On November 7, 2024 a federal judge struck down Biden’s Parole-in-Place program that aimed to ease a path to citizenship for some undocumented spouses and step-children of U.S. citizens.

On August 20, 2024, the USCIS began accepting parole-in-place applications for certain undocumented spouses and children of US citizens. Obtaining parole-in-place will allow these undocumented spouses and children to adjust their status to lawful permanent residents in the United States without having to leave the country or obtain unlawful presence waivers.

On August 23, 2024, 16 states sued the Biden Administration in Federal Court seeking to end the parole-in-place program.

On August 26, 2024, the United States District Court for the Eastern District of Texas, in Texas v. Department of Homeland Security, Case Number 24-cv-306 administratively stayed DHS from granting parole in place under Keeping Families Together for 14 days. The District Court subsequently extended the period of the administrative stay to November 8, 2024.

While the administrative stay is in place, USCIS will:

* Not grant any pending parole in place requests under Keeping Families Together.

* Continue to accept filings of Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens.

The District Court’s administrative stay order does not affect any applications that were approved before the administrative stay order was issued.

On June 18, 2024, President Biden announced a program which would enable over 500,000 undocumented spouses of U.S. citizens who entered the United States without papers to apply for green cards without having to leave the U.S. The program is also expected to benefit around 50,000 undocumented children.

In order to be eligible for consideration, noncitizen spouses of U.S. citizens must:

• Be present in the United States without admission or parole;
• Have been continuously physically present in the United States since at least June 17, 2014, through the date of filing your request;
• Have a legally valid marriage to a U.S. citizen on or before June 17, 2024;
• Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
• Submit biometrics and undergo required background checks and national security and public safety vetting.

Noncitizen stepchildren of U.S. citizens must:

• Have been under the age of 21 and unmarried on June 17, 2024;
• Be present in the United States without admission or parole;
• Have been continuously physically present in the United States since at least June 17, 2024, through the date of filing your request;
• Have a noncitizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before their 18th birthday;
• Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
• Submit biometrics and undergo required background checks and national security and public safety vetting.

Those who are approved after DHS’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the U.S. and be eligible for work authorization for up to three years.

Client Reviews

Legal Guru in All Things Immigration

“Mr. Shusterman and his law firm have represented my family and me very successfully. He is not only a legal guru in all things immigration but even more so he is an exceptional human being because he empathizes with his clients and cares that justice is done.”

- Maria Davari Knapp, Chicago, Illinois
Read More Reviews

Parole in Place for Undocumented Spouses of US Citizens

In order to be considered for parole-in-place, an undocumented spouse or step-child of a US citizen needs to file a form I-131F online with the USCIS along with supporting documentation to show they meet the requirements and pay a $580 fee.

Upon receipt of a properly filed parole in place request, USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the undocumented spouse merits a favorable exercise of discretion.

All requests will take into consideration the potential requestor’s previous immigration history, criminal history, the results of background checks and national security and public safety vetting, and any other relevant information available to or requested by USCIS. USCIS has strong processes in place to identify and address potential fraud, which will be applied to ensure the integrity of the program.

Undocumented spouses who enter the U.S. without papers are currently required to obtain a waiver of unlawful presence in the U.S. by filing a form I-601A and showing that their spouse would suffer “extreme hardship” if they were forced to remain outside the U.S. for 10 years. Only after USCIS approves their waiver applications are they be able to attend green card interviews at the U.S Embassy or Consulate in their home countries.

Since there is no guarantee that they will be granted a waiver and filing paperwork with the USCIS could lead to deportation, few of the more than one million undocumented spouses of U.S. citizens currently in the U.S. choose to go forward with this process.

Under the newly-announced program, these undocumented spouses will be able to receive a “parole-in-place” and will be allowed to obtain EAD work permits and adjust their status in the U.S.

In addition, the program will enable the Department of Homeland Security to join the State Department in facilitating the issuance of temporary work visas for eligible Deferred Action for Childhood Arrivals (DACA) recipients and undocumented noncitizens who have graduated from universities in the U.S.

Helpful Links for Undocumented Spouses of US Citizens

• I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens
• Implementation of Keeping Families Together – DHS Regulation (8-20-24)
• Frequently Asked Questions About Keeping Families Together (USCIS)
• Keeping Families Together (8-16-24)
• Reminders on the Process to Promote the Unity and Stability of Families (7-17-24)
• Process to Promote the Unity and Stability of Families – USCIS (6-18-24)
• DOS Issues Guidance on Easing the Nonimmigrant Visa Process for U.S. College Graduates (6-18-24)
• Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families (6-17-24)
• Statement of Secretary of Homeland Security Alejandro N. Mayorkas on the Biden-Harris Administration’s Actions to Keep American Families Together (6-18-24)

In April 2021, the US Supreme Court held that a defective NTA does not give the government jurisdiction to place a person in removal proceedings.

An NTA is a Notice to Appear in Immigration Court.

Update: On November 19, 2024, the BIA issued Matter of Larios-Gutierrez de Pablo and Pablo-Larios, which held that Matter of Fernandes’s holding that an objection to a noncompliant Notice to Appear (NTA) will generally be considered timely if raised prior to close of pleadings is not a change in law

Update: On September 6, 2024, the BIA held in Matter of R-T-P that if there’s a problem with how a Notice to Appear (NTA) is issued, the fix should involve a single, complete NTA that follows all the rules, clearly states the hearing details, and doesn’t unfairly impact the respondent. The BIA also said that an immigration judge can make written changes to the NTA’s time and place if DHS requests it. If a respondent thinks this fix is unfair, they can object to it. In this case, the BIA agreed with DHS, overturned the immigration judge’s earlier decision, and sent the case back for further proceedings.

Defective NTAs

The U.S. Supreme Court, in Niz-Chavez v. Garland, held that the law requires that an NTA inform a person of the date and time of their hearing in Immigration Court. An NTA which fails to show the date and time of the hearing is a defective NTA which does not give the Immigration Court jurisdiction to hear a case, deny relief from deportation or order a person removed from the U.S.

Niz-Chavez repeated what another Supreme Court case, Pereira v. Sessions, stated a few years earlier. However, the Board of Immigration Appeals (BIA) and various U.S. Courts of Appeals issued a number of decisions approving the government’s attempts to narrow the holding of the Supreme Court in Pereira.

Some decisions claimed that even if the NTA failed to state the date and time of the hearing, a subsequent notice of hearing which listed the date and time “cured” the defective NTA.

Niz-Chavez makes it clear that this is not correct.

Client Reviews

Highly Ethical, Professional, Trustworthy and Attentive

“We hired an immigration attorney from the Law Offices of Carl Shusterman when my husband faced deportation proceedings. He had a tremendously complicated case, yet they were able to reopen it by the BIA and follow through to finish by acquiring a green card for him. His attorney was Jennifer Rozdzielski. She is highly ethical, professional, trustworthy, and attentive. Jennifer made our dreams come true by helping keep our family together. Would highly recommend.”

- Anna, Los Angeles, California
Read More Reviews

Nevertheless, one can expect that the government will continue to attempt to narrow the holdings of both Pereira and Niz-Chavez in ways that do not conform with the law.

Since both cases involved the stop-time in cancellation of removal cases, expect the government to continue to argue that Pereira and Niz-Chavez only apply to applications for cancellation of removal or to cases involving the stop time rule.

For example, on June 9, 2021, Immigration and Customs Enforcement (ICE) issued a legal notice which states that “for 180 days from the date of the Supreme Court’s decision (i.e., until November 16, 2021), ICE attorneys handling removal cases before the Executive Office for Immigration Review (EOIR) will presumptively exercise their prosecutorial discretion to join or not oppose a motion to reopen by such noncitizen who demonstrate that they are prima facie eligible for cancellation of removal.”

While this may appear to be a positive development, why is this legal notice limited only to cancellation of removal cases when the scope of the Supreme Court’s decision in Niz-Chavez applies to all defective NTAs, not just to those cases where the person is applying for cancellation of removal? And what is the basis for the 180 day limitation?

Why the Government Wants to Limit Niz-Chavez

As a former INS Attorney (1976-82), I foresee that the government, even under the current Administration, will continue to look for ways to attempt to narrow the Supreme Court’s holding in Niz-Chavez.

Why?

Because there are well over a million persons currently in removal proceedings, and the government has issued many, perhaps hundreds of thousands, of defective NTAs.

Following the law as stated in Niz-Chavez would require the government to cancel a huge percentage of pending removal proceedings, approve a like amount of motions to terminate proceedings and reopen and dismiss Orders of Removal against persons who were ordered deported despite being served with defective NTAs.

In other words, the government’s error in issuing so many defective NTAs would result in a breakdown of the deportation machine.

Yet, if persons born abroad are required to comply with immigration laws passed by Congress and signed by the President, the government is also required to abide by these laws. As Justice Gorsuch stated in the majority opinion in Niz-Chavez v. Garland:

“If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.”

and

“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.”

In 1984, the Supreme Court ruled in the Chevron case that when a federal statute is ambiguous, federal courts should defer to the agency’s interpretation of the law as long as their interpretation is “reasonable”.

While overturning the Chevron Deference Doctrine will have negative consequences in many areas of law, it will revolutionize the ability of persons to challenge immigration denials by federal agencies (including USCIS, ICE, CBP, EOIR, etc.) based on overly restrictive interpretations of U.S. immigration laws.

As a former INS Trial Attorney (1976-82), I am well aware that government agencies tend to interpret U.S. immigration laws in a very restrictive manner.

Client Reviews

Professional and Knowledgeable Law Firm

“I’ve had a decade of experience with Mr. Shusterman’s law firm. I used them for my immigration needs from H1 to citizenship. It is safe to say this is one of the most competent, professional and knowledgeable law firms. If there is a firm that can handle any possible immigration case routine or otherwise; then this is it.”

- D. Chen, Phoenix, Arizona
Read More Reviews

The End of Chevron Deference

The Court’s decision in overturning the Chevron Deference Doctrine is best summarized in Justice Gorsuch’s concurrence:

“…[T]he Constitution, the APA, and our longstanding precedents set those ground rules [for judging agency action] some time ago. And under them, agencies cannot invoke a judge-made fiction to unsettle our Nation’s promise to individuals that they are entitled to make their arguments about the law’s demands on them in a fair hearing, one in which they stand on equal footing with the government before an independent judge.”

Justice Gorsuch cited an immigration case:

“In … De Niz Robles v. Lynch, 803 F.3d 1165 (CA10 2015), the Board of Immigration Appeals invoked Chevron to overrule a judicial precedent on which many immigrants had relied, see In re Briones, 24 I. & N. Dec. 355, 370 (BIA 2007) (purporting to overrule Padilla-Caldera v. Gonzales, 426 F.3d 1294 (CA10 2005)). The agency then sought to apply its new interpretation retroactively to punish those immigrants – including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U.S. wife and four children. See 803 F.3d at 1168-1169.”

“Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated Mr. De Niz Roble’s due process rights. Id., at 1172. But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different “reasonable” one and in that way deny relief to countless future immigrants.”

Challenging Immigration Denials in Federal Court

Let me provide you with an example of an immigration decision by the US Supreme Court which has divided thousands of children from their parents due to Chevron deference.

Immigration laws are designed to keep families together.  If a person is sponsored for a green card, the person’s spouse and children are generally permitted to adjust their status or obtain their immigrant visas together with the principal applicant.

However, once a child reaches the age of 21, the law states that he/she has “aged-out” and cannot immigrate together with the rest of the family.

To remedy this situation, in 2002, Congress passed and the President signed into law the Child Status Protection Act (CSPA) in order to prevent families from becoming separated due to long waiting times in many family-based and employment-based preference categories.

CSPA provides a formula which allows a child to subtract the time that the I-130 or I-140 visa petition was pending from his age when his priority date becomes current.

However, many children still “age-out” despite this formula.

Therefore, Congress included the following “automatic conversion” clause to CSPA to help prevent family separation:

‘‘(3) RETENTION OF PRIORITY DATE.—If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition’’.

Scialabba v. Cuellar de Osorio – Separation of Immigrant Families

Consider the case of Rosalina Cuellar de Osorio and her family.

Rosalina’s mother, a US citizen, sponsored her and her son Melvin for green cards in May 1998.  At this time, Melvin was 13 years of age. However, by the time that his priority date became current in 2005, Melvin had turned 21 and had “aged-out”.

Once she got a green card, Rosalina sponsored Melvin under the family-based 2B category as the adult, unmarried son of a lawful permanent resident.  Under CSPA’s automatic conversion clause, she requested that he keep his place in line for a green card, his 1998 priority date.  This would have allowed Melvin to rejoin her in the U.S. within a few months.

However, the USCIS refused to allow Melvin to retain the 1998 priority date despite the many years that he had waited in line for a green card.  Instead, they moved him to the back of the line where he would have to wait many years to get a green card and be reunited with his family in the U.S.  This was clearly contrary to law.

In 2008, on behalf of Mrs. Cuellar de Osorio and several similarly situated persons, we sued the USCIS to force them to allow Melvin and his peers to retain their original priority dates and to be able join their families in the United States.

From CSPA’s passage in 2002 until our lawsuit in 2008, the USCIS had never issued a regulation or even a memo explaining how to interpret the “automatic conversion” clause of CSPA.

However, soon after our lawsuit was filed, the Board of Immigration Appeals (BIA) issued a flawed decision in Matter of Wang, which severely restricted who could benefit from the automatic conversion clause.

Unfortunately, both the U.S. District Court and the 9th Circuit Court of Appeals granted Chevron deference to the BIA’s mistaken interpretation of the law and ruled that Melvin and his peers were not entitled to retain their original priority dates under CSPA.

In 2012, an 11-judge panel of the 9th Circuit Court of Appeals agreed to rehear the case, and ruled in favor of the long-separated families.  They found that the intent of Congress was clearly expressed in CSPA, and that there was no need to defer to the agency’s mistaken interpretation of the law. See the video of the oral arguments below.

Unfortunately, the Government decided to appeal the decision to the U.S. Supreme Court.

Various groups submitted Friend of the Court Briefs to the Supreme Court.  One of these briefs was submitted by 6 Senators, 3 Republicans and 3 Democrats who were all in the Senate when the CSPA was enacted in 2002: Dianne Feinstein (D-CA), Orrin Hatch (R-UT), John McCain (R-AZ), Robert Menendez (D-NJ), Charles Schumer (D-NY) and former Senator Sam Brownback (R-KS).

The Senators’ brief stated that the “Court should not allow the Solicitor General to introduce ambiguity into the CSPA where none exists.”

Despite this, the U.S. Supreme Court in a 5-4 decision, overturned the 9th Circuit’s decision stating that “because §1153(h)(3) does not speak unambiguously to the issue here, a court must defer to the BIA’s reasonable interpretation.”

As a result, Melvin and his peers were not given credit for the many years that they had stood in line for green cards. They were separated from their families.

The Court’s decision to grant Chevron deference to the agency has resulted in the separation of  thousands of sons and daughters from their parents.

Conclusion – The End of Chevron Deference

We have successfully reversed many denials of immigration benefits in Federal Court.

Now that the Supreme Court has overturned the Chevron Deference Doctrine, it will be even easier to challenge erroneous decisions by immigration agencies.