AILA submitted Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq., requests for disclosure of records related to complaints about the conduct of immigration judges. The government disclosed thousands of pages of records, but redacted information in those records that it believes is either statutorily exempt from disclosure or non-responsive to the request. The district court upheld both categories of redactions. The court concluded that the government's across-the-board approach of redacting the immigration judges’ names from all of the disclosed records cannot be sustained in light of the variety of privacy and public interests that may be at stake in connection with the disclosure of an immigration judge’s name. Therefore, the court remanded for a more individualized inquiry into the propriety of redacting judges’ names. In this case, the government, after determining that records were responsive to AILA’s request, redacted discrete information within the records on the basis of non-responsiveness even if no statutory exemption shielded the information from disclosure. The court concluded that such an approach cannot be squared with the statutory scheme. Finally, the court agreed with the district court that complaint resolutions fall outside the statute’s affirmative disclosure mandate. Accordingly, the court affirmed in part, reversed in part, and remanded. View "American Immigration Lawyers v. Exec. Office for Immigration" on Justia Law
The Secretary of DHS directed relevant agencies temporarily to defer low-priority removals of non-dangerous individuals so that the agencies can focus their resources on removing dangerous criminals and strengthening security at the border. In what became known as Deferred Action for Childhood Arrivals (DACA), the Secretary outlined a policy to defer removal proceedings for two years. In addition, the Secretary outlined a second deferred action policy for the parents of United States citizens and lawful permanent residents, which has become known as Deferred Action for Parents of Americans (DAPA). Joseph Arpaio, the Sheriff of Maricopa County, Arizona, sued to enjoin the Secretary’s deferred action policies. Sheriff Arpaio’s standing arguments rest on the premise that more people causing more crimes harm him because, as Sheriff, he will be forced to spend more money policing the county and running its jails. The court affirmed the district court's dismissal of the complaint for want of Article III standing because Sheriff Arpaio’s allegations of causation and redressability rest on speculation beyond that permitted by the court's standing decisions. Any effects of the challenged policies on the county’s crime rate are unduly speculative. View "Arpaio v. Obama" on Justia Law
Appellant, an inmate in Maryland, filed a mandamus petition seeking to compel the USCIS to grant him a hearing to review the denial of his application for naturalization. The court rejected appellant's claim that he qualifies for in forma pauperis (IFP) status under the imminent danger exception to the three strikes rule under the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(g). In this case, appellant's allegations were insufficient to establish imminent danger where the beatings, which took place while appellant was in the general prison population, do not indicate that he continued to face imminent danger at the time he filed his complaint. Further, appellant makes no allegation that he suffered any beatings or received specific threats while in protective custody. The court also rejected appellant's claim that the three-strikes rule is unconstitutional as applied to his case. Accordingly, the court affirmed the judgment of the district court, denying appellant IFP status. View "Asemani v. USCIS" on Justia Law
The Immigration and Nationality Act limits the number of annual visas, 8 U.S.C. 1101, creates categories for which visas may be granted, and imposes country-based limits. The category at issue, “Skilled workers, professionals, and other workers” (EB-3) has a general limit of about 40,000 visas annually in three subcategories. Xie fits within the subcategory EW for workers in occupations that require less than two years of training, education, or experience, and for which qualified workers are not available in the U.S. The subcategory is subject to a separate cap of 5,000. The government indicated that the current annual EW limit for China is 319. Under a complicated system of cut-off dates, Xie has waited for over eight years. She argued that widely differing cutoff dates for Chinese EW applicants, other Chinese EB-3 applicants, and EW applicants from other countries violate section 203’s temporal priority mandate. The district court dismissed, stating that Xie failed “to identify any discrete agency action that DOS is required to take” and failed to point to any authority requiring that action. The D.C. Circuit reversed. Xie specifically sought application of 8 U.S.C. 1153(e)(1), which directs State to process applications in the order of their filing. While varying lengths of wait among categories may comply with the mandate, Xie is entitled to have her claim assessed. View "Xie v. Kerry" on Justia Law
This case stemmed from Fogo de Chao's efforts to bring authentic Brazilian churrasqueiro chefs into its restaurants in the United States by using L-1B visas. L-1B visas permit multinational businesses to temporarily transfer foreign employees possessing "specialized knowledge" into the United States. At issue on appeal is the denial of Fogo de Chao's application for an L-1B visa for Rones Gasparetto, a Brazilian churrasqueiro. The court concluded that, because the relevant provision of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., does not commit the decision whether to grant an L-1B petition to the independent discretion of the Attorney General or the Secretary of Homeland Security, and because Congress legislated statutory criteria to be applied in deciding such petitions, the district court had jurisdiction to hear Fogo de Chao's challenge and this court has jurisdiction to hear the appeal; the Appeals Office erred in adopting a categorical prohibition on any and all culturally acquired knowledge supporting a "specialized knowledge" determination; the Appeals Office's conclusion that Fogo de Chao had failed to establish that Gasparetto completed the company's training program is unsupported by substantial evidence; it is not clear that the Appeals Office would have resolved other challenged aspects of its decision in the same fashion or would have found the other bases for the decision sufficient alone to warrant denial of Fogo de Chao's petition; and, therefore, the court reversed the judgment of the district court and remanded with instructions to vacate the Appeals Office's order and remand for further proceedings. View "Fogo de Chao (Holdings) Inc. v. Dept. of Homeland Security" on Justia Law
Posted in: Immigration Law
In August 2011, the Department updated the special procedures that establish the minimum wages and working conditions employers must offer U.S. sheepherders, goatherders, and open-range (cattle) herders before hiring foreign herders. Plaintiffs, U.S. workers experienced in herding claimed that the Department administers the temporary worker visa program in a way that gives herding operations access to inexpensive foreign labor without protecting U.S. workers. The court concluded that the district court erred in holding that plaintiffs lacked both Article III and prudential standing to bring this action where plaintiffs were injured by the Department's promulgation of the Training and Employment Guidance Letters (TEGLs) and fell within the zone of interests protected by the Immigration and Nationality Act of 1952, 8 U.S.C. 1188(a)(1). On the merits, the court concluded that plaintiffs were entitled to entry of summary judgment in their favor where the Department violated the Administrative Procedure Act, 5 U.S.C. 553, by promulgating TEGLs without providing public notice and an opportunity for comment. Accordingly, the court reversed and remanded.View "Mendoza, et al. v. Harris, et al." on Justia Law
Posted in: Constitutional Law, Government & Administrative Law, Immigration Law, Labor & Employment Law
Plaintiff challenged the district court's holding affirming the USCIS's denial of several of plaintiff's petitions for Q-1 visas for foreign applicants to its cultural exchange program. USCIS denied the petitions because it interpreted its regulation to require sponsors of a cultural exchange program to pay wages to the participating aliens and plaintiff admittedly did not pay its participants any wages. Given 8 U.S.C. 1101(a)(15)(Q)'s specific references to "employed," "wages," and "workers," the court agreed with USCIS that the statute was best read to require that the foreign citizens receive wages and that those wages be equivalent to the wages of domestic workers. Given 8 C.F.R. 214.2(q)(4)(i)(D)'s references to "employer," "wages," "workers," and "remunerate," the court agreed with USCIS that the regulation was best read to require that foreign citizens receive wages and that those wages be comparable to those of local workers. Finally, when USCIS denied plaintiff's petitions in 2010, the agency did not trigger the notice-and-comment procedures in the Regulatory Flexibility Act, 5 U.S.C. 603(a), 604, 605(b), or the Administrative Procedure Act, 5 U.S.C. 533(b)-(c), because the denials were not rules under either act; rather, they were informal adjudications. Accordingly, the court affirmed the judgment. View "Int'l Internship Program v. Napolitano, et al." on Justia Law
Posted in: Constitutional Law, Government & Administrative Law, Immigration Law, U.S. D.C. Circuit Court of Appeals
Appellant, a Jewish American by birth who has lived in Israel as an Israeli national for over a decade, sought a Certificate of Loss of Nationality (CLN) from the Department of State, claiming that he was entitled to the CLN under two provisions of the Immigration and Nationality Act of 1952, 8 U.S.C. 1101 et seq. The court affirmed the District Court's judgment only insofar as it upheld that Department's decision that appellant was not eligible for CLN under Section 2 of the INA. The court reversed and remanded, however, the district court's judgment dismissing appellant's challenge to the Department decision denying his request for a CLN under Section 1. The agency's statutory interpretation of Section 1, as rendered in the Betancourt Letter, was not entitled to Chevron deference. And, because the Department failed to provide any coherent explanation for its decision regarding the applicability of Section 1, the agency's action was arbitrary and capricious for want of reasoned decisionmaking. View "Fox v. Clinton, et al." on Justia Law
Appellant, a citizen of El Salvador, pleaded guilty to violating 8 U.S.C. 1326(a), and 1326(b)(2), which together prohibited the illegal reentry of an alien who had been deported following an aggravated felony conviction. The district court twice sentenced appellant. The court reversed both times, remanding each time for resentencing - first, because the district court did not consider appellant's Guidelines range under United States v. Booker, and second, because the district court incorrectly calculated appellant's Guidelines range when it did consider it. Appellant appealed his third sentence which resulted in an 84 month prison sentence because the court varied upward from appellant's calculated Guidelines range on the basis of the factors articulated in section 3553(a). The court held that the district court correctly calculated the Guidelines range and its subsequent findings of fact about appellant's Virginia abduction offense were not clearly erroneous. The court also held that the district court's judgment presented a "reasoned and reasonable decision that the section 3553(a) factors, on the whole justified the sentence." Accordingly, the court affirmed the sentence because the district court adequately explained its sentencing decision.
Appellant brought a suit under the Administrative Procedure Act ("APA"), 5 U.S.C. 500, seeking an injunction requiring the United States State Department ("State Department") to disclose the Hearing Officer's Findings of Fact and Recommendation when the Deputy Assistant Secretary of State for Passport Services granted her children limited validity passports after a hearing. After the district court granted the State Department's motion to dismiss appellant's suit, she timely appealed the decision and then filed a second, separate complaint against the State Department alleging that the State Department's decision on the merits was arbitrary and capricious in violation of the APA. The State Department filed a second motion to dismiss which was pending. The court vacated the district court's grant of the State Department's motion to dismiss and instructed the district court to reevaluate appellant's claims upon consolidation of both her cases against the State Department.