Federal judge blocks another Trump administration immigration policy regarding ‘unlawful presence’

A federal judge appointed by President Barrack Obama issued a nationwide injunction on Friday against another Trump administration immigration policy, this time dealing with a provision in law known as “unlawful presence.”

U.S. District Court Judge Loretta Biggs granted a permanent nationwide injunction on Thursday against a 2018 policy that altered how the U.S. Citizenship and Immigration Services (USCIS) can determine unlawful presence for students and exchange visitors.

The policy is titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Biggs had previously granted a preliminary injunction in May 2019 to block the policy from going into effect.

Congress introduced the concept of “unlawful presence” in 1996 into the Immigration and Nationality Act, determining that a non-immigrant would be deemed in the country unlawfully if he or she is “present in the United States after the expiration of the period of stay authorized by the Attorney General.”

Staying past the authorized date could result in fines and three-year bans from reentering the U.S.

Generally, the “unlawful” period begins when a visa expires, but some non-immigrant visa holders aren’t given a precise date. In those cases, visas are deemed valid for “duration of status,” like when an international student is studying at an American university.

“In 2018, the USCIS announced that it had changed its policy on ‘unlawful presence,’ issued in a policy memorandum, stating that foreigners begin accruing unlawful presence time from the time the Department of Homeland Security denies a request for an immigration benefit because the individual had violated his or her non-immigration status, the day after an I-94 visa has expired, or the day when an immigration judge orders the foreigner to be ‘excluded, deported, or removed,'” The Epoch Times reported.

A number of U.S. colleges and two individuals brought a lawsuit against the administration in order to halt the policy.

Biggs ruled that the 2018 policy was “promulgated in violation” of an Administrative Procedure Act because it did not go through the notice and comment process, required in policies that have the “force and effect of law.”

Also, she said the 2018 policy also ran afoul of federal law because it “impermissibly conflicts with the text of the INA, pursuant to which a nonimmigrant is not ‘deemed to be unlawfully present’ until ‘after the expiration of the period of stay authorized by the Attorney General.’”

It’s unclear whether the Justice Department will appeal the ruling.

The Epoch Times reported that the Trump administration has faced some 50 nationwide federal court injunctions in the three years Trump has been in office. That’s more than double what the Obama administration faced in eight years of that presidency.

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