US border and immigration policies face make-or-break decisions in federal courts in 2024, with the fate of key executive powers, status for “Dreamers,” and state authority on the docket.
Judges have increasingly steered immigration policy in recent years, as Congress dithers on overhauling outdated statutes, and the executive branch — under Presidents Barack Obama, Donald Trump, and Joe Biden — flexes its powers to fill the gap.
“Federal courts are becoming the arbiters of immigration policy,” Cornell Law School professor Stephen Yale-Loehr said. “That makes it very difficult for any administration to manage immigration because no matter what they try to do administratively, someone will sue them in federal court.”
Congress is trying again to strike an elusive immigration deal, but negotiators face an uphill battle as they work to finalize an agreement that both chambers can pass. The Biden administration is trying to broker a compromise while simultaneously defending its current carrot-and-stick border policies in court cases, many of which are led by Republican state attorneys general.
The Supreme Court “has taken some tools out of the hands of federal judges in these cases,” through recent precedents restricting courts from issuing broad injunctions in certain immigration cases and rejecting states’ legal standing to challenge the Department of Homeland Security’s enforcement agenda, said Aaron Reichlin-Melnick, policy director at the immigrants’ rights advocacy group American Immigration Council.
But any dampening effect of those precedents is at least partially offset by the rising audacity of litigants, including states, said Theresa Cardinal Brown, director of immigration policy at the Bipartisan Policy Center.
“Even if it’s a long-shot case, they’ll file it anyway,” she said.
Here’s what to watch in 2024:
Parole Authority
The Biden administration has relied heavily on parole authority to establish legal pathways for select migrants to enter the US and discourage illegal border crossings.
The Immigration and Nationality Act gives the executive branch authority to grant limited status, case by case, for noncitizens to live and work in the US. Biden has used it to offer refuge to Afghans and Ukrainians fleeing war and violence in their countries, and as a legal entry option for Cubans, Haitians, Nicaraguans, and Venezuelans with US-based sponsors.
Why Biden Officials Are Flexing More Immigration ‘Parole’ Power
Critics say those programs take the case-by-case authority too far. A coalition of right-leaning states led by Texas challenged the parole initiatives for Cubans, Haitians, Nicaraguans, and Venezuelans a year ago. Judge Drew Tipton, a Trump appointee to the Southern District of Texas, is weighing whether to halt the program and could issue a decision any day.
A ruling against the initiative would have reverberations for the tens of thousands of immigrants welcomed under the program each month, as well as their US sponsors and others seeking parole, said Justice Action Center director Karen Tumlin, who represents sponsors in the case. Appeals are virtually guaranteed.
The case is Texas v. DHS, S.D. Tex., No. 6:23-cv-00007.
Texas Law
An aggressive new Texas law making it a state crime to cross the border without authorization — allowing state law enforcement officers to arrest, jail, and deport offenders — is the subject of an emerging legal battle over the extent of state powers in immigration enforcement.
Immigrants’ rights groups and El Paso County filed suit after Gov. Greg Abbott (R) signed the bill into law on Dec. 18, arguing that the policy violates the US Constitution’s Supremacy Clause by placing “quintessentially federal authority” in the state’s hands.
ACLU Sues Over Texas Law Empowering State to Arrest Migrants
The big question now is whether the Biden administration’s Justice Department gets involved. When Arizona enacted a similarly sweeping immigration measure nicknamed the “show me your papers” law in 2010, the Obama administration sued, took the case to the Supreme Court, and knocked down part but not all of the statute.
With many remaining unanswered questions about the line between state and federal authority, the Texas litigation is poised to push those issues back up to the Supreme Court. DOJ declined to comment on its plans.
The case is Las Americas Immigrant Advoc. Ctr. v. McCraw, W.D. Tex., No. 1:23-cv-01537.
Dreamers
Litigation over the Deferred Action for Childhood Arrivals program has been a constant since Obama established the quasi-legal status in 2012 for “Dreamers” who arrived in the US as children.
The program is in more legal jeopardy today than ever before, after a federal district court in Texas ruled that both the Obama-era rule and a more recent Biden regulation violated federal law. The roughly 600,000 people with DACA status can retain it, for now, but nobody new can apply.
DACA’s Fate in Doubt as Case Starts Path Back to Supreme Court
Right-wing critics who say the status exceeds executive authority are gunning for federal courts to eliminate it once and for all.
“No one has the guts to firmly end it, and so that’s why it keeps dragging on and will continue to do so,” said Lora Ries, director of the Border Security and Immigration Center at the conservative Heritage Foundation.
The case is now before an appeals court and is expected to land on the Supreme Court’s docket. While the justices saved DACA once before — overturning the Trump administration’s attempt to nix the program — the high court’s rightward shift and the scope of the latest litigation puts Dreamers at greater risk next time around.
The case is Texas v. USA, 5th Cir., No. 23-40653.
Transit Rule
If the Biden administration’s parole-based legal pathways for migrants are a carrot, DHS’s transit rule is the stick.
The rule, crafted early this year, makes it harder for migrants to seek asylum in the US if they haven’t first tried to use new lawful pathways or sought protection in other countries along their route to the southern border. It also subjects them to stiff consequences: fast-tracked deportation, a five-year ban on admission, and possible criminal prosecution.
Biden Adds Legal Pathways, Penalties as Border Rules Ends
The approach has drawn litigation from the right and the left. Immigrants’ rights advocates compare the asylum limitations to the the Trump-era “transit ban,” which blocked asylum for anyone who failed to seek protection en route to the US. GOP state officials say the restrictions have too many loopholes.
Several cases are pending from advocacy groups and GOP-led states. In the fastest-moving case, a California district court ruled against the regulation. The US Court of Appeals for the Ninth Circuit stepped in to preserve the program while an appeal is pending.
The case is East Bay Sanctuary Covenant v. Biden, 9th Cir., No. 23-16032.
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