Updates

A few days before the Christmas holiday, the United States Supreme Court voted to maintain a ban on new immigration restrictions proposed by the Trump administration. The December 21 vote, in which Chief Justice Roberts joined Justices Breyer, Ginsburg, Kagan and Sotomayor, blocked new rules that would limit applications for asylum by those seeking to enter the United States.

A decision by Judge Jon S. Tigar on November 19 imposed the nationwide injunction on the proposed restriction, which would affect asylum seekers entering the United States solely through “designated ports of entry.” Judge Tigar found that this proposed rule contravened the language of the Immigration and Naturalization Act, which permitted asylum applications to be filed by immigrants who arrive in this country “whether or not at a designated port of arrival.”

U.S. District Judge Emmet G. Sullivan on December 17, 2018 blocked several Trump administration policies that made it more difficult for victims of gang and domestic violence to seek asylum in the United States. In a 107-page opinion, the Court rules that the policies are “arbitrary and capricious and contrary to law” and orders the government to cease their implementation

In late November, a District Court judge handed a victory to defenders of immigrants’ rights in their challenge to Trump-era restrictions on criminal justice funding. Seven states and the City of New York had argued that new Department of Justice requirements for information-sharing and “access” to undocumented detainees in local facilities exceeded federal authority and violated states rights.

Since 2006, states and localities have been eligible to apply for federal funding under the Edward Byrne Memorial Justice Assistance Grant (“JAG”) program for grants to support criminal justice programs in various categories, including law enforcement, crime prevention, mental health, victim and witness services, drug treatment and technology. These funds are allocated according to a formula based upon a particular jurisdiction’s population and violent crime statistics. On July 25, 2017, for the first time in the history of the program, the United States Department of Justice and the Attorney General (collectively “Defendants”) announced that they would be imposing three immigration-related conditions on applicants for JAG funds.

On September 5, 2017, then-U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals (DACA) program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum confirming the change. Multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the DACA program on a nationwide basis.

On November 8, 2018, the Ninth Circuit issued a decision (hereafter DACA II) affirming the lawfulness of the preliminary injunction. The Ninth Circuit first ruled that Acting Secretary Duke’s decision to rescind the DACA program is reviewable under the APA, because the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. It also ruled that INA Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.

On November 9, 2018, the Departments of Justice and Homeland Security published a Rule that placed an additional restriction on the right of asylum, namely that an asylum seeker would be ineligible for asylum if he or she entered the country in violation of a presidential Proclamation issued on or after that date. On the same day, President Trump issued a proclamation that suspended for 90 days the right of asylum seekers to enter the country across the U.S.-Mexico border except through officially designated ports of entry.

In response, various social service and legal organizations that assist immigrants filed a federal lawsuit in United States District Court (Northern District of California) against President Trump and others to seek a Temporary Restraining Order (TRO) to prevent the Rule from taking effect. On November 19, 2018, District Court Judge Jon S. Tigar issued a lengthy decision in which he scheduled a hearing on this matter for December 19, 2018, and imposed a nationwide TRO pending that hearing.