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 9^th 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.