Courts Deliver Three Immigration Legal Victories for Trump Administration
By Preston Huennekens | FAIR Take | June 2020
The D.C. Circuit Court of Appeals ruled in favor of the Trump administration’s efforts to fast-track deportations, finding in Make the Road New York v. Wolf  that the Department of Homeland Security (DHS) has the “sole and unreviewable” discretion to make changes to expedited removals.
President Trump made immigration reform a central pillar of his 2016 presidential campaign. After his inauguration, the president issued a series of directives meant to enhance the immigration laws of the United States. On January 25, 2017, he issued Executive Order 13767, although the order was not published in the Federal Register until July 2019. This executive order directed DHS to update the definition of expedited removal to include all illegal aliens, regardless of their proximity to the border, who entered the U.S. illegally within the past two years.
Congress created the process of “expedited removal” as part of President Clinton’s Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This process allowed for the quick deportation of illegal aliens caught within 100 miles of the southwest border with Mexico. Without expedited removal, our backlogged immigration court docket – already at over 1.1 million cases – would be even worse than it already is. The Trump administration’s decision to update the definition of expedited removal to include recent illegal entries comprised a greater strategy of reducing the backlog by rapidly deporting new illegal entries while litigating those already in the docket.
Open-borders advocacy groups immediately sued to prevent this from happening. Under the new rules, the government could quickly deport any illegal alien in the country if they were a recent arrival. Make the Road New York is one of the groups fighting for the rights of illegal aliens, and promptly sued DHS Acting Secretary Chad Wolf. While Make the Road NY v. Wolf made its way through the court system, a judge issued an injunction preventing DHS from implementing the new expedited removal rules.
The American Civil Liberties Union (ACLU) and Make the Road NY challenged the rule on the basis that DHS did not implement the policy legally under the Administrative Procedure Act (APA). Writing for the majority in Make the Road NY v. Wolf, Circuit Judge Patricia Millett found DHS has the sole authority to author changes to the parameters of expedited removal and that it is not subject to the APA. Her opinion reads:
We hold that the district court properly exercised jurisdiction over the Associations’ case. But because Congress committed the judgment whether to expand expedited removal to the Secretary’s “sole and unreviewable discretion,” 8 U.S.C. § 1225(b)(1)(A)(iii)(I), the Secretary’s decision is not subject to review under the APA’s standards for agency decisionmaking. Nor is it subject to the APA’s notice-and comment rulemaking requirements. For those reasons, we reverse the district court’s grant of a preliminary injunction and remand for further proceedings consistent with this decision.
This is only a temporary win for the administration, however. The court’s panel noted that future groups could challenge the rule on constitutional grounds, rather than challenging the process in which DHS issued the policy. In a quote to Law360, ACLU lawyer Anand Balakrishnan said that “We lost on the APA claims, but we got the green light to go forward on the constitutional claims, so the case continues.”
For the time being, however, DHS can begin instituting this new definition of expedited removal. If this rule remains in effect long-term, it means that DHS can begin rapidly removing hundreds of thousands of illegal aliens that entered the U.S. within the past two years.
Preventing Injunction of Coronavirus Executive Order
One of the primary ways that open borders activists stymie the implementation of President Trump’s executive orders is through lawsuits. All too often, activist lawyers demand that the court grant an injunction and temporarily halt the implementation of the executive order in question until the conclusion of the case, a process that takes years.
On April 22, President Trump issued a proclamation banning people from outside of the U.S. from applying for employment-based and some extended family-based immigrant visas, on the basis that they would compete unfairly against American workers in an economy wrecked by the coronavirus.
A number of immigrants sued the Trump administration, arguing that they and their families were unduly harmed because it could prevent their family members from immigrating to the U.S. and following them. In Gomez v. Trump, the DC federal district court found that “because [the] Plaintiffs have not shown that this action presents a justiciable case or controversy, the court denies Plaintiffs’ motions.”
This is a clear win for the President. Had the administration lost this case, his signature executive order halting some forms of the immigration during the coronavirus would have no impact, and his crucial follow-up order on June 22 would be at risk of injunction as well.
Asylum Due Process
In a 7-2 decision, the Supreme Court of the United States issued a ruling in the case Department of Homeland Security v. Thuraissigiam, ruling that illegal aliens who fail their initial asylum screenings are eligible for quick deportation under expedited removal. Justice Samuel Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. Justices Breyer and Ginsburg concurring separate opinions. Justices Sotomayor and Kagan – both Obama appointees – dissented.
Justice Alito’s majority opinion notes that Congress created a thorough system for establishing credible fear claims in asylum proceedings. Writing for the majority, Alito stated:
Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent… It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings. [emphasis added]
This ruling is another huge victory for the Trump administration, particularly after the humanitarian and security crisis at the southwest border in 2019. During this time, U.S. Customs and Border Protection (CBP) apprehended over a million illegal aliens. Nearly all of these aliens applied for asylum in one form or the other, claiming to flee the violence in their home countries. While these are sympathetic cases, “fear of domestic crime” is not an acceptable reason to seek asylum in the United States.
Illegal aliens and immigration lawyers abused the asylum process in order to enter the United States. Under DHS v. Thuraissigiam, the government can now easily remove illegal aliens whose asylum claims are either fraudulent or frivolous. In the long-term, this will bring back some semblance of normalcy to the oft-abused asylum process.