Judge permanently blocks another Trump immigration policy

By Josh Gerstein

A federal judge issued a permanent nationwide injunction Thursday against yet another Trump administration immigration policy: a move to make it harder for foreigners to remain in the U.S. after their legal status runs out.

U.S. District Court Judge Loretta Biggs said the 2018 action by the U.S. Citizenship and Immigration Service ran afoul of federal law.

The policy in dispute involves how immigration officials calculate the duration of a foreigner's "unlawful presence" in the U.S.. Several American college presidents sued over the change, arguing that it could jeopardize more than one million foreign students, scholars, and others who sometimes lose their legal status when switching schools or for other reasons.

Under the policy shift, immigration officials would have started the clock sooner on some individuals, creating potential roadblocks if they sought certain forms of relief in court. Ultimately, some foreigners who might have had options to stay in the U.S. under the prior policy could have faced deportation.

Biggs, an appointee of President Barack Obama, said in her 26-page decision that the new policy "impermissibly conflicts" with immigration law. She also said the new procedures should have been subject to public "notice and comment" before it was implemented. The permanent injunction she ordered Thursday tracked with a preliminary injunction she issued in May.

Biggs also weighed in Thursday on a hot legal topic: whether individual judges should be able to block U.S. government policies across the country and provide relief to people not involved in a particular lawsuit. Such nationwide injunctions have become a bugaboo for the Trump administration, although they were also used to block major Obama administration policies, like the 2014 expansion of immigration benefits for so-called Dreamers.

The validity of nationwide injunctions has never been addressed squarely by the Supreme Court, but some of its members seem itching to do so. In a concurring opinion last month, Justices Neil Gorsuch and Clarence Thomas railed against the nationwide orders, saying they were "sowing chaos."

But Biggs defended emphatically the propriety of the directives, particularly in immigration-related cases and cases where the plaintiffs have interests across the U.S.

"A geographically piecemeal injunction would ... be insufficient to remedy their injuries," she wrote, adding, "An injunction which does not extend beyond the named plaintiffs to reach similarly situated individuals could result in the uneven application of immigration policy."

Biggs also noted that a federal law key to the suit, the Administrative Procedure Act, tells judges to "hold unlawful and set aside" actions by federal agencies that fail to meet legal standards. That language seems to invite nationwide injunctions, she said.

"Under the circumstances of this case, the only practicable method of providing plaintiffs with the relief to which they are entitled is to vacate the [policy] and permanently enjoin its application," the judge concluded.

A Justice Department spokesman did not immediately respond to request for comment on Biggs' decision. The federal government passed up an opportunity to appeal the preliminary injunction in the case last year, but will have another opportunity now to appeal the final ruling.

A representative of the plaintiffs in the case welcomed Biggs' decision and urged the Trump administration to back away from the unlawful presence policy rolled out nearly two years ago.

"Judge Biggs' decision ... represents a vindication of higher education institutions' contention that our government should not inflict tremendous consequences, including being barred from the United States, for minor, innocent, or administrative errors," said Miriam Feldblum of the Presidents' Alliance on Higher Education Immigration. "Instead of raising arbitrary and unnecessary barriers, the United States should welcome the talent, diversity, and contributions that international students bring to our campuses, communities, and country."