Courts Set to Shape US Immigration Policy in 2023

U.S. judges will be making important rulings on immigration in 2023, playing a significant role in shaping the nation’s immigration policy.

Congress has not revised American immigration laws comprehensively since 1990, and Cornell Law School Professor Stephen Yale-Loehr told VOA that efforts by subsequent administrations to revise the immigration system through executive orders are tied up in court battles.  

“Courts are not a good way to manage immigration,” he told VOA.  

Here are some of the major cases before the courts.

United States v. Texas

In 2022, the U.S. Supreme Court heard oral arguments in United States v. Texas, a lawsuit in which the Republican-led states of Louisiana and Texas argued that the Biden administration’s enforcement priorities are unlawful.  

The litigation stemmed from a September 2021 directive from the Department of Homeland Security that focused deportation efforts on people considered an “egregious threat to public safety” or who had committed acts of espionage or terrorism. Anyone in the U.S. without documentation, however, still risks deportation.  

Yale-Loehr said that based on the oral arguments, it is not clear how the court will rule. A decision is expected this term.

Title 42

The Supreme Court justices will also decide the fate of Title 42. The court is to hear arguments in the case in February.

Title 42 is a public health policy that allows for the immediate expulsion of migrants during public health emergencies. The use of the health order, which immigration advocates say is no longer needed, began in March 2020 and has helped to create a backlog in Mexico of migrants seeking asylum in the United States.

In November 2022, a U.S. District Court judge ordered Biden to lift Title 42 restrictions at the U.S.-Mexico border. The case before the Supreme Court is about whether states can challenge that U.S. District Court decision.  

Omar Jadwat, director of the American Civil Liberties Union Immigrants’ Rights Project, said Title 42 is likely to be an ongoing question in 2023 depending on how the Supreme Court rules.  

“There were some disagreements when Title 42 first rolled out over whether it was even possibly justified by public health concerns. But at this point, nobody I think is seriously suggesting that there's any public health justification for Title 42,” Jadwat said.  

DACA

The Biden administration revised the Deferred Action for Childhood Arrivals, or DACA, program in 2022, putting it through the formal rulemaking process to increase its odds of satisfying the arguments that it was not properly created. Since its inception in 2012, it has protected from deportation hundreds of thousands of undocumented immigrants brought to the United States as children.

In 2018, Texas and other Republican-led states sued the federal government, arguing that DACA harms states financially because they legally must provide education, health care, and other services to all residents of their states, including undocumented immigrants.

The states further argue that only Congress has the authority to grant immigration benefits.

The case was filed in the U.S. District Court for the Southern District of Texas, where U.S. District Judge Andrew Hanen ruled DACA is unlawful but allowed it to continue for current recipients. That ruling was appealed to the 5th U.S. Circuit Court of Appeals, which returned the case to the lower court for further review. The court, however, upheld Hanen’s ruling that DACA is unlawful.

Hanen has yet to schedule a new hearing.

Diversity visa cases

Goodluck v. Biden combines two cases in which tens of thousands of people are fighting for immigrant visas that they were awarded in 2020 and 2021 under the diversity visa program. The visas expired before the winners could receive authorization to travel to the U.S. for reasons related to the pandemic.  

The diversity visa program, commonly known as the green card lottery, is authorized under the Immigration Act of 1990 to increase the diversity among immigrants to the United States.

Visa lottery winners sued and eventually U.S. District Court Judge Amit P. Mehta ordered the Biden administration to reserve more than 7,000 expired diversity visas for the winners whose applications were not prioritized for processing after U.S. consulates reopened as the pandemic eased.  

Immigration lawyer Curtis Morrison told VOA that the federal courts have told the Biden administration it needs to correct the situation for these thousands of visa applicants and their families.

The Goodluck case is now in front of the U.S. Court of Appeals for the District of Columbia Circuit. Oral arguments took place in September after the Department of State appealed Mehta’s order. The diversity visa litigation can affect more than 30,000 people. 

“The department believes the courts misinterpreted the law in finding that the department’s policies were unlawful and that the courts exceeded their authority in ordering the department to process and issue diversity visas beyond the statutory deadline,” according to the State Department’s website.