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Supreme Court October Term 2017: A Review of Selected Major Rulings [September 19, 2018]
"On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch,who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Cole, Jared P. . . .
2018-09-19
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Would It Violate Equal Protection to Prohibit Naturalized "Dreamers" from Sponsoring Their Parents for Immigrant Visas? [February 12, 2018]
"Much of the recent immigration reform debate has focused on legislative options to address the situation of non-U.S. nationals (aliens) who were brought to the country as children and who do not have lawful immigration status. Such aliens are colloquially referred to as 'Dreamers' by many observers because they are largely the same population that the various Development, Relief, and Education for Alien Minors (DREAM) bills introduced over the years have sought to address. [...] This policy debate about Dreamers' parents has given rise to a fundamental legal question: does Congress have the constitutional authority to craft a pathway to citizenship for Dreamers that includes unique restrictions on family sponsorship? Suppose, for instance, that Congress enacts a statute that (i) grants Dreamers a pathway to citizenship, but (ii) restricts Dreamers' ability, after they naturalize, to sponsor their parents for immigrant visas. Would this parent-sponsorship restriction violate naturalized Dreamers' constitutional right to equal protection of the laws by drawing a line between them and other similarly situated U.S. citizens?"
Library of Congress. Congressional Research Service
Harrington, Ben
2018-02-12
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What Role Might the Federal Government Play in Law Enforcement Reform? [November 16, 2018]
"Over the past few years, several high-profile police-involved shootings and alleged instances of excessive force have generated congressional interest in state and local policing. After declining in both 2014 and 2015, confidence in law enforcement has rebounded to historical norms, but Gallup poll data indicate that confidence varies by race, ethnicity, ideology (i.e., liberal, moderate, and conservative), and age. Congressional interest in policing revolves around confidence and accountability. What role should Congress play in facilitating efforts to bolster confidence in the police? Should Congress seek to improve law enforcement's accountability regarding the excessive use-of-force?These questions are bounded by limits of congressional authority."
Library of Congress. Congressional Research Service
James, Nathan; Harrington, Ben
2018-11-16
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District Court Temporarily Blocks Implementation of Asylum Restrictions on Unlawful Entrants at the Southern Border [November 27, 2018]
"Prompted by reports of a 'migrant caravan' traveling to the United States through Mexico, on November 9, 2018, the Trump Administration took two actions to make most non-U.S. nationals (aliens) who unlawfully enter the United States (i.e., without inspection or 'between ports of entry') at the southern border ineligible for asylum. In one action, President Trump issued a Presidential Proclamation suspending the entry of aliens at the southern border, other than lawful permanent residents, unless they arrive at designated ports of entry. In the other action, taken a few hours before the issuance of the proclamation, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) announced new regulations that would make aliens who violate the proclamation ineligible for asylum. Together, the proclamation and new regulations would bar a covered alien at the southern border from pursuing asylum unless the alien arrives at a designated port of entry. (Neither the proclamation nor the new regulations, however, bar unlawful entrants from claiming other forms of relief--besides asylum-- based on persecution or torture if they overcome the stricter screening standards for those protections.)"
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2018-11-27
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Can the President Close the Border? Relevant Laws and Considerations [April 12, 2019]
From the Document: "This Legal Sidebar identifies the statutes and legal issues most relevant to the President's statements about closing the border. The analysis is necessarily general. The Trump Administration has not released a plan with details about specific measures or underlying justifications. An executive decision to close some ports of entry to certain categories of non-U.S. citizens would require a different legal analysis than would a decision to completely seal the ports on the southern border to all goods and persons seeking to enter the United States, including U.S. citizens and lawful permanent residents (LPRs). Moreover, the relationship between any border closure measures and the justification that the Executive articulates for them would bear on the legal analysis. In the absence of a concrete proposal, the discussion here mainly sets out the primary relevant authorities and the considerations that they trigger."
Library of Congress. Congressional Research Service
Harrington, Ben
2019-04-12
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'Migrant Protection Protocols': Legal Issues Related to DHS's Plan to Require Arriving Asylum Seekers to Wait in Mexico [Updated May 9, 2019]
From the Document: "Some advocacy organizations have expressed concern that the MPP [Migrant Protection Protocols] will endanger asylum seekers forced to remain in Mexico for long periods of time and will hinder their access to counsel. Groups have vowed to challenge the MPP in court. While a challenge does not appear to have been filed as of the time of this Sidebar's publication, the MPP does raise legal issues. Most significantly, there is a question as to whether DHS possesses authority to implement the MPP under the Immigration and Nationality Act (INA). The statutory provision that DHS cites in support of the policy, INA § 235(b)(2)(C), does not plainly authorize application of the MPP to one significant group of aliens: those who are subject to 'expedited removal' under the INA. This group probably includes most Central American asylum seekers coming to the U.S.-Mexico border."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2019-05-09
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'Migrant Protection Protocols': Legal Issues Related to DHS's Plan to Require Arriving Asylum Seekers to Wait in Mexico [February 1, 2019]
"Through two press releases posted on its website--the first on December 20, 2018, and the second on January 24, 2019--the Department of Homeland Security (DHS) has announced a new policy that could require many asylum seekers who arrive at the southern border to wait in Mexico while U.S. immigration courts process their cases. DHS calls the new policy the 'Migrant Protection Protocols' (MPP) and contends that it will serve to address a 'security and humanitarian crisis on the Southern border.' Details about the policy's implementation are still developing. A DHS memorandum indicates that the MPP went into effect at the San Ysidro port of entry (south of San Diego) on January 28, 2019, and that DHS anticipates expanding implementation of the new policy 'in the near future.' According to media reports, DHS first returned an asylum seeker to Mexico under the policy on January 29, 2019, when it returned to Tijuana one Honduran national who presented himself at San Ysidro. The next day, DHS returned about a dozen more asylum seekers to Tijuana from San Ysidro, according to a report."
Library of Congress. Congressional Research Service
Harrington, Ben; Smith, Hillel R.
2019-02-01
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Entry Restrictions at the Northern and Southern Borders in Response to COVID-19 [Updated April 27, 2020]
From the Document: "In response to the global spread of COVID-19 [coronavirus disease 2019], the federal government has issued several orders restricting the entry of foreign nationals into the United States. Many of these restrictions were implemented through President Trump's authority under Section 212(f) of the Immigration and Nationality Act (INA) to suspend the entry of non-U.S. nationals (aliens) whose entry the President 'finds ... would be detrimental to the interests of the United States.' [...] The Trump Administration has taken other action, relying on authority outside INA Section 212(f), to restrict the movement of foreign nationals over land borders into the United States. Two orders restrict non-essential travel by foreign nationals into the United States through ports of entry on the land borders with both Canada and Mexico. Additionally, the Centers for Disease Control and Prevention (CDC), a component of the Department of Health and Human Services (HHS), has issued an order (along with implementing regulations) suspending the 'introduction' of foreign nationals from countries with COVID-19. These new orders raise a number of legal issues--most notably their effect on migrants seeking asylum in the United States."
Library of Congress. Congressional Research Service
Santamaria, Kelsey Y.; Harrington, Ben
2020-04-27
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Presidential Actions to Exclude Aliens Under INA § 212(f) [May 4, 2020]
From the Document: "In recent months, President Trump has issued several presidential proclamations that provide for the exclusion of broad categories of non-U.S. nationals (aliens) from the United States. [...] For statutory authority, all of these recent proclamations rely principally upon § 212(f) of the Immigration and Nationality Act (INA). That provision authorizes the President 'to suspend the entry of all aliens or any class of aliens' whose entry he 'finds ... would be detrimental to the interests of the United States.' The provision has been in the INA since the INA's original enactment in 1952."
Library of Congress. Congressional Research Service
Harrington, Ben; Reiss, Theresa A.
2020-05-04
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Supreme Court: DACA Rescission Violated the APA [June 18, 2020]
From the Document: "On June 18, 2020, in the case 'Department of Homeland Security v. Regents of the University of California', the Supreme Court held in a five-to-four decision that the reasoning the Department of Homeland Security (DHS) offered in support of its decision to rescind the Deferred Action for Childhood Arrivals (DACA) initiative was inadequate and therefore violated the Administrative Procedure Act (APA). The Supreme Court's decision means that, at least for the time being, the DACA initiative will remain in place, offering the prospect of continued relief from removal and work authorization to the approximately 650,000 current DACA recipients and apparently also to eligible childhood arrivals who have not previously enrolled in the program. The decision, however, is limited in particular respects. It does not prevent the Trump Administration from taking new action to rescind DACA--indeed, the decision reaffirms that the Administration has power to do so, so long as it supplies adequate justification under the APA. The decision also does not address whether DACA itself is legal; instead, it goes no further than to hold that, in rescinding DACA, DHS failed to think through important issues about the available policy options and the interests of current DACA recipients."
Library of Congress. Congressional Research Service
Harrington, Ben
2020-06-18
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What Role Might the Federal Government Play in Law Enforcement Reform? [Updated June 1, 2020]
From the Document: "Over the past few years, several high-profile police-involved shootings and alleged instances of excessive force have generated congressional interest in state and local policing. Congressional interest in policing reform revolves primarily around the public's confidence in the police and accountability for excessive use of force. What role should Congress play in facilitating efforts to bolster confidence in the police? Should Congress seek to improve law enforcement's accountability regarding the excessive use of force? These questions are bounded by limits of congressional authority."
Library of Congress. Congressional Research Service
James, Nathan; Harrington, Ben
2020-06-01
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Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others [April 10, 2018]
"The Immigration and Nationality Act (INA) establishes a system of rules as to which non-U.S. nationals (aliens) may enter the United States and under what conditions. It sets forth, for instance, three primary categories--family-based, employment-based, and diversity-based-- through which an alien may qualify for an immigrant visa and thereby seek admission to the United States as a lawful permanent resident (LPR). The INA also establishes requirements for the admission of refugees, and delineates the categories of aliens who may be admitted temporarily as nonimmigrants for particular purposes such as study, tourism, or temporary work."
Library of Congress. Congressional Research Service
Harrington, Ben
2018-04-10
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District Court Enjoins DACA Phase-Out: Explanation and Takeaways [March 7, 2018]
"Following the publication of this Sidebar, additional developments have arisen that affect the Trump Administration's planned phase-out of the Deferred Action for Childhood Arrivals (DACA) program. On February 13, 2018, the U.S. District Court for the Eastern District of New York became the second federal district court to issue a nationwide preliminary injunction limiting the DACA phase-out to aliens who have not yet obtained DACA benefits. The district court's injunction mirrors the nationwide injunction issued by the U.S. District Court for the Northern District of California that is discussed in this Sidebar, and the reasoning behind each injunction was largely similar. Both courts held that plaintiffs were likely to succeed on the merits of their claims under the Administrative Procedure Act that DHS's decision to end DACA was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2018-03-07
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District Court Enjoins DACA Phase-Out: Explanation and Takeaways [April 26, 2018]
"On April 24, 2018, a federal district court in the District of Columbia held that the rescission of the Deferred Action for Childhood Arrivals initiative (DACA) violates the Administrative Procedure Act (APA). The decision, 'NAACP ( National Association for the Advancement of Colored People) v. Trump', grants permanent relief that differs from the nationwide preliminary injunctions granted by district courts in the Northern District of California and the Eastern District of New York. Specifically, the NAACP court decided to vacate the DACA rescission and remand it to the Department of Homeland Security (DHS) [...] because the legal reasoning that formed the basis for the rescission was 'scant' and 'barebones.' But the district court stayed the vacatur order for 90 days to give DHS 'an opportunity to better explain its rescission decision. [...] NAACP does not change the current availability of DACA relief: the preliminary injunctions issued by the other two district courts continue to require DHS to process DACA renewal applications but not initial applications. However, if the NAACP vacatur order goes into effect at the end of the 90-day stay-that is, if DHS does not supply new reasoning that adequately justifies [...] the rescission of DACA-the order will require DHS to process both initial and renewal applications. The NAACP court expressed doubt as to whether DHS will be able to provide an adequate justification."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2018-04-26
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UPDATE: Supreme Court Takes Fourth Amendment Case about Cell Phone Location Data [June 26, 2018]
"Update: On June 22, 2018, the Supreme Court held in a 5-to-4 decision in Carpenter v. United States that government acquisition of historical cell site location information (CSLI) constitutes a Fourth Amendment search. The Court further held that the government needs a warrant supported by probable cause--not merely a court order under the Stored Communications Act--to acquire historical CSLI in most circumstances. The majority opinion, authored by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, concluded that 'an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.' A central issue in the case concerned the viability of the Court's third-party doctrine, which generally recognizes that no reasonable expectation of privacy exists as to information that a person discloses voluntarily to third parties. The majority in Carpenter reasoned that the third-party doctrine, which developed in cases holding that individuals have no reasonable expectation of privacy in the telephone numbers that they dial or in financial records held by their banks, does not apply to CSLI, because '[t]here is a world of difference between the limited types of personal information addressed in [those cases] and the exhaustive chronicle of location information casually collected by wireless carriers today.' The Court recognized, however, that certain exceptions to the warrant requirement, including the exception for ongoing emergencies, remain in place and will likely allow law enforcement to obtain CSLI without a warrant in some circumstances."
Library of Congress. Congressional Research Service
Harrington, Ben
2018-06-26
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Overview of 'Travel Ban' Litigation and Recent Developments [December 5, 2017]
"This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the 'Travel Ban,' which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions. The Sidebar also mentions a fourth and more recent executive action--an executive order issued on October 24, 2017--which announced the general resumption of refugee admissions into the United States following the expiration of a temporary suspension on such admissions."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2017-12-05
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Overview of 'Travel Ban' Litigation and Recent Developments [November 14, 2017]
"This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the 'Travel Ban,' which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions. The Sidebar also mentions a fourth and more recent executive action--an executive order issued on October 24, 2017--which announced the resumption of refugee admissions into the United States following the expiration of a temporary suspension on such admissions."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2017-11-14
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Overview of 'Travel Ban' Litigation and Recent Developments [October 25, 2017]
"This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the 'Travel Ban,' which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions. The Sidebar also mentions a fourth and more recent executive action--an executive order issued on October 24, 2017--which announced the resumption of refugee admissions into the United States following the expiration of a temporary suspension on such admissions."
Library of Congress. Congressional Research Service
Harrington, Ben; Smith, Hillel R.
2017-10-25
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Overview of 'Travel Ban' Litigation and Recent Developments [April 23, 2018]
"This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the 'Travel Ban,' which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions. The Sidebar also addresses a fourth executive action--an executive order issued on October 24, 2017--which announced the general resumption of refugee admissions into the United States (subject to certain restrictions) following the expiration of a temporary suspension on such admissions."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2018-04-23
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Overview of 'Travel Ban' Litigation and Recent Developments [January 10, 2018]
"This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the 'Travel Ban,' which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions. The Sidebar also addresses a fourth and more recent executive action--an executive order issued on October 24, 2017--which announced the general resumption of refugee admissions into the United States (subject to certain restrictions) following the expiration of a temporary suspension on such admissions."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben
2018-01-10
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Supreme Court October Term 2017: A Preview of Select Cases [September 19, 2017]
"On October 2, 2017, the Supreme Court is to begin its new term. While the Court issued a number of notable decisions during its last full term, Court watchers have largely agreed that, at least compared to recent terms, the Court's October 2016 term was diminished both with regard to volume and content. With the Court already accepting over 30 cases for its next term, many of which raise deep and difficult questions in various areas of law, the October 2017 Supreme Court term could be considerably different. The next Court term has the potential to be one of the most consequential in years."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Garcia, Michael John . . .
2017-09-19
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Overview of the Federal Government's Power to Exclude Aliens
"The Supreme Court has determined that inherent principles of sovereignty give Congress 'plenary power' to regulate immigration. The core of this power--the part that has proven most impervious to judicial review--is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches' power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a 'facially legitimate and bona fide' justification to prevail against the citizen's constitutional challenge."
Library of Congress. Congressional Research Service
Harrington, Ben
2017-09-27
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'Flores Settlement' and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions [September 17, 2018]
"The Immigration and Nationality Act (INA) authorizes--and in some case requires--DHS to detain aliens pending removal proceedings. However, neither the INA nor other federal laws specifically address when or whether alien family members must be detained together. DHS's options regarding the detention or release of alien families are significantly restricted by a binding settlement agreement from a case in the U.S. District Court for the Central District of California now called Flores v. Sessions. The 'Flores Settlement' establishes a policy favoring the release of alien minors, including accompanied alien minors, and requires that those alien minors who are not released from government custody be transferred within a brief period to non-secure, state-licensed facilities. DHS indicates that few such facilities exist that can house adults and children together. Accordingly, under the Flores Settlement and current circumstances, DHS asserts that it generally cannot detain alien children and their parents together for more than brief periods."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Harrington, Ben
2018-09-17
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Immigration: Frequently Asked Questions About 'Public Charge' [September 19, 2018]
"Immigration law in the United States has long contained exclusion and removal provisions designed to limit government spending on indigent non-U.S. nationals (aliens). Under the Immigration and Nationality Act (INA) ,an alien may be denied admission into the United States or adjustment to lawful permanent resident (LPR) status if he or she is 'likely at any time to become a public charge.'An admitted alien may also be subject to removal from the United States based on a separate public charge ground of deportability, but this ground is rarely employed. Certain categories of aliens, such as refugees and asylees, are exempted from application of the public charge grounds.The Department of Homeland Security (DHS) and the Department of State (DOS) have primary responsibility for implementing the INA's public charge provisions. DHS's U.S. Citizenship and Immigration and Services may make a public charge determination when an alien applies to adjust to LPR status. Abroad, DOS consular officers may make a public charge determination when an alien applies for a visa."
Library of Congress. Congressional Research Service
Singer, Audrey; Harrington, Ben
2018-09-19
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DACA Rescission: Legal Issues and Litigation Status [May 23, 2018]
"On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum announcing its decision to rescind the Deferred Action for Childhood Arrivals initiative (DACA), which the Obama Administration implemented in 2012 to provide temporary relief from removal and work authorization, among other benefits, to certain unlawfully present aliens who arrived in the United States as children. As justification for the rescission, DHS relied upon a letter from Attorney General Sessions concluding that DACA was illegal--specifically, that it lacked 'proper statutory authority,' was 'an unconstitutional exercise of authority by the Executive Branch,' and would likely be enjoined in 'potentially imminent litigation.' Litigation has ensued at cross purposes. DACA recipients and other parties, including states and universities, filed lawsuits in four federal district courts challenging the rescission as unlawful. Two of those district courts have issued nationwide preliminary injunctions that currently require DHS to continue processing applications for DACA relief from individuals who have obtained DACA relief in the past (renewal applicants), but not applications from individuals who would be first-time DACA enrollees. The order of a third district court--which will go into effect on July 23, 2018, unless DHS provides new reasoning that adequately justifies the rescission in the court's view--would require DHS to process both first-time and renewal applications for DACA relief. After these district court decisions, Texas and six other states filed a separate lawsuit seeking to bar DHS from continuing to grant DACA relief."
Library of Congress. Congressional Research Service
Harrington, Ben
2018-05-23
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'Flores Settlement' and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions [August 28, 2018]
"Reports of alien minors being separated from their parents at the U.S. border have raised questions about the Department of Homeland Security's (DHS's) authority to detain alien families together pending the aliens' removal proceedings, which may include consideration of claims for asylum and other forms of relief from removal. The Immigration and Nationality Act (INA) authorizes--and in some case requires--DHS to detain aliens pending removal proceedings. However, neither the INA nor other federal laws specifically address when or whether alien family members must be detained together. DHS's options regarding the detention or release of alien families are significantly restricted by a binding settlement agreement from a case in the U.S. District Court for the Central District of California now called Flores v. Sessions. The 'Flores Settlement' establishes a policy favoring the release of alien minors, including accompanied alien minors, and requires that those alien minors who are not released from government custody be transferred within a brief period to non-secure, state-licensed facilities. DHS indicates that few such facilities exist that can house adults and children together. Accordingly, under the Flores Settlement and current circumstances, DHS asserts that it generally cannot detain alien children and their parents together for more than brief periods."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Harrington, Ben
2018-08-28
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Asylum Bar for Migrants Who Reach the Southern Border Through Third Countries: Issues and Ongoing Litigation [Updated September 13, 2019]
From the Update: "The Supreme Court granted the Trump Administration a stay on September 11, 2019, that allows the Administration to implement the interim final rule (IFR) without restriction while litigation concerning the legality of the IFR moves forward. The stay will remain in place until the Supreme Court resolves any appeal from the ongoing proceedings in the Northern District of California and the U.S. Court of Appeals for the Ninth Circuit. Justices Sotomayor and Ginsburg dissented from the grant of the stay. According to media reports, the Administration had begun implementing the IFR nationwide the day after obtaining the stay. The upshot of the Supreme Court's ruling is that, at least for the foreseeable future, the Administration may apply the IFR to limit asylum eligibility for migrants who reach the southern border through third countries."
Library of Congress. Congressional Research Service
Harrington, Ben
2019-09-13
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Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes [November 15, 2019]
From the Document: "Since FY2017, a growing share of non-U.S. nationals (aliens) arriving at the U.S.-Mexico border request asylum, some at official U.S. ports of entry and others after entering the country 'without inspection' (i.e., illegally) between ports of entry. [...] The Trump Administration is pursuing several policies that change how these aliens are processed when they arrive without valid entry documents. First, under a practice known as 'metering,' aliens may be required to wait in Mexico until there is capacity to process them at a port of entry. Second, the Migrant Protection Protocols (MPP) require some aliens to return to Mexico pending formal removal proceedings. Third, under the third-country transit bar, aliens arriving at the southern border are ineligible for asylum if they traveled through another country without first seeking protection in that country. Although these policies are subject to legal challenge, reviewing courts have so far permitted their implementation."
Library of Congress. Congressional Research Service
Smith, Hillel R.; Harrington, Ben; Singer, Audrey
2019-11-15
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Power of Congress and the Executive to Exclude Aliens: Constitutional Principles [December 30, 2019]
From the Document: "Under long-standing Supreme Court precedent, Congress has 'plenary power' to regulate immigration. This power, according to the Court, is the most complete that Congress possesses. It allows Congress to make laws concerning non-U.S. nationals (aliens) that would be unconstitutional if applied to citizens. And while the immigration power has proven less than absolute when directed at aliens already physically present within the United States, the Supreme Court has interpreted the power to apply with most force to the admission and exclusion of nonresident aliens. The Court has upheld or shown approval of laws excluding aliens on the basis of ethnicity, gender and legitimacy, and political belief. It has also upheld an executive exclusion policy that was premised on a broad statutory delegation of authority, even though some evidence considered by the Court tended to show that religious hostility may have prompted the policy. Outside of the immigration context, in contrast, laws and policies that discriminate on such bases are almost always struck down as unconstitutional. To date, the only judicially recognized limit on Congress's power to exclude aliens concerns lawful permanent residents (LPRs): they, unlike nonresident aliens, generally cannot be denied entry without a fair hearing as to their admissibility."
Library of Congress. Congressional Research Service
Harrington, Ben
2019-12-30
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Processing of Adults and Family Units Arriving at the Southern Border Without Valid Documents [January 9, 2020] [infographic]
From the Document: "The Trump Administration has implemented a series of policies that change the processing of non-U.S. nationals (aliens) who arrive at the southern border without valid entry documents, many of whom claim asylum or a fear of persecution. These policies include metering, the Migrant Protection Protocols, an interim final rule that makes aliens ineligible for asylum if they reach the southern border through third countries (with limited exceptions), and a Safe Third Country Agreement with Guatemala. These policies generally apply to adults and family units only. (The interim final rule, however, also applies to unaccompanied alien children in formal removal proceedings.)"
Library of Congress. Congressional Research Service
Harrington, Ben; Smith, Hillel R.
2020-01-09
