Refugee and Immigrant Center for Education and Legal Services v. Noem
Not available in text (2025)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The President's statutory authority to suspend or restrict the entry of aliens under 8 U.S.C. §§ 1182(f) and 1185(a), and his inherent constitutional powers, do not authorize the Executive Branch to unilaterally create and implement an extra-statutory system for the removal or repatriation of aliens already present in the United States, nor to deny such aliens their statutory rights to apply for asylum, withholding of removal, or Convention Against Torture (CAT) protection as established by Congress.
Facts:
- On January 20, 2025, the President issued Proclamation 10888, 'Guaranteeing the States Protection Against Invasion,' declaring the situation at the southern border an 'invasion' due to overwhelming numbers of aliens.
- The Proclamation directed the suspension of entry for aliens engaged in the 'invasion' across the southern border or those failing to provide sufficient medical and criminal history information, and restricted these aliens from invoking INA provisions, including asylum, that would permit their continued presence.
- The Proclamation further directed the Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, to take actions to 'repel, repatriate, or remove' any alien engaged in the 'invasion' after January 20, 2025, relying on both statutory and constitutional authorities.
- The Department of Homeland Security issued informal implementing guidance (emails, memoranda, training materials) to U.S. Border Patrol and USCIS personnel, defining 'illegal alien invading the United States' as those crossing between ports of entry on the southern border and instructing officers not to permit them to apply for asylum, nor to use standard forms or ask specific fear questions.
- The guidance established two new procedures, '212(f) Direct Repatriation' and '212(f) Expedited Removal,' which omitted several steps from the INA's § 1225(b)(1) expedited removal procedure and required a higher screening standard ('more likely than not') for Convention Against Torture (CAT) claims at the initial assessment without legal representation.
- Thirteen individual plaintiffs, who are or were subject to the Proclamation and have fled persecution or fear torture, and three nonprofit organizations (RAICES, Las Americas, Florence Project) providing legal services to asylum seekers, were affected by these actions. Some individual plaintiffs were already removed, while others remain in the U.S.
Procedural Posture:
- On February 3, 2025, Refugee and Immigrant Center for Education and Legal Services, Las Americas Immigrant Advocacy Center, and the Florence Immigrant & Refugee Rights Project (organizational plaintiffs) filed this action in the United States District Court for the District of Columbia against Kristi Noem, Secretary of Homeland Security, et al.
- Plaintiffs promptly amended their complaint to add thirteen individuals as plaintiffs.
- Plaintiffs filed a motion for class certification, a motion for a preliminary injunction, and an emergency motion to stay the removal of individual plaintiffs still in the United States.
- The District Court held a hearing on February 20, 2025, during which one individual plaintiff was reportedly removed.
- The District Court issued an administrative stay prohibiting the government from removing any individual plaintiffs still in the United States pending a hearing on the emergency motion.
- Defendants filed a response stating they would not remove individual plaintiffs during the pendency of the case, leading the District Court to deny Plaintiffs' emergency motion as moot.
- The District Court ordered Defendants to provide seven days' notice before removing any individual plaintiffs and consolidated the preliminary injunction hearing with the merits, pursuant to Fed. R. Civ. P. 65(a)(2), upon agreement by the parties.
- The parties proposed, and the District Court adopted, holding in abeyance claims based on the administrative record (arbitrary-and-capricious arguments under the Administrative Procedure Act) to expedite the merits briefing.
- The District Court held a hearing on the motions for class certification and cross-motions for summary judgment on April 29, 2025, and ordered supplemental briefing on certain issues and the production of the complete administrative record.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the President's authority under 8 U.S.C. §§ 1182(f) and 1185(a), or his inherent constitutional powers under Article II and Article IV, Section 4, permit the Executive Branch to create and implement an extra-statutory system for the removal or repatriation of aliens already present in the United States, and to deny them access to statutory asylum, withholding of removal, and Convention Against Torture (CAT) protection procedures established by Congress?
Opinions:
Majority - Randolph D. Moss
No, the President's authority under 8 U.S.C. §§ 1182(f) and 1185(a), or his inherent constitutional powers, does not permit the Executive Branch to create and implement an extra-statutory system for the removal or repatriation of aliens already present in the United States, nor to deny them access to statutory asylum, withholding of removal, and Convention Against Torture (CAT) protection procedures established by Congress. The court found that 8 U.S.C. § 1182(f) grants the President broad discretion to suspend or restrict entry of aliens but does not authorize the President, the Secretary, or their subordinates to replace the detailed statutory removal procedures in 8 U.S.C. §§ 1225(b)(1) (expedited removal) and 1229a (regular removal) with new '212(f) Direct Repatriation' or '212(f) Expedited Removal' mechanisms. The INA, by its terms in § 1229a(a)(3), establishes 'sole and exclusive procedures' for removal unless otherwise specified, and § 1182(f) does not 'otherwise specify' such an alternative. The court rejected the argument that the power to suspend entry implicitly includes the power to expel, noting that such a broad interpretation would render core INA provisions meaningless. The court also held that the President's inherent constitutional authority over admission decisions, including under Article II or Article IV, Section 4 (Invasion Clause), does not permit him to supplant rules prescribed by Congress for the removal of aliens already present in the United States. Congress holds 'plenary power over immigration,' and the Executive Branch must follow congressional mandates in areas of shared authority, as established by the Youngstown framework. The Proclamation's restriction on covered aliens from 'invoking' asylum provisions (8 U.S.C. § 1158) is unlawful. The plain language of § 1158(a)(1) mandates that '[a]ny alien who is physically present in the United States or who arrives in the United States... irrespective of such alien’s status may apply for asylum.' This mandatory opportunity to apply cannot be circumvented by a presidential proclamation. The court cited the Department of Justice's longstanding position that § 1182(f) does not authorize the President to override the asylum statute. While Congress provides mechanisms for the Attorney General and Secretary to establish 'additional limitations and conditions' on asylum eligibility through regulation (8 U.S.C. § 1158(b)(2)(C)), these require consistency with the asylum statute and are not met by the Proclamation's unilateral action. The guidance instructing that withholding of removal (8 U.S.C. § 1231(b)(3)(A)) is not available for aliens subject to the Proclamation is unlawful. Withholding of removal, unlike asylum, is mandatory, not discretionary, and neither § 1182(f) nor § 1185(a) creates an exception to this mandatory protection. The Proclamation does not even explicitly mention withholding of removal, and the Secretary and Attorney General are bound by § 1231(b)(3)(A) regardless of a presidential proclamation. Finally, the guidance's instruction for 'CAT-Only assessments' that discard the established regulatory procedures (8 C.F.R. § 208.16(c)) for Convention Against Torture (CAT) protection violates the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). Agencies are bound by their own duly promulgated regulations, and the guidance is inconsistent with those regulations by requiring a higher burden of proof at the initial stage and denying access to counsel or a consultation period.
Analysis:
This case reinforces the principle of congressional supremacy in immigration law, particularly concerning the procedures for removing aliens already present in the United States. It limits the President's authority under 8 U.S.C. §§ 1182(f) and 1185(a) to primarily exclusion at the border, not expulsion from within the country, when Congress has already established detailed removal processes and protections. The decision highlights the judiciary's role in ensuring the Executive Branch adheres to statutory mandates, even in the face of perceived national emergencies or border crises. Future executive actions attempting to restrict asylum or other protections for individuals on U.S. soil will likely require explicit congressional authorization or adherence to established regulatory rulemaking procedures.
