All The President’s Immigration Lawsuits

No president has been sued over his immigration policies as much as Donald Trump. Court decisions on many Trump administration policies are expected within a year and will affect millions of people. Trump’s authority over immigration and the power of future presidents to restrict entry into the United States will be decided. Below is an analysis of the key immigration cases and issues facing the courts.

Using the President’s 212(f) Authority to Limit Immigration: Congress has not supported the Trump administration’s efforts to eliminate family immigration categories and reduce legal immigration. As a result, Donald Trump and his chief immigration adviser Stephen Miller have turned to executive branch authorities.

The boldest of these measures is an October 4, 2019, presidential proclamation using Section 212(f) of the Immigration and Nationality Act to bar new immigrants from entering the United States without health insurance, potentially reducing legal immigration by hundreds of thousands of people per year. For context, note the Supreme Court permitted the administration to use 212(f) authority in the travel ban decision.

“The bar uses the president’s authority to bar classes of foreign nationals from the United States when their entry has been deemed ‘detrimental to the interests of the United States,’” said William Stock of Klasko Immigration Law Partners in an interview. “Like the earlier travel ban, this proclamation is an unprecedented expansion of the authority delegated by Congress to the president in Section 212(f).”

It is not a given that the Supreme Court will defer to Trump’s use of 212(f) authority as it did in the “travel ban” case. “For one, the proclamation does not have a clear connection between the harm alleged to be ‘detrimental’ to the U.S. (uninsured patients in America’s healthcare system) and the means used,” said Stock. “For another, the proclamation directly contradicts certain provisions of both the Immigration and Nationality Act and the Affordable Care Act. If this usage of Section 212(f) is allowed by the courts, the president could continue to use Section 212(f) to greatly restrict legal immigration to the United States, even in congressionally authorized categories.”

On October 30, 2019, the American Immigration Lawyers Association and other organizations filed a lawsuit seeking to block the health insurance proclamation. On November 2, 2019, a federal judge in Oregon issued a temporary restraining order that will halt the proclamation until Judge Michael Simon can rule on the merits.

Using the Public Charge Regulation to Limit Legal Immigration: Like the health insurance requirement on new immigrants, the public charge rule could significantly reduce legal immigration. The rule was “an obsession” for Stephen Miller, according to the book Border Wars: Inside Trump’s Assault on Immigration by New York Times journalists Julie Hirschfeld Davis and Michael D. Shear.

On August 14, 2019, the Department of Homeland Security (DHS) published its final rule on Inadmissibility on Public Charge Grounds. “Judges before U.S. District Courts for the Southern District of New York, Northern District of California, Eastern District of Washington, Northern District of Illinois, and District of Maryland have ordered that DHS cannot implement and enforce the final rule on the public charge ground of inadmissibility,” stated U.S. Citizenship and Immigration Services (USCIS).

On October 11, 2019, in a ruling in a lawsuit brought by New York Attorney General Letitia James, U.S. District Judge George Daniels issued a nationwide injunction against the public charge rule.

In a section titled “Plaintiffs Sufficiently Allege That the Rule Exceeds Statutory Authority and Is Contrary to Law,” Judge Daniels declared in his opinion that it was “abundantly clear” that the term “public charge” has “never been understood to mean receipt of 12 months of benefits within a 36-month period.” Daniels noted that the defendants [the Trump administration] “did not dispute that this definition has never been referenced in the history of U.S. immigration law or that there is zero precedent supporting this particular definition.”

During oral arguments, Department of Justice attorneys made some unsavory arguments, such as saying the public charge rule could be used against immigrants if they use a wheelchair. The rule may block most people who do not speak English language well at the time they apply, even though there is no English requirement for immigrants and they typically learn it after entry. Judge Daniels noted, “The United States of America has no official language,” and “reminded the government that federal law prohibits discrimination against people with disabilities,” according to the Courthouse News Service.

The National Foundation for American Policy (NFAP) comment letter explained that an immigrant applying for admission could be denied under the rule if he or she has an income below 250% of the federal poverty line, even though footnote 583 in the DHS document stated using gradations of an immigrant’s income level relative to the federal poverty level is unreliable as a way to predict future use of benefits. The rule goes beyond the current statutory language by “inventing income levels that appear nowhere in the statute.”

The NFAP comment letter also noted another legal flaw in the regulation: DHS wants adjudicators to project future benefits use based on a snapshot of current income—even though there is a substantial body of research that shows immigrants increase their income over time. NFAP researcher Mark Regets found immigrants raised their earnings, on average, from 239% of the federal poverty level to 300% of the poverty level only four years after entering the United States.

DACA: On September 5, 2017, then attorney general Jeff Sessions announced the end of the Deferred Action for Childhood Arrivals (DACA) program. Created during the Obama administration, DACA granted work authorization and administrative relief from deportation for up to 800,000 individuals who came to America before the age of 16, completed high school or were in school, and passed background checks.

The Supreme Court will hear a challenge to the Trump administration’s DACA action on November 12, 2019. “The justices will consider three consolidated cases—filed in California, the District of Columbia and New York,” writes Amy Howe for SCOTUSblog. “The challengers in all three cases argued that the termination of the program violated the Administrative Procedure Act, which is the federal law governing administrative agencies, as well as the rights of DACA recipients, and the lower courts ordered the government to keep DACA in place.”

Temporary Protected Status (TPS): A federal court, in the case of Ramos v. Nielsen, blocked the Trump administration’s attempt to rescind Temporary Protected Status for several countries, affecting approximately 300,000 people.

“In its October 3, 2018, order, the U.S. District Court for the Northern District of California enjoined the Department of Homeland Security (DHS) from implementing or enforcing the determinations to terminate Temporary Protected Status for Sudan, Nicaragua, Haiti and El Salvador while the case continued its way through the legal system,” according to USCIS. “As a result, DHS may not effectuate the termination of TPS for these countries while the order remains in effect.”

A November 1, 2019, Federal Register notice, “automatically extends the validity of TPS-related documentation for beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti and El Salvador through Jan. 4, 2021.”

Asylum and Detention Policy: The most important legal victories for the Trump administration may be rulings that have allowed certain asylum-related policies to proceed—even though courts may ultimately rule the policies to be unlawful.

On September 11, 2019, “The Supreme Court, in a brief, unsigned order, said the administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country,” reported the New York Times. “The court’s order was a major victory for the administration, allowing it to enforce a policy that will achieve one of its central goals: effectively barring most migration across the nation’s southwestern border by Hondurans, Salvadorans, Guatemalans and others.”

Attorneys say the administration is violating U.S. law. “The U.S. Immigration and Nationality Act specifically states that any person who is physically present or who ‘arrives’ in the United States, ‘whether or not at a designated port of arrival and . . . irrespective of such [person’s] status, may apply for asylum,’” said Dree Collopy, a partner at Benach Collopy, in an interview. “The Trump administration has ignored the plain text of the statute and blocked access to the U.S. asylum system through a series of policies that essentially eliminate asylum as an option at our southern border, in violation of U.S. international and domestic legal obligations.”

The American Civil Liberties Union (ACLU) has filed several lawsuits against the Trump administration’s asylum and border policies. The lawsuits include A.I.I.L. v. Sessions (“seeking damages on behalf of thousands of traumatized children and parents” separated at the border), Make the Road New York v. McAleenan (challenges expanding “fast-track deportations without a fair legal process such as a court hearing or access to an attorney”), East Bay v. Barr (lawsuit on the asylum regulation that the Supreme Court ruled could stay in place while litigation proceeded), Padilla v. ICE (challenges “the Trump administration’s new policy that categorically denies bond hearings to asylum seekers”) and a November 5, 2019, lawsuit asking for “access to legal representation for detained migrants who have expressed a fear of being returned to Mexico.”

On May 7, 2019, a federal appeals court ruled the Trump administration could continue to require asylum seekers to be returned to Mexico as it prepared an appeal to an April 8, 2019, ruling that granted an injunction on the policy. The ACLU case is Innovation Law Lab v. McAleenan.

H-1B Visas: Companies have filed many individual lawsuits to gain approvals for H-1B petitions denied by USCIS. ITServe Alliance v. USCIS consolidates several cases of information technology companies whose H-1B applications have been denied or approved with short validity periods. As discussed in this analysis, “The judge’s ruling could carry major implications for how USCIS directs adjudicators to decide H-1B cases.”

Unlawful Presence for International Students and Travel Ban Waivers: USCIS policy memos could result in many international students who unknowingly violate their immigration status being barred from the United States for 10 years. A lawsuit filed by universities has attempted to stop the memo from being implemented. On May 3, 2019, a U.S. District Court issued an injunction blocking two policy memos titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” which were issued on May 10, 2018, and Aug. 9, 2018.

In an interview, Paul W. Hughes, the lead attorney for the universities, told me: “The most immediate consequence of this lawsuit is whether USCIS may impose tens of thousands of three- and ten-year reentry bars on unsuspecting students – those whose files have technical, inadvertent errors, or those whose status turns on a novel interpretation of some regulation.” Hughes added, “If we win this lawsuit, that will constrain the ability of USCIS to impose enormous numbers of reentry bars on students across the country. Beyond protecting the rights of those students directly impacted, this lawsuit is about whether the United States is to remain the preeminent destination for the world’s leading students and scholars.”

Two important cases – Emami v. Nielsen and Pars Equality Center v. Pompeo – challenge the waiver process the Trump administration uses for those targeted by the travel ban. “The current waiver process is inconsistent and arbitrary, and so few visa applicants have actually been granted a waiver, that the process by which waivers are supposedly granted has become mere window dressing for the ban itself,” said the National Immigration Law Center in a statement. “This lawsuit seeks to hold the Trump administration accountable for its failure to implement a good-faith, lawful, and constitutional waiver process.”

Note: The article has been updated to include these cases on travel ban waivers and unlawful presence.

State and Local Immigration Enforcement: On October 16, 2019, the U.S. Supreme Court heard arguments in Kansas v. Garcia. Prior to arguing the case on behalf of Garcia, attorney Paul Hughes told me in an interview if the court rules in favor of Kansas, “local city and county prosecutors could engage in mass prosecutions of employees and employers that are, in substance and effect, designed to target the employment of immigrants who lack work authorization.” The Trump administration supported Kansas, which reversed longstanding executive branch opposition to state immigration enforcement. A decision is expected by June 2020, before the court’s term ends.

On April 18, 2019, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of California—and against the Trump administration—on the state’s laws that limit cooperation with federal immigration law enforcement. Ilya Somin, a George Mason University law professor, called the ruling “an important victory for federalism.” The Trump administration has asked the Supreme Court to hear the case.

On October 31, 2019, a Ninth Circuit panel “affirmed the district court’s preliminary injunction” against the U.S. Department of Justice using department grants as leverage against the city of Los Angeles.

Building a “Wall” (With Other People’s Land and Money): When he ran for president, Donald Trump vowed to build a wall along the Southwest border of the United States and to make Mexico pay for it. Instead, U.S. taxpayers have funded fencing added to the border so far – and the land for “the wall” may come from private property owners. To build more border fencing prior to the 2020 election, the federal government may need to take land from “at least 100 landowners in Texas,” reports the Washington Post. It is expected at least some landowners who do not accept monetary offers will sue in court.

In a related development, on October 11, 2019, a court in El Paso “ruled the Trump administration’s attempt to reprogram military funds for the construction of border fencing was a violation of appropriation laws, a decision that could freeze work on the barrier in that area,” according to the Texas Tribune. 

Executive Order to Limit Refugee Resettlement: A September 26, 2019, executive order attempts to give veto power over resettling refugees to state and local officials. “[T]he Federal Government . . . should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees . . . ,” according to the executive order. Cornell Law School professor Stephen Yale-Loehr told me in an interview, “The law doesn’t allow a state or locality to veto the placement of refugees.”

Traditionally, Congress has taken the lead on U.S. immigration policy. The Trump administration’s attempt to use regulations, executive orders and presidential proclamations to overcome opposition to its policies in Congress means federal judges will decide if the administration has gone beyond the law and the president’s authority in restricting immigration.