Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

A limited number of visas are available to foreign investors who create jobs in the United States; investors’ spouses and children have the “same status” and “same order of consideration” for those visas as the investors, 8 U.S.C. 1153(d). When the Department of State calculates how many visas it may issue for foreign investors, it includes an investor’s spouse and children in the total count. The Plaintiffs challenged that counting practice, arguing that the Department should have stopped counting family members against the total number of investor visas after Congress relocated the controlling text within the Act in 1990.The D.C. Circuit affirmed the dismissal of the challenge. The statute required the Department’s approach before 1990, and it still does. Congress did nothing in 1990 to change the text’s meaning. Because spouses and children receive “the same order of consideration provided in the” employment-based visas subsection, which specifically caps employment-based visas, spouses and children are also subject to the 140,000- person cap on employment-based visas. View "Wang v. Blinken" on Justia Law

After the Department of Labor determined that Overdevest had violated regulations governing the H-2A temporary visa program, the plant nursery challenged the regulations in district court. The Department concluded that Overdevest violated the H-2A regulations requiring employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment. Overdevest argued that the regulations were an impermissible interpretation of the statute and were arbitrarily promulgated and enforced against Overdevest.The DC Circuit affirmed the district court's grant of summary judgment in favor of the Department, concluding that 8 U.S.C. 1188(a)(1) is not unambiguous and the Department's definition of "corresponding employment" was reasonable. The court explained that the regulation advances the statute's purpose by ensuring that when H-2A workers are performing duties that do not implicate their qualifications, non-H-2A workers will not be placed at a disadvantage. The court rejected Overdevest's argument that the Department arbitrarily and capriciously promulgated the definition of corresponding employment. Finally, the court concluded that the Secretary's enforcement of the 2010 rule against Overdevest was not arbitrary and capricious. View "Overdevest Nurseries, LP v. Walsh" on Justia Law

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) includes expedited procedures to remove certain inadmissible aliens arriving at the border, 8 U.S.C. 1225(b)(1). The plaintiffs, inadmissible aliens caught trying to enter the country, sought asylum, or claimed to fear persecution had received adverse credible-fear determinations. They challenged the administration of credible-fear interviews under IIRIRA and the Transit Rule, which provides that aliens seeking to enter the U.S. at the southern border are ineligible for asylum unless they have already applied for asylum in a country through which they traveled while en route.They cited 11 sub-regulatory policies: Aliens receive no meaningful guidance on how interviews are conducted; interviewers are improperly trained; interviewers make decisions before the interview is complete; interviewers do not produce an adequate record. interviews are adversarial; interviews occur without adequate notice; interviews occur without access to counsel; interviewers do not apply the proper circuit precedent; credible-fear determinations are automatically reviewed for fraud; interviewers do not adequately state the basis for their decisions; children are subjected to long, adversarial interviews.The D.C. Circuit affirmed the dismissal of the complaint. IIRIRA barred its review of 10 of the cited policies because either the policy was unwritten or the challenges to it were untimely View "M.M.V. v. Garland" on Justia Law

Baan Rao Thai Restaurant and plaintiffs seek review of a consular officer's decision to deny visas for plaintiffs, asserting their claims fall within one of the consular nonreviewability doctrine's narrow exceptions.The DC Circuit affirmed the district court's dismissal of the complaint on the merits, rejecting plaintiffs' contention that the Treaty of Amity and Economic Relations between the United States and Thailand expressly provides that judicial review is available. The court concluded that access provisions were longstanding and well understood at the time the U.S.-Thailand Treaty was entered into—and that understanding was that the provisions relate to procedural rights. In this case, plaintiffs' argument seeks to fashion a longstanding, common and well understood treaty provision into something it is not. The court also explained, as recently clarified by the United States Supreme Court, that a dismissal pursuant to the consular nonreviewability doctrine is a dismissal on the merits. View "Baan Rao Thai Restaurant v. Pompeo" on Justia Law

In 1990, Muthana was appointed as the First Secretary of the Permanent Mission of Yemen to the U.N. In 1994, Yemen terminated Muthana and required him to surrender his diplomatic credentials and Muthana's daughter, Hoda, was born in New Jersey. In 1995, the U.N. notified the State Department that Yemen had terminated Muthana from his diplomatic post. Muthana, his wife, and Hoda’s older siblings became naturalized citizens. Muthana applied for Hoda’s U.S. passport, which issued in 2005. In 2014, Hoda traveled to Syria and joined ISIS as a spokeswoman, advocating the killing of Americans. She married two ISIS fighters in succession and had a child, Doe. In 2016, the State Department revoked Hoda’s passport. In 2018, Hoda and Doe fled to a camp in Syria. Secretary of State Pompeo issued a statement that Hoda is not a U.S. citizen. The president tweeted his approval. Muthana alleged these statements effectively revoked his daughter’s and grandson’s U.S. citizenship.The D.C. Circuit affirmed the rejection of his claims. Hoda’s father possessed diplomatic immunity when she was born, rendering her ineligible for citizenship by birth under the Fourteenth Amendment and her son ineligible for 8 U.S.C. 1401(g) citizenship. A child born in the U.S. to a foreign diplomat is not born “subject to the jurisdiction” of the U.S. The court dismissed, for lack of jurisdiction, Muthana’s claim seeking to compel the U.S. to assist in bringing Hoda and Doe to the U.S. The court dismissed, for lack of standing, Muthana's request for a declaratory judgment that if he sent money and supplies to his daughter and grandson, he would not violate the prohibition on providing material support for terrorism, 18 U.S.C. 2339B; Muthana failed to allege a personal injury to his constitutional rights. View "Muthana v. Pompeo" on Justia Law

Statewide filed three actions alleging that certain aspects of DHS's current administration of the immigration-bond system violate the Administrative Procedure Act (APA) and Statewide's right to due process under the United States Constitution. The district court dismissed Statewide I for failure to state a claim and lack of jurisdiction, Statewide II on DHS's motion for judgment on the pleadings, and Statewide III for failure to state a claim.In Statewide I, plaintiffs sued DHS to prevent its collection on breached immigration bonds before the resolution of Statewide's pending untimely appeals; in Statewide II, plaintiffs sued DHS to prevent collection on breached immigration bonds because DHS provided allegedly defective Notices to Appear and Notices to Produce Alien before issuing bond breach determinations; and in Statewide III, plaintiffs sued DHS for rejecting appeals of bond breach determinations that Statewide alleges were timely filed.The DC Circuit affirmed the district court's dismissal of the APA claims in Statewide I and III because the challenged DHS actions are consistent with the pertinent regulations. The court also affirmed the district court's dismissal of the due process claims in Statewide I, II, and III because the multiple means DHS provides to contest final bond breach determinations afford Statewide constitutionally sufficient process. View "Statewide Bonding, Inc. v. Department of Homeland Security" on Justia Law

The district court correctly concluded that loan proceeds qualify as cash, not indebtedness, under the EB-5 visa program. The DC Circuit held that the text, structure, and regulatory context show that the term "cash," as used in 8 C.F.R. 204.6(e), unambiguously includes the proceeds of third-party loans. Because the loan proceeds qualify as cash, the court affirmed the district court's decision affording relief to a class of foreign investors denied visas under a contrary interpretation adopted and announced by the government in 2015.The court need not consider whether USCIS's interpretation of its own regulations in an April 2015 conference call amounted to an improperly promulgated legislative rule or something less binding. Furthermore, the court need not consider whether those statements amounted to an interpretive rule or to non-final agency action. Regardless of how the comments are characterized, the court affirmed the district court's conclusion that they are inconsistent with the regulation and thus can have no legal effect. Finally, the court held that the district court did not improperly sweep into the class investors whose challenges to their visa denials are time-barred. View "Huashan Zhang v. United States Citizenship and Immigration Services" on Justia Law

Five foreign nationals who each contributed $500,000 to Mirror Lake, a new commercial enterprise set to construct and operate a senior living facility, sought to obtain lawful permanent resident status under the EB-5 immigrant-investor program. The USCIS denied the EB-5 visa petitions on the stated ground that none had made a qualifying investment.The DC Circuit held that USCIS's denial of the EB-5 immigrant-investor visa petitions were arbitrary and capricious because the agency failed to offer a reasoned explanation for its denials. In this case, plaintiffs put their capital at risk because the redemption of their investments is dependent on the success of the business. Therefore, USCIS's decision to deny the visas on the purported ground that the investments are not at risk at all is neither reasonably explained nor supported by agency precedent. The court reversed and remanded with instructions to set aside the denials of the EB-5 petitions. View "Mirror Lake Village, LLC v. Wolf" on Justia Law

Asylum seekers filed suit challenging executive-branch policies adopted to implement the expedited-removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Asylum seekers principally argue that the policies raise the bar for demonstrating a credible fear of persecution far above what Congress intended and that the Attorney General and various agencies violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on the policies' adoption. The district court found that the policies are inconsistent with the IIRIRA and the Immigration and Nationality Act (INA), enjoining their enforcement.After addressing jurisdictional issues, the DC Circuit held that the condoned-or-completely-helpless standard is arbitrary and capricious; the new choice-of-law policy is arbitrary and capricious due to USCIS's failure to acknowledge and explain its departure from past practice; when viewed as a whole, the Guidance accurately restates the circularity rule as described in Matter of A-B-, 27 I. & N. Dec. 316, 321 (2018); the record in this case does not support the asylum seekers' argument that USCIS and the Attorney General have erected a rule against asylum claims involving allegations of domestic and/or gang violence; and neither 8 U.S.C. 1252(f)(1) nor 1252(e)(1) prohibited the district court from issuing an injunction.Therefore, the court reversed the district court's grant of summary judgment with respect to the circularity rule and the statements regarding domestic- and gang-violence claims, vacated the injunction insofar as it pertains to those issues, and remanded to the district court for further proceedings. The court affirmed in all other respects. View "Grace v. Barr" on Justia Law

Associations filed suit contending that the Secretary's decision to expand the reach of the expedited removal process to its statutory limit, sweeping in all individuals without documentation who have resided in the United States for less than two years, violated the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the Suspension Clause. The district court granted a preliminary injunction against the expansion based only on the APA claims, but did not address the INA and constitutional claims.The DC Circuit held that the district court properly exercised jurisdiction under 8 U.S.C. 1252(e) over the Associations' case. However, because Congress committed the judgment whether to expand expedited removal to the Secretary's "sole and unreviewable discretion," 8 U.S.C. 1225(b)(1)(A)(iii)(I), the Secretary's decision is not subject to review under the APA's standards for agency decisionmaking. Furthermore, the Secretary's decision is not subject to the APA's notice-and-comment rulemaking requirements. Accordingly, the court reversed the district court's grant of a preliminary injunction and remanded for further proceedings. View "Make The Road New York v. Wolf" on Justia Law