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Aaron Reichlin-Melnick Profile picture
@ReichlinMelnick
Jun 30, 2020 • 17 tweets • 9 min read • Read on X
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Some highlights from the Spring Regulatory Agenda, which is now out.

There's now a suggestion that the USCIS fee rules might not come until September, interestingly enough. Not sure I believe that.

reginfo.gov/public/do/eAge… Image
There's a new proposal to formalize some of the extensions to H-2A visas that USCIS has granted due to COVID. reginfo.gov/public/do/eAge… Image
WHOA. For the first time, the Trump administration reveals it's working on a regulation to eliminate the I-601A provisional waiver of unlawful presence. reginfo.gov/public/do/eAge… Image
The Trump administration is also planning to take a hammer to the current U Visa process, revising the "bona fide" determination and "introducing an employment authorization process for bona fide petitions based on a favorable grant of discretion." Yikes. reginfo.gov/public/do/eAge… Image
On the DOJ front, here's what seems like an attempt to limit cancellation of removal for undocumented immigrants even further, by redefining what "continuous physical presence" means.

No clear details, though. reginfo.gov/public/do/eAge… Image
DOJ is also going to propose a new regulation restricting motions to reopen in immigration court.

reginfo.gov/public/do/eAge… Image
WHOA. DOJ wants to propose a regulation implementing one of the "hidden weapons" in the Immigration and Nationality Act that would allow immigration judges to impose civil contempt sanctions.

Could be a double-edged sword, to be sure. Good and bad parts.

reginfo.gov/public/do/eAge… Image
Another new DOJ rule put in the agenda for the first time would redefine what "good cause" means for a continuance—an attempt to insulate AG Sessions and Barr's decisions from judicial review. reginfo.gov/public/do/eAge… Image
Fixing broken thread:

DOJ wants to impose new conditions on the filing of a change of address form in immigration court. That's... worrying.

reginfo.gov/public/do/eAge… Image
DOJ wants to "amend existing regulations to clarify the procedures for filing charging documents and commencing proceedings before the immigration court."

What would this be? New electronic filing procedures? reginfo.gov/public/do/eAge… Image
Moving to the Department of State, here's something (ominous? mundane?) newly published in the regulatory agenda that'll "propose new types or formats of documents the Department would require to establish identity and eligibility for an immigrant visa."

reginfo.gov/public/do/eAge… Image
There's also a new proposal to amend rules around the Summer Work Travel Program for exchange visitors on J visas (of course, all currently blocked anyway). reginfo.gov/public/do/eAge… Image
Here's another J-visa related regulation to clarify that Au Pair program rules preempt state rules. A pretty direct response to a 1st Circuit decision that Massachusetts minimum wage laws aren't preempted, requiring au pairs be paid minimum wage. wbur.org/news/2020/06/2… Image
There's also this rule newly in the Agenda about the "the scope and procedures for a pilot program under which consular officers will require certain individuals applying for ... [B-1/B-2] visas to post a Maintenance of Status and Departure Bond." Yikes. reginfo.gov/public/do/eAge… Image
Here's a planned interim final rule that seems like it's coming soon, which says that "The Department is updating 22 CFR 42.63 to reflect the required documents for immigrant applicants to establish identity and eligibility."

That's pretty ominous. reginfo.gov/public/do/eAge… Image
And that's it, I didn't find any other rules that were listed as never published before in the Unified Agenda.

Lots of indications about what the Trump administration would be doing if they get another term in office. Not a lot great!
Realized I didn't link my tweet about one the most consequential new rules into this thread. So here's IMHO the worst new thing in the Spring Unified Regulatory Agenda.

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More from @ReichlinMelnick

Aaron Reichlin-Melnick Profile picture
Jun 29
While in theory it might be true that judges have more expertise in interpreting statutes than agencies, in practice (especially in very technical fields) this is often wrong.

I say that as someone who has watched many recent judges butcher the INA and botch the total basics.
It’s not like the agencies get it right all the time either (they often don’t), but there are many judges who are simply bad at understanding technical fields where the precedent is weird, old, and often oddly contradictory due to generations of agglomerated statutory fiddling.
Yeah, this is a large part of it too; there is a feedback loop between agencies and Congress that involves collaboration and mutual understanding.

There is no feedback loop between agencies and judges other than the process of briefing and argumentation.
Read 4 tweets
Aaron Reichlin-Melnick Profile picture
Jun 28
I cannot express enough how much the entire basis of the administrative state has just been thrown into the air. This is a huge power grab by the judicial branch, which will now exercise a level of control over the executive branch that is utterly unprecedented in the modern era.
Crucially, the impact of the death of Chevron on immigration is... mixed. Deportation is a purely administrative law regime, and so ending judicial deference to the administrative state will actually help immigrants in some circumstances. But we won't know the impact for years.
The Board of Immigration Appeals, which until now has enjoyed Chevron deference, is going to lose substantial power as a result of this, and immigrants should fare better when challenging erroneous deportations. But immigration regulations will be more vulnerable than ever.
Read 6 tweets
Aaron Reichlin-Melnick Profile picture
Jun 18
Worth repeating: there is not a single person who will benefit from this program who could become a US citizen before the 2024 election.

And given current processing times, it's pretty unlikely anyone who will benefit could become a US citizen before the 2028 election either.
Here's the QUICKEST path to citizenship for beneficiaries of this program.

- I-130 + I-485, wait an average 11.2 months
- Wait 2.75 years
- File I-751, wait an average 25.3 months
- File N-400, wait an average 5.2 months

That's 6.2 years, presuming zero other delays (unlikely).
So, given best case scenarios of zero additional delays, a person granted parole in place under the new Biden admin program MIGHT be able to become a US citizen sometime in late 2030. But if there's any delays at all, that date could easily be pushed back to 2031 or later.
Read 5 tweets
Aaron Reichlin-Melnick Profile picture
Jun 18
This tweet gives the false impression that the Biden admin is creating a new path to permanent status. This population is ALREADY eligible for a green card. What Biden's doing is helping eliminate a barrier which stops them from being able to take advantage of that eligibility.
Totally agree it’s a big deal! But it’s important to explain why, accurately. IMHO, it’s not that these people weren’t able to “get in line”—unlike for most people there actually IS a line. It’s just that getting in the line means risking a decade of separation. This fixes that.
And for those who are curious what the path I mentioned in the first tweet is, here's a thread I did on this last week.

We @immcouncil will also have longer explainers coming out today and over the next few weeks.
Read 4 tweets
Aaron Reichlin-Melnick Profile picture
Jun 17
Setting aside that there aren't 20 million undocumented immigrants (actual number is 12-15 million, depending on if you count new arrivals facing removal proceedings in the number), it's pretty dark to say the US should seize and redistribute millions of peoples' homes.
If you seriously think that this is a common thing that millions of undocumented immigrants are doing, I've got a bridge in Brooklyn I own that I'd be happy to sell you for a low, low price! Send your Venmo over now.

Living here without papers is not a crime. And you don't even need to trust me on that.

Here's Justice Anthony Kennedy, conservative, saying exactly that in 2012: "As a general rule, it is not a crime for a removable alien to remain present in the [US]."

As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent
Read 7 tweets
Aaron Reichlin-Melnick Profile picture
Jun 7
I'm not commenting on the endorsement—but FYI this is completely ahistorical.

Legal immigration fell every single year under the Trump administration, and in his last 18 months he issued multiple bans that, if not blocked in court, would have cut legal immigration by easily 1/3.
Image
The Trump administration was so anti-legal-immigration they adopted Kafkaesque policies like the "no blank spaces" policy, where if you didn't hand write "N/A" in every single box on a form (no matter how irrelevant) they'd reject it automatically. washingtonpost.com/opinions/the-t…
In October 2019, Trump banned all immigration from people who didn't have specific health insurance plans. If that hadn't been stopped in court, that would have caused the largest cut in immigration in generations.

And in 2020, he used COVID to ban nearly all immigration.
Read 4 tweets

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