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In key cases, federal courts check the administration’s excesses.

This year saw courts working to rein in executive branch immigration policies and practices. In November, Supreme Court Chief Justice John Roberts issued a rare rebuke to President Trump for describing a judge as “an Obama judge” after an unfavorable ruling delaying the implementation of a policy under which asylum seekers can only present themselves at certain points along the border.Brian Naylor, “Chief Justice Roberts Issues Rare Rebuke to Trump; Trump Fires Back,” NPR, November 21, 2018.

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”Naylor, “Chief Justice Roberts Issues Rare Rebuke,” 2018.

One of the bitterest battles of 2018 has been over whether lower federal courts have the ability to grant nationwide injunctions. The Supreme Court had a chance to weigh in on this issue in June when it upheld President Trump’s travel ban, but decided the case on other grounds.Trump v. Hawaii, 585 U.S. __ (2018).East Bay Sanctuary Covenant et al. v. Trump et al., No. 18-cv-06810-JST (N.D. Cal. 2018). Federal courts used injunctions to halt a number of the administration’s immigration policies this year.

  • Northern District of California blocks termination of Temporary Protected Status. In March, U.S. citizen family members of Haitian, Nicaraguan, Salvadoran, and Sudanese immigrants filed a class action suit in response to the administration’s stated plan to end Temporary Protected Status (TPS) for hundreds of thousands of nationals of El Salvador, Haiti, Nicaragua, and Sudan.Ramos v. Nielsen, No. 18-cv-01554 (N.D. Cal.). The suit challenges the constitutionality of the administration’s decision on equal protection grounds, alleging that “it was motivated by intentional race- and national-origin-based animus.”Ramos v. Nielsen, No. 18-cv-01554 (N.D. Cal.). In August, Judge Edward Chen rejected the government’s motion to dismiss the case, holding that "[p]laintiffs have plausibly pled that President Trump‘s racial and national-origin/ethnic animus was a motivating factor in DHS‘s TPS termination decisions.”Ramos v. Nielsen, No. 18-cv-01554 (N.D. Cal.), order denying motion to dismiss, August 6, 2018. . In October, Chen issued an injunction allowing all implicated TPS holders to maintain their legal status and work authorizations while the suit is being litigated.Ramos v. Nielsen, No. 18-cv-01554 (N.D. Cal.), order granting plaintiffs’ motion for preliminary injunction, October 3, 2018.
  • Deferred Action for Childhood Arrivals (DACA) protections remain in place—for now. Under DACA, an Obama-era Department of Homeland Security policy of prosecutorial discretion, people who were brought to the United States as children without having legally immigrated are eligible to request deferral of deportation proceedings for a two-year period, which is renewable and during which they are eligible to work legally.U.S. Citizenship and Immigration Service (USCIS), “Consideration of Deferred Action for Childhood Arrivals (DACA) [archived].” The Trump administration attempted to terminate the program in 2017, making individuals previously eligible for DACA subject to deportation proceedings.Memorandum from Elaine Duke, Acting Secretary, U.S. Department of Homeland Security, to James W. McCament, Acting Director, USCIS et al. re: “Citizenship and Immigration Services Ombudsman re: Rescission of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children’,” September 5, 2017. For a history of the lawsuits filed after the announcement of Deferred Action for Childhood Arrivals (DACA) termination, see National Immigration Law Center, “Status of Current DACA Litigation,” updated November 9, 2018. This year, federal judges in California, New York, Texas, and Washington, DC, all issued preliminary orders that preserved DACA protections as the cases are litigated.The California litigation includes five cases that were consolidated before Judge William Alsup in the U.S. District Court, Northern District of California: University of California v. U.S. Department of Homeland Security, No. 3:17-cv-05211; California v. U.S. Department of Homeland Security, No. 3:17-cv-05235; San Jose v. Trump, No. 3:17-cv-05380; Garcia v. United States, No. 3:17-cv-05380; and Santa Clara. v. Trump, No. 3:17-cv-05813. See the preliminary injunction for the consolidated cases. The two lawsuits pending in New York are Batalla Vidal v. Nielsen, 1:16-cv-04756 (E.D. N.Y); and New York v. Trump, 1:17-cv-05228 (E.D. N.Y.). See the preliminary injunction, which applies to both lawsuits. The Washington, DC, lawsuits are NAACP v. Trump, 1:17-cv-01907 (D.D.C.); and Trustees of Princeton University v. United States, 1:17-cv-02325 (D.D.C.). See the final order. Petitions for certiorari have been filed for NAACP and Princeton Trustees (DC), Batalla Vidal (New York), and University of California (California). Separately, in Texas v. United States, No. 18-00068 (S.D. Tex. May 1, 2018), the states of Alabama, Arkansas, Louisiana, Nebraska, South Carolina, Texas, and West Virginia filed a lawsuit challenging the creation (not the termination) of DACA. The states moved for a preliminary injunction against the enforcement of DACA and, although the judge agreed that they had shown a likelihood of success in the case, he declined to enjoin enforcement during the litigation. See the judge's order.

  • Asylum seekers have a right to individual, not group, hearings. In July, U.S. District Court Judge James Boasberg granted a preliminary injunction preventing the government from carrying out blanket detentions and group hearings of asylum seekers at five large field offices—Detroit, El Paso, Los Angeles, Newark, and Philadelphia—where nearly all release requests have allegedly been denied.Damus v. Nielsen, No. 18-578 (D.D.C) (memorandum opinion) July 2, 2018. The judge ordered the federal government to immediately release or grant individual hearings to more than 1,000 asylum seekers who have been jailed for months or years without individualized case reviews.Damus v. Nielsen, No. 18-578 (D.D.C) (memorandum opinion) July 2, 2018.

  • Due process rights are under attack. In an 8–1 decision with what advocates hoped would be broad implications for procedural due process safeguards in immigration proceedings, the Supreme Court held that the government’s failure to properly provide the time and place of a removal hearing in the charging document—known as a “Notice to Appear” (NTA)—means the NTA cannot be used to calculate the amount of time a non-citizen has lived in the United States.Pereira v. Sessions, 585 U.S. __ (2018). The Supreme Court’s ruling established that a non-citizen whose NTA was defective (it did not reach him and did not contain a hearing date) was entitled to count the time after the defective NTA was issued—as well as before—in calculating how many continuous years he had lived in the country, making him potentially eligible to petition for cancellation of removal.Pereira v. Sessions, 585 U.S. __ (2018).

    Given the government’s broad practice of issuing NTAs that did not contain a hearing date, this ruling gave new hope to many immigrants in removal proceedings.Daniel Gonzalez, “Supreme Court Ruling Could Upend Thousands of Deportation Cases, Sowing Chaos in Court,” Arizona Republic, August 27, 2018. Immigration courts in border states like Arizona were flooded with requests to terminate deportation cases based on NTAs that lacked a specific time, date, or place.Gonzalez, “Ruling Could Upend Thousands of Deportation Cases,” 2018. But a new problem has arisen in the wake of the ruling: NTAs issued with “dummy” dates and times. Immigrants and advocates in many of the largest immigration court jurisdictions have reported receiving NTAs with impossible dates and times like “November 31” or midnight, or showing up to court on the listed date only to find out that it was not the actual hearing date.Taylor Jameson, “ICE Issuing Notices to Appear with Dummy Dates in Wake of Landmark Supreme Court Decision,” Nolo.com, October 1, 2018. And, in many cases, it appears that the government may have simply continued issuing defective NTAs and playing the odds that they would go unchallenged.Freedom of Information Act Request by Matthew Hoppock to U.S. Department of Justice, Executive Office for Immigration Review re: “McHenry and Maggard Correspondence and Calendars on Pereira,” June 24, 2018.

    In a step back from the Supreme Court’s broad holding, the Board of Immigration Appeals ruled in August that the government’s burden to provide a time and date for immigration removal hearings can also be met by following up a defective NTA with one containing the missing or incorrect information.Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018).

The administration did, however, log some court wins in immigration cases. In February, the Supreme Court in Jennings v. Rodriguez dealt a blow to immigrants seeking review of their continued detention.Jennings v. Rodriguez, 583 U.S. __ (2018). In 2015, the Ninth Circuit Court of Appeals had ruled that the government must provide additional opportunities for individualized bond hearings if an individual in deportation proceedings had been detained in excess of six months (and for every six months thereafter).Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). But in a 5­–3 decision this year, the Court held that the length of an immigrant’s detention need not be a factor in deciding whether they have a right to have the legitimacy of the detention reviewed by a court.Jennings v. Rodriguez, 583 U.S. __ (2018). Immigrants may still bring due process-based challenges to their detention but, in the wake of Jennings, it may be more difficult to do.American Civil Liberties Union (ACLU), “ACLU Comment on Supreme Court Immigration Detention Ruling,” press release (New York: ACLU, February 27, 2018). And, without an automatic, time-based right to detention review, people may be detained indefinitely: experts have estimated that clearing the backlog of pending cases would take between 3.6 and 5.1 years of continuous work—if no new cases are added to the docket in the meantime.TRAC Immigration, “Immigration Court Backlog Surpasses One Million Cases,” November 6, 2018.