So argues D.C. Circuit judge Neomi Rao in a vigorous dissent last week from her court’s denial of rehearing en banc of the divided panel ruling last October in Washington Alliance of Technology Workers v. Department of Homeland Security.
The issue in the case is whether federal immigration law gives the executive branch the discretion to permit foreign visitors on student visas to work in fields related to their study for up to 36 months after they graduate. The panel, in an opinion by Judge Cornelia Pillard (joined by Judge David Tatel), ruled that federal immigration law does give that discretion. Judge Karen Henderson dissented.
Here are excerpts from Judge Rao’s dissent from denial of rehearing (which Judge Henderson joined, in addition to re-adopting her panel dissent):
Rehearing en banc is warranted because the panel decision has serious ramifications for the enforcement of immigration law. In holding that the nonimmigrant visa requirements are merely conditions of entry, the court grants the Department of Homeland Security (“DHS”) virtually unchecked authority to extend the terms of an alien’s stay in the United States. This decision concerns not only the large number of F-1 visa recipients, but explicitly applies to all nonimmigrant visas and therefore has tremendous practical consequences for who may stay and work in the United States. By replacing Congress’s careful distinctions with unrestricted Executive Branch discretion, the panel muddles our immigration law and opens up a split with our sister circuits….
Despite the requirements that an F-1 visa go to a person who is a “bona fide student” seeking “solely” to pursue a course of study in the United States, the majority concludes that DHS has general authority to extend an F-1 visa for any “reasonably related” purpose. On the majority’s reading, the highly specific requirements of the F-1 provision define only requirements of entry, rather than ongoing conditions for an alien to remain in the United States. The majority explicitly recognizes that its reasoning and analysis applies to all nonimmigrant categories….
Although Congress has set out the conditions for entry, the panel draws the surprising conclusion that DHS may prescribe different criteria for staying in the United States.
Under the majority’s approach, DHS is left with wide discretion to determine which aliens may remain in the country even after the grounds for their visa have lapsed. The only constraint identified by the panel is that an extended stay must be “reasonably related” to the particular visa category. This capacious standard could distort other nonimmigrant categories, allowing, for instance, an agricultural worker admitted under an H-2A visa to remain in the country even if he abandons his agricultural work and opts instead to pursue a degree in agricultural sciences. Glossing over Congress’s delineation of dozens of discrete categories, the majority’s interpretation effectively erases the INA’s very specific requirements the moment an alien enters the United States.