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involved challenges to the INA pro- § 103(a)(3) and 6 USC § 202(5) so that INA §274a(h)(3) as a definitional mis- was so far like the present period, that
visions that provide the authority for the DACA program is upheld. cellaneous provision, which cannot pro- some of its noisiest authorities insisted
noncitizens to remain in the U.S. The Another interesting issue discussed vide the basis for DACA and the grant on its being received, for good or for
court gave due deference under Chev- in both cases is whether the Executive of EADs, while the First Circuit relied evil, in the superlative degree of com-
ron to the executive’s interpretation of Branch can issue work authorization on the same provision as a statutory ba- parison only.” Like London and Paris in
INA § 214(a)(1) and upheld OPT. The to noncitizens. The court in Washtech sis for OPT EAD. Dickens’ novel, Washtech and Texas are
majority did not reference the “major upheld the authority of the executive to Charles Dickens opened his A Tale comparable in some respects and very
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questions” doctrine in Virginia v. EPA. grant employment authorization docu- of Two Cities with the following famous different in others. Though Texas may
The Fifth Circuit, on the other hand, ments (EADs) under INA § 274(a)(h) line: “It was the best of times, it was the represent the worst of times and the age
held that DHS cannot rely on INA § (3), which has long provided authority worst of times, it was the age of wisdom, of foolishness, Washtech ushers in an
103(a)(3) as a basis for implementing for the Executive Branch to provide it was the age of foolishness, it was the age of wisdom and the best of times for
DACA, and cited Virginia v. EPA. This employment authorization to broad cat- epoch of belief, it was the epoch of in- foreign students hoping to gain practical
provision states that the DHS Secre- egories of noncitizens. The executive’s credulity, it was the season of Light, it training in the U.S.
tary “shall establish such regulations; authority to grant EADs under this was the season of Darkness, it was the (This blog is for informational purposes
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prescribe such forms of bond, reports, provision had been soundly rejected by spring of hope, it was the winter of de- and should not be viewed as a substitute
entries, and other papers; issue such the Fifth Circuit in the earlier DAPA spair, we had everything before us, we for legal advice).
instructions; and perform such other decision and Judge Hanen’s lower court had nothing before us, we were all going *Kaitlyn Box graduated with a JD from
acts as he deems necessary for carrying decision in Texas v. U.S. In footnote 37, direct to Heaven, we were all going di- Penn State Law in 2020, and is an Associ-
out his authority under the provisions Hanen’s decision makes reference to rect the other way – in short, the period ate at Cyrus D. Mehta & Partners PLLC.
of the Act.” This provision is compara- _________________________________________________________________________________________________________
ble to INA § 214(a)(1), which the First Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
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Circuit held provided the basis for F-1
OPT. INA § 214(a)(1) provides that “[t] Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
he admission to the United States of mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
any alien as a nonimmigrant shall be for
such time and under such conditions as Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
the Attorney General may by regula- of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
tions prescribe…….” Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
Although the Washtech case dealt
with students, the D.C. Circuit’s decision Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
can serve as a template for the Supreme on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
Court to uphold the authority for other You can click www.indialife.tv
categories of noncitizens to remain in Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
the U.S., including DACA recipients. and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
The same deference that the D.C. Cir- immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
cuit afforded to the executive’s authori-
on your browser and watch IndiaLife TV 24 Hours
zation of OPT ought to also be given to the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
the government’s interpretation of INA in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.
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