WASHINGTON (CN) — A federal judge ruled Friday that the Trump administration wrongfully delayed implementation of an Obama-era immigration rule that allows foreign entrepreneurs to enter the country temporarily without a visa or a green card.
Noting that “elections have consequences,” U.S. District Judge James Boasberg ruled on Dec. 1 that the Department of Homeland Security violated the Administrative Procedure Act, the law that “shapes the contours of those consequences.”
Boasberg found that Homeland Security acted unlawfully by failing to provide notice or solicit public comment, as required by the law, before it issued a rule that delayed implementation of the International Entrepreneur Rule by eight months.
Lead attorney Paul Hughes said the ruling could have a sweeping impact on the Trump administration.
“This decision is going to have substantial and cross-cutting effects to the current administration’s efforts to delay Obama-era rules without going through the proper procedures,” Hughes said in a phone interview. “The current administration cannot simply delay or suspend prior Obama-era regulations without going through the proper procedures."
Hughes, with Mayer Brown, filed the complaint on Sept. 19, with attorneys from the American Immigration Council, on behalf of foreign nationals Atma and Anand Krishna, American companies Omni Labs Inc. and Peak Labs LLC, and the lead plaintiff, the National Venture Capital Association.
The Department of Homeland Security said it does not comment on pending litigation.
The Obama administration issued the International Entrepreneur Rule on Jan. 17, three days before President Donald Trump’s inauguration. It was to take effect six months later.
The rule was intended to fill a gap in visa categories that posed an obstacle to foreign entrepreneurs, leaving them without a clear path to enter the country.
The rule provided a solution to that dilemma, allowing them to apply for “parole” status, which would give the Department of Homeland Security authority to admit foreign entrepreneurs temporarily on a case-by-case basis, without granting them formal immigration status.
However, on July 11 this year, six days before the rule’s implementation date, the Department of Homeland Security issued a superseding rule, postponing its implementation until March 14, 2018.
Homeland Security issued the delay rule in accordance with an executive order signed by Trump on Jan. 25, which tasked the agency with ensuring that parole is issued only when applicants can demonstrate a significant public benefit or urgent humanitarian reason.
The lag between the executive order and the delay rule factored heavily into Boasberg's ruling.
The government argued that it had “good cause” to delay the rule. While the Administrative Procedure Act does have a good-cause exception, Boasberg took issue with the agency's own procrastination in issuing the delay rule, agreeing with Hughes’ clients that the Department of Homeland Security “could have initiated the notice-and-comment process during that six-month span.”
“To date, Defendants’ justification for their delay remains vague,” Boasberg wrote. “The government’s briefing never explains the time lag, and, when pressed at oral argument, it struggled to explain what the agency did between learning of the Executive Order and issuing the Delay Rule.”
Ordinarily, an agency can claim good cause for delay only by demonstrating an emergency, or showing that serious harm will result without a delay.
The Department of Homeland Security claimed that it would be forced to expend limited resources to implement the rule.
The argument failed to persuade Boasberg.
“Even on its own terms, the agency’s proffered reasons for bypassing notice and comment easily fall short of good cause,” the ruling states.
Homeland Security also argued that the rule would cause a shift of “tectonic” proportions at the agency, and that it represented “an extraordinary change” to the immigration parole system.
Boasberg also found those arguments unpersuasive.
“While the Rule may have changed the game for entrepreneurs, it was a far less significant shift for the agency,” the ruling states. “DHS expects it might receive and process 2,940 applications related to the Rule — hardly a change of ‘tectonic’ proportions.”
An extra 2,940 applications a year would amount to about 11 per work day.
Because the Obama-led Department of Homeland Security had solicited some 700 public comments, and allowed six months for the rule’s implementation, Boasberg found that implementing the rule would not unduly tax Homeland Security.
Homeland Security also argued that it was “highly likely” to rescind the Obama rule, with the delay rule designed to bridge the gap between the two.
But with no proposed rulemaking in sight after almost five months, here, too Boasberg was not persuaded.
“As DHS waits to issue a new rule, its arguments in favor of delay leak water. The agency purportedly seeks to avoid frittering away resources on a temporary rule but, at least for now, the IE Final Rule seems to have a solid hull,” the opinion states, abbreviating the International Entrepreneur Rule.
Hughes said his clients are thrilled and overjoyed.
“They hope that they will obtain their parole status so that they can get to work in the United States growing their companies, which will have the effect of creating new American jobs,” he said.