The Status of Select Immigration-Related Litigation

As I have documented repeatedly in earlier blog posts, the administration of cult leader, convicted felon, and failed President Donald Trump has been operating with almost complete disregard for the law and Constitution. Instead of submitting proposed legislation to Congress and waiting for Congressional approval and then signing bills into law, Trump simply takes out his Sharpie and signs various executive actions. These actions do not have the force of law. They cannot create, modify, or eliminate laws. They are basically glorified interoffice memos for the executive branch. Yet, Trump acts like he is creating laws with these actions, a belief that is exacerbated by extremely poor media coverage. As a result, the idea that Trump is changing or creating laws has taken hold among the public to a very disappointing degree. I routinely see threads on DCUM saying something along the lines of "Trump just ruled that such and such is illegal." Trump may have signed a piece of paper saying such a thing, but regardless of what he may believe or want you to believe, he legally does not have such power.

As a result of Trump's reliance on illegal executive actions, there has been a tremendous amount of litigation aimed at stopping Trump's unlawful conduct. In the vast majority of cases, judges have ruled against the Trump administration, provoking complaints from Trump and his supporters that judges are biased and conducting a "judicial coup". This is, of course, ridiculous. Most of these cases are not, legally speaking, even close calls. At any rate, with the huge amount of litigation currently before the courts, I thought it would be useful to provide status updates on some of the cases. However, the amount of litigation is so vast that I can't cover more than a small amount of it. Therefore, today I am going to provide updates on cases related to immigration. Admittedly, this is going to be a boring read (and not that exciting to write for that matter). But it could be a useful reference.

I am relying on the litigation tracker provided by Just Security. Just Security has been doing a great job with this tracker and just updated it yesterday. If you have an interest in this sort of thing, I suggest that you bookmark their page.

Under the topic of "Immigration and Citizenship", Just Security is tracking an astonishing 51 different cases. Believe it or not, this actually understates the amount of immigration-related litigation that has been filed against the government. As I documented last month, Immigration and Customs Enforcement officials quietly updated the Student and Exchange Visitor Information System (SEVIS) to cancel the visas of 1,000 or so foreign students attending U.S. colleges and universities. Over 100 students challenged this action in court. Just Security decided to track these individual cases as one case rather than separately. Otherwise, this section of the tracker would have been three times as long. While many institutions immediately unenrolled students after their record in SEVIS showed that their visas were cancelled, government officials testified in multiple court cases that ICE cannot legally cancel student visas and updating a student's SEVIS record does not change that student's immigration status. This created considerable confusion, and judges, who tended to be sympathetic to the students in the first place, were quick to issue temporary restraining orders. On April 25, the government reversed the policy and updated SEVIS to reflect that the student visas were still valid. As a result, there is no longer a need for this litigation.

One of the longest-running cases has been one titled, "J.G.G. v. Trump". This case was presided over by the Chief Judge of the District Court of the District of Columbia, James Boasberg. Plaintiffs originally sought relief on behalf of a group of Venezuelan men who were subject to removal to El Salvador, where they would be confined in the Terrorism Confinement Center (CECOT). Boasberg issued a temporary restraining order preventing the removal of the detainees to El Salvador under the auspices of the Alien Enemies Act. However, three airplanes had already taken off, and the government ignored Boasberg's order. Boasberg's TRO was appealed, eventually reaching the U.S. Supreme Court. SCOTUS overturned Boasberg's TRO but affirmed that those subject to removal could file habeas petitions. This has triggered a number of habeas actions in various district courts. In the meantime, Boasberg continued to consider whether the government had been in contempt when it ignored his initial TRO. On April 16, Boasberg found that there was probable cause that the government had acted with criminal contempt in violating his orders. The government appealed this decision, and on April 18, the D.C. Circuit Court issued a stay in the case. Subsequently, the plaintiffs amended their complaint to include a habeas petition for the prisoners removed to El Salvador as a class. As I understand it, Boasberg can proceed down two tracks: 1) the contempt charge that is currently stayed, and; 2) consideration of the habeas petition.

Another case in which there have been important developments is "J.A.V. v. Trump," which is before the Southern District of Texas and presided over by Judge Fernando Rodriguez. Rodriguez was appointed by Trump during Trump's first term and is closely associated with the Federalist Society, making it difficult for Trump supporters to accuse him of bias. As mentioned above, when SCOTUS ruled against Judge Boasberg in his TRO case, the court affirmed the right of those exposed to removal to seek relief through habeas petitions. This resulted in filings in several district courts and this is one of those cases. Rodriguez almost immediately issued a TRO preventing the government from moving those subject to the Alien Enemies Act from the Southern District of Texas. Yesterday, Rodriguez certified a class of plaintiffs described as "Venezuelan aliens, 14 years old or older, who have not been naturalized, who Respondents have designated or in the future designate as alien enemies under the March 14, 2025, Presidential Proclamation … and who are detained or reside in the Southern District of Texas." After issuing this certification, Rodriguez granted a permanent injunction preventing the removal of any class member. Furthermore, Rodriguez suggested that the Alien Enemies Act had been wrongly invoked, saying, "The historical record renders clear that the President’s invocation of the AEA [Alien Enemies Act] through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms." The Alien Enemies Act authorizes the expulsion of "alien enemies" during times of war or invasion. The U.S. is not currently at war with Venezuela and is not under invasion by the ordinary understanding of that term. As a result, Rodriguez does not believe that the AEA has been legally invoked. This decision will, of course, be appealed and probably find its way to the Supreme Court.

One of the most publicized cases is that of Kilmar Abrego Garcia, an El Salvadoran national who was living in Maryland when he was detained and sent to CECOT in El Salvador. During court hearings before Judge Paula Xinis of the District Court of Maryland, the government admitted that Abrego Garcia had been removed in error and in violation of a withholding order forbidding his removal. Xinis ordered the government to "effectuate" Abrego Garcia's return. After a series of appeals, this case reached the Supreme Court, where, in a 9-0 ruling, the Court ruled that the government must "facilitate" Abrego Garcia's return to the United States. The government has refused to cooperate with Xinis and provided no evidence of steps that have been taken to comply with the Supreme Court ruling. Xinis, therefore, scheduled discovery to determine whether the government is in contempt. Under seal, the government requested and was granted a one-week delay in discovery. At the expiration of that week, the government requested a further delay, but Xinis denied the request. While the government appealed the initial decision regarding discovery, that appeal was denied. Presumably, the discovery process in this case is now underway.

Mahmoud Khalil was a student at Columbia University who was active in the anti-genocide protests. He is a legal permanent resident married to an American citizen. While not charged with a crime, the U.S. arrested and is attempting to deport him. After his arrest, Khalil was moved through a series of detention facilities, eventually ending up in Louisiana. While that was happening, his lawyer was attempting to determine his whereabouts and file a habeas petition. This has created jurisdictional disputes. Subsequently, Khalil's case has proceeded on multiple tracks. One is through immigration courts in Louisiana. As I wrote earlier this week, immigration courts and immigration judges are part of the executive branch and have limited ability to do much more than simply administer deportation processes. An immigration judge has ruled that Khalil can be deported. Khalil is appealing that decision. Meanwhile, he filed a habeas petition in the District Court of New Jersey, and in that case, the judge has ruled he has habeas jurisdiction over the case. Therefore, Khalil will seek habeas relief in New Jersey.

In a similar case, Rümeysa Öztürk was a student at Tufts University when she was arrested due to having coauthored an op-ed critical of Israel. Like Khalil, she was quickly moved to Louisiana (though to a different detention facility). Her lawyers filed a habeas petition in Vermont, causing a jurisdictional dispute. Judge William Sessions of the District Court of the District of Vermont ruled that Vermont is the proper jurisdiction and, last month, ruled that Öztürk should be moved to a detention facility in Vermont. However, his ruling was stayed after an appeal. The appeals court will hold a hearing on May 6.

Another Columbia University student, Mohsen Mahdawi, is also a legal permanent resident. He was arrested when appearing for an appointment for his nationalization interview. Mahdawi's lawyers were able to file a habeas petition before the government played its normal shell game by moving him from facility to facility. As a result, he was detained in Vermont. On April 30, Judge Geoffrey W. Crawford ordered Mahdawi released on his personal recognizance while his habeas case is pending. While issuing his ruling, Crawford drew parallels to McCarthyism, saying, "This is not the first time that the nation has seen chilling action by the government intended to shut down debate."

Obviously, there are several other immigration-related cases that are ongoing. I simply don't have time to discuss all of them. However, among the most important to keep an eye on are three cases that have been consolidated and accepted by the Supreme Court to be heard on May 15. The three cases are related to Trump's executive order overturning birthright citizenship. However, the hearing will be on partial stays of earlier court decisions and not on whether Trump's EO was lawful.