Page 38 - The Indian EYE 061926

IMMIGRATION JUNE 19, 2026 | The Indian Eye 38

USCIS Withdraws Appeal in Mukherji:

What Changes—And What Does Not?

BY CYRUS D. MEHTA AND MAN- drawn its appeal. to withdraw its appeal, leav- whether the beneficiary has nate the “final merits deter-
While the withdrawal of ing the district court’s ruling risen to the top of the field. mination” in all cases, nor
JEETA CHOWDHARY
the appeal is noteworthy, its intact in that individual case. Petitioners should therefore does it automatically alter
practical significance should The withdrawal of the continue preparing filings how petitions will be adjudi-
n our previous blog, we not be overstated. The de- appeal is undoubtedly sig- with the expectation that a cated tomorrow. However,
discussed the decision
Iof a district court in Ne- cision does not necessarily nificant, but it is equally im- holistic review will occur. In- the case may provide an ad-
deed, the USCIS has been
portant to understand what it
signal an immediate change
ditional point of discussion
braska in Mukherji v. Miller, in how USCIS adjudicates ex- does not mean. denying EB-1A petitions in litigation involving denials
which relied on Loper Bright traordinary ability petitions. First, the withdrawal even where the petitioner has where USCIS appears to im-
principles to overturn an EB- To briefly recap, the dis- does not create a binding met three or more of the ten pose expectations untethered
1A denial based on USCIS’s trict court in Mukherji held precedent beyond the dis- criteria for determining ex- from the regulatory text. It
use of the “final merits de- that USCIS improperly de- trict court case itself. Had traordinary ability. also serves as a reminder
termination” framework. As nied the petitioner’s EB-1A the Eighth Circuit issued a At the same time, it that courts may increasing-
explained in that post, the petition by relying on a sec- decision affirming the lower would be difficult to ignore ly scrutinize agency-created
court questioned whether ond evaluative step—the court, the ruling may have the broader significance of frameworks in the post-Lop-
USCIS could lawfully impose so-called “final merits deter- carried broader precedential USCIS’s decision not to pur- er Bright era. It is surprising
an adjudicatory structure that mination”—that, according value within that jurisdiction sue the appeal. One possible that the USCIS withdrew
was not expressly grounded in to the court, was not prop- and potentially influenced explanation is institutional its appeal in the Eight Cir-
statute or regulation. USCIS erly adopted through no- courts elsewhere. By with- caution. If USCIS had pro- cuit, which is conservative,
had appealed that decision tice-and-comment rulemak- drawing the appeal, USCIS ceeded and lost before the which means that after Loper
to the U.S. Court of Appeals ing under the Administrative avoided an appellate ruling Eighth Circuit, it risked creat- Bright the final merits deter-
for the Eighth Circuit. Brian Procedure Act (APA). Rather on the merits. ing an unfavorable appellate mination is vulnerable in any
Green, who was lead coun- than continuing to litigate the Second, USCIS has not decision concerning the agen- federal court.
sel in Mukherji v. Miller has matter before the Eighth Cir- rescinded its long-standing cy’s authority to impose ad- Whether Mukherji ul-
posted that USCIS has with-
cuit, USCIS has now chosen adjudicatory approach to ex- judicatory standards not ex- timately proves to be an iso-
traordinary ability peti- pressly rooted in regulation. lated district court decision
tions, and it does not ap- The decision to withdraw the or the beginning of a broad-
pear that the government appeal may therefore reflect er reassessment of extraor-
withdrew the appeal be- an effort to preserve flexibility dinary ability adjudications
cause it plans to rescind while avoiding a precedential remains to be seen. What is
the final merits deter- rule with wider consequenc- clear, however, is that US-
mination policy. USCIS es, and to allow the USCIS CIS’s withdrawal of its appeal
is still likely to continue to deny meritorious EB-1A leaves unresolved—but very
adjudicating EB-1A and cases with impunity under the much alive—the broader de-
EB-1B petitions using final merits determination. bate over the limits of agen-
the familiar framework For individuals pursuing cy authority in immigration
associated with the Ninth extraordinary ability classi- adjudications that are not
Circuit decision in Ka- fications, the practical take- tethered to the INA, particu-
zarian v. USCIS, includ- away is measured rather than larly in the post-Loper Bright
ing a broader evaluation dramatic. While Mukherji landscape.
of whether the evidence eliminated the “final merits Manjeeta Chowdhary is
collectively demonstrates determination” in that case, an Associate at Cyrus D. Mehta
sustained acclaim and it does not broadly elimi- & Partners PLLC

_____________________________________________________________________________________________
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner
of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative
m of Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel
on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Depart-
CYRUS D. MEHTA & PARTNERS PLLC ment, New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal
Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the

Board of Trustees of the American Immigration Council and former chair of the Committee on Immigra-
tion and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on

  various immigration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn
   
­
€
‚   Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA
2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA
2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
in the immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.
Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who Legal –
2 6th Floor Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

    immigration law, among other rankings.

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