Page 39 - The Indian EYE 103026
P. 39

IMMIGRATION                                                          OCTOBER 30, 2026      |  The Indian Eye 39























































        tory criteria is necessary when there  The harder question is whether the  utory meaning. An agency’s interpre-  requirements—such  as  indefinite
        is no qualifying one-time achieve-  agency may use an administratively  tation may persuade, but it does not  preeminence, uninterrupted recogni-
        ment, but it is not automatically  created second step to discount ev-  control merely because the statute is  tion, or evidentiary expectations not
        sufficient.  The  enumerated  criteria  idence that has already satisfied the  ambiguous.             found in the statute or regulation—it
        identify  types  of  evidence;  they  do  regulation, particularly when that   The post-Loper Bright inquiry  remains vulnerable to challenge.
        not displace the statute’s ultimate  step has become the principal basis  should  therefore  focus  on  whether   This  distinction  is critical.  Judi-
        eligibility requirements.         for denial.                       the INA and the regulation, proper-  cial review cannot stop just because
            According to Amin, which was    WHY LOPER BRIGHT STILL          ly interpreted, authorize the precise  the  USCIS  has  developed  a    “final
        decided before Loper Bright,  the            MATTERS                work that USCIS asks the final mer-  merits determination” without no-
        statute does not merely require a pe-                               its determination to perform. If the  tice and comment.  Courts must ex-
        titioner to accumulate three catego-    garwal should not be read as  second step simply assesses whether  amine how USCIS actually used the
        ries of evidence. It requires extraor-  restoring broad judicial defer-  the evidence proves sustained ac-  framework in the case before them.
        dinary ability, sustained national or  Aence to USCIS. Loper Bright  claim and top-of-field status, it may  An agency may not evade meaningful
        international acclaim, recognition  requires courts to exercise indepen-  be characterized as application of  review by describing an extra-textual
        through extensive documentation,  dent judgment on questions of stat-  the statutory standard. If it adds new  requirement as a holistic assessment.
        an intention to continue working in   ________________________________________________________________________________________________________________________________________________________________________________________________
        the area of expertise, and prospec-  Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
        tive substantial benefit to the United
        States. A court can therefore reason   & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
        that USCIS must evaluate whether  mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
        the  evidence proves  those ultimate   Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
        statutory elements.               of Volunteers for Legal Services and board member of New York Immigration Coalition.  Mr. Mehta is the former chair of the
            But this does not fully answer
        the  objection  to  the  agency’s  final   Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
        merits framework. There is a mean-  Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
        ingful  difference  between  applying   on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
        statutory elements and imposing a
        separate, binding adjudicatory rule   Work.  Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
        with elastic standards untethered  and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
        to the regulatory text. The central   immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.  Mr. Mehta is ranked among
        question is not whether USCIS may
        consider the quality and probative   the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
        value of evidence. Of course it may.   in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.


                                                               www.TheIndianEYE.com
   34   35   36   37   38   39   40   41   42   43   44