22, 2024).

[3] See United States v. Abbott, 87 F.4th 616 (5th Cir. 2023) (regarding a floating barrier Texas placed in the Rio Grande River); see also United States v. Texas, No. 1:24-cv-00008 (W.D. Tex. filed Jan. 3, 2024) (challenging Texas statute allowing Texas courts to deport illegal immigrants).

[4] Dep’t of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577, at *1 (U.S. Jan. 22, 2024).

[5] See Arizona v. United States, 567 U.S. 387, 394 (2012) (quoting Toll v. Moreno, 458 U.S. 1, 10 (1982)); see also Mathews v. Diaz, 426 U.S. 67, 79–80 (1976); see also Hines v. Davidowitz, 312 U.S. 52, 62–63 (“[T]he supremacy of the national power in the general field of foreign affairs, including the power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of the Federalist in 1787, and has since been given continuous recognition by this Court.”).

[6] U.S. Const. art. I, §8, cl. 4.

[7] U.S. Const. art. I, §8, cl. 3.

[8] U.S. Const. art. I, §8, cl. 11; U.S. Const. art. II, §2.

[9] Arizona v. United States, 567 U.S. 387, 394 (2012).

[10] Hines v. Davidowitz, 312 U.S. 52, 66 (1941) (“[T]he regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, ‘the act of Congress, or the treaty, is supreme; and the law of the State . . . must yield to it.’”).

[11] 1924: Border Patrol Established, United States Customs and Border Protection (Aug. 3, 2023),

[12] See 8 U.S.C. 1357(a)(3).

[13] State v. Dep’t. of Homeland Sec., 88 F.4th 1127, 1130 (5th Cir. 2023).

[14] Id. at 1131.

[15] Response in Opposition to the United States’s Application to Vacate Injunction at 3–4, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024) (“[T]he wire serves as a deterrent – an effective one at that . . . the wire was so successful that illegal border crossings dropped to less than a third of their previous levels.”).

[16] Brief for Appellees at 21, State v. Dep’t of Homeland Sec., 88 F.4th 1127 (5th Cir. 2023) (No. 23-50869).

[17] Id. at 20.

[18] Id.

[19] Response in Opposition to the United States’s Application to Vacate Injunction at 3, Dep’t of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[20] Texas v. Dep’t. of Homeland Sec., No. DR-23-CV-00055-AM, 2023 U.S. Dist. LEXIS 197502, at *3. (W.D. Tex. Oct. 30, 2023).

[21] Id. at *7.

[22] Id. at *3.

[23] State v. Dep’t. of Homeland Sec., 88 F.4th 1127, 1130 (5th Cir. 2023).

[24] Application to Vacate the Injunction Pending Appeal at 1–2, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[25] Application to Vacate the Injunction Pending Appeal at 2, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[26] Id.

[27] Id.

[28] Response in Opposition to the United States’s Application to Vacate Injunction at 24-25, Dept. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[29] Id. at 25.

[30] Id.

[31] Id.

[32] Application to Vacate the Injunction Pending Appeal at 24–26, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[33] Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577, at *1 (U.S. Jan. 22, 2024).

[34] Jordan Rubin, Supreme Court Splits 5-4 Against Texas on Border Control, Razor Wire, MSNBC (Jan. 22, 2024 4:35PM),

[35] See generally United States v. Abbott, 87 F.4th 616 (5th Cir. 2023); see also United States v. Texas, No. 1:24-cv-00008 (W.D. Tex. filed Jan. 3, 2024).

[36] Rafael Bernal, Abbott Doubles Down on Border ‘Invasion’ Declaration After Supreme Court Blow, The Hill (Jan. 24, 2024, 4:08 PM),

[37] Kaia Hubbard, The House Just Impeached Alejandro Mayorkas. Here’s What Happens Next., CBS News (Feb. 14, 2024),

Madison Boyer

A proposed reform is coming to the U.S. immigration system concerning asylum seekers.

The reform would allow asylum claims to be heard by lower raking administrators to ease the backlog of cases in the immigration courts.[1]  A Notice of Proposed Rulemaking was issued jointly by the Executive Office for Immigration Review (part of the Department of Justice), and U.S. Citizenship and Immigration Services (“USCIS”)(out of the Department of Homeland Security).[2]  The proposed rule, entitled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers,” seeks to remedy the current backlog of asylum claims.[3]  

Only roughly sixty percent of asylum applications filed since 2001 have been completed, meaning that over 660,000 cases are still pending.[4]  The wait for those pending cases has ballooned to nearly five years.[5]  The proposed rule would ease the administrative burden by allowing asylum officers within USCIS to initially adjudicate whether an applicant would be entitled to asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).[6]  Individuals whose applications are denied by the asylum officer would be able to seek review of the decision by an immigration judge.[7]  

The backlog of asylum cases largely stems from a massive increase in asylum applications beginning in 2016.[8]  Between 2016-2020, over 450,000 cases were added to the backlog–an increase of 276%.[9] The COVID-19 pandemic also caused all of USCIS’s asylum offices to close and prevented any asylum interviews from March 2020 through June 2020.[10]  USCIS states that the backlog is “the result of a prolonged, significant increase in affirmative asylum application filings and credible fear screenings . . . . ”[11]  It further states that “despite significant staffing increases . . . workloads outpaced the expansion of asylum office staffing and the establishment of new or expanded facilities . . . . ”[12]  USCIS also points out that it is a “largely a fee-funded agency” and that the “drop in new receipt filings [due to the COVID-19 pandemic] reduced revenue and resulted in a national hiring freeze.”[13]  Together, these conditions created a “perfect storm” that resulted in the immense increase in the backlog of immigration cases.

The proposed rule points out that the demographics of immigration has changed radically since the immigration and asylum system was put into place.[14]   “Since the mid-2010s, the demographic characteristics of noncitizens encountered at the border with Mexico . . . consist[s] mainly of nationals from the Northern Triangle countries of Central America (El Salvador, Guatemala, and Honduras) . . . including large numbers of families and unaccompanied children . . . . ”[15]  Fewer than a quarter of southwest border apprehensions in 2019 involved Mexican nationals.[16]  A decade earlier, Mexican nationals accounted for 92% of apprehensions.[17]  Most significantly, in 2019 a record high number of families were apprehended at the border – 56% of the total apprehensions were “family unit aliens.”[18]

In July 2021, over 200,000 interactions occurred at the border.[19]  Of those, close to half involved families with children or unaccompanied children.[20]  A third of all pending immigration cases involve children, and 40% of those are toddlers under the age of 4.[21]  However, the DOJ/DHS proposed rule “would not apply to unaccompanied children.”[22]  The rule is intended to decrease the backlog of asylum cases by applying the rule “only to recently-arrived individuals who are subject to expedited removal–i.e., adults and families.”[23]  Unaccompanied minors are “statutorily exempt from being placed into expedited removal” proceedings,[24] a process by which recently arrived immigrants who are not lawfully in the United States are deported by a low-level immigration officer with “virtually . . . unchecked authority.”[25]  So, although the rule does not allow children to be deported under expedited removal, neither does it do anything to help the newly arrived unaccompanied minors.

During the fiscal year 2021, 147,000 unaccompanied children presented themselves at the U.S.-Mexico border.[26]  The immigration system was woefully unprepared for the unprecedented amount of arrivals, and was forced to place children in “makeshift housing facilities that were not designed to house minors and lacked the standards of care enforced at traditional [Health and Human Services] shelters.”[27]  

USCIS’s new rule, once enacted, will be a useful tool in decreasing the immigration backlog that is causing undue delay for legal immigrants and asylum seekers across the country.  However, there is still much work needed in order to update the immigration system to account for modern immigration patterns, including the increase in families and unaccompanied migrant children who are arriving at the border.

[1] Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,907 (Aug. 20, 2021).

[2] Id. at 46,906.

[3] Id.

[4] TRAC Immigration, A Mounting Asylum Backlog and Growing Wait Times, Syracuse Univ. (Dec. 22, 2021),

[5] Id.

[6] Procedures for Credible Fear Screening and Consideration of Asylum, 86 Fed. Reg. at 46,907.

[7] Id. at 46,911.

[8] TRAC Immigration, supra note 4.

[9] TRAC Immigration, supra note 4.

[10] U.S. Citizenship and Immigration Services, Backlog Reduction of Pending Affirmative Asylum Cases, Dep’t Homeland Sec., at ii (Oct. 20, 2021),

[11] Id.

[12] Id.

[13] Id.

[14] Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,908 (Aug. 20, 2021).

[15] Id.

[16] Id.

[17] Id.

[18] Mike Guo, Immigration Enforcement Actions: 2019, Off. Immigr. Stats., Dep’t Homeland Sec. (Sept. 2020),

[19] Alyssa Aquino, DHS Floats Role For Asylum Officers to Ease Court Backlog, Law360 (Aug. 18, 2021, 12:23 PM),

[20] Id.

[21] Mike LaSusa, Toddlers Make Up 40% of Kids’ Immigration Court Cases, Law360 (Mar. 17, 2022, 9:49 PM),

[22] Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,910 (Aug. 20, 2021).

[23] Id. at 46,926.

[24] Id.

[25] A Primer on Expedited Removal, Am. Immigr. Council (July 22, 2019),

[26] Camilo Montoya-Galvez, U.S. Shelters Received a Record 122,000 Unaccompanied Migrant Children in 2021, CBS News (Dec. 23, 2021, 9:15 AM),

[27] Id.

Photo by Greg Bulla from Unsplash

By: Ashley Oldfield (Wake Forest School of Law alumnus)

In Niz-Chavez v. Garland,[1] the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1).[2] In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.[3]

In Pereira, the Court answered a “simple, but important, question of statutory interpretation”: does a putative “notice to appear” that does not specify the time and place of a removal hearing trigger the stop-time rule with regard to cancellation of removal?[4] The Court’s answer? A resounding “no.”[5] In order to trigger the stop time rule under § 1229b(d)(1), a notice must include all of the statutorily required information specified in § 1229(a)(1), including the time and place of the removal proceedings. Absent that information, such a notice is not actually a “notice to appear” at all.[6]

This commonsense decision, however, created an uproar in the immigration world. Immigration advocates saw in Pereira an opportunity to challenge an immigration court’s jurisdiction.[7] They argued that since jurisdiction only vests with the immigration court when a valid charging document (e.g., a notice to appear) is filed, and a notice to appear lacking time-and-date information is not valid, then the filing of an invalid notice to appear fails to vest jurisdiction with the immigration court.[8] Relying on this argument, immigration advocates moved to terminate active removal proceedings, challenge in absentia removal orders, and dismiss illegal reentry charges.[9]

Unsurprisingly, the Board of Immigration Appeals (the “BIA”) rejected this argument. In Matter of Bermudez-Cota,[10] the BIA distinguished Pereira, reasoning that it did not apply where, as in the case at hand, the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” such that he was “sufficiently informed to attend his hearings.”[11] The BIA also insisted that Pereira’s holding was “narrow” and thus only applied when the stop-time rule was at issue.[12] Furthermore, the BIA found support in the regulation applicable to vesting jurisdiction, which did not mandate time-and-date information.[13] Finally, relying on pre-Pereira decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, the BIA determined “that a two-step notice process is sufficient to meet the statutory notice requirements” and “vest[] an Immigration Judge with jurisdiction over the removal proceedings.”[14] Since Bermudez-Cota, the majority of circuits have also rejected Pereira-based jurisdictional challenges, albeit for varying reasons.[15] Furthermore, in Matter of Mendoza-Hernandez,[16] the BIA, again distinguishing Pereira, expressly held that service of a second document with time-and-place information satisfies notice requirements and triggers the stop-time rule.[17] 

In Niz-Chavez, the Court, in an opinion written by Justice Neil Gorsuch, addressed the two-step notice process head-on. There, the government had sought to initiate removal proceedings against Mr. Niz-Chavez by serving him with a document entitled “Notice to Appear,” but which lacked the time and place for the hearing.[18] The government later sent Mr. Niz-Chavez a second document that included the previously missing information, and he appeared at his hearing and was found removable.[19] Following the Court’s decision in Pereira, Mr. Niz-Chavez asserted that the notices he received were insufficient to trigger the stop-time rule, and thus, having now accrued the required period of continuous presence, he should be eligible for cancellation of removal.[20] The government responded that the second document completed the notice to appear and consequently triggered the stop-time rule.[21]

The Court, in a 6:3 decision, rejected this argument, holding that a notice to appear sufficient to trigger the stop-time rule is a single document, which must include all of the information listed in § 1229(a)(1).[22] Much of the Court’s decision hinged on the statute’s use of the indefinite article “a” before the word “notice.”[23] While the government and the dissent argued that “a” could precede “a single thing that can be delivered in multiple installments,”[24] the Court concluded that Congress’s use of “a” here indicated a single notice delivered at a discrete time, similarly to how Congress used indefinite articles before other case-initiating pleadings, such as a civil complaint or an indictment, which are never delivered by installment.[25]

The Court then found support for the single notice requirement in several related statutory provisions: 8 U.S.C. § 1229(e)(1), which provides “special rules the government must follow when it seizes [a noncitizen] at a sensitive location”; 8 U.S.C. § 1229a(b)(7), which speaks to a noncitizen’s ineligibility for relief under certain circumstances; and 8 U.S.C. § 1229(a)(2), which applies when the government wishes to change the noncitizen’s hearing date.[26] Each of these provisions refers to a notice of some type, pairs an article with a singular noun, and seems to contemplate a discrete document.[27]

Turning next to the statute’s history for support, the Court noted that under a previous law, removal proceedings were initiated by “an order to show cause” and that the law expressly permitted the government to specify the time and place for the hearing “in the order to show cause or otherwise.”[28] Congress’s decision not to include “or otherwise” in § 1229(a)(1) indicated that it intended for the government to no longer have the leeway to provide time and place information in a later document, but must instead include it in the notice to appear.[29]

Finally, the Court addressed, with little sympathy, the policy arguments advanced by both the government and the dissent. The Court rejected the idea that the administrative inconvenience of including time and place information in a notice to appear justified allowing the government “to send a person who . . .  may be unfamiliar with English and the habits of American bureaucracies [] a series of letters[] . . . over the course of weeks, months, maybe years, each containing a new morsel of vital information.”[30] As for the dissent’s speculations regarding disadvantages to noncitizens, the Court found these both off the mark and irrelevant.[31] In short, neither administrative inconvenience nor hypothetical disadvantages warranted disregarding the plain statutory command.[32]

Where does this decision leave noncitizens seeking to use Pereira to challenge an immigration court’s jurisdiction? Although the Court did not directly address jurisdiction issues in Niz-Chavez,[33] the decision upends the BIA’s rationale for rejecting Pereira-based jurisdiction arguments.

First, the BIA can no longer argue that Pereira does not apply where the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” because those are the precise facts found in Niz-Chavez.[34] Second, contrary to the BIA’s assertion that Pereira’s holding was “narrow,” the Court indicated that its holding has implications outside of the stop-time rule, explaining that a notice to appear “serves as the basis for commencing a grave legal proceeding”[35] and that references to a “notice to appear” in other statutory provisions refer to the same “specific document in which the government can (and must) ‘include’ the required certification.”[36] Third, the Court explained that “pleas of administrative inconvenience and self-serving regulations never ‘justify departing from the statute’s clear text.’”[37] Finally, Niz-Chavez completely forecloses the two-step notice process championed by the BIA, making crystal clear that a “notice to appear” is a single document containing all of the information listed in § 1229(a)(1).[38]

Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction. After all, “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”[39]

[1] 2021 U.S. LEXIS 2232 (2021).

[2] Id. at *7–8. This “seemingly simple rule has generated outsized controversy” because service of a notice to appear on a noncitizen triggers the stop-time rule, which stops the clock on a noncitizen’s period of continuous presence in the country. Id. at *7 (citing 8 U.S.C. § 1229b(d)(1)). An otherwise removable noncitizen must accrue ten years of continuous presence in the U.S. in order to qualify for cancellation of removal and remain in the country. Id. at *6–7 (citing 8 U.S.C. § 1229b(b)(1)). Thus, what qualifies as a notice to appear sufficient to trigger the stop-time rule may have life-altering implications for some noncitizens.

[3] 138 S. Ct. 2105 (2018).

[4] Id. at 2113. By 2018, “almost 100 percent” of notices to appear served in the previous three years omitted time-and-date information. Id. at 2111. The government, however, asserted that these initial notices were sufficient to trigger the stop-time rule.

[5] Id. at 2110.

[6] Id.

[7] See, e.g., Kit Johnson, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, 3 Colum. Hum. Trs. L. Rev. Online 1, 2 (2018).

[8] Id. at 2–3.

[9] See generally Dan Kesselbrenner et al., Nat’l Immigration Project of the Nat’l Lawyers Guild & the Immigrant Def. Project, Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). For a discussion of Pereira-based challenges to indictments for illegal reentry after deportation, see Ashley Oldfield, Note, Pereira v. Sessions: The Supreme Court’s Call for Common Sense, 55 Wake Forest L. Rev. 415 (2020).

[10] 27 I. & N. Dec. 441 (B.I.A. 2018). 

[11] Id. at 443. In Pereira, the noncitizen did not receive the notice of hearing and was ordered deported in absentia. Pereira, 128 S. Ct. at 2112.

[12] 27 I. & N. Dec. at 443.

[13] Id. at 445.

[14] Id. at 447.

[15] See Goncalves Pontes v. Barr, 938 F.3d 1, 6 (1st Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019), cert. denied, 140 S. Ct. 954 (2020); Nkomo v. Attorney Gen. of the U.S., 930 F.3d 129, 133–34 (3d Cir. 2019), cert. denied, 140 S. Ct. 2740 (2020); United States v. Cortez, 930 F.3d 350, 362–65 (4th Cir. 2019); Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019), cert. denied, 2020 U.S. LEXIS 2490 (2020); Hernandez-Perez v. Whitaker, 911 F.3d 305, 311–15 (6th Cir. 2018); Ortiz-Santiago v. Barr, 924 F.3d 956, 962–64 (7th Cir. 2019), reh’g denied; Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020); Martinez-Perez v. Barr, 947 F.3d 1273, 1278–79 (10th Cir. 2020); Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148, 1154 (11th Cir. 2019).

[16] 27 I. & N. Dec. 520 (B.I.A. 2019).

[17] Id. at 535.

[18] Niz-Chavez v. Garland, 2021 U.S. LEXIS 2232, at *9 (2021) (No. 19-863).

[19] Id. at *29–30 (Kavanaugh, J., dissenting).

[20] Id. at *31.

[21] Id.

[22] Id. at *27 (majority opinion).

[23] Id. at *10–17.

[24] Id. at *40 (Kavanaugh, J., dissenting).

[25] Id. at *13–16 (majority opinion).

[26] Id. at *17–20.

[27] Id.

[28] Id. at *20.

[29] Id.

[30] Id. at *23–25.

[31] Id. at *25–27.

[32] Id. at *26.

[33] The Court’s failure to address jurisdiction does not indicate that it accepted the immigration court’s jurisdiction. See Oldfield, supra note 10, at 436–37.

[34] See Niz-Chavez, 2021 U.S. LEXIS 2232, at *29–30 (Kavanaugh, J., dissenting).

[35] Id. at *15 (majority opinion).

[36] Id. at *18.

[37] Id. at *23 (citing Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018)).

[38] See generally Niz-Chavez, 2021 U.S. LEXIS 2232.

[39] Id. at *27.

By Alexandra N. Meyer

A new American Bar Association program aims to better prepare immigrants navigating one of America’s most time-consuming and expensive government systems. Unlike most government agencies, the U.S. Citizenship and Immigration Services, (“USCIS”), is fee-funded and relies almost exclusively on fees to operate.[1] In fact, service fees account for approximately 97 percent of the USCIS’s budget.[2] Last summer, the USCIS announced that it aimed to increase a number of immigration and naturalization benefit request fees by a weighted average of 20 percent.[3] The agency reasoned that “current fees do not recover the full cost of providing adjudication and naturalization services”[4] and would leave the agency underfunded by approximately $1 billion per year.[5] Luckily, after two preliminary injunctions preventing the implementation of the fee increases, the government filed a motion for voluntary dismissal of its appeal[6] of Immigrant Legal Research Center v. Wolf.[7]

Although fees not increasing (for the time being) is certainly something to celebrate, issues with the current fee-based system persist. The current fees for many of the most popular forms remain high.[8] For example, an I-485 “Application to Register Permanent Residence or Adjust Status” retains its $1,140 fee; an N-400 “Application for Naturalization” costs $640; and an N-600 “Application for Certificate of Citizenship” will set an individual back $1,170.[9] In addition, both the I-485 and N-400 forms require applicants to shell out an extra $85 for a biometrics fee.[10] Clearly, the costs of sending in even a single application can be incredibly high. These costs quickly multiply for families sending multiple forms—one for each family member—to the USCIS for processing.

To the USCIS’s credit, a fee-waiver program exists. However, the program is arguably inadequate, as the agency has narrowed eligibility and declined hundreds of thousands of applications for fee waivers.[11] At one time, nearly any form could be accompanied by a fee-waiver application. Unfortunately in 2007, the USCIS created a “limited list that prohibited two-thirds of the application types from the possibility of a fee waiver.”[12] In 2016, the USCIS approved more than 627,000 fee-waiver applications.[13] A year later, in 2017, the agency only approved 285,000 applications.[14]

Even if an applicant can afford the filing fees, the complexity of the forms may force additional, unanticipated costs. Theoretically, the USCIS lists the steps of the application process with instructions on how to fill out each form on its website, but in practice the website is difficult to navigate and understand, particularly for applicants who speak English as a second language.[15] Once an individual finds the correct form, they must fill it out correctly according to the USCIS’s standards—a task that seems designed to promote failure. For example, in recent years, the I-485 form has grown from six pages with an accompanying eight pages of instructions to twenty pages with forty-five pages of instructions.[16]

Forms also expire with little to no notice, only to be replaced with almost identical new forms.[17] Applications already mailed with the now obsolete form variants are rejected.[18] Furthermore, forms can be rejected or denied if any field is left blank, regardless of its applicability. For example, applications have been rejected for listing three siblings when there is space on the application for four or not including an address for a deceased parent.[19] Perhaps the most ridiculous reason for form rejection are typographical absurdities, like an applicant stating “NA” instead of “N/A” when a field is not applicable.[20]

Rejected applications not only serve to frustrate applicants, but add to the costs of immigration and naturalization. Rejections may not be appealed.[21] The applicant must resubmit a corrected form.[22] Every time an applicant submits a new form for review, the “USCIS requires new fees with any new benefit request,” even if the applicant is submitting the same form type with only minimal corrections.[23] The USCIS may even keep the rejected application fee.[24]

Hiring an immigration lawyer certainly helps to prevent issues that may arise during the application process. In fact, the nitpickiness of the USCIS has arguably made counsel a necessity. An immigration lawyer knows exactly what forms are applicable to a case and can help ensure that forms are properly completed according to the USCIS’s standards.[25] Although the thought of paying legal fees in addition to the USCIS’s form fees may deter some from seeking legal advice, the cost of legal fees are often comparable to the USCIS’s form fees.[26] Hiring an immigration attorney may even save the applicant money in the long run if the alternative is to resubmit rejected applications numerous times.[27]

Despite the benefits of hiring an immigration attorney to help with the immigration and naturalization process, reality is many individuals cannot afford form filing fees, let alone additional legal fees.[28] The American Bar Association’s online program, ABA Free Legal Answers, seeks to narrow this “justice gap.”[29] The service, which expanded to include immigration law in January 2021, allows users to ask volunteer attorneys legal questions regarding deportation, green cards, Deferred Action for Childhood Arrivals, (“DACA”), and naturalization.[30] Unfortunately, individuals can only ask up to three questions per year, but for someone previously unable to ask any questions, this is an improvement to the situation.[31] At first glance, it’s also difficult to ascertain the parameters of asking questions, but it seems unlikely that an individual can submit an entire form for review. Still, the program provides attorneys with the opportunity to remind applicants not to leave blank fields in their forms, or to use “N/A” instead of “NA,” however ridiculous that necessary advice may seem.

[1] USCIS Adjusts Fees to Help Meet Operational Needs, U.S. Citizenship & Immigr. Servs., (Jul. 31, 2020),,97%25%20of%20USCIS’%20budget.

[2] Id.

[3] U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788, 46,788 (Aug. 3, 2020).

[4] Id.

[5] U.S. Citizenship & Immigr. Servs., supra note 1.

[6] Featured Issue: Changes to USCIS Fee Schedule, Am. Immigr. Laws. Ass’n (Jan. 29, 2021),

[7] No. 20-CV-05883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020).

[8] See Most Common USCIS Immigration Forms, Nat’l Notary Ass’n, (last visited Feb. 12, 2021).

[9] Dep’t of Homeland Sec., U.S. Citizenship & Immigr. Servs., Form G-1055: Fee Schedule 4, 11 (2020),

[10] Id.

[11] Juan Esteban Bedoya, Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee, 96 N.Y.U.L. Rev. 1022, 1027 (2020).

[12] Peggy Gleason and Melissa Rodgers, Status of USCIS Fee Waiver Changes–October 2, 2020, Immigrant Legal Res. Ctr.,

[13] Manuel Madrid, Border Wall or No, Immigrants Will Soon Have to Scale a Paywall, Am. Prospect (Jan. 23, 2019),

[14] Id.

[15] See Filing Guidance, U.S. Citizenship & Immigr. Servs. (Oct. 25, 2019),

[16] Catherine Rampell, Trump Didn’t Build His Border Wall with Steel. He Built It Out of Paper, Wash. Post (Oct. 29. 2020),

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Chapter 6-Submitting Requests, U.S. Citizenship & Immigr. Servs. (Feb. 10, 2021),

[22] Id.

[23] Id.

[24] Filing Fees, U.S. Citizenship & Immigr. Servs. (Feb. 1, 2021), (select “Refund Policy” at the bottom of the webpage).

[25] Liz Daneu, Is an Immigration Lawyer Worth the Cost?,, (last visited Feb. 12, 2021).

[26] Id.

[27] Id.

[28] See Farida Jhabvala Romero, Immigrants Seek Stability of U.S. Citizenship But Cost Is Often a Barrier,  KQED (Apr. 12, 2018),

[29] Tali K. Albukerk, “ABA Free Legal Answers” Connects Clients and Pro Bono Attorneys Online, Am. Bar Ass’n (Apr. 13, 2020),

[30] Free Legal Answers Expands to Help Immigrants, Veterans, Am. Bar Ass’n (Jan. 25., 2021),

[31] Id.

visa, approved, journey, template, service, tour, paperwork, visit, ticket, tourism, trip, international, immigration, sign, national, contract, permission, foreign, certificate, passport, business, hand, office, banner, paper, form, apply, application, document, authorization, embassy, agreement, text, product, logo, font, design, brand, graphic design, graphics, communication, illustration

Makenzie Taylor

Each year, 66,000 H-2B visa guest workers enter the United States to perform nonagricultural temporary and seasonal jobs[1] in industries such as forestry, landscaping, hospitality, seafood processing, and construction.[2] The workers typically perform “relatively low-skilled” jobs and often work in “geographic areas where the number of available U.S. workers is limited.”[3] They comprise less than 0.001% of total U.S. employment.[4]

Far from reducing job availability for U.S. workers, the H-2B program is essential to many smaller and seasonal businesses.[5] It “supplies a source of supplementary labor for [physically demanding] jobs that U.S. workers are unwilling to take.”[6] H-2B workers provide a “legal, stable and motivated work force,” allowing businesses to grow and create more jobs for Americans as well.[7] U.S. workers, though cheaper to hire, are not always available, interested, or dependable.[8]

By contrast, employers have reported that H-2B employees are consistently reliable and hard-working, and their productivity helps offset the cost of recruiting and hiring them.[9] H-2B employment also correlates with higher U.S. employment rates.[10] Without the program, many employers would go unstaffed, close their doors, and cause “lost income for American businesses, and lost tax revenues” for the States.[11]

The Problem

Despite these benefits, the program’s cumbersome nature discourages employer participation: “[T]he system [is] complicated, time-consuming, costly and inefficient.”[12] Petitioning employers must prove “[t]here are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.”[13] They must make “extensive efforts to recruit U.S. workers,” file documentation with four different government agencies, and foot the bill for guest workers’ visas and transportation costs.[14]

Once the 66,000 annual cap is reached, the U.S. Citizenship and Immigration Services (USCIS) stops accepting petitions and will not issue additional visas until the next year.[15] This means that even after expending significant time and money into the petition process, many employers fail to secure their necessary workforce and are in a worse position than before they applied. Even one small mistake in the “complicated application process can mean delayed approval or visas denied—both extremely costly for employers.”[16] The uncertainty involved in the petition process incentivizes employers to petition for more H-2B workers than they actually need, “just in case their business takes off or some of their workers quit after the quota is hit.”[17] Employers who do so, and whose petitions are approved, further decrease the likelihood of other employers receiving their necessary visas.

Employers may use the premium processing track to “expedite the adjudication of certain forms,” but doing so costs an additional fee of $1,500 per petition.[18] Employers are also financially responsible for guest workers’ roundtrip transportation to and from their home countries, daily meals and lodging, and for each “visa, visa processing, and other related fees.”[19] Finally, businesses often require consultants and lawyers to navigate the process, adding to their costs.[20]

Each employer individually shoulders the full financial burden of this process, because H-2B workers may not “switch employers during their visa terms.”[21] In order for a guest worker to continue working for a second employer after her original visa term ends, the putative secondary employer must file and receive approval for a petition “requesting classification and an extension of the alien’s stay in the United States.”[22] H-2B workers are required to leave the States at the end of their authorized period of stay,[23] so if the secondary petition has not yet been granted, the worker must travel home before turning around and returning to the States for the second job. This unnecessarily duplicative process only adds to employer cost and restricts the employees’ access to stable employment.

The Solution

Visa portability, whereby an H-2B worker may transfer her employment from one authorized employer to another without an intermediate petition process, is the best solution to this problem.[24] Portability would encourage cost-spreading, allowing employers to share in recruitment, visa, and transportation expenses for shared workforces. For example, Colorado’s Steamboat ski resort hires H-2B employees as dishwashers for its winter season, from late November to April.[25] Lindy’s Seafood in Maryland hires H-2B workers as crab pickers from April through December.[26] Visa portability would allow Steamboat to send its H-2B workers to Lindy’s at the end of the ski season for the start of Lindy’s crab-processing season, as long as both companies proved a seasonal need for temporary workers and were approved by USCIS. Steamboat and Lindy’s could share the costs of the visa petition and travel expenses and provide workers with a longer term of employment. This would increase efficiency and make H-2B employment more affordable—benefitting both the workers and U.S. businesses.

The Department of Labor has already set the stage for this change by allowing for broader dissemination of job offer information.[27] It has instructed that job orders may be stored as electronic records in an electronic job registry, resulting in a “complete, real-time record of job opportunities for which H-2B workers are sought.”[28] H-2B employers could use a similar system to match approved employers with available employees who are already in the States.[29] Additionally, requiring H-2B workers to fulfill their contract with the petitioning employer before accepting a new job would assuage any employer fears of H-2B workers jumping to new employers upon arrival.[30]


The H-2B visa program is an essential supplement to the U.S. workforce and economy, enabling small- and mid-size businesses to successfully perform seasonal and temporary operations in essential industries. Far from taking jobs away from U.S. workers, H-2B employees comprise a small segment of the workforce and their employment correlates with higher U.S. worker employment. In order to increase the program’s feasibility for businesses and ease its burden on both employers and foreign workers, the best solution is a policy of visa portability. This solution would increase efficiency, reduce costs, and provide more stable employment for a crucial segment of the workforce.

[1] H-2B Temporary Non-Agricultural Workers, USCIS (May 29, 2020),

[2] Kati L. Griffith, United States: U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 Comp. Lab. L. & Pol’y J. 125, 135 (2009).

[3] Madeline Zavodny & Tamar Jacoby, The Economic Impact of H-2B Workers 4 (2010),

[4] Id. at 23.

[5] Charles C. Mathes, Note, The Department of Labor’s Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801, 1814 (2012).

[6] Id.

[7] Zavodny & Jacoby, supra note 3, at 10.

[8] See id. (explanation by a forestry contractor that he has “hired dozens and dozens of American workers. Only a handful have ever shown up for work. Of those, we have never had one last more than two days.”).

[9] Zavodny & Jacoby, supra note 3, at 10.

[10] Id. at 2.

[11] Mathes, supra note 5, at 1813. See also Suzanne Monyak, Trump to Suspend New Work Visas Through 2020, Law360 (June 22, 2020, 3:37 PM), (reporting that in June 2020, President Trump restricted visas to “free up 525,000 jobs for Americans,” but he exempted food supply and seafood industry H-2B workers, evidencing the U.S. economy’s need for these workers and demonstrating that they do not compete with U.S. workers for jobs).

[12] Zavodny & Jacoby, supra note 3, at 20.

[13] Forms: H-2A, H-2B, and H-3 Visa, USCIS (Dec. 1, 2020),

[14] Zavodny & Jacoby, supra note 3, at 2.

[15] Zavodny & Jacoby, supra note 3, at 6.

[16] Id. at 20.

[17] Id. at 21.

[18] Premium Processing Fee Increase Effective Oct. 19, 2020, USCIS (Oct. 16, 2020),

[19] Fact Sheet #78F: Inbound and Outbound Transportation Expenses, and Visa and Other Related Fees under the H-2B Program, U.S. Dep’t of Labor, Wage and Hour Div. (2015),

[20] Zavodny & Jacoby, supra note 3, at 21. See also Griffith, supra note 2, at 136 (revealing the admission of some employers that “they opt out of the H-2 program entirely and hire undocumented workers because the ‘process is too expensive, taxing, and time-consuming’”).

[21] Griffith, supra note 2, at 135.

[22] 8 C.F.R. § 214.2 (h)(2)(i)(D) (2020).

[23] Fact Sheet #69: Requirements to Participate in the H-2B Program, U.S. Dep’t of Labor, Wage and Hour Div. (2009),

[24] See Mathes, supra note 5, at 1812–13 (explaining that legislation was introduced in 2005 that allowed “temporary guestworkers to change employers without penalty,” but the bill was never voted on).

[25] Employment FAQ, Steamboat Ski & Resort Corp, (last visited Jan. 6, 2021).

[26] Job Opportunities, Lindy’s Seafood, Inc., (last visited Jan. 6, 2021).

[27] Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 Fed. Reg. 10038, 10128 (Feb. 21, 2012).

[28] Id.

[29] Mathes, supra note 5, at 1850.

[30] Id.

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),

[2]  See Miriam Jordan, ‘We’re Petrified’: Immigrants Afraid to Seek Medical Care for Coronavirus, N.Y. Times (Mar. 18, 2020),

[3]  Public Charge, U.S. Citizenship & Servs. [hereinafter Public Charge] (emphasis added), (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.], (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),

[5]  See Tara Siegel Bernard & Ron Lieber, F.A.Q. on Stimulus Checks, Unemployment and the Coronavirus Plan, N.Y. Times (Apr. 3, 2020),  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),

[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], (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), (“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], (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),

[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),

[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),

[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),

[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),

[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),

[25] See id.; see also Katie Bindley, Leap Year Babies: Expecting on February 29?, HuffPost (Feb. 28, 2012),

[26] See Bryant, supra note 24.

[27] See id.

[28] The Leap Year and the Law, Thomson Reuters: Legal Solutions Blog (Feb. 29, 2016),

[29] See Samantha Koeninger Rittgers, 2020 is a Leap Year. Is This a Trick or Treat?, Graydon (Oct. 31, 2019),

[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),

[2] Id.

[3] Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016),; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM),

[4] Deferred Action for Childhood Arrivals (DACA), Homeland Security, (last updated Sept. 23, 2019).

[5] What is DACA and Who Are the DREAMers, Anti-Defamation League, (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),

[11] What Are the Eligibility Requirements for DACA?, CitizenPath,

[12] Id.

[13] Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018),

[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, (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),

[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),

[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),

[33] Lind, supra note 16.

[34] Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017),

[35] Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019),

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.), (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),

[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),; Steve Vladeck (@steve_vladeck), Twitter (July 12, 2019, 4:11 PM),


[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]


         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),

[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] *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.