Statutes of Liberty

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

[Note: Parole in Place applications should open on Monday, August 19. As part of the Department of Homeland Security’s ongoing campaign to make Statutes of Liberty’s advertisements harder to draft, no guidance for this important program has been issued as of our publication date, August 15. We refer our readers to our predictions about what that guidance will say.] 

Americans are, and always have been, a litigious people — always appealing to our Constitution to support our opinions, and always ready to go to court to right real, or imagined, wrongs. But, as the Supreme Court explained this term in Department of State v. Muñoz, the right to have your day in court stops at our borders. No non-citizen can challenge a consular officer’s decision to deny a visa.

In this advertorial, we’ll explain how the doctrine of Consular Non-Reviewability works, and then provide information about the rare exceptions to the doctrine.  

The facts of Department of State v. Muñoz show a typical application of consular non-reviewability. A U.S. citizen, Sandra Muñoz, married a Salvadoran man, Luis Asencio-Cordero. Asencio-Cordero had previously entered the United States illegally, so Muñoz had to file several applications inside the United States.

First, Muñoz filed a petition seeking recognition of the validity and good-faith nature of her marriage, which USCIS approved. Then, Muñoz filed a waiver application seeking the government’s agreement that separating her and her husband would result in “extreme hardship”; again, USCIS approved. Having obtained both of these approvals, Asencio-Cordero was able to leave the United States to apply for an immigrant visa, which, if granted, would have allowed him to re-enter the U.S. as a permanent resident. 

Applications for immigrant visas are handled by the U.S. embassies and consulates abroad. Asencio-Cordero attended an interview at the U.S. Embassy in San Salvador and was denied an immigrant visa. What was the reasoning? Asencio-Cordero was not told. At this point, Muñoz and Asencio-Cordero filed a lawsuit.

In the absence of an explanation from the State Department, they guessed (accurately) that the State Department believed him to be a member of a Central American street gang, and guessed (again accurately) that the reason they believed this was his tattoos, which included Our Lady of Guadalupe, the face of Sigmund Freud, a ‘tribal pattern’ with a paw print, and a theatrical mask with dice and cards.  

Muñoz’s lawsuit alleged that the State Department had deprived her, as a United States citizen, of a protected liberty interest, namely living with her husband in the United States.  

The Supreme Court ruled — effectively, 9-0 — that Muñoz could not appeal to the federal courts for a review of the Embassy’s decision. A majority of six justices found that Muñoz was not even entitled to an explanation of the denial beyond a bare statutory citation; the dissenting three held that the State Department could deny visa applications without judicial review, but should be required to provide a “facially legitimate and bona fide reason” for the denial.  

This doctrine of consular non-reviewability is, with rare exceptions, absolute. The exceptions embrace classes, not individuals. For example, in Trump v. Hawaii, the Court allowed plaintiffs arguing against the Trump Administration’s travel ban — which embraced entire nationalities — to proceed despite the doctrine of consular non-reviewability.

And, in Kleindienst v. Mandel, the Court allowed a group of professors to at least receive a reasoned explanation for the denial of a visa application by a colleague who had been barred from entering the United States as a Marxist. But these exceptions are narrow, rare, and rarely substantive. If your visa application is denied, there is rarely an opportunity to apply again. 

As a footnote, we would like to note that the non-citizen in Muñoz would almost certainly have qualified for parole in-place if he had remained in the United States and had been present on June 17, 2024. But, of course, the non-citizen had no way of knowing that parole in place would be offered in the future. The Muñoz decision was issued on June 21st, 2024.  

As always, we are grateful for your questions and comments, and will do our best to respond.  

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Alert commenters pointed out that our recent analysis of Project 2025’s immigration proposals suffered from a defect: Former President Trump has distanced himself from Project 2025.

In this advertorial, we’ll try to analyze his platform more directly, and then discuss practical issues with its implementation. (Our promised analysis of President Biden’s immigration proposals will come in a fortnight.)

The 2024 Republican Party Platform’s section on immigration is short enough to be printed here in full.

Begin Largest Deportation Program in American History

President Trump and Republicans will reverse the Democrats’ destructive Open Borders Policies that have allowed criminal gangs and Illegal Aliens from around the World to roam the United States without consequences. The Republican Party is committed to sending Illegal Aliens back home and removing those who have violated our laws. […]

Common Sense tells us clearly, in President Trump’s words, that “If we don’t have a Border, we don’t have a Country.” Restoring sensible Border Security and Immigration Policy requires many steps, all of which would have been and indeed were taken for granted by prior Generations as obviously necessary and good. We must secure our Southern Border by completing the Border Wall that President Trump started. Hundreds of miles have already been built and work magnificently.

The remaining wall construction can be completed quickly, effectively, and inexpensively. We must also vigilantly check those who enter our Country by other routes and ensure that no one can enter our Country who does not have the Legal Right to do so, and we must deport the millions of illegal Migrants who Joe Biden has deliberately encouraged to invade our Country. We will start by prioritizing the most dangerous criminals and working with the local police. We must not allow Biden’s Migrant Invasion to alter our country. It must not stand. Under the Trump Administration and a Republican Congress, it will be defeated immediately.

The platform calls forthrightly for the deportation of millions, so it’s worth considering how that would work in practice.

Question: How Many People Are We Talking About?

There are two unknowns here. The first is the number of unauthorized migrants in the United States; President Trump has offered an estimate of 18 million, with official records showing just north of 11 million, as of 2022.

The second unknown is how many people a Trump administration would actually target for deportation. The “largest deportation program in American history,” to date, was the remarkable Operation Wetback [1], through about 1-1.5 million Mexican nationals were deported by the federal government during the Truman and Eisenhower administration. Deporting the same number today would reduce the number of unauthorized migrants in the United States by about 10%.

Question: Do We Have the Resources to Do It?

Under current law, the answer is certainly not. The federal government funds 41,500 “beds” for detention of immigrants per day at the moment. It is common for migrants to remain detained for months while litigating their cases in immigration court. Assuming, optimistically, that the federal government could remove each detainee within 90 days, the throughput of the system would be 164,000 per year — not remotely fast enough to accomplish the Trump Administration’s goal.

Many commentators — some of whom, like ICE Director John Sandweg and DHS Secretary Napolitano, are former immigration officials in Democratic administrations — have pointed out that the current system could not produce millions of deportations. This is correct, as far as it goes, but if Congress actually passed enabling legislation to fund additional detention facilities, amended the Immigration and Nationality Act to restrict the due process rights of non-citizens, and funded the Immigration Courts sufficiently, higher numbers are certainly possible.

Question: What Would Happen in Federal Court?

The first Trump Administration did not have a notably good track record defending its immigration policies in federal court. A second Trump Administration, if it attempted a program of mass deportation, would face even more serious litigation challenges. Our best guess is that any program of mass deportations would be immediately enjoined in federal court.

This raises, of course, the question of whether a new Trump Administration would comply with judicial orders. We think there is reason to doubt that. If a second Trump Administration felt unconstrained by judicial review, and were able to obtain sufficient funding from a compliant Congress, a program of mass deportations is certainly possible.

As always, we are grateful for your questions and comments, and will do our best to respond.

[1] We regret the use of this term, which is an offensive slur, but include it as a matter of historical accuracy.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

With the 2024 campaign in full swing, we want to provide ARLnow readers with overviews of both candidates’ proposals concerning immigration law and policy.

This week, we’ll review the Trump campaign’s (unofficial) immigration policy platform, as laid out in the Project 2025 Presidential Transition Project. We’ll first tell you what they say they’ll do — and then offer our educated guess about whether each candidate can actually deliver on their respective promises. Stay tuned next week for our review of the Biden Administration’s immigration policy platform — that is, of course, assuming that President Biden stays in the race.

First Proposal: Dismantle and Reconstitute the Department of Homeland Security as an Enforcement Agency

The Mandate for Leadership (MFL) starts with a simple proposal: break up DHS and reassemble it. In essence, the MFL envisions a new enforcement-focused agency with the following components (current departments at right, in parentheticals):

• Customs and Border Protection (DHS)
• Immigration and Customs Enforcement (DHS)
• Office of Refugee Resettlement (Department of Health and Human Services)
• Immigration Courts (Department of Justice)
• Office of Immigration Litigation (Department of Justice)

The MFL suggests that the following agencies currently housed within DHS be split and reallocated as follows:

• FEMA goes to the Department of the Interior
• The U.S. Coast Guard goes to the Department of Justice or the Department of Defense
• The Secret Service be split between the Department of Justice (protective operations) and the Department of the Treasury (counterfeiting and other financial crimes)
• The TSA will be completely privatized

Congress would have to act for these recommendations to be put into action, so the plausibility of this reorganization depends on the composition of Congress.

We would like to note one item which hasn’t received enough attention: under this reorganization, all government components of the U.S. immigration courts — prosecutors, judges, and appellate litigators — would be subject to the authority of a single Cabinet-level official. This would help the Trump Administration to exert pressure on the immigration courts to serve as implementers of policy, rather than independent adjudicators of law.

Second Proposal: Eliminate T and U Visas

The MFL’s proposal for T and U Visas is simple: eliminate them, because “victimization should not be the basis for an immigration benefit.”

T visas, under the current law, are available for victims of human trafficking; U Visas, under current law, are available to victims of qualifying crimes (generally, serious felonies) who cooperate with law enforcement in the prosecution of the perpetrators.

The MFL proposes that S visas (currently designated for witnesses) be used as a substitute for U and T visas in the most serious cases. This would result in a quantitatively enormous reduction, because, under current law, S visas are restricted to 200 per year in ordinary criminal cases and 50 per year in terrorism-related cases. Under current law, 10,000 U Visas are available annually, and 5,000 T Visas are available annually.

Would this work? Probably yes, in practice. Although both T and U Visas are available as a matter of statute, a new Trump Administration could simply decline to issue them if Congress doesn’t cooperate with legislation.

Third Proposal: Delegate Border Shutdown Authority to the Secretary of Homeland Security

The MFL proposes that, “whenever the Secretary of Homeland Security determines that an actual or anticipated mass migration of aliens en route to or arriving of the coast of the U.S. presents urgent circumstances requiring an immediate federal response,” the Secretary may issue rules without following the ordinary requirements of the Administrative Procedure Act to prevent large numbers of people from crossing the border.

Would this work? Probably not over the long term. The Federal judiciary is generally skeptical of administrative rule-making outside the normal rule-making process. (This is how the Trump Administration’s attempt to repeal DACA was struck down by the U.S. Supreme Court.)

Fourth Proposal: Tighten Asylum Rules and Impose a Fee on Asylum Applications

The MFL proposes a large number of changes to current asylum law and practice, including eliminating the Particular Social Group ground for asylum, raising the credible fear standard to a much higher level, imposing a fee on all asylum applications, and codifying the previous Trump administration’s asylum bars and third-country transit rules.

Would these work? It’s hard to say, because each one is subject to separate potential legal challenges. In general, the proposed changes are incompatible with current U.S. law and treaty obligations, so these changes would, in the main, require an act of Congress.

There’s more — much more! — in the MFL. We encourage you to read for yourselves and make your own judgment about the immigration policies of a potential Trump Administration.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The Biden Administration announced a large amnesty program on Monday — the “New Process to Promote the Unity and Stability of Families.” The purpose of this article is to describe the program, advise prospective applicants of how to prepare for the program’s implementation and — no less importantly — to discourage potential applicants from paying anyone to apply for this today, because, as of this writing, the application window remains firmly closed.

What is the New Process to Promote the Unity and Stability of Families?

As we’ve discussed in prior articles, U.S. immigration law treats people very differently based on how they entered the United States. Those who enter with visas — even  if they later overstay those same visas — are allowed to apply for permanent residency if otherwise qualified; those who cross the border generally are not allowed to do so without first leaving the United States and attending an interview at a U.S. Embassy or Consulate abroad.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Kabuki is a form of Japanese theater, in which actors — through exaggerated gestures, colorful costumes, and dramatic recitation — convey a story to their audience. It is a high art form.

Kabuki is also a derisive term for Washington posturing, in which politicians — through exaggerated gestures, colorful costumes, and dramatic recitation — convey a story to their audience. It is a low art form.

The new Biden executive order, which purports to ‘secure the border,’ is the second kind of kabuki. It says a great deal and conveys a story, but means very little.

First, we’ll tell you what it says, and then, we’ll tell you what it (probably) doesn’t mean.

On June 3, 2024, President Biden signed A Proclamation on Securing the Border, which suspended entry into the United States by noncitizens unless certain conditions are met. Those conditions are, roughly, as follows:

1. The suspension is in effect as of June 5, 2024.
2. If the Secretary of Homeland Security determines that the average number of ‘encounters’ at the border over a rolling seven-day period is less than 1,500 per day, then the suspension shall be discontinued.
3. If the Secretary of Homeland Security determines that the average number of ‘encounters’ at the border over a rolling seven-day period is greater than 2,500 per day, then the suspension shall be reimposed.
4. The proclamation does not apply to green card holders, trafficking victims, visitors to the United States who hold valid travel or employment visas, or holders of other lawful immigration documentation.
5. The proclamation does not apply to unaccompanied alien children (UACs) who are traveling from countries other than Mexico and are traveling without a parent or guardian.
6. The proclamation does not apply to any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.

If a noncitizen crosses the border anyway, and applies for asylum, he is ineligible for asylum, unless:

1. He faced an acute medical emergency at the time of apprehension, or had a family member who did, or,
2. He “faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder” or, again, had a family member who did.
3. He was a victim of human trafficking.

Now, here’s why the executive order is likely to be meaningless in practice.

The Exceptions Swallow the Rule

Exception #2, above (“imminent threat of rape, kidnapping, torture, or murder”) covers a very large number of asylum claims. Border officials will be unable to prevent asylum applicants from applying for asylum if they claim to be subject to this exception, and many (quite obviously!) will claim as much.

Condition #6, above (“any noncitizen who is permitted to enter by the Secretary of Homeland Security… due to operational considerations”) vests the Secretary with effectively full authority — as immigration restrictionists have pointed out — to suspend the suspension. The Secretary has already used his authority quite expansively with respect to the use of humanitarian parole. He may do so again in this new context.

The Executive Order Will Be Enjoined

In November 2018, President Trump issued a very similar executive order. It was enjoined. The Biden Administration is not stupid. They know that civil libertarians will sue, and they know that a similar injunction is likely to follow.

Why, then, issue the executive order? It’s kabuki. The Biden Administration wants the electorate to think that it is taking firm action on the border. When immigration restrictionists react to your immigration proposal by telling you that it is unworkable, and advocates of increased immigration react to your proposal by telling you that it is unworkable, you should worry about your proposal’s practical effects — if practical effect is your goal. If you want to send a message through theatrical gestures, on the other hand, such criticism rather misses the point.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

If you ask Black’s Law Dictionary for the definition of trial, you’ll find the dry, legal definition: a judicial examination of the issues between the contending parties. But, for lawyers and clients alike, a trial is also something much more like the definition in ordinary English – a time of testing, a time of stress, a time of temptation, and a time of loneliness. 

Preparing for trial requires both intellectual labor and psychological preparation. A lawyer has to master the facts: he has to know how his clients respond both to direct examination and to likely avenues of cross-examination; he has to know his exhibits; he has to know the opposing advocate with whom he must contend and the judge whom he must persuade. But, after the briefs are written, the exhibits are submitted, and the pretrial paper-shuffling is complete, the lawyer still has to look squarely at the summons and prepare himself.

Different lawyers have different rituals. A memorable law professor of ours likes to read the Rules of Evidence the night before trial, while sipping a single glass of red wine. (As advisable as this is on gustatory grounds, the reading material is not especially useful before immigration trials, because, in immigration court, the Federal Rules of Evidence do not apply.) When one of us worked as a legal aid attorney, he would hop in his car the night before trial and work as a Lyft driver to shake off the nerves. One of us always shines and brushes his shoes. 

Trial itself is a blur; that’s why, when we can, we send two attorneys to trial, so one can run the court, and the other can take notes, reflect, and consult with the other during breaks. Immigration court is slow to move, but, once trial begins, it can be a frenetic place – with just two hours set aside for most trials, judges and attorneys alike are keen to get the facts in the record efficiently.

Today, we go on trial at 1 PM. We’ll do our level best for our client. And so, today, we won’t be able to reply as timely as we’d like to comments and questions. But when we return from court, we will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

According to a WSJ (paywalled) scoop this week, and as widely reported in other (non-paywalled) sources, the Biden Administration is weighing a major immigration move: granting a rare form of relief called “Parole in Place” to spouses of U.S. citizens. Our job, as your friendly local immigration lawyers, is to explain what this would mean and how it would work in practice.

First, we have to draw out a basic distinction. U.S. immigration law treats non-citizens quite differently depending on how they came to the United States. To simplify things enormously: if you came through the airport, you’re much better off than if you crossed the border.

If you came through the airport, and you subsequently marry a U.S. citizen, you can apply for a green card based on that marriage.

If you cross the border, and you subsequently marry a U.S. citizen, you can’t apply for a green card directly. (You can, under some circumstance, put into motion a half-decade long process through which you might be able to get a green card after many legal bills get paid and after you make a return trip to your country of origin for a cuticle-chomping interview at the U.S. Embassy, but that procedure is outside the scope of this explainer.) (more…)