A federal judge Friday overturned the Trump administration’s attempt to derail an Obama-era effort to entice foreign entrepreneurs to come to the U.S., saying Homeland Security officials failed to follow the law.
Judge James E. Boasberg, an Obama appointee to the bench, said the Trump administration appeared to be trying to game the system, running out the clock and then announcing a last-minute delay of the new policy.
Judge Boasberg said that violated the Administrative Procedures Act, which usually requires giving the public a chance to review and submit comments on any major policy changes.
“Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act shapes the contours of those consequences,” the judge said.
His ruling is a victory for immigrant-rights activists and the U.S. tech community, which had been begging for new avenues to get high-skilled would-be immigrants into the U.S.
And it’s a blow to President Trump, who’d campaigned on cleaning up a messy immigration system.
When the Obama administration announced the Entrepreneur Rule last year it was controversial, with the president’s aides testing the limits of the Homeland Security Secretary’s powers to “parole” foreigners into the U.S.
Parole is not a visa, but a more limited permission to be in the U.S. Federal law allows it, but requires it happen for humanitarian reasons or cases of major public benefit.
The law doesn’t define public benefit, but the Obama administration said it read it to cover having foreign entrepreneurs gain a foothold in the U.S. The rule required they prove they could attract investment in their businesses.
The Obama administration couldn’t point to any case where parole had been used to gain entry to the mainland U.S. strictly on future economic prospects. The closest parallel was a 2009 grant of parole to Russians and Chinese to work in the Commonwealth of the Northern Mariana Islands.
Nearly 3,000 people were predicted to take advantage of the rule each year. It was supposed to go into effect in July.
The Trump administration announced days before that it was imposing a delay, and would probably eventually cancel the new program altogether.
In court arguments, the Trump administration questioned whether anyone had the right to sue, saying nobody was being kicked out by halting the program before it started.
Judge Boasberg, though, said foreigners were losing the right to the “opportunity” to apply for the program. And he said the Trump administration’s public reasons for trying to derail the rule are “vague.”
He ordered that the Obama policy go into effect immediately.
U.S. Citizenship and Immigration Services, the Homeland Security branch tasked with administering the policy, declined to comment on its courtroom loss.
The National Venture Capital Association, which led the lawsuit against the Trump administration, said the ruling could fuel the economy by allowing foreign entrepreneurs entry.
Immigration advocates, meanwhile, said the decision was a spanking for Mr. Trump and his allies.
“This decision is an important reminder that this administration must comply with the law and allow the public to have a voice during the agency rulemaking process,” said Leslie K. Dellon, a lawyer at the American Immigration Council.