A federal judge on the bench in the Middle District of North Carolina permanently blocked an “unlawful” Trump administration immigration policy nationwide.
U.S. District Judge Loretta C. Biggs, a Barack Obama appointee, issued the injunction on Thursday over the U.S. Citizenship and Immigration Services’s (USCIS) 2018 Policy Memorandum (2018 PM). The memo was meant to address the concept of “unlawful presence,” which Congress added to the Immigration and Nationality Act (INA) in 1996.
The opinion noted that the 2018 PM attempted to change how “unlawful presence” was calculated–“unlawful presence starts to accrue not at the time an individual is formally found to be out of status, but from the time an adjudicator determines the status violation first occurred”:
The accrual of unlawful presence time can result in a penalty: Individuals who leave the United States after having been “unlawfully present” for more than 180 days are barred from reentering the country for three years. Id. § 1182(a)(9)(B)(i). Those who accumulate more than 365 days of unlawful-presence time may not return for ten years. Id.
The numerous plaintiffs–Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, Haverford College, The American Federation of Teachers, Jia Ye, and Sen Li–argued that the new way of calculating “unlawful presence” could wreak havoc on people’s lives due to minor errors.
Judge Biggs agreed with–and discussed at length–a primary claim of the plaintiffs: that the 2018 PM violated the Administrative Procedure Act (APA) because it was “improperly issued without notice and comment.”
There was a bit of legal wrangling going on here, but basically the judge found that the 2018 PM is a “legislative rule” and not an “interpretative rule.” Because of that, the policy change required notice and comment, according to the APA.
“The bottom line is that a rule is legislative, and not interpretive, ‘if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy,'” the judge explained, noting that the 2018 PM “conflict[ed] with the language of the INA.”
Due to the APA violation and because of the conflict with language of the INA, the judge issued a permanent nationwide injunction of the policy.
“In sum, because the August 2018 PM was promulgated in violation of the APA’s notice-and-comment requirements, the Court will ‘hold it unlawful and set it aside’—not just for the named Plaintiffs, but for all those subject to its terms,” Judge Biggs ruled. “Furthermore, because the unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the INA. Accordingly, the Court will vacate the August 2018 PM and permanently enjoin its application nationwide.”
The judge acknowledged the dissatisfaction in some quarters with such sweeping injunctions, but said it was the only way to do this.
“[U]nder the circumstances of this case, the only practicable method of providing Plaintiffs with the relief to which they are entitled is to vacate the August 2018 PM and permanently enjoin its application,” the judge concluded.
You can read the 26-page opinion and order below.
[Image via Spencer Platt/Getty Images]