Did Trump's DHS Just End Green Cards? Not Exactly.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:09 Thomas: Hello, and welcome to Opening Arguments. This is Vapid Response Wednesday. And yes, we are down someone. So Lydia is unavailable today. We're actually going to skip, but then Matt, real life attorney, Matt Cameron, you had something really important that you wanted to talk about. So I'm Thomas and that over there is real life attorney Matt Cameron. How are you doing today?

0:00:30 Matt: To you live from the smoking ruins of the U.S. immigration system apparently it's not that bad but it's this is it's been And since Friday, we're recording on Tuesday. Yeah, no, people are acting like a fertilizer bomb went off against one of the major pillars of the immigration system, which that's not totally wrong. I mean, it's pretty bad, but I'm going to talk about what this thing is and what it isn't and how the media has gotten it wrong, because it's complicated and it's more than you can explain in a 30 -second TikTok video for sure.

0:00:36 Thomas: Still smoking after all this time? Well, what thing? What is it?

0:01:00 Matt: Yes, that's important. USCIS announced a major policy change as to what's called adjustment of status. And this is actually a great follow -up to last week's show, where we talked about the history of how people process visas. And so we'll get into some of the difference about adjustment of status versus consular processing, why this matters. But the very short version is that this announcement made it look like and made it sound like they will not be granting grade cards to anybody inside the United States forever. And that's not what's going to happen. And I want to show you why just by breaking down this actual memo and kind of show you of why I think the media is doing some of the Trump administration's work for it, not for the first time. But yeah,

0:01:38 Thomas: Wow. So not being covered well. Okay. It is important to get that breakdown so we know what's actually happening. And I know you always talk about, you know, not causing fear unnecessarily for a population of people that doesn't need to be more scared, actually, you know?

0:01:54 Matt: They don't.

0:01:55 Thomas: I think they're already good.

0:01:55 Matt: And judging by the calls and emails we've been getting from our office, people are very concerned, including a lot of people, once again, that have no reason to be. But certainly there are other reasons to be concerned, and I'll get into that about who actually is affected by this and who isn't. But I think it's really important to get it straight. And I'm concerned whenever these things happen, because now the default source of news is viral video. It's 30 seconds, and you can't tell these stories in that time. You just can't.

0:02:17 Thomas: Yeah, and we aren't viral. We're, you know, we're over here, we are inoculated from being viral. I don't know.

0:02:23 Matt: We are, we're latent, I guess.

0:02:24 Thomas: Trying to do, yeah, longer term, actually cover it. But yeah, this is important. So, we're going to find out why, actually no, they're not going to not be issuing green cards throughout the entire US. So alright, that's the agenda today. We are still going to take our usual first break and at least since we're going today gives us a chance to thank our amazing patrons at patreon .com slash law so let me thank those uh that first third and then we'll get to it thank you too nobbling the jury helps me get off that's still good the wuth beta ginsburgler that was actually bugla I guess is how it's spelled my house is a mess but I read a lot of books griff the tired 1l gary the seagull matthew cutler autistic twitch streamer Venonari for America 2028, one man, one vote. Unremarkable. Hello, hi, vehicular man's laughter. It's like spelled differently. Hold on. Hello, high vehicular mana's laughter, how are you? Is that a typo? It might be a weird import thing, sorry. Ham cookout alumni amina. That's a great reference for 10 to 12 people, but I love it. Donna Treadway, mother of haridans. Mike Lipinski, nurse. I spy gypsies. Run. Wow. That's an

0:02:56 Matt: Best in a while.

0:03:43 Thomas: Elaborate one. I love that palindrome. Good stuff. Cyanitis. Is it mothersday .com? That's a really good one.

0:03:54 Thomas: Well done. I wish Lydia were here to hear that. She'll hear it later, I'm sure. Gray preponderance of the evidence. Mr. Chief Justice and may it please the court. Last train to Skanksville. And apprentice of adventure. Thanks Thanks so much to our Hall of Famers over at patreon slash law. You can join the ranks, get the goodies, and get the shout out if you're at that Hall of Fame level.

0:04:14 Matt: Say, it makes me feel like I'm not shouting, I'm casting into a void whenever I hear patrons paying attention and following along with their inside jokes. Much appreciated.

0:04:21 Thomas: The Void has a name. Its name is Last Train to Skanksville. All right, well, we're going to take a break and then we'll dig into this thing that is being covered badly.

0:04:25 Matt: That's Skanksville. You got it. Let's do it.

0:04:35 Thomas: Matt you were kind enough to still bring us an amuse-bouche uh so to what douche shall we be amused yeah

0:04:44 Matt: We're never running a shortage of dishes. Our nation has a surplus. So yeah, this is Robert Gouveia. He's a criminal defense attorney, I guess, former who now yells on YouTube. That's his job. He has a channel called Watching the Watchers. And just looking at the category of January 6th on his YouTube should give you a pretty good idea what this guy's about. He is for it, if you're wondering. And it was a hoax and a fraud, but also everybody involved should get paid um you know who definitely did it also um yeah so this is his response to this memo and I could play you a bunch of liberal lefty takes they're also pretty bad a bunch of nbc cnn in the moment fox you know all kind of getting it wrong but uh I especially appreciated that the title actually if you're able to show us the title of the of this youtube

0:04:46 Thomas: Too many I thought

0:05:26 Matt: Video uh now there's like a yeah so it doesn't matter but it's he's yeah furious

0:05:26 Thomas: It was uh is it at the green card loophole nuked by trump admin making foreigners furious all caps foreigners yeah all

0:05:35 Matt: Nuked in caps yes nukes nuket All right. Well, let's get a little taste here of his response to this memo.

0:05:43 Clip: And apply for permanent visas back through the State Departments. This policy allows our immigration system to function as the law intended instead of incentivizing the loopholes. The era of abusing our nation's immigration system is over. Temporary visas are temporary. Adjustment of status is a matter of grace. The lower courts also describe it as well, calling it an extraordinary act. Courts repeatedly describe this as extraordinary relief, not automatic. The green card loophole now closed we have the trump administration creating reverberations and fury and outrage by many of the foreigners who use this loophole after this announcement was posted on x saying the uscis is applying long -standing law and prior court decisions to require certain aliens with temporary visas who decide they want to be permanent residents here to go back home and apply for permanent visas back through the state departments you have to afuera out of here return back to your home country make the application there and you can come back and there's been a meltdown almost every single democrat ruben gallego and the rest of them all on x saying this is outrageous this is egregious everyone should be allowed to stay here and do whatever they want in our country while they stand around and wave foreign flags and when you ask them questions

0:06:56 Thomas: Dude pretty

0:07:05 Clip: As you see in youtube videos all over the place uh do you like Do you like Texas or do you?

0:07:06 Matt: You get the idea. That's enough. Yeah, so this is the kind of language I've been seeing on both sides, honestly. I've been seeing all over the issue of people talking in these very final terms, these very conclusory terms about how it's over and done and nuked. And I appreciated that he kind of covered the full range of that, but we're going to find it's a lot more complicated than that.

0:07:26 Thomas: Amazing the weight of your intellectual offering is Ruben Gallego what like what year is it what year are you how old are you why are these people in charge of the the world, of our country at least. Pretty stupid. Can't believe it.

0:07:46 Matt: On his website, he says that he made the audacious choice to stop practicing law and do this all day. And yeah, it is a pretty audacious choice. He's not very good at it.

0:07:54 Thomas: Yeah, I don't know what's worse. Would it be better if he was practicing law? I don't know.

0:07:58 Matt: So probably not. But in Arizona, who knows? I don't know, too far from the subject. So let's look at the actual thing, the actual memo. And I want to take you through what this thing is. And because I think the difference between the headlines and what's in the memo and the fear that we're seeing. Now, again, to be clear, there's a lot to be concerned about here. And the shot that they're firing here is pretty extreme. And the intention that they're signaling is not great. But if you actually read what's in the thing, as I have now several times, and a lot of people don't seem to have read it, there's a little more reason for hope. And there are a lot people that this, even on the terms of this memo, that are still going to be fine and able to adjust status. But I want to, we can pull it up and I can explain all the context a little bit more. So May 21, 2026. Now, again, to be clear, this is a memo. Usually memos don't make the news. This is an internal communication.

0:08:47 Matt: And if you want to read the title, it has quite a title.

0:08:50 Thomas: This right. Of status is a matter of discretion and administrative grace and an extraordinary relief that permits applicants to dispense with the ordinary consular visa process I don't know what that means

0:09:02 Matt: So one of the statements made in that is true. I'll break it down real quick. So there are about four different claims being made in the headline alone. And the headline is really what the news seems to be reporting on, what a lot of people were talking about. We're going to go beyond that to see what's actually in here. But the first, what is that? Five, six words. That's correct. Adjustment of status is a matter of discretion. The rest of it is not true. But I'll show you that just to identify each of the statement they're making here. So So adjustment of status is a matter of discretion, which means that in INA 245, the Immigration and Nationality Act, Section 245 as passed by Congress in 1952, it says that the government may adjust the status of people who are eligible from a non -immigrant or immigrant visa to residency, right? Their non -imigrant visa, rather. So I'll explain a little bit more about the residency process in a minute, but I just want to be clear that when the law says may, that tells us it's not shall. There are lots of places where the law say shall. If you meet the requirements, you're going to get it. But the word may still means they can take a look at you. Now, they can't take a looking at you and decide they don't like your face or that they just want to give it to white people, although they can in function do that. You have to write down your reasons if you're not going to give them to somebody, but you can use discretionary reasons, and we'll talk about some of how those work. But the next part where you kind of break the sentence down, adjustment of status is a matter of administrative grace, and I'm going to prove to you by the end of this that that is a complete misquote, that they've completely taken the law out of context, and And the idea that we're only allowing people this incredible benefit as a matter of administrative grace, I mean, it's condescending,

0:10:33 Matt: Right? You're paying thousands of dollars and spending years sometimes waiting for this. It's not grace. It's just doing their jobs to give you residency that you applied for, that you paid for. The next claim, that extra adjustment of status is an extraordinary relief. That's not true either. This is the one that really bothers me, the idea that they're turning everything on its head. Now, we talked last time about how the visa system changed at the point at which they They created the racialized quota system that we think Republicans now want to get to, get back to, with the Andy Ogles bill that we talked about last week. And, you know, until 1924, you could process everything in this country. There was no real immigration system, but you could go and basically to a local court, state or federal, and you could prove you'd been here for a certain amount of time and you'd get your certificate. It was pretty easy. But then they changed it to consular visa processing. So the thesis that they're trying to go with in this policy memo is that consular visas is going through your home country, the U .S. consulate there, should be the default. And then everybody else who maybe gets to slip through is getting it as a matter of administrative grace. Now, you might think it doesn't sound so bad to just go back to your home country. Maybe you go visit your parents for a couple

0:11:38 Matt: Of weeks, right?

0:11:38 Thomas: I wouldn't think that but sure I guess some people All

0:11:41 Matt: Sure. But if you have the means and if you're from somewhere like India or China, where it's hard to go home, it's expensive, maybe you take a month or two, go visit your families, take some time off and just go process your visa. But it's not that easy, as I'm going to tell you by the end of this, for many people that this memo will affect, it's going to cause real problems. And this is a trick. This is essentially a trick to get them to leave the country for up to 10 years or more. So that's the real problem is for people married to US citizens and parents of US citizens, this is where it's really going to be an issue. And that's a lot of people, as we talked about last time, the system is now majority based on family visas. So this really matters. So those are the claims that are being made. And so let's read the purpose section just so we can see what they're saying it says.

0:12:25 Thomas: This memorandum reminds officers and the public that adjustment of status under Section 245 of the Immigration and Nationality Act, INA, is a matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas. U .S. Citizenship and Immigration Services reaffirms this consistent and longstanding approach and declares as a matter of general policy its intention to faithfully apply the statutes consistently with this understanding. So it sounds to me like if that's already how it is and you're just reminding people like this is the policy, then nothing should change. Should be exactly what it already was, right? Right?

0:13:00 Matt: If that were an accurate statement of the law, I'd agree. But you have to look out for the Trump administration saying things like consistent and longstanding approach because they get real sneaky on this. Remember, we've talked quite a lot over the last year and a half about their attempt to say that people who came over the border are subject to mandatory detention and can't be released on any order of bond from an immigration judge because they've decided to reinterpret what INA 235 means. They've They've decided just like as a complete thing, like a revamp, that they're using an interpretation that nobody's really thought to use in the 30 plus years that we've had this. Some of this is true. And again, I want to be honest as possible on this show and make sure that we're showing the other side's arguments that we are acknowledging where they're correct. And some of the stuff I will show you is correct. But the fundamental premise that console processing is the default and that it's an extraordinary measure or that only extraordinary cases should be approved for adjustment, which is when you get to do it while you're here, that's not true at all. And I'm going to show you that. So, sure,

0:14:04 Thomas: If I'm struggling, I imagine some people at home are struggling. I know it's just so hard with immigration law, all these terms. So just to reset, I know you've probably said this, but it's so many weird terms. The normal processing versus the consular processing, what was that distinction again? Can you explain that again?

0:14:22 Matt: Well, it's whether you get to do it while you're in the country, that's adjustment of status, or you have to leave. And if you have leave, for many people, it is going to trigger an automatic bar to returning for up to 10 years or more.

0:14:25 Thomas: That's that. Okay, Okay. Why would you have to leave? Is that how it used to be or something or?

0:14:35 Matt: Isn't necessarily how it used to be, but that is when they set up the consular post. And it makes sense if you're already in your country, if you are filing for your mom who lives in Germany, then she goes down to the consulate in Berlin and she gets to come here after that.

0:14:48 Matt: And there are other times and places where we do make people go back to deal with the consulate, to have to do some things. And just to remind everybody what the goal here is, I've sent you a picture. This is actually the Wikipedia picture for green card. And I like it. It's just kind of a funny picture. I don't know where they got this, but I want to just show people what the, yeah, this is the end goal. This Is Permanent Residency. And Just to do the 101 here, permanent residency is required before citizenship. You can't just apply for citizenship. You have to have five years of permanent residency in every case or three years if you're married to citizen. And here is Mr. Test V. Specimen.

0:15:20 Matt: This is a very strange green card because check out the residence since 2020 and it expires in 2032. I've never heard of a 12 -year green card. I don't know what that's about. They're issued in 10 -year increments. That's a weird one. But yeah, Mr. Specimen, though, you can learn from this. His category is IR1, which means he came through marriage and the immediate relative of marriage.

0:15:22 Thomas: Test V specimen. Huh.

0:15:40 Matt: It also says that this is a woman, actually, but I don't know that test is a woman or a woman's name. So it doesn't really look, I don't know. Anyway, I don t know who made this, but it's

0:15:49 Thomas: What, what, what is this? Yeah. Who made, who did make this?

0:15:52 Matt: Better than doxing somebody, I guess, because you can learn a lot from somebody just by posting their green card, and I wouldn't do that. So, but, it's also, you might know, what color would you say this card is?

0:16:02 Thomas: I mean, it's green -ish. I don't know.

0:16:04 Matt: Green ash. It's like aquamarine. I'm not very good at colors, but it hasn't been fully green for a long time, but food stamps haven't been issued on stamps for a long time either. It's the same kind of thing. But yeah, so when we're talking about immigrant Immigrant visa versus a non -immigrant visa. The immigrant visa is the one that gets you residency and that's what gets you on the path to citizenship. Non-immigrant visas, we're going to be talking about a lot in this conversation, include student visas, tourist visas, business visas. And then something like the H-1, which is one of the most popular visas people have heard of, the H1B, that is a dual intent visa, which means that as a non immigrant, where you're promising to go back, you're saying I'm here to visit Disney World, I'm going to here for a week and then I go home. You're making a deal with the U .S. government when you're a non immigrants that you're not coming here with immigrant intent. If you're coming with an immigrant visa, you're coming here to get residency. If you're coming here with a dual intent visa, we understand you're going to be on an H1 maybe for seven years, and maybe you'll have a chance to

0:16:53 Matt: Get permanent residency.

0:16:53 Thomas: Like maybe you really like Disneyland. Like you're like, I'm going to come see Disneyland, see how much I like it. And then if I love it, I'll stay here. I'll live at Disneyland.

0:16:55 Matt: Maybe you really can. I just live here now. Yeah, that's right. And it can be a real problem if the immigration system is able to show that you actually sold your house and all of your possessions before you came to Disney World. That's not going to be great. Or if you told everybody, I'm coming here live forever, or you just got a job as soon as you got here, that all shows immigrant intent, and that is one thing we're going be talking about. But the dual intent visas, which again, the H -1 is the big one, the L -1 is another good one. And the student visas are kind of in between. They've been treated as dual intent de facto, basically, by the system. There was an update a couple of years ago by the Department of State that basically turned the F -1 student visa into a dual intent visa. But the point is, and the thing I really want to convey in this communication is that dual intent visas can still adjust under this memo from everything I can see. Now, that's really important because a lot of people on H -2s are freaking out. Somebody on Blue Sky told me that their friend's wife had actually just been fired from Amazon over this memo because they didn't think she was going to be able to get residency. And I think that she should sue. I mean, that's just,

0:17:51 Matt: If that's really why she was fired, you're not allowed to be fired for speculative immigration reasons. Like she has status right now. But you know, I don't know. That's not my field. So yeah, it does seem weird. And people should not be making major life decisions based on a policy memo right now, there's a lot more, as I'm going to tell you, that I think it's going to be stopped pretty quickly. But as it is, though, the reason this matters is because resident status is what most people want if you want to stay here permanently. And so let's take a look at the first paragraph of the memo and what they're citing for this idea, because I want to talk about how they get there. And as you know by now, one of my fascinations in our slow slide to American fascism, our slippery slide, is just how

0:18:02 Thomas: Seems weird. Sure.

0:18:34 Matt: They do it, is kind of the superstructure of it, the little nuts and bolts of how they put this stuff together. Other. And honestly, this was written so they could have the subject line that we just read, so that that would be what was reported. But I don't think that the memo itself holds up very well legally, and I'm pretty sure a federal court won't either. So if you want to throw it back up, we can check out what it's actually saying.

0:18:55 Matt: So yeah, take a quick look at that first sentence there. Let's read that.

0:18:55 Thomas: This background and analysis, it has been long established and you know, every good memo, you just say what's been long established. That's definitely honest work here.

0:19:06 Matt: Great, for sure.

0:19:08 Thomas: It has been a long established that not every alien who meets all other eligibility criteria for adjustment of status will be granted adjustment because adjustment under most provisions is granted only as, quote, a matter of discretion and administrative grace.

0:19:23 Matt: There's those words again. So a matter of blahs. Let's take a look at matter of blahs. I sent you a link for it. It's a 1974 case from the Board of Immigration Appeals. And I've told you before, the Board Of Immigration appeals is the appellate body within the immigration court system. It is also within the department of justice. So it is not a judicial court and it reviews immigration court decisions. To get to this, I'm going to show you to get to the conclusions that they're reaching here, that they are focused entirely on this one case, which is not actually relevant to the thing that they saying it's relevant to. And they're ignoring a number of other cases, and we'll take a look at those too. But to use this case as the example is very strange to me.

0:20:01 Matt: So check out, if you scroll down a little bit, the facts on this thing. So first of all, let's start with the fact, and again, this is a case where they're saying this proves that ordinary people applying for adjustment of status are only given it as a matter of discretion and administrative grace. Again, I agree about discretion, but I don't agree about what they say discretion is. I agree in the general sense about administrative grace, but they're also completely using that phrase in the wrong context. So check out the starting at the...

0:20:27 Thomas: First off, it says decide by board August 2nd, 1974, and then decide by attorney general March 10th, 1976.

0:20:34 Matt: Great catch. Yeah. So the attorney general has the right to grab any immigration case and make it more important or actually to just like to write up their own version. Basically, they can snatch any case out of the system, write a decision and have it be the same him as if the Board of Immigration Appeals had done it. And so he basically canonized this. He made it extra. They decided, I think he wrote an extra thing on here. But this means that they really, if the attorney general picked it up and is promulgating it, they really want you to know that this is how they view the law. And that's fine. Honestly, I don't disagree with the holding in this case or the conclusion they reached on this person. Take a look at the first paragraph on page two.

0:21:11 Thomas: On page two. Okay. This one. Before, oh, that's still page one. Uh, oh darn it. The text chain. Oh, there we go. Uh. The respondent, a 38 year old male native and citizen of the Philippines was admitted to the United States at Honolulu, Hawaii as a visitor on or about September 21st, 1970. On November 13th, 1972, he was granted the privilege of departing voluntarily from the United States on or before November 28, 1972, without the issuance of an order to show cause. He failed to depart within the specified time. His deportability under Section 241A2 of the Immigration and Nationality Act has been established by clear, convincing, and unequivocal evidence.

0:21:17 Matt: Yeah, there we go. Yeah. The respondent. So let's start there.

0:21:58 Matt: He has a a deportation order. He was supposed to leave the country. So we're talking about somebody who's now applying for residency. And this is back when it was a little easier to do all of this now that you just wouldn't be able to step up and apply for residency at all because you've got this order in your head. And again, he gets the order and he knows he's supposed to have left by November 28th, 1972. And look what he does in the next paragraph.

0:22:18 Thomas: All right, on March 18, 1973, the respondent married a woman who obtained United States citizenship a month later and who thereafter filed a visa petition to accord him immediate relative status. That petition was approved.

0:22:32 Matt: So the petition just gives you the right to apply for residency and that it just says, we know you're married to this woman. But it's pretty pretty suspect that within three or four months of your deportation order, you're marrying a US citizen, right? We're already on the path.

0:22:42 Thomas: It sounds like they didn't go through the immigration exam or the marriage exam that Lydia and I went through or something.

0:22:47 Matt: Well, especially if you go down a little further, so skip down to the last paragraph on this page, the record one. And I'll just note that in between those paragraphs, they mentioned that he lied basically about the fact that his parents were in the United States. That's a big problem as well. But yeah, if you read the part about the record, this is very important.

0:22:54 Thomas: Record. The record further shows that the respondent came to the United States from the Philippines to get away from his family, that is from his wife and their four minor children. Children, and he came here with the intention to divorce his wife, to remarry in the United States, and to stay here. When he applied for his non-immigrant visa with the American consul, he stated that his purpose was to take a pleasure trip. He did not... Well, it is pleasurable to divorce my wife, okay?

0:23:13 Matt: Pretty bad.

0:23:34 Thomas: Get away from these goddamn kids.

0:23:33 Matt: And leave your kids. Yeah, that's a lot of fun. Yeah,

0:23:35 Thomas: Yeah. Hey, I get it, man. No, I'm just kidding. He did not reveal his true plans.

0:23:36 Matt: Good times. Good thing this didn't come up at your interview. Yeah, so this is the

0:23:42 Thomas: Yeah. Yeah, that's why that's why Lydia's gone. She just got out of here. She's like, I just got to get away from this guy and the kids.

0:23:51 Matt: Case they're using. It was like an example of why people are given administrative grace. Now, again, looking at these facts, you're talking about a guy who overstayed a deportation order, married somebody at the last minute, lied in multiple ways to the consulate to get his visa, and also ditched his family and stopped supporting his poor kids, right? So like, as a matter of discretion, what are we doing here?

0:24:13 Thomas: So somewhere along line. So so basically they're taking a case that It applies to like the worst possible, you know, case scenario. And they're saying, see, this is how it applies to everyone. Is that basically something like, right?

0:24:24 Matt: And they're lifting the language about discretion and administrative grace, because the board is reminding everybody that not everybody just gets to get a green card because... Now, none of those factors that we've talked about... Now misrepresenting yourself... Now this is back in the 70s of different standards. I don't know exactly what the law is in the 70s. I wasn't practicing, wasn't born, but there were different standards now. Misrepresent yourself to a consulate has always been a problem. That's always something they can deny on. Abandoning your children has moral issue, right? But it's

0:24:49 Thomas: Good. Wow. Has it always? I don't know.

0:24:52 Matt: Not necessarily inadmissible. There's a lot of shitty behavior that is not inadmissable that keeps you from residency.

0:24:56 Thomas: They're like, we're going to need to see some evidence. How bad are these little shits? Like, give me.

0:25:01 Matt: But they have in the system accounts for the fact that there's a whole lot of different circumstances, life things that might make somebody just kind of shitty without having been charged with a crime, without really doing anything wrong otherwise that might keep them from getting residency. And there's definitely a lot lot of smoke around this. You can see how they might say there's a fire here. But the reason the board is citing this is because they like this language about discretion and administrative grace. But again, this is somebody who's in deportation proceedings. Now, you can receive residency in deportATION proceedings. You're going to apply for a green card with a judge if you qualify. But USCIS memo is from USCIS, not the immigration court. It's from the agency that adjudicates residency in the first instance. So these cases that they're citing about discretion and administrative grace actually don't have anything to do with how they're supposed to analyze things, because these are about people and deportation proceedings. Yeah, very important point. And I'll just say, right, I'm sure. I'm Sure that the lawyers are very, very busy and just overlooked this fact. But the fact that this memo all the way through is quoting cases that have to do With people in deportation, proceedings, there's a big difference between somebody who's been here on an h1 followed all the rules and everything great entered, you know, lawfully incorrectly. I'm not making moral equivalence about this, but I'm

0:25:47 Thomas: Wouldn't you know it? Simple mistake to make, Matt, I'm sure. Yeah

0:26:13 Matt: Just saying in terms of what the system is going to look at, big difference between this person who's going through the USCIS process versus somebody who got caught, was supposed to leave, married a U .S. citizen, had already ditched his family, had lied all over the place in his application, and is now just trying for a Hail Mary in front of the immigration court, just hoping maybe it works.

0:26:13 Thomas: Yeah

0:26:29 Matt: And the immigration Court reminds them, this is discretion. This is administrative grace. It's not how it works." So that's the beginning of how they're starting to do this, is they're they're basically treating, I mean, what I'm going to argue here, they're treating every residency case for the purpose of this memo, like it's this guy, which is really unfair, obviously.

0:26:50 Thomas: Right well we're going to take a quick break before we dig further into this so let me quickly thank our second batch of hall of famers at patreon .com slash law thank you to probably a real person nick fish vincent LaGuardia Gambini attorney at law, a negative phenomenon. Ye olde racism shop, one flavor. You got to fight for your right to ex parte. Jay Sank, David Souther, vehicular man's laughter, giving shout outs to all my wokies, especially Amina. Seriously, go subscribe to WTW. Samuel Alito, anti -women's hospital. Oh man. Yeah. Monday's OA. Just this one freaking in hospital has all these, uh, bad abortion cases out of, but, uh. It's crazy. John Roberts is just Hexus without a sexy voice. Is that somebody you know? Hexus?

0:27:39 Matt: Don't recognize the name.

0:27:40 Thomas: Don't know. Sorry.

0:27:40 Matt: Access. No. Sorry.

0:27:41 Thomas: Tonight, today's episode is brought to you by the letter something. Cavalry, Thomas Friedman. Friedman? Why not? Thomas Freeman, Cajun Killa, Fraud Fishy Hates Everything, Chris Simpson, Missing Knowledge and anonymous akilah thank you so much hall of famers all -time greats we'll take another quick break and then we'll dig back into this all matt back to the memo what do we want to look out here

0:28:05 Matt: Right so again we can tease out who this actually applies to because the media reporting and even a lot of the lawyers talking about this they're acting like it applies to everybody who could be up and buying so I just want to explain a little bit more about the law here, that in 1952, Congress created this idea of adjustment of status, that you go from one status to another. And then in 1958 and in 1986 and a number of other times, they've expanded it. They've also narrowed it at different times. At one point, everybody in the Western Hemisphere was briefly excluded. That's a whole story. But the important part is they made exceptions. And the reason I'm going to tell you that this memo fails on its face immediately is that Congress specifically made exceptions for immediate relatives of U .S. citizens. And just as a matter of law, one of my favorite immigration facts is that lawful permanent residents do not have immediate relatives. They just don't. So yeah, news to them.

0:28:50 Thomas: What happened to him they

0:28:51 Matt: I don't know. They don't exist until you become a citizen. Then suddenly they pop into existence. So just as matter of the law, yeah, that's

0:28:52 Thomas: Die in a fire or yeah oh everybody wants a piece once you once you become a citizen yeah

0:29:00 Matt: Right. Yeah, out of the woodwork. And that's because immediate relatives have this immediate benefit of being able to not have to wait in any kind of line. If you are a spouse or parent or minor child of a U .S. citizen, you get to immediately process your visa and use it. And again, that's going to take six to 12 months, but you get file it and not have to wait in any kind of line before you can actually use the visa to apply for residency. So that's what we get to do at the same time. So a lot of people, because of these expansions over the time, and I should say too, the original standard, I went back and I did some reading over the weekend. I did a lot of obsessive reading over weekend, actually trying to understand what they're doing with this memo. And I found some interesting stuff from 1958 about when they expanded the law. Congress is talking about how anybody who is worthy of this should receive it. And worthy is an interesting word. It's not really a legal word, but it's not extraordinary.

0:29:47 Thomas: It's more of a Wayne's World word you know we're not worthy yeah it looks like I don't know what that's a legal term okay hmm

0:29:56 Matt: But you don't have to be exceptional to be worthy. I mean, like you can be, yeah, no, right, exactly. Exactly. And because they're treating this as if only the most extraordinary people should get to get residency. And the original standard in 1958, the congressional intent was to give it to people who were worthy, which they defined as basically people who checked the boxes and were doing okay. I've had a lot of shitty cars in my life. They were all street worthy. They could drive on the street and they did the job that they were supposed to do. They look like somebody got got murdered in the back seat sometimes, but

0:29:59 Thomas: Thank God yeah yeah like in like in an old -timey like seaworthy or something like that. Yeah. Okay.

0:30:31 Matt: She floats. Yeah. So that's worth remembering that Congress though did create these exceptions for people who had unlawful presence. So the most common scenario, this is very common, is you overstayed your student or your tourist visa. And it's not a crime to do that. But if you overstay your student tourist visa, even 10, 20, 15, whatever, long ago, you overstated. If you married a US citizen, as long as you entered that one time with inspection, we'll let you go ahead and adjust status. That's part of what they're targeting here is that pattern. And I understand it because it's offensive to them. They think these people should pass this through the consulate. I would agree, if not for the tremendous penalty that we'll talk about after this, that makes it really a huge issue. I don't think it's that big a deal otherwise. So that's kind of the context here is they're trying to narrow it down to the kinds of categories. They're giving us an idea. Now, one of the things in this memo that they're promising is more memos. Can't wait. We're going to have more weekends of memos, yeah. Yeah.

0:30:59 Thomas: Awesome.

0:31:25 Matt: Wishing for more wishes here.

0:31:25 Thomas: Yeah, I was going to say that too.

0:31:28 Matt: But yeah, it is really, I mean, we need more memos on this because it does need clarity. We need to know which situations are most concerned about. I have a pretty good idea which situations they're most concerned About, and we'll outline those in a minute here, but just give you the idea. We can read this with this paragraph.

0:31:40 Thomas: Okay, Congress in establishing the non -immigrant admission and parole processes made it clear that aliens are expected to depart the United States when the purpose of their admission or parole has been accomplished. Generally, when a non-immigrant or parolee fails to depart as as required, and instead seeks adjustment of status, it contravenes these congressional expectations, though USCIS acknowledges exceptions, including non -immigrant categories with dual intent and immigrant categories where only adjustment of service is required. Of status provides a pathway to permanent resident status.

0:32:15 Matt: So this is important. First of all, this is wrong because Congress did, they specifically expanded it to include parents and spouses and allow them to have overstays that are forgiven, minor immigration immigration violations. So the congressional intent was actually to make it easier for close relatives, because you don't want to punish somebody's spouse, the US citizen, because this person overstayed their visa 15 years ago.

0:32:41 Matt: And then they also are acknowledging openly, and this did not get reported enough, exceptions, including non-immigrant categories with dual intent and immigrant categories where only adjustment of status provides the pathway. So we'll talk about dual intent in a minute. That's going to be the next paragraph. But there are a number of categories, like, for example, adjusting from a grant of asylum. If you've been granted asylum, you can't leave the country. You have to adjust status after a year. Once you've got an asylum, you can do it here. So they're not changing that for things like U visas and T visas that are for humanitarian purposes. Arguably the VAWA visa, but things that are by statute, the violence against women visa for people who have been in abusive relationships.

0:33:13 Thomas: What, Visa? Oh, they didn't get rid of that yet?

0:33:19 Matt: Yeah, no, that's still, Joe Biden, it's some of his finest work, actually. It's still kicking. So they're explicitly saying, that's why off the top, the headlines that are saying they're forcing all people to go back and process residency, that's just not true. And a lot of people did come in with dual-intent visas. I mean, the H-1 is the most popular visa besides the family visas. So that makes sense. But if we can go down a little bit further, I can show you how this works. So there's talking about And then we're going to talk about adverse factors. And there's an interesting question here. If you go down to the bottom of that page, while such aliens, the

0:33:55 Thomas: While such aliens may be otherwise eligible for adjustment of status, their contravention of this expectation and attempt to avoid the ordinary consular immigration visa process, usually accompanied by their violation of our immigration laws, are adverse factors that the aliens may need to offset, quote, to offset by a showing of unusual or even outstanding equities. Once again, that same citation.

0:34:22 Matt: Matter of loss, back to Hunt again. Now, again, that's what they're saying in his case was like, yeah

0:34:25 Thomas: If that guy, yeah, sure, he would need some outstanding equites.

0:34:28 Matt: You better have set up an orphanage or something. Like, you know, like you have to...

0:34:33 Thomas: He's like, well, I'm actually going back to my five kids over in the United States. So, you know, it's just classic trolley problem. Like, Like, yeah, I'm leaving the four, but like, yeah.

0:34:39 Matt: Can't make me leave them. Yeah. So again, they're taking this case from, you know, somebody who was starting off the bat with a bunch of negative equities. We talk a lot in immigration law about...

0:34:52 Thomas: It's like matter of dirt bag. They're like taking, might as well be matter of dirt bag and they're using dirt bag as the example for everybody.

0:34:56 Matt: Metadripic, that's good. Right, and they're setting Yeah, exactly. That's actually very true. They're setting the adjudication baseline at Derbeck, which makes sense because that's what Trump and the German administration think that immigrants are, right? So that's how they're treating them.

0:35:12 Thomas: I guess, and I don't know when to ask this, but I guess the thing that, you know, and let me know if this doesn't make sense, but. I get that it's a memo. I also get that, like, you know, this is one of those things where there may be a lot of discretion, you know, their ability to change stuff, but there's There's also obviously there's law and stuff they got to follow. How much of this is something that they can be stopped from doing, you know, because of the law and how much of it is like, well, they get to interpret these things, even if they're interpreting it completely incorrectly and applying the wrong standards, like how much do they, are they able to get away with that?

0:35:49 Matt: Yeah, not that far, because the Administrative Procedures Act does require they can't act in an arbitrary and capricious manner, they can act against existing law. And I mean, just for example, and they haven't gone this far, and we're not going to say this in writing, but if they were to say that we interpret our law history and tradition to mean that since 1790, that Congress only wants white people to become citizens. Now, that was the law in 1790. We did have a law that said only white people, free white people. If they put out that memo and said that, well, sorry, everybody else, but this is it, only way people are going to get to your residency, that would immediately be shut down by a court because that is in direct violation of the law, obviously, and it's arbitrary and capricious to just limit it to one race. But this, I think, I'm going to argue, because of the way that they are completely misquoting and mischaracterizing how this stuff works, that between the way they're turning consular processing and adjustment on their head and reversing them as if adjustment shouldn't be the default for people who qualify for it, And console processing should always be the default. By the way that they're making everything sound like this is an extraordinary golden blessing that we're giving you rather than a process that you paid good money for. I think this stuff is going to be stopped. And that's been what

0:36:13 Thomas: History and tradition, baby. Yeah. Yeah.

0:36:53 Matt: I'm saying since I read it, is that there's a court within the next couple of weeks is goingto stay most of it, or at least say a lot of this is too vague and people should be able to know what controls it. And the other question that keeps coming up is what happens to pending applications? If you filed this three months ago before this came out, not knowing this was coming out, maybe you would have thought different. So that wouldn't be fair at all to retroactively apply it. We don't know for sure, but there's nothing in this memo that says it's not being retroactively applied.

0:37:17 Thomas: So what kind of person or like what status would that be that they applied for? What exactly okay and so that yeah right and so if you're saying they would somehow apply this standard before so like what would that matter I guess like if if you applied before you're they they would still need you to go leave the country and go back to your country or something and apply again or Or are you dinged for having applied or something? Like, is there some extra, like, bad thing because you already applied under the old system?

0:37:22 Matt: Or if they already applied for residency. So imagine the rules change on you midway, right? No, it's just the question always comes up for things like this, what happens to pending cases if you applied under one standard? And they're going to be, oh yeah, it means it's a huge life changing. And also because you processed your visa when you initiated the visa process that comes with the residency process, you have to mark whether you're doing it in this country or abroad. And if you want to change it to abroad, it's actually a huge pain to send it abroad.

0:38:01 Thomas: Well, and I guess it's resetting, like the timer and all that, theoretically, if you had to do it all over again, right? Processing. Yeah. Hmm. Okay.

0:38:19 Matt: So that would be a whole other thing you have to do. It takes months to do that for some reason. But the real thing is you're going to be coming up on an interview. And so now in this interview, you're gonna have a chance to maybe potentially meet the terms of this memo or not. But shouldn't you really be held to the standard in the interview? Like this is new. This didn't exist when you applied. It's ex post facto. Ex post facto doesn't really apply to this kind of civil thing, but it should. In this case, it is reasonable reliance, right? You thought that that the law was one way, and they're saying it's a different way by the time you get there. And the law, basically, as I understand it, for USCI's purposes, it's the law that applies at the time of your interview and adjudication, not when you apply. So that's what they're going to say. But I think that a judge is going to have to find that this can't be retroactive because it's just too dramatic.

0:38:19 Thomas: Gotcha. Yeah. Hmm. Yeah. Yeah.

0:38:58 Matt: It's too much of a change.

0:38:59 Thomas: Now, I know a lot of people are probably going to be like, oh, naive Matt, who works in this every single day. But still, like the law is not saving us. The courts are not saving this. But I feel like, you know, the courts have been saving us quite a bit, not the Supreme Court, obviously, but a lot of the stuff. It does seem like it has been pretty good. We've talked about, you Know, to a to a degree that I think was surprising how well the court, the lower court, or at least, you know, up until the Supreme court, how well they're kind of defending our rights when a lot lot of other people aren't so what's what's the kind of is there any comparison to a to another recent policy where they tried to pull a fast one and then were held back like it what's I guess what can you tell people about your expectation of courts stepping in and also what about the whole they got rid of injunctions thing you know does that affect this right

0:39:49 Matt: So yeah, for the first question, I would compare it directly to what I was talking about before, their interpretation of INA 235, which is about mandatory detention we've talked about this and I think at one point I showed you like a three -page footnote from a district court that listed out all of the other federal district courts that basically all of them that had found that this was illegal and they shouldn't have done it and that it stopped it including a lot of trump judges had to say this isn't how it's supposed to work and there is now a circuit split on that that's going to go to the supreme court but you know again yeah and I'm glad you brought this up because I want to make sure that I'm not just saying that the system is going to fix itself or that courts can fix everything but the administrative Procedures Act is a powerful tool. And it also, this memo is really very much kind of setting the tone. That's what memos do for these purposes of the rest of the system and telling adjudicators how to handle things. And I think we're going to see a wide variety in how it's interpreted by adjuducators. And in places like Massachusetts, we'll continue to see maybe better outcomes. And in redder states, maybe where they're drawing from the local population, they'll find the harshest way to apply it. And we're gonna have to see, and the only way to challenge that is in federal court with an APA claim, if you think your case has been arbitrarily denied, or with a mandamus if they just are refusing to do anything about it. So I would compare it to that because that is another policy where they radically reinterpreted the law and the courts have universally shut them down, except for now one federal circuit court has, I think it was the sixth or the fifth, definitely. We know that already without being told, has already found to this.

0:40:21 Thomas: What

0:41:10 Matt: But yeah, pretty much. And unfortunately, that is where most of the detention centers are, but this will have to go to the Supreme Court. But again, on the initial review, view, the stuff that matters for individual people is in federal court. And so, yes, there could be an issue here with a class. And you could define, you know, in terms of how universal injunctions work still, like the idea is that the Supreme Court found in Casa's case that there is no such thing as a universal injunction anymore, that you can't just have a bunch of people say that an undefined class of people, basically, but you can still enjoin the government from doing a specific policy.

0:41:11 Thomas: I would have a guest right yeah from like making a policy change or whatever yeah that makes sense okay

0:41:54 Matt: It's a little complicated. I'm not going to explain it just right. But it is still possible. And it is also possible to create a class because there are a couple of distinct classes that are coming out of this. You could still create potentially the right kind of class in the right circumstances for this. But yeah, I think there's going to have to be some kind of declaratory injunction about the whole memo being too vague and too much in violation. I'm really not that kind of lawyer for the impact litigation that's going be required. But that's kind of one way or another. This is just so illegal to me that it seems like the worst of it has to be stopped. And I want to talk...

0:42:24 Thomas: Is uh the administrative procedures act another place for uh project 2028 for maybe maybe bolster that get yeah because it seems like it's doing some good work for us so yeah

0:42:31 Matt: Beef it up. Yeah, it is. No, it's a really helpful tool. I want talk about the thing we were just looking at before with the way they balance the factors. So there's another case I sent to you called matter of awry. Just to show you the language that they're ignoring to get to this, down to the last page of this decision.

0:42:37 Thomas: Pausing right now it's all of three pages. Oops.

0:42:53 Matt: Because this is the language they don't address, this is a case that they don t cite and there's any number of cases that say this exact thing. So let's check out the last paragraph here.

0:43:03 Thomas: We're talking about like Xerox, you know, like this thing. Factors are present in a given application, it may be necessary for the applicant to offset these by showing. Oh, okay. So this was from this case, not from the other one. By a showing of unusual or even outstanding equities. Wait, I thought they cited the one.

0:43:06 Matt: Good Yeah Yeah, no, the other one said that too. They're being lazy here and not citing themselves for their previous case. Yeah.

0:43:27 Thomas: OK, by showing a showing of unusual or even outstanding equities, generally favorable factors such as family ties, hardship, length of residence in the United States, et cetera, will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted still as a matter of discretion. Discretion yeah that's interesting

0:43:50 Matt: So that last sentence, in the absence of adverse factors, because this is the thing the board is pretending doesn't exist. They are going to say the opposite of that in a moment, that you still, even without adverse factors we still can't give it to you, which doesn't make any sense. If you're presenting like a neutral application where you basically qualify and there doesn't seem to be anything wrong with you, that person should be presumed to get residency. I mean, again, it's not a shall, it is a may, they can still look at the whole picture yeah the discretion is still there but they're also um you know and we can there's one more case I want to show you just to give you the idea of the stuff they're ignoring and that's a matter of cabazos that I also sent you uh

0:44:14 Thomas: Are they seizing onto the still as a matter of discretion or something yeah all right right. Let's take a look at this one.

0:44:29 Matt: Right so matter of cavazos we've got a 1980 bia case this is yet another case they had to ignore to get to the decision they wanted. And this is a Mexican citizen who came on a tourist visa and got married and has a US citizen kid. And it was, you know, this is fairly typical set of facts for this kind of thing. But again, this was somebody who was in deportation proceedings. The proceedings were reopened so he could present an application for residency. And the immigration judge found that he had preconceived immigrant intent. And he cited, there's a whole, the actual holding of it doesn't matter so much because there's an interesting thing that no longer applies. But the actual finding about this part, about the equities, is really important. Let's check out this paragraph.

0:45:07 Thomas: The finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondents adjustment application and no additional adverse matters are apparent in the record. A significant equity is presented by the respondents United States citizen wife and child. We conclude that a grant of adjustment of status is warranted in this case and will accordingly sustain the appeal and remand the record to the immigration judge for further processing of the application for adjustment of status filed by this respondent and for the entry of an order not inconsistent with this opinion.

0:45:44 Matt: So there you go. Even though he came with the intent to stay and he overstayed his visa, they found that he's got a wife and kid and that we need to just keep the family together and grant him residency in deportation proceedings. So this is more closer to the matter of boss thing.

0:45:56 Thomas: And if it were purely discretion as in like whatever the hell we want, you wouldn't really have this right where they're like hey you know you kind of did this wrong let's let's uh let's have you and I know I guess it's all the agency kind of telling itself what to do I guess in a way but still it kind of implies that you don't get to just do whatever you want if

0:46:15 Matt: No, you really don't. And you know, just to give you some examples of the kinds of things that negative discretion, which is understandably used for. You can imagine a situation, because again, we've talked before about the many, many things that automatically disqualify you, but there are lots of things that are just kind of shady. For example, if you have been...

0:46:30 Thomas: You're like hi I'm steve bin laden I want to cut or something I don't know

0:46:33 Matt: Maybe some questions might be raised, yeah. Of the bin ladens, yes.

0:46:37 Thomas: I'm one of the good ones.

0:46:38 Matt: Yeah, right, right. But maybe some extra questions. But the cases that I've seen personally in which you can imagine situation in which somebody was arrested three times for drunk driving within the space of a year. Maybe he was acquitted by the jury in all three times or there were other reasons that he wasn't convicted. But in the police reports, you can read it and see that he blew a 0 .2 or whatever and was very drunk. Now, that person may be an alcoholic. They've been arrested three times for drunk driving in a year, that's pretty bad. But you also could find out that they were going through a tremendous, maybe their mother had died tragically and they were just going through a really bad mental health period and we can document that. But if they are actually an alcoholic, that is something that has to be addressed because the law says you can't get residency as an alcoholic. So even though you don't have a conviction for drunk driving, even though drunk driving actually in itself is not admissible yet, that's the kind of thing you could be denied under discretion for. And the judge could find there's something going on. Same thing if you have allegations of domestic violence involving, let's say, five different partners from the

0:47:35 Matt: Last 10 years, right? I mean, you're probably a domestic abuser. There's really no way that's not true. I shouldn't say probably.

0:47:35 Thomas: I don't know. I think Me Too is just going to do far though.

0:47:42 Matt: Yeah, that'S right. Yeah. Yeah.

0:47:43 Thomas: That'll be what they say now. You're in because, yeah, it'll really trigger the libs if we let you in.

0:47:43 Matt: That's right. Right? We should hear those guys out. Hear them out. And I'm talking people that did not get convictions because it is very hard to get convictions in domestic violence cases for reasons we can all understand. And so that's the kind of thing that can get you denied even if you don't have a conviction. And the kind immigration violations they're talking about. Sure, all of that stuff, I accept that. That's fine. That is part of how the system is supposed to work. That is why it doesn't say shall. That s why we get to look at everybody in front of you. But it also means you get to use positive discretion to say, well, you re supporting your wife and kid. You know, that drunk driving episode was a mental health crisis. I can see that. Here's a letter from your therapist, whatever, right? You know. So those kinds of things need to have that kind of flexibility.

0:48:23 Thomas: They're just pushing and pushing and pushing to try to get everything, just to force everything to the max allowable xenophobia all the time. And it's not good. It's because you would want the law. I know know these the fascists don't care but like you would want the law to be kind of how you're describing it where it's like yeah discretion means you know you're gonna be able if there's somebody looks really shady like somebody's just constantly like they're just a villain they've they got I don't know what they're doing they just a must they got a mustache that is bad it's one of the bad mustaches and but there's nothing like technically wrong with that mustache I get it but it shouldn't mean we get to just deny everybody because we hate anyone non -white that

0:49:05 Matt: Right.

0:49:05 Thomas: That just shouldn't be how it works sure

0:49:07 Matt: That is not how it works. It's not supposed to be. And again, our immigration system is fundamentally racist and just like most of our other systems. But it, I mean, still lets a lot of non -white people through and as it should. And yeah, but the way they're trying to rebalance this, I believe, is fundamentally racist, because it's going to affect, well, we'll talk at the very end about the people it's going to effect the most, but let's take one more quick look at the menu here, the menu, the memo.

0:49:28 Matt: I'm hungry. I didn't eat lunch. That's what happens.

0:49:28 Thomas: Yeah the menu yeah me too delicious memo yeah

0:49:35 Matt: Tasty. Page five.

0:49:37 Thomas: Right back back to this delicious memo that's looking like a big piece of pizza I don't know doing the car tooth I'm doing the cartoon thing where your head turns into like the pie or something yeah yeah where

0:49:43 Matt: It's not a happy meal, but turkey. All right. So this is where, to me, this paragraph, and we're not going to read the entire thing, but this paragraph is exactly what they're actually trying to say with this. It doesn't exactly match with the headline. So check out that paragraph there.

0:50:08 Thomas: Adjustment of status is in the discretion of uscis officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion for example

0:50:20 Matt: That's how it's always been. That's just to make a point. That is how the law works.

0:50:23 Thomas: That's that's what I'm saying from the beginning is like when you're trying to pull this fast one of like hey just memo this is how it definitely works I don't know I'm writing this I'm just reminding us all but clearly you're tying to change how it works without saying you're changing how it worked for example oh did you want me to continue or no oh okay

0:50:37 Matt: We don't need to read the rest of this right now, but I want to go down to an alien's failure in the middle of that paragraph.

0:50:48 Thomas: An alien's failure to comply with the the conditions of their non -immigrant admission or parole and an alien's failure to depart as expected are highly relevant to this analysis. This is particularly true when the failure is connected to the alien's intention to reside permanently in the United States and the alien could have achieved that goal through the normal immigrant visa process. USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining non-immigrant status in a category with dual intent like

0:51:21 Matt: This is it. This is the part people need to know, is that they're most concerned about people that didn't leave when they were supposed to leave, people that came on non -immigrant visas, overstayed. And now they're not saying those people... Yes, again, exactly.

0:51:30 Thomas: Elon musk yeah let's get him the fuck out of here maybe I've got yeah back

0:51:34 Matt: Great example. But people that we expected to leave Now they're not saying they'll be denied or they have to They're just saying this is highly relevant So if you still have I'm going to argue as an attorney Like as I have to do If you stillhave a child with special needs You know who needs constant 24 -hour care We can still use that as a positive equity To show you need to be here And you can't leave the country right Those people should still get residency I'm not saying it'll happen all the time But there should still be positive equities And that's even what they're saying here That can outbalance it They're saying we want to give this particular weight The fact that you didn't leave And then this last sentence This, to me, is how I can assure people with H -1s that they're not in trouble. It is not inconsistent with simultaneously maintaining an immigrant status. They're reminding everybody that dual intent is dual intent, and they didn't do anything wrong by coming here and then applying for residency because that's exactly what we allow them to do. Now, the footnote on that is kind of funny. It says, however, maintaining lawful status in a dual intent category is not sufficient on its own to warrant a favorable exercise of discretion. It's just the fact that you managed to maintain the visa lawfully is not enough. And remember, they're turning the law on its head and saying the absence of adverse factors does not demonstrate equities, which is not, again, we've just seen these cases that show us that's not true. That you've seen this now on paper. I just want to show you the proof that this is not how it's supposed to be. This is not the law. They're ignoring their own precedent to get there. So that's the basics. We can come back in a minute and talk about what this all means and where I expect this to go, and especially the really heartbreaking part that the media is not really reporting properly.

0:52:58 Thomas: Right we'll take our last break and then we'll get to that thanks to our top hall of famers these are the best of the best with honors thank you too mark schultz et Check out www.galenacomic.com for a cool webcomic Bob Loblaw's Law Podcast philly basement bar is currently closed for spring cleaning and reorganizing I there they need to get update please I want an update philly baseman bar elect thomas smith president American Honkytonk Bar Association balticate Philip Kizer don jr got married in the oh my god yeah got married in the bahamas and trump wouldn't go making him the only kid trump wouldn'T fly to an island for corin lan a string of unpronounceable characters malika chandler ronda the dork rondathedork .com milo meadsong is fighting petty tyrants big easy blasphemy chris waltrip sam danao fred r our Grothius, Classic, LibTard, and Mitchell. All right. Thanks, top patrons. You're the best. Patreon .com slash law to join their ranks, get the shout outs, get the goodies, skip the ads. We'll take our last break and then be back for the conclusion. You wanted to tell us a part that people are missing or is the most heartbreaking part?

0:53:24 Matt: Let's get opened. When hear people saying, well, what's so bad about just going back to their home countries to process? It's inconvenient, but they overstayed their visas, so that should be the punishment, right? And that was the case until April 1st, 1997, when the law changed in a very dramatic way. And I just want to give you a few takeaways here, and this is the big one, is that for spouses of U .S. citizens who overstayed their visas. Now, I'm going to tell you, and again, this is not legal advice, big capital letters in bold, as usual. I'm not giving people legal advice. Please talk to a qualified attorney if you fall into these categories, but I'm gonna give you something to think about, at least some guidelines, so you don't have to read these headlines and think that you're going to get deported. Still get to make a case, and a good lawyer can still get these cases through. I don't doubt that based on this memo. They're stating an intention, obviously, to rebalance things and to, for now, until a judge stops them, to do something very different from how they've done it before. But the reason it matters so much is because if the spouse of a U .S. citizen who has overstayed their visa for more than a year leaves the country, they don't get to come back for 10 years. So this is a

0:55:11 Matt: Trick to get people to leave and not be able to come back. There is a waiver that's available.

0:55:13 Thomas: What am I thinking of that we talked about that was like that thing it was a while ago

0:55:18 Matt: We did. Because Joe Biden tried to fix this problem and the red states shut him down. This was the Keeping Families Together program. We We talked to somebody who was affected by this. And so this applies mostly, it usually applies to people who came without permission, because until now, people who became with permission got to adjust status, no matter how long they'd overstayed. Now they're treating them in a different position, potentially. But for people who entered without status, people have overstayed their visas for more than a year. As soon as they leave, they are barred for 10 years unless they get a special waiver, which can take years to process. So it's a huge inconvenience, splitting up families, causing all kinds of problems. Problems. And given that Congress has multiple times tried to make it easier for spastic U .S. citizens, they're essentially, what they're trying to do in this memo is create the problem that Congress is trying to fix when they expanded it. They're tryingと undo this and make it harder for people that should get to stay with close family members. So I wanted to point that out. And there is another piece of hope here. And it's kind of dark days when the thing I'm about to say is the piece of help. But if your application is denied and you are out of status, you will be be referred on to immigration removal proceedings, which are deportation proceedings. And that sounds bad, but the fact is that almost everybody who's in deportation procedures is not in custody. They won't come and get you necessarily. I'm not saying it's good. I're not saying you should try to get yourself into deportation precedents, but I am going to make the point that the reason that I'm really, for now, happy that residency is not over and I know it, is because this memo is not binding on immigration courts. And it, in fact, isn't talking to immigration judges at all, even though though it's citing

0:56:44 Matt: Cases of people in immigration court as if they apply.

0:56:49 Matt: Immigration judges are still bound by the same law they always had. This is just USCIS telling its officers how to do their thing. So you could end up in a situation where you have to apply with USCIS, take the risk of getting a notice to appear in immigration code, and then do your residency case before the immigration judge based on the approved immigrant visa that you got from USCIS. I don't want that to have to be the way we do it, but if that's better than leaving the country for a lot of of people that would otherwise be inconvenienced. So as a takeaway, that is at least something, there's going to be this backup option potentially, but it's there and I have some faith about that that could be possible and that the immigration courts, for now at least. The other thing that you should realize besides the 10 -year bar is that there are a lot of countries right now that are subject, I think about 39, are subject to a visa pause at the consulates. So this is just, it's a one -two, right? You're going to send people back to their countries and then say, no, sorry, we're actually not processing these. And that pause allegedly is so they can reassess how they do the monetary requirements, the financial sponsorship for public charge analysis, which we're expecting some kind of public charge rule the same there was during the first Trump term. Andthat's been paused for a while. There's quite a number of countries affected and they're pretty much the countries you'd expect. So unclear how that's going to interact. And I think that should be considered in the adjustment of status thing too, as an adverse factor that you're going to have to go back and potentially be stuck. So again, it's early days for this, but you can learn a lot from what's in the memo by actually reading it. So I would recommend that people do that.

0:56:55 Thomas: All right that's weird I

0:58:18 Matt: I know, crazy, but

0:58:18 Thomas: Don't know what you're talking about I refuse if this do you have it on Audible yeah

0:58:25 Matt: You can also learn a lot by having Thomas read it to you as he did today. So

0:58:27 Thomas: Or or have matt tell us what it means even better so

0:58:29 Matt: A little of both. But in some ways this is extremely radical, and in some ways I'm going to tell you I think are illegal. In In other ways, it is actually restating what the law is about these things. So, you know, it remains to be seen, but it is not saying that everybody has to do it. And in fact, I'm identifying there are quite a number of categories and people that will still have the chance, without any question, will still have a chance to adjust. And again, I want to be very careful to say I'm not giving legal advice on how to proceed with your case. You have got to talk to a lawyer, and this is not the time to try to apply for adjustment of status by yourself. Even if you do clearly fall into a category where it seems like you're going to be okay, you still are walking into the system. So be careful.

0:59:08 Thomas: The I don't know if you're calling it a loophole but the thing you're talking about then is potentially I know you're not giving legal advice but like potentially there could be someone who is supposed to leave, but it's like maybe better to not because then you face the judge who's not necessarily bound by this. Is that what you were saying? Or sure.

0:59:27 Matt: Why don't we be clear about that? I'm not saying overstay anything. I'm not saying, you know, stay if you're not supposed to. But if the case is denied, it'll be referred on to the immigration court. If so, USCIS denies it, then you're put in immigration proceedings because they know that you're out of status. So the judge now has to look to see if you should be deported. And that's not usually somewhere you want to be, but there are some circumstances in which immigration courts are the only place you can get relief. And this has maybe become one of them for a little period of time, at least, for the rest of the Trump administration. We'll see.

0:59:48 Thomas: Interesting. All right. But yeah, not legal advice. Talk to an attorney. Wow. Okay. Yeah, are we concluding here?

0:59:59 Matt: I think that's it. I

1:00:00 Thomas: Okay, so overall, give me a couple sentences on what you think most I I know the the conservatives are assholes the mega assholes what I I almost wish you had given us a clip of the the mainstream media or whatever because how are they uh misreporting this and what's the overall um takeaway that they should have hmm

1:00:20 Matt: Have not seen any serious emphasis on the fact that this is mostly going to affect spouses. And that's the thing that I would really like people to know is that spouses are potentially going to be extremely inconvenienced by this if it goes forward as it is planned. And I think the media really owes immigrant communities and their viewers and listeners generally, I think, a higher standard to not freak them out.

1:00:41 Matt: Because we fully expect the TikTok lawyers and experts, quote unquote, are going to get out out there and yell and use the caps and talk about how it's capital nuked and whatever. But the media just have a little more... I've noticed the headlines have actually softened. Some of the headlines I was going to show you have actually been softened down to most or many.

1:00:56 Thomas: They edited well I don't know if this is is that but I know I've had a problem and I think you've agreed where uh I remember when they said like trump fires judge judge or whatever. And it's like they say things that Trump does, which he may not and might not have authorization to really do. They say it as though he did it.

1:01:15 Thomas: Thus, I think I think that's putting a hand on the scale or whatever, like tipping the scale toward the acceptance of this kind of thing, because if instead you report that Trump writes it on a piece of paper that someone should be fired despite not having the ability to do that, that's more true, depending on the circumstances and is not putting your, you know, uh, putting, putting a, what is, what is the phrase? I'm so tired. Putting a finger on the scale. I don't even, what am I going to say? Putting a something on the skill.

1:01:44 Matt: Figure on the scale of public opinion. Sure, yeah, for sure.

1:01:46 Thomas: Um, and is, is not tilting the scale in, in towards the fascists, you know, like, like you've said, I think, I think at the beginning, not doing the fascist work for them, you know, I don'T know if this is exactly that, but I really wish, uh and that's mainstream media. That is, you know, New York times, that's everybody. Uh, um, oh, okay.

1:02:01 Matt: Well, check out what I just sent you. Speaking of doing the the fascists work for them. Here's the Washington Post, the DC paper of record. They have not changed their headline. And this is a very bad headline. This goes to exactly what you're saying right now. The Better Reporting has said that they are claiming to do this.

1:02:15 Thomas: You know, I canceled my subscription and now I can't.

1:02:18 Matt: You can't just click through.

1:02:19 Thomas: I it was for a second and then it went away. Hold on. No. Oh there we go. Okay, good.

1:02:25 Matt: Great. Yeah. So let's read that.

1:02:28 Thomas: Trump administration to force foreigners in the U .S. to apply for a green card abroad.

1:02:33 Matt: The subtitle is even worse.

1:02:35 Thomas: The Trump administration is announcing a new policy that requires foreigners in the U S to leave and apply for green card from their home country. So yeah, it's just a done deal, huh?

1:02:42 Matt: Not good. That's bad.

1:02:44 Thomas: Sounds like it's It's just.

1:02:44 Matt: That's a bad summary. And they didn't use most or many. They just said, It sounds like it's everybody. And they're also, you could signal, at least in the headline, that this is a radical policy, that this isn't a new approach, that is something that is not based in existing law. And a lot of the better outlets have done that. But that stuff, I've been hearing from people who are having major mental health consequences all weekend because they were sure that this was going to ruin their case, people who were in good situations.

1:03:11 Matt: And even the people that should have reason to be concerned should get a lawyer and see what they can do too, because it's still possible and there's still ways. But I just think that right now, our immigrant communities are so keyed in to what's going on in every aspect of the immigration system that you can set off shockwaves. The guy wasn't wrong when he said it's reverberating through the system because it is. And even just having put this on paper is going to send shockwaves through the systems for years to come that they would even think to put this down. They will be concerned they'll try to do it again. But yeah.

1:03:37 Thomas: All right. Well, thanks for clearing that up. And please, please share the good information. Please don't cause panic, everybody unnecessarily, because it's already like it's not like the message. And it's so frustrating to have to split this difference or whatever. It's not like anyone saying everything's fine. Don't worry. But it's like people, especially immigrants, are probably already at a nine or a 10 all the time. And it's like, don't move them to an 11 for no reason.

1:04:02 Thomas: You know, like that's not a, not a good or productive or kind thing to do.

1:04:02 Matt: That'ss right. That' s right. And immigration law is so dependent on your personal circumstances that it's very hard to make these generalizations and that's why I'm saying a 30 second tiktok isn't going to do it but you know get a good lawyer talk to talk it out with them and uh you know just see what you can do stay calm

1:04:17 Thomas: So, yeah. All right. Well, thanks so much listeners. Thanks, Matt. And thanks patrons. Most of all, we'll see you for rapid response Friday. Thanks for listening and watching.

1:04:26 Matt: And if you want more that's I've written this up on my sub stack at deportnation .com thanks a lot

1:04:33 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.