2016: Big Year in Immigration Litigation

image of United States flag, social security card and visa

2016 promises to be one of the biggest years in immigration litigation in recent history.

First, by the end of June, the United States Supreme Court may issue a decision in Texas v. United States. On January 15, 2016, the Court will consider the United States’ petition for certiorari and the States’ opposition. This case will determine the fate of the administration’s expanded Deferred Action for Childhood arrivals and initial Deferred Action for Parents of Americans and Lawful Permanent Residents. In addition to affecting the millions of undocumented childhood arrivals and parents, this decision will clearly affect the Obama administration’s use of executive authority to address immigration policy.

In addition to this high profile issue, 2016 promises to see a further schism in the United States Courts of Appeals’ jurisprudence about mandatory detention. A majority of circuits have held that delayed mandatory detention is perfectly constitutional, regardless of the delay between criminal release and immigration detention. However, in December 2015, the First Circuit issued its decision in Castaneda v. Souza that rejected delayed mandatory detention. Castaneda, of course, comports with a majority of the United States District Courts that have addressed the issue. With various circuits yet to address the issue—most notably the Ninth—the circuit split promises to widen in 2016 and clear the way to the United States Supreme Court.

In addition to affecting the millions of undocumented childhood arrivals and parents, this decision will clearly affect the Obama administration’s use of executive authority to address immigration policy.

H2B program

On the regulatory front, the Department of Homeland Security’s 2015 rulemaking attempt to reboot the Department of Labor’s role in the H2B program is on a collision course with the judiciary. In 2015, the Northern District of Florida declared the Department of Labor’s role in the H2B program was not authorized by congress. DHS responded by shutting down the H2B program and engaging in a new rulemaking to protect and restate the Department of Labor’s role in the H2B program. However, arguably, rulemaking cannot fix a lack of congressional authority. Thus, 2016 promises to be another tumultuous year for the H2B program.

The Immigration-Litigation blog will be expanding its coverage in 2016 to keep track of these developments and others in the coming year.

BRADLEY B. BANIAS, a former attorney with DOJ’s Office of Immigration Litigation, is developing a nationwide, federal court immigration litigation practice at Barnwell, Whaley, Patterson and Helms in Charleston, SC. The author’s views do not constitute legal advice or representation.  Terms of use-disclaimer.