Working Immigrants

On December 11, Judge Paula Xinis of the District Court for Maryland ordered Abrego Garcia released from ICE custody. He had been in custody for months, and her decision came 10 months after ICE snatched him off the streets in Maryland, sent him to El Salvdor, only for ICE to bring him to Tennessee, then only to bring him to the final custody in Baltimore by ICE.

Late December 11, DHS had Philip Taylor, an immigration judge in Atlanta who has an 88.9% asylum denial track records, to issue an order of removal, which would authorize ICE to detain Abrego Garcia.

The history so far

I have tracked Abrego Garcia’s case from the outset. Here is a timeline March – early June,  timeline June – August, and here is an October update. What follow is how Judge Xinis narrated the case – starting with a fatal, uncorrected flaw by DHS in 2019.

The 2019 withholding decision is the original fault line

October 10, 2019, an immigration judge in Maryland made a key ruling in Abrego Garcia’s immigration case. the judge granted him withholding of removal and ruled that he could not be deported to El Salvador due to a credible fear of persecution by gangs there. He was given a work permit and placed under federal supervision instead of being removed from the United States.

This October 10, 2019 immigration decision was for Xinis the foundational legal moment. She emphasized that although withholding of removal was granted, no removal order was ever issued and no country of removal was designated. This omission was not treated by Xinis as technical or harmless. It made all detention and removal efforts legally unsupportable.

Six years of lawful supervision underscore the absence of removal authority

For six years after the 2019 decision, Abrego Garcia lived and worked in Maryland under ICE supervision with employment authorization. ICE itself treated him as non-removable.

March–April 2025: the “wrongful expulsion” to El Salvador

The judge narrated the March 2025 arrest and expulsion as unlawful rupture. Abrego Garcia was seized without criminal charges and expelled to El Salvador despite existing protection from removal. His detention in CECOT and exposure to torture were treated by Xinix as undisputed facts. Every court on appeal agreed the removal was improper.

Return to the U.S. via criminal process was suspicious

Xinis noted that DHS facilitated his return from El Salvador only after securing a federal indictment, which was potentially vindictive or selective. The criminal process was used as leverage to reassert custody rather than as a neutral enforcement action.

The African removal story fell apart

Xinis recounted DHS’s shifting claims that Abrego Garcia would be removed to Uganda, Eswatini, Ghana, and Liberia. Each proposed destination collapses under scrutiny, public denials, or lack of preparation. She saw no real diplomatic engagement, and noted the repeated inability of government witnesses to explain or defend removal plans.

Costa Rica became the credibility test, and DHS failed it

Xinis treated Costa Rica’s formal offer to accept Abrego Garcia as a refugee as decisive. Costa Rica made clear, written assurances, while DHS claimed that the offer was withdrawn.

The missing removal order became dispositive

The central legal fact: no removal order had ever existed. ICE officials repeatedly admitted they had never seen one. Its attempts to imply a removal order from the 2019 withholding decision were rejected by Xinis as legally impermissible and contrary to Supreme Court precedent.

End state: detention lost any lawful purpose

Xinis said that Abrego Garcia’s detention no longer served any legitimate immigration purpose, without a removal order or a realistic prospect of removal.

The Gold Card program to expedite immigration based on wealth is a legal fantasy. It will die by court decision. For the time being, the Administration is telling people to pay a processing fee of $15,000 for a review that will take weeks – and will not end well.

“A Joke”

In February President Trump said he was creating a new way to enter permanently into the United States and that the program would be available in two weeks.  In June the White house created a Gold Card website. On Sept 19 the White House issued the first formal statement.  Here is the “official” website which began taking applications in the past few days.

Might be time to update that inscription on the Statue of Liberty: ‘Never mind your poor and tired. Give us a million bucks — you’re in.’” — JIMMY KIMMEL

“You would think that a transaction like this would involve a good deal of paperwork, right? Nope. The application’s one page long. You have to give more information to rent a Toyota Camry.” — JIMMY KIMMEL

The Executive Action

On Sept 19,2055 the President issued an Executive Action establishing a Gold Card.  The program works as follows. An individual makes an “unrestricted gift” of $1 million – a Gold Card–or a business of $2 million on behalf of the individual – a Corporate Gold Card. (In this posting I don’t discuss the $5 million Platinum Card).  In response, “In adjudicating visa applications, the Secretary of State and the Secretary of Homeland Security shall, consistent with applicable law, treat the gift specified in subsection (a) of this section as evidence of eligibility under 8 U.S.C. 1153(b)(1)(A), of exceptional business ability and national benefit under 8 U.S.C. 1153(b)(2)(A), and of eligibility for a national-interest waiver under 8 U.S.C. 1153(b)(2)(B).”

Apply now!

The Gold Card website says that “once an applicant’s processing fee and application are received, the process should take weeks. The applicant will need to attend a visa interview and submit any additional documents in a timely manner.”  I filled out an application(12/12/25).  I was asked my place of birth and nationality (I chose a UK birth and address.  At that point, with no further steps or advice, I was sent to a page to pay a “Processing Fee: $15,375 (If using credit card, an additional 2.5% fee is included.)” It is not clear if this fee is refundable.

Go here for an annotated review of these and other provisions in the pertinent immigration statutes.

8 U.S.C. 1153(b)(1)(A) – EB-1 visa: Extraordinary Ability

The EB-1 extraordinary ability visa is an employment-based immigrant category for individuals at the very top of their fields. Roughly 40,000 visas per year (including dependents) are available under the EB-1 cap. Applicants must show sustained national or international acclaim, proven through major awards or extensive evidence such as publications, original contributions, judging others’ work, or leading roles, and must demonstrate continued work benefiting the United States.

8 U.S.C. 1153(b)(2)(A) EB 2 visa: Advanced degree or exceptional ability

There is a 10,000 annual ceiling for EB-2 visa issuances. It  is for professionals with advanced degrees or individuals of exceptional ability in the sciences, arts, or business. Applicants must either hold an advanced degree (or a bachelor’s plus five years of progressive experience) or demonstrate exceptional ability with strong evidence such as education, long-term experience, high salary, or recognition. A permanent job offer and PERM labor certification from a U.S. employer are required,

8 U.S.C. 1153(b)(2)(B) National Interest Waiver

Within EB‑2, this allows the Attorney General/Secretary of Homeland Security to waive the job‑offer and labor‑certification requirements when doing so is in the “national interest.”​

Legal challenges

The program threatens the INA’s visa allocation system. Employment-based visas are numerically capped and allocated by priority date. Courts have repeatedly held that agencies may not reorder congressionally mandated priorities through administrative convenience or political preference. In Gonzales v. Oregon, 546 U.S. 243, 258 (2006) the court held that agencies may not “rewrite clear statutory terms” when agencies attempt to reorder statutory priorities.

INA §286(m), 8 U.S.C. §1356(m) authorizes USCIS to set fees “at a level that will ensure recovery of the full costs of providing all such services” related to immigration adjudication and administration. It does not authorize fees to raise revenue, fund unrelated government programs, or incentivize particular immigration outcomes.

Congress has specified how money can lawfully intersect with immigration through the EB-5 investor visa, which is tightly legislated with specific dollar thresholds and safeguards. The Gold Card program bypasses that structure entirely. For these reasons, the program is likely to be viewed by courts not as a permissible exercise of discretion, but as an unlawful end-run around Congress’s exclusive authority over immigration law.

A lawsuit to challenge the program needs to be brought by someone who has standing, and that party will likely be a person who says their application for an EB-1 or EB-2 visa has been or will be harmed by the Gold Card.

This December 8 article by Columbia University undergraduates focuses on Congressional powers. The Gold Card Visa is unconstitutional because it creates a new, wealth-based immigration category without congressional authorization.

President Trump in Pennsylvania, December 9: “We had a meeting, and I said, why is it we only take people from shit hole countries. right? Why can’t we have some people from Norway, just a few, let’s have a few Denmark some people? Do you mind that we always take people from places that are a disaster, right, filthy dirty disgusting ridden with crime.”

Annotated version of the White House’s National Security Strategy of December 5:

The Era of Mass Migration Is Over – Who a country admits into its borders—in what numbers and from where—will inevitably define the future of that nation. Any country that considers itself sovereign has the right and duty to define its future.

[This statement, though tinged with implicit racism (“from where”), sort of aligns with the Jordan Commission’s final report issued in the 1990s: “Properly-regulated immigration and immigrant policy serves the national interest by ensuring the entry of those who will contribute most to our society and helping lawful newcomers adjust to life in the United States. It must give due consideration to shifting economic realities.”]

Throughout history, sovereign nations prohibited uncontrolled migration and granted citizenship only rarely to foreigners, who also had to meet demanding criteria.

[“Only rarely to foreigners” conflicts sharply with most of  American history. Abraham Lincoln, for example, welcomed immigrants from non-English sources.  The statement invites comparison with the extremely restrictive immigration policy 1924 – 1965.]

The West’s experience over the past decades vindicates this enduring wisdom. In countries throughout the world, mass migration has strained domestic resources, increased violence and other crime, weakened social cohesion, distorted labor markets, and undermined national security.

[“Weakened social cohesion” –Polls and research by Robert Putnam show that diversity, such as ethnic, reduces trust and a sense of belonging.]

The era of mass migration must end.

[This is ambiguous—does mass migration mean from unfavored countries, or all migration, or something else? If mass migration means large numbers from Latin America, that era – from the 1990s through the Biden Administration – is over.]

Border security is the primary element of national security. We must protect our country from invasion, not just from unchecked migration but from cross-border threats such as terrorism, drugs, espionage, and human trafficking.

[There is no evidence that immigration has brought terrorism, drugs or espionage. This passage smacks of theatrical hypervigilance associated with a myth of purity of the community of citizens. Madison Grant, in his influential The Passing of the Great Race (1916),  framed immigration as a threat to racial purity: “Race feeling may be called prejudice by those whose careers are cramped by it but it is a natural antipathy which serves to maintain the purity of type.”]

A border controlled by the will of the American people as implemented by their government is fundamental to the survival of the United States as a sovereign republic.

[The border takes on a mythic role as some kind of protective armor.]

In Escobar Molina v. DHS (December 2), a federal district court enjoined DHS and ICE from conducting warrantless civil immigration arrests — including sweeps and arresting those standing in Home Depot parking lots — in Washington, D.C. that do not comply with the Immigration and Nationality Act (INA), 8 U.S.C. § 1357(a)(2). That provision allows a warrantless civil arrest only when an officer has probable cause both that a person is in the U.S. unlawfully and that the person is likely to escape before a warrant can be obtained.

After President Trump’s August 11, 2025 “crime emergency” declaration, federal officers launched mass immigration sweeps. An AP-based analysis in the record showed 943 immigration arrests in D.C. between August 7 and September 9, 2025, more than 40% of all arrests in that period.  Officers in plain clothes and unmarked cars often seized people without warrants, without confirming identity, and without asking anything about escape risk.

The government defended this by claiming that civil immigration arrests could be made on “reasonable suspicion,” that its officers were in practice applying a probable-cause standard anyway, and that the presidential emergency and DHS directives justified rapid, sweeping enforcement.  The court rejected all of this, holding that no internal policy or emergency order can override the explicit probable-cause and escape-risk requirements Congress wrote into the INA.

The actual wording in the INA:

“(a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—

…

(2) to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;”

Numerous court decisions dating back to 1975 have said that “reason to believe” means probable cause.

Aaron Reichlin Melnick has posted today’s memorandum (12/2/25) from USCIS calling for a suspension of dealing with all asylum applications and all “benefit applications”. The memorandum refers to the June 6 2025 “Presidential Action” which lists 19 counttries of concern. The suspension applies to all 19 countries.

The memoradum does not say that prior approvals are to be reviewed — as President Trump says he wants done. Since Trump is trying the subject the entire foreign-born population to review and possible expulsation, it’s woth spending a moment to parse the law.

“Benefit applications” is a formal term which includes all applications that USCIS adjudicates, including green card and citizenship applications.

As noted a few days ago, immigration law prohibits nationality from using used in specific immigration decisions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, sex, nationality, place of birth, or place of residence.” The prohibition applies only to “immigrant visas” and not to green cards, citizenship and certain other applications. The focus on immigrant visas (family, employment, humanitarian, diversity) appears to be due to the removal in 1965 of nationality quotas. It would appear that special immigrant visas issues to Iraqis and Afghan are covered by the prohibition. Some 175,000 such visas have been issued.

If the White House wants to achieve its goal of one million deportations per year, it has to streamline the currently bogged down system of interior arrests through deportation of non-criminals. Here in a nutshell is why ICE -driven deportations are so low – at an average rate of about 18 per ICE enforcement and deportation staff person (7,700).

The Trump administration inherited an interior arrest and deportation process, run by ICE, which was very bogged down, and the immigration courts, seriously under-staffed.  (Customs and Border Patrol generally cover arrests and deportation within 100 miles of the border and can use expedited removals).

Interior immigration enforcement under the aegis of ICE shrank over the past fifteen years, while the overall deportation machinery shifted to the border. ICE once removed an average of 155,000 people per year from inside the United States during 2009–2016, but that number fell to 81,000 in 2017–2020 and then dropped again to about 38,000 annually from 2021–2024.

The difficulties start with the arrest. Most ICE arrests end up in Section 240 immigration-court proceedings because the vast majority of people taken into custody have been in the United States for more than two years, have ties here, or assert some form of protection claim, which legally bars the government from using expedited removal.

Once someone is placed into the 240 track, they receive the full due-process process: notices, master calendar hearings, evidence submissions, and often an asylum or other relief claim that must be adjudicated by an immigration judge. This pushes them into the enormous immigration-court backlog, which by late 2024 had swollen to roughly 3.6 million cases. As a result, a newly-filed case often waits years before a merits hearing, and the person typically lives in the community during that time unless ICE chooses to detain them, assuming beds are available.

The administration is recruiting judges explicitly to increase deportation. Even when a judge ultimately issues a removal order, carrying it out is slow and often unsuccessful. Today roughly 1.5 million people have outstanding removal orders that have not been executed. ICE must physically locate the person, overcome limited detention capacity, and secure cooperation from the destination country. Many countries delay or refuse travel documents, making deportation impossible in practice. China, Cuba, India, and Venezuela routinely refuse or delay accepting returnees.

Go here and here.

Kyle Cheney in Politico reports on a nationwide judicial revolt against the Trump administration’s policy mandating detention for nearly all immigrants in deportation proceedings. In July, DHS aggressively expanded the conditions under which persons can be detained for violating immigration laws. Over 700 emergency challenges have entered federal courts, with at least 225 judges in 35 states,  including many Trump appointees,  finding the policy likely unlawful and a breach of due process. Only eight judges have sided with the administration.

Per Cheney, at the core of the legal fight is the administration’s reading of the term “seeking admission.” That phrase used to apply mainly to newly arrived migrants at the border. DHS now claims that millions of long-settled immigrants, even those here for decades with citizen families and pending legal claims for normalization of status, still count as “seeking admission” and can therefore be detained without bond. New class actions and appellate rulings, sought by district courts, may soon determine the policy’s fate.

The expansion of definition was made in an internal July 8 memo the full contents of which are apparently not public. It appears to have said the pretty much all persons who “have not been admitted” (regardless of any knowledge or how arrived, or when) are subject to mandatory detention and can be released only through a formal act of granting parole.

Here is a New Jersey court case involving the expanded definition.