WASHINGTON – Less than two months after President Donald Trump left office immigration has fizzled as an issue at the Supreme Court, with major disputes that became conservative rallying cries largely vanishing from the court’s docket.
After four years in which Trump placed immigration at the center of his domestic agenda, prompting dozens of legal battles, the cases now pending at the nation’s highest court are more likely to have started under former President Barack Obama and to involve technical matters rather than big picture policy questions.
But immigration experts predict the lull won’t last as President Joe Biden comes under immense pressure from the left to quickly unwind many of Trump’s policies and Republicans line up to try to block the administration’s earliest orders. Two such cases are already moving through lower federal courts in Florida and Texas.
“I would refer to it, for the moment, as a return to normalcy,” said Jeremy McKinney, a North Carolina immigration attorney and first vice president of the American Immigration Lawyers Association. “These are the kinds of arguments that defense counsels…and the Department of Homeland Security have been having for years.”
A suddenly lighter immigration caseload comes as Biden is facing a growing challenge at the U.S.-Mexico border, with administration officials reporting a 28 percent month-over-month increase in border crossings. White House officials now want Congress to set aside $4 billion over four years to mitigate the “root causes” of migration.
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The Supreme Court on Tuesday dismissed challenges to Trump’s “public charge” rule, a 2019 regulation denying green cards to immigrants if officials determine applicants may benefit from safety net programs, such as Section 8 rental assistance or food stamps. Biden rolled back some parts of the policy last month and directed federal agencies to study the impact of the broader Trump regulation by early April.
It marked at least the fourth time the justices have hit the brakes on major immigration litigation since Biden took office. In early February, the court canceled scheduled arguments about funding for Trump’s border wall as well as his administration’s “remain in Mexico” policy, which bars migrants seeking asylum from crossing the border.
Last week, the Biden administration and several cities asked to withdraw an appeal over Trump’s policy of withholding federal money for local governments known as “sanctuary” jurisdictions. In those cities, local officials decline requests from immigration authorities to temporarily detain immigrants that have been arrested for non-immigration crimes.
The court agreed to withdraw the petition.
In December, the court dodged on Trump’s proposal to exclude undocumented immigrants from the once-a-decade census used to apportion seats in Congress. In an unsigned opinion, which drew a dissent from three liberal justices, the majority held the case was premature. Trump ran out of time at the end of his term to execute the idea.
By swatting away the disputes, the court’s 6-3 conservative majority hasn’t yet offered many clues about its views of immigration. Associate Justice Amy Coney Barrett, seated in October, may have been inclined to support Trump’s public charge rule since she backed it in a dissent last year as a judge on the U.S. Court of Appeals for the 7th Circuit.
With the Trump-era cases dismissed or in limbo the court is left with more mechanical questions of immigration law, many of which are held over from controversies arising from Obama, not Trump. The cases are significant for the immigrants involved but tend to affect fewer people and draw less attention.
A divided court handed down a 5-3 opinion last week finding that an immigrant who had lived in the U.S. illegally for more than 25 years could not seek to have his deportation canceled because he was convicted in Nebraska of using a false Social Security card to obtain a job. The case originated from a removal proceeding that began in 2009.
The court is expected to hear arguments soon about a couple from El Salvador who have Temporary Protected Status, or TPS, which allows foreigners from nations suffering from natural disasters or armed conflicts to live and work in the USA. But it was the Obama administration that denied the New Jersey couple green cards in 2015 because they initially entered the country illegally.
Immigrant advocates are closely watching the TPS case to see if Biden’s Justice Department reverses course, or potentially breaks with Obama. Biden – who took fire from progressives on immigration during the presidential primary – has proposed a bill to allow TPS recipients to have green cards. Given that position, some say, it would make sense for the administration to also stop defending the status quo in the TPS case.
“Is the Biden administration ideologically consistent?” asked Karen Tumlin, an immigrants’ rights attorney who founded the Justice Action Center. “This is a way in which they should also be supporting the TPS program….What position will they take?”
Pending immigration cases stemming from the Obama administration are in part a function of the years it takes for disputes to work their way through the courts. But it also underscores that many of the technical aspects of immigration enforcement don’t change much from president to president – despite the rhetoric from both parties.
“People may think, ‘Oh, well, now the government is always going to be trying to find ways to help immigrants’ and that’s not the case,” said Stephen Yale-Loehr, a Cornell Law School professor who specializes in immigration. “You see that in some of these cases…where the government is still appealing to the Supreme Court on these technical but important issues.”
Deferred Action for Childhood Arrivals (DACA) students celebrate in front of the U.S. Supreme Court after the Supreme Court rejects President Donald Trump's bid to end legal protections for young immigrants, Thursday, June 18, 2020, in Washington. (AP Photo/Manuel Balce Ceneta) (Photo: Manuel Balce Ceneta, AP)
Several observers predicted the relatively light caseload on immigration issues won’t last. A federal judge in Texas last month blocked the Biden administration’s proposed 100-day moratorium on deportations. Florida Attorney General Ashley Moody, a Republican, sued Monday over a policy that requires immigration officers to seek approval before deporting immigrants outside the administration’s priorities.
Those priorities, outlined in a Feb. 18 Immigration and Customs Enforcement memo, include immigrants deemed to be a threat to national security, border security or public safety – defined as those convicted of aggravated felonies or gang crimes.
“Biden issued a lot of actions and two states now are challenging some of them – and no doubt there’ll be more challenges to come,” said Christopher Hajec, director of litigation at the conservative Immigration Reform Law Institute.
“It’ll be like what happened under Trump,” he said, “but in reverse.”
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