Anti-ICE Judicial Activism in Mass.

In response to a lawsuit filed by the American Civil Liberties Union (ACLU), a federal judge in Boston, Mass., has blocked U.S. Immigration and Customs Enforcement from arresting illegal aliens who have been ordered deported, if they are applying for a green card based on marriage to a U.S. citizen. However, this may be just another case of a liberal, activist judge taking a political position against President Trump’s immigration policies, rather than interpreting the relevant black letter law.

The ACLU claims that USCIS and ICE collaborated to entrap aliens seeking green cards, thus rendering the Provisional Waiver of Unlawful Presence regulations moot. But there are a number of major problems with the ACLU’s arguments that the mainstream media has declined to address.

First off, it is not at all clear that the regulations in question are lawful. Pursuant to the statutes and case law governing waivers of inadmissibility, foreign nationals were always prohibited from applying for a waiver until after they appeared at a U.S. Embassy or Consulate abroad and were found inadmissible to the United States. This was a settled matter of law until the Obama administration spontaneously created the concept of “provisional” waivers” out of whole cloth. As such, it is probable that regulations authorizing USCIS to grant a provisional waiver of inadmissibility before the U.S. Department of State renders a formal inadmissibility determination are illegal, and, therefore not binding upon USCIS or ICE.

Even if the Provisional Waiver of Unlawful Presence regulations were found lawful and binding, they specifically state that, unless special conditions have been met, the following groups of individuals are ineligible for a waiver: 1) aliens in ongoing removal proceedings; 2) aliens subject to administratively final orders or removal; and 3) aliens against whom a prior order of removal has been reinstated. All of the named plaintiffs in the ACLU lawsuit were arrested by ICE because they were previously ordered removed from the United States or because they are currently the subject of a civil or criminal warrant – and would therefore seem to have been subject to arrest even under the regulations in question.

Finally, 8 U.S. Code § 1252 specifically prohibits judicial review of removal determinations based on particular grounds of inadmissibility or deportability, as well as judicial review of waivers of inadmissibility or deportability. So, it would appear that the federal district court likely has no authority to address the claims filed by the ACLU. Nevertheless, U.S. District Judge Mark Wolf has found that the ACLU’s “lawsuit plausibly alleged that ICE failed to consider whether immigrants were seeking an exemption under the 2016 regulations before detaining them,” and has ruled that the suit may continue.

Although the judge has yet to review evidence and issue a final ruling, it is likely that the end result will be a further constriction of ICE’s ability to enforce our immigration laws as written. The federal courts in Massachusetts are noted for being nearly as pro-alien, anti-immigration-enforcement as their cousins in the 9th Judicial Circuit. And while the government may appeal any negative ruling, in the interim American voters are left wondering why their courts seem determined to protect illegal aliens from removal, rather than preserving DHS’s ability to secure America’s borders and protect her citizens from immigration violators.

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


  1. avatar

    Not much you can do for a nation that continues to import it’s own killers. Our last 5 Presidents refused to enforce our immigration laws, in essence they handed over the keys o America to an untold number of both legal and illegal aliens. We are paying the price of their action now and the worse is yet to come unless Trump can stop the flood. The latest herd even brought the kids along knowing full well they had a 96% chance of being granted amnesty once across our border.
    Both political parties are fighting Trump every inch of the way on the immigration issue. If he fails it’s adios America and hello 2nd world country. Or worse.

  2. avatar

    What? Barry Hussein Soetoro issued ANOTHER ‘executive order’ designed to aid and abet illegal aliens? I’m shocked; really I am!

    • avatar

      How come you can abade/protect the illegal and it’s against the law? Why don’t you want to help AMERICA that pays you and you are voted in to help? Rather than the country that doesn’t pay you and did not vote you in?