The decision by a magistrate judge in San Jose, California, follows a broad rebuke of the policy by a federal judge in Rhode Island last month.
(CN) – A federal judge on Wednesday ordered U.S. Citizenship and Immigration Services to resume processing I-765 employment authorizations for noncitizens after the federal government earlier this year froze all such applications for people from 39 “high-risk” countries.
U.S. Magistrate Judge Virginia DiMarchi in San Jose, California in part CLUE a request for a preliminary injunction in the lawsuit filed by 137 foreign nationals from 15 countries, including Afghanistan, Iran, Nigeria and Venezuela.
They claim that timely adjudication of their I-765 applications is essential to their ability to work, maintain their nonimmigrant status, and maintain their livelihoods in the US
The judge rejected the government’s arguments that policy memoranda freezing applications are protected from judicial review under the Immigration and Nationality Act.
DiMarchi disagreed that policy memoranda do not constitute final agency action that can be challenged under the Administrative Procedure Act, which governs how federal agencies make and implement important policy decisions.
“This jurisdictional issue has been well-tried by other courts in similar litigation in this district and across the country,” DiMarchi said. “The Court agrees with the reasoning of those courts finding that USCIS has a nondiscretionary duty to adjudicate claims for immigrant benefits within a reasonable period of time; that courts have jurisdiction to review USCIS’s failure to do so; and that policy memoranda are sufficiently “conclusive” for purposes of APA review.”
These work authorizations are usually needed by foreign students at US universities, asylum seekers, green card applicants and spouses of foreigners who have visas to work in the US.
The decision follows a DECISION last month by a federal judge in Rhode Island, who vacated four USCIS policies that had barred applications for asylum, work permits, green cards and citizenship from nationals from 39 countries in Africa, Asia, the Middle East and Latin America.
Chief U.S. District Court Judge John McConnell Jr., a Barack Obama appointee, in that ruling chastised USCIS for violating the very immigration laws Congress had charged it to administer.
“In adopting recent immigration policies, USCIS: claims legal and regulatory authority it does not possess; makes decisions without the reasoned explanations it should provide; acts without regard to the interests of supporting applicants it should consider; and justifies its actions with pretextual concerns of ‘national security’ that masks its anti-immigrant influence, masking its anti-immigrant sentiments. McConnell Jr. said in a 135-page decision.
While the decision in Dorcas International Institute of Rhode Island v. USCIS effectively meaning I-765 applications are no longer frozen, DiMarchi denied the government’s request to stay the court case earlier while it appeals the Rhode Island decision.
“The judge was right to grant this order — our law firm’s fifth or sixth anti-retention victory,” Curtis Lee Morrison, an attorney with Red Eagle Law representing the plaintiffs in the San Jose case, said in an email. “The government’s position is likely to prevail on appeal.” Dorcas’ vacatur clearly undermines any argument for not granting relief here or in other challenges to the holdings.”
Representatives of the US Department of Justice did not immediately respond to a request for comment on the decision.
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