Immigration in the U.S. Courts: An Update

The past few months have seen a flurry of activity in U.S. courts on a variety of immigration-related cases, some more positive for immigrants than others.

United States v. Texas

As I’ve previously written, the most high-profile immigration litigation in the U.S. over the last year has been the lawsuit over President Obama’s executive actions. Introduced in November 2014, they included two controversial programs, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of the Deferred Action for Childhood Arrivals (DACA) program, informally known as “DACA+.” Shortly thereafter, a group of Republican-led states, headed by Texas, sued the federal government over the programs’ legality, leading a federal judge in Texas to enjoin the programs in February 2015, pending the outcome of the litigation. That injunction eventually made its way to the U.S. Supreme Court, which heard oral arguments in the case in April 2016. The Supreme Court’s decision was eagerly anticipated by both the programs’ supporters and their detractors.

Unfortunately, the Supreme Court’s ultimate decision in the case, announced on June 23, was rather anticlimactic. It consisted of a single sentence: “The judgment [of the lower appellate court] is affirmed by an equally divided Court.” Following the unexpected death of Justice Antonin Scalia earlier this year, the Supreme Court was forced to finish out its term with an even number of Justices, while Senate Republicans refused to confirm President Obama’s nominee. The remaining eight Justices evenly split on the executive action case, resulting in a per curiam opinion that effectively leaves the lower court’s injunction in place without setting precedent on any substantive issues. It is safe to say that the decision was unsatisfying to commentators on both sides of the issue.

The Obama administration on July 18 filed a petition for rehearing, urging the Court to take up the case again once it has a full complement of nine Justices, “rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.” But given the Senate Republicans’ unwillingness to confirm a nominee until after November’s presidential election, such a rehearing, if granted, wouldn’t result in a decision until probably 2018. The future of DAPA and DACA+ will more likely be determined by who is elected President later this year.

Family Detention

Another case I’ve previously written about is the legal fight to end the detention of immigrant families, mostly women and children fleeing violence in Central America. Advocates for ending the practice have repeatedly argued that detaining children with their parents violates a 1997 legal accord known as the Flores settlement agreement. Still in force today, the agreement recognizes the “special vulnerability” of minors and provides that they shall be released from immigration detention “without unnecessary delay.” Last summer, federal Judge Dolly Gee issued an order finding that the Flores settlement agreement applies to all children, whether they entered the U.S. unaccompanied or with a parent, and ordered the families (both the children and their mothers) released from the three family detention facilities in Karnes and Dilley, Texas; and Berks County, Pennsylvania.

While a few families were released shortly after Judge Gee’s decision, the Obama administration has continued to detain families in all three facilities. In January, they appealed Judge Gee’s ruling, reiterating their earlier arguments that the Flores agreement only applies to unaccompanied children, and that Judge Gee’s order (holding that it applies to “accompanied” children as well) was a wrongful expansion of the Flores settlement. But in July, the U.S. Court of Appeals for the 9th Circuit sided with advocates again, agreeing with Judge Gee that all children are covered by Flores and ordering their release yet again. However, the 9th Circuit did disagree with Judge Gee that the children’s parents should also be released. Interestingly, recent litigation under the Freedom of Information Act (FOIA) has led to the release of documents indicating that before the recent rounds of litigation, the federal government had understood Flores to apply to all children, whether unaccompanied or not.

The Flores settlement agreement also requires that children only be detained in licensed facilities. So advocates have also been trying to shut down the family detention centers on a more local level by stripping the centers of their licenses. Last winter, the state of Pennsylvania revoked the Berks County facility’s operating license because it had been approved for use as a “child residential facility,” not as “a residential center for the detention of immigrant families, including adults,” as it has in fact been being used. But the county appealed, and the facility has remained open pending the outcome of that appeal.

Similarly, a judge in Austin issued a temporary injunction in June prohibiting the state of Texas from issuing a childcare license to the center in Dilley, the largest family detention facility in the country. At issue was the state’s licensing rule — introduced by the Department of Family and Protective Services’ (DFPS) specifically for the immigrant detention centers — which allows children in emergency childcare facilities to stay in rooms with unrelated adults. That injunction will remain in place at least until a hearing in September, when the judge will hear arguments on the broader issue in the underlying case, regarding whether DFPS has the authority to issue licenses to the Dilley and Karnes facilities in the first place.


Secretary Jeh Johnson. Photo by Gage Skidmore.

Despite these setbacks, the administration has continued to defend its family detention policies. Department of Homeland Security (DHS) Secretary Jeh Johnson has pointed out the reforms that have been implemented since the practice was introduced two years ago and called the facilities a “critical” tool that allows the government to properly screen the families upon their entry into the country. Secretary Johnson maintains that because Judge Gee’s 2015 order allowed for “flexibility,” consistent with the Flores settlement agreement, “in times of influx,” and because “by the standard of 1997, [we’ve been] at an influx for some time now,” the government has been complying with Judge Gee’s order. Advocates who filed a motion in May 2016 alleging the government’s continued violation of Judge Gee’s order apparently disagree. And so the battle continues.

Legal Representation for Children

I’ve also previously mentioned an ongoing lawsuit in federal court in Seattle which seeks to provide government-funded lawyers to children and teenagers in removal proceedings in immigration court. The suit, F.L.B. v. Lynch (formerly known as J.E.F.M. v. Lynch and J.E.F.M. v. Holder) made national news earlier this year when an immigration judge claimed that 3- and 4-year-olds could be taught to effectively represent themselves in court. While the case is far from over, recent developments have given hope to advocates.

In March 2016, the federal government asked Judge Thomas Zilly to dismiss the case, arguing that providing representation to children at government expense would “destroy the framework of the immigration system” in the U.S. because “[t]here is no money for it.” The immigrants’ rights organizations representing the plaintiffs in the lawsuit had previously tried to have the case certified as a class action on three separate occasions, which would allow the outcome of the case, if positive, to benefit all children in removal proceedings throughout the country, rather than just the children named in this particular suit. In March, the government asked Judge Zilly to deny class certification for a fourth time.

However, Judge Zilly rejected the government’s motion to dismiss in April, and in June officially granted the plaintiffs’ most recent motion for class certification. Specifically, Judge Zilly ordered that the lawsuit include all children under age 18 who are in removal proceedings within the 9th Circuit on or after the date of the order, who cannot afford legal representation and are seeking asylum or certain other forms of legal relief (specifically withholding of removal or relief under the United Nations Convention Against Torture). He also included a subclass of all such children under age 14. While the certified class is limited to children within the 9th Circuit, that area includes the immigrant-heavy states of California, Arizona, and Nevada (as well as Washington, Oregon, Idaho, and Montana). Advocates hope that, should they eventually win representation for those children, the government will “see the writing on the wall” and expand the policy nationwide.

Additionally, the 9th Circuit U.S. Court of Appeals heard arguments in the case in July related to the government’s appeal of Judge Zilly’s April 2015 order finding that he had jurisdiction to hear the case at all due to the constitutional issue of the children’s due process rights. The three 9th Circuit judges who heard the case in July seemed to feel that they were caught between a rock and a hard place and strongly encouraged the two sides to come to some sort of compromise before they hand down their ruling. That appeal remains pending, and it seems that this fight is far from over.


  1. […] in these privately owned prisons did, in fact, violate Flores, and that ruling was upheld on appeal in July 2016, meaning that if the facilities could not obtain childcare licenses, they would be […]


  2. […] distinguished between those programs and the original DACA program, and even the Supreme Court split 4-4 on whether the 2014 programs were legal.  Additionally, at least two lawsuits that challenged […]


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