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Yet more litigation, congressional action, a worsening immigration court backlog and new, daring programs by the Trump administration are all highly likely in 2019, immigration court watchers say.
To gather some thoughts on what’s to come, the ABA Journal interviewed Dean Kevin Johnson of the University of California at Davis School of Law—a regular at the ImmigrationProf Blog and a contributor to SCOTUSBlog—as well as retired immigration judge Paul Wickham Schmidt, who blogs at Immigration Courtside, and Diane Rish, associate director of government relations for the American Immigration Lawyers Association.
One thing all three agreed on: There’s likely to be movement on both the Deferred Action for Childhood Arrivals program and temporary protected status. DACA is the program that provides work permits and relief from deportation to approximately 700,000 people brought to the United States illegally as minors; TPS provides similar benefits to several hundred thousand people who can’t return to their home countries because of bad conditions there. The administration of President Donald Trump has attempted to end DACA and many of the nation-specific TPS programs, but those attempts have been largely stayed by courts.
Johnson says that with three federal court rulings, DACA could end up at the Supreme Court this year—if the justices choose to hear it. He notes that they waited quite a while during litigation over the “travel ban.” Rish says the incoming Democratic majority in Congress has promised to prioritize passing the DREAM Act, which provides a path to citizenship for DACA recipients. That could moot the litigation.
Democratic leader Nancy Pelosi has also promised action on TPS, as CBS News noted December 2. That issue isn’t uniform because TPS is country-specific and each nation’s TPS order expires at a different time. A court order issued in October prevents the expiration of TPS for nationals of El Salvador, Haiti, Sudan and Nicaragua, but that’s subject to change with further action in court. Rish notes that TPS is also expected to expire for nationals of Syria and South Sudan in 2019, which could provoke another round of litigation.
Even if the Trump administration is able to cancel both TPS and DACA, Schmidt notes that just moves the problem into immigration court.
“Most of [them] have U.S. citizen families, they have jobs, they’re members of the community, so what’s going to happen to them? They’re not going to leave,” he says. “A lot could apply for cancellation of removal, but they can only do that if they get into immigration court.”
And that’s another prediction Schmidt has for 2019: The immigration court backlog will worsen. As of the end of November, Syracuse University’s Transactional Records Access Clearinghouse put the backlog at 809,401 pending cases, a 49 percent increase over January of 2017. Schmidt believes it’ll get worse, thanks to decisions by the Trump administration that limit immigration judges’ ability to close cases without a decision or continue cases, and encourage the Department of Homeland Security to reopen old cases that were closed without a decision. And Schmidt says the courts could be further tied up by the U.S. Supreme Court’s decision in Pereira v. Sessions, which gave certain immigrants another shot at proving their cases to stay here because of defects in the government’s notices to appear in court.
Then there’s immigration detention, which the Texas Tribune notes is also up under the Trump administration. Rish believes House Democrats will take an active role in overseeing this as well. That could also moot a court case; in last winter’s Jennings v. Rodriguez, the Supreme Court punted back to the 9th U.S. Circuit Court of Appeals at San Francisco the issue of whether the government may constitutionally imprison immigrants in civil detention without periodic bond hearings. Johnson, who covered the case for SCOTUSBlog, and Schmidt think it’s likely to end up back at the high court. Interest in detained immigrant minors also remains high and is already in litigation, as the federal government attempts to implement a proposed rule undercutting limits on detaining minors and advocates for minors push back through the Flores litigation, described here by plaintiffs’ counsel the Center for Human Rights and Constitutional Law.
Meanwhile, litigation is likely to continue over asylum. In December, the 9th Circuit refused to stay a lower court ruling forbidding the government from denying asylum to people who enter the U.S. illegally, saying the “asylum ban” directly contradicts federal immigration law and treaty obligations. Less than two weeks later, a Washington, D.C. district judge permanently enjoined the government’s practice of denying asylum to victims of domestic violence or gang violence unchecked by the home country’s government, saying the policy, created unilaterally by former Attorney General Jeff Sessions, violates a law passed by Congress.
Other predictions worth noting:
- The federal government recently closed comments on a proposal to make legal immigrants ineligible for green cards if they take advantage of public benefits to which they’re legally entitled, such as food stamps or the Children’s Health Insurance Program. All three commentators say this “public charge rule” is likely to be litigated if it goes into effect, possibly by sympathetic states and cities.
- Acting Attorney General Matthew Whitaker certified two immigration court cases to himself recently, continuing the unprecedented activist stance that Sessions took on immigration caselaw. Those cases are on the standard for good moral character and whether family connections can support an asylum claim; both could wind up in litigation.
- Multiple courts have now blocked the federal government’s move to withhold money from “sanctuary cities”; the most recent was in New York City in early December. Johnson says these cases pose challenging questions on federalism and separation of powers, which could make them good candidates for Supreme Court review.
- Rish notes that the government may start enforcing a policy made over the summer of referring immigrants for prosecution when it denies them a visa and that denial leaves them with no legal immigration status. That agency, U.S. Citizenship and Immigration Services, is also making it easier to deny visa applications by permitting employees to deny applications that are incomplete rather than asking for more information.
- Rish also notes that the federal government has been overhauling its rules for issuing visas to legal immigrants. H-1B visas, the competitive visa category for temporary skilled workers, have already seen changes as the government scrutinizes compensation and employment relationships; in December, INC magazine says, the government introduced changes favoring applicants with graduate degrees and reducing the number of full applications the government must consider. The government has also suggested revoking work authorization for spouses of H-1B holders, which Fast Company says largely affects educated women from India. In brighter news for temporary workers, the Washington Times says Congressional Republicans have signaled support for expanding the cap on H-2B visas, which are issued to seasonal workers in industries like fishing, hospitality and landscaping.
Johnson notes that the Trump administration is hard to predict because it’s very active on immigration and willing to push the boundaries of what’s legal.
“I don’t remember any instance [under prior presidents] where the adherence to the law was so loose, if not inadequate,” he says. “It just seems that this administration wants to really push the envelope on the legal rights of immigrants and is getting shellacked in the courts along the way.”