Federal Judge Blocks Trump Admin’s ‘Unlawful Presence’ Policy

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
February 7, 2020Updated: February 7, 2020

A federal judge has issued a nationwide block against another Trump administration immigration policy, this time on a policy that changes the way immigration officials calculate when a foreigner is considered unlawfully present in the United States.

U.S. District Court Judge Loretta Biggs granted a permanent nationwide injunction on Thursday to block a 2018 policy that changed how the U.S. Citizenship and Immigration Services (USCIS) calculates unlawful presence for students and exchange visitors. The policy is titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.”

Biggs, a President Barack Obama appointee, previously granted a preliminary injunction (pdf) in May 2019 to block the policy from going into effect.

In 1996, Congress introduced the concept of “unlawful presence” into the Immigration and Nationality Act (INA). A nonimmigrant would be deemed “unlawfully present” if the individual is “present in the United States after the expiration of the period of stay authorized by the Attorney General.” Foreigners who stay past the expiration date for an accrued period of time could face penalties such as being barred from re-entering the country for three years if they were “unlawfully present” for more than 180 days.

The start date of when a foreigner is considered “unlawfully present” is usually their visa’s expiration date, but some nonimmigrant visa holders are not given precise dates and instead, their visas are considered valid for “duration of status,” such as an international student studying at an American university. In such case, the student may be admitted for the duration they are pursuing a full-time course.

In 2018, the USCIS announced that it had changed its policy on “unlawful presence,” issued in a policy memorandum, stating that foreigners begin accruing unlawful presence time from the time the Department of Homeland Security denies a request for an immigration benefit because the individual had violated his or her non-immigration status, the day after an I-94 visa has expired, or the day when an immigration judge orders the foreigner to be “excluded, deported, or removed.”

Several American colleges and two individuals brought the lawsuit against the Trump administration in order to stop the enforcement of the policy.

In her opinion (pdf), Biggs ruled that the 2018 policy was “promulgated in violation” of an Administrative Procedure Act procedure because it did not go through the notice and comment process, required in policies that have the “force and effect of law.” Moreover, she said the 2018 policy also ran afoul of federal law because it “impermissibly conflicts with the text of the INA, pursuant to which a nonimmigrant is not ‘deemed to be unlawfully present’ until ‘after the expiration of the period of stay authorized by the Attorney General.'”

“USCIS casts the INA’s particularized definition aside in favor of its preferred rule. Under the [2018 policy], a nonimmigrant ‘start[s] accruing unlawful presence … the day after he or she engages in an unauthorized activity.’ In this way, the memorandum improperly dissolves the distinction between the ‘expiration of the period of stay authorized’ and the violation of lawful status,” Biggs wrote.

Biggs also commented on the topic of nationwide injunctions, arguing that it was an appropriate relief for this case. She said that people who sue seek remedies that apply not just anywhere but to anyone who would be subjected to the 2018 policy.

“[U]nder the circumstances of this case, the only practicable method of providing Plaintiffs with the relief to which they are entitled is to vacate the [2018 policy] and permanently enjoin its application,” she said.

She said this was because the lack of a nationwide injunction could result in the uneven application of the immigration policy, could alter the “unlawful presence clocks” for thousands of current nonimmigrant visa holders, and that the various plaintiffs in the case are “dispersed throughout the United States.”

“A geographically piecemeal injunction would therefore be insufficient to remedy their injuries,” she wrote.

Nationwide injunctions have been a cause of concern for the Trump administration and several top members of the judiciary.

Supreme Court Justice Neil Gorsuch weighed in on the issue in a concurring opinion in another immigration case, saying that the increasingly common practice of federal court judges ordering injunctions of “nationwide,” “universal,” or “cosmic” scope was concerning while adding that such orders raise “serious questions about the scope of courts’ equitable powers under Article III” of the Constitution.

He said such injunctions have caused judges to make “rushed, high-stakes, low-information decisions” because this practice forces parties to “rush from one preliminary injunction hearing” instead of “spending their time methodically developing arguments and evidence in cases limited to the parties at hand.”

“Nor do the costs of nationwide injunctions end there,” wrote Gorsuch, adding that it encourages plaintiffs affected by the adverse government decision to “shop for a friendly forum to secure a win nationwide.”

“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal,” he wrote. “A single loss and the policy goes on ice—possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.”

He said this practice can repeat, again and again, until one party gives up or the Supreme Court agrees to review the case.

“What in this gamesmanship and chaos can we be proud of?” he asked.

The Justice Department (DOJ) previously confirmed to The Epoch Times on Monday that the Trump administration has faced more than 50 nationwide injunctions since Trump took office in 2017. This is more than double the number of nationwide injunctions the previous administration had faced during its entire eight years.

The DOJ declined to comment on this case.

Update: The article was updated with the DOJ’s response to the case.