Another Maryland Judge Demands DHS Return Another Removed Alien

On April 23, yet another Maryland federal district court judge ordered the government to bring another alien removed from the United States to El Salvador returned. But unlike the high-profile case of Kilmar Abrego Garcia — a Salvadoran national alleged to be an MS-13 member removed under the Immigration and Nationality Act (INA) — this alien is a Venezuelan national alleged to be a Tren de Aragua (TdA) member removed under the Alien Enemies Act (AEA). And the issue is not any “error” on DHS’s part, but an 11th hour “gift” the outgoing Biden administration seemingly left to stymie Trump, and the alien is being protected under the worst immigration laws still on the books.

UACs and the TVPRA. This actually begins 17 years ago, when a Democrat-controlled Congress passed one of most poorly thought-out laws ever, section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

When Congress created DHS in the Homeland Security Act of 2002 (HSA), it transferred jurisdiction over the detention and release of “unaccompanied alien children” (UACs) from the Immigration and Naturalization Service (INS) — an agency abolished by the HSA — to the Office of Refugee Resettlement (ORR), which to that point only gave benefits to aliens granted asylum and those admitted as refugees.

The HSA defined the term “unaccompanied alien child” as:

a child who— (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom— (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

It’s unclear why the Democrats who demanded that transfer chose ORR — within the Department of Health and Human Services (HHS), not DHS — given that office had no prior detention experience.

Of course, most UACs aren’t “unaccompanied” at all under that definition — nearly all have parents or guardians here, because those are the people who paid the smugglers to have them brought to the United States.

Regardless, ORR’s detention of UACs only became an issue once section 235 of the TVPRA came along. It requires DHS to transfer UACs from “non-contiguous” countries — every nation aside from Mexico and Canada — to ORR within 72 hours of DHS locating those children.

DHS, however, can hold, process, and remove UACs from Mexico and Canada unless those children have been trafficked or have asylum claims, in which case they too get sent to ORR.

Section 235 of the TVPRA also requires ORR to place nearly all of the UACs in its care with “sponsors” in the United States — again, usually their parents or guardians — as quickly as possible.

I call section 235 one of the most poorly thought-out laws ever because any reasonable person should have known what would happen next — the Southwest border was quickly flooded with thousands and then tens of thousands of illegal migrant UACs from non-contiguous countries.

The illegal entry of UACs became such an issue by 2014 that President Obama begged Congress to fix the TVPRA and give DHS “additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries”.

Political courage is a rare commodity on Capitol Hill, doubly so when the subject involves the detention of kids and the law involves the words “trafficking victims protection” — two things easily demagogued by crafty advocates and lapped up by largely gullible and uniformed press outlets. Not surprisingly, section 235 wasn’t changed, and remains in effect today.

USCIS Asylum Officers and UAC Asylum Claims. That 72-hour rule wasn’t the only bad idea in section 235 of the TVPRA, however. Which brings me to subparagraph (d)(7)(B) therein. It provides that “An asylum officer … shall have initial jurisdiction over any asylum application filed by [a UAC] regardless of whether filed in accordance with” the asylum provision in section 208 of the INA or the expedited removal provision in section 235(b)(1) of the INA.

Generally, aliens not in removal proceedings can file “affirmative” asylum applications with USCIS asylum officers (AOs). Once they are placed into removal proceedings under section 240 of the INA, however, aliens can usually only seek “defensive” asylum from the immigration judges (IJs).

Given that UACs aren’t amenable to expedited removal, even if they’re encountered at the borders or the ports, that should have meant that IJs handled nearly all UAC asylum claims. Having been an IJ with jurisdiction over detained UACs, I can assure you IJs are more than competent to do so.

The reason Congress put that extra, subparagraph (d)(7)(B), wrinkle into section 235 of the TVPRA was to ensure that children too young to make claims or hire lawyers to do so could still receive protection. That said, it also gives UACs yet another “bite at the apple”, one more chance to make their asylum claims regardless of whether those claims are valid or not.

The USCIS May 2019 Redetermination Memo. Of course, that raises the question of whether AOs or IJs have jurisdiction over asylum claims made by UACs in removal proceedings who either are no longer “unaccompanied” because they are reunited with parents or guardians here, or who age out and no longer fall within that “UAC” definition in the HSA.

The Board of Immigration Appeals (BIA) answered that question in October 2018, in Matter of M-A-C-O-.

The BIA there clarified that IJs — not AOs — have initial jurisdiction over asylum claims made by UACs who turn 18 while they are in removal proceedings. That said, it did not hold that initial IJ jurisdiction was mandatory or automatic in cases of aliens who aged out of UAC status — only that IJs have authority to make such determinations.

In May 2019, after the BIA issued Matter of M-A-C-O-, then-USCIS Asylum Division chief John Lafferty published a memo captioned “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children” (Lafferty memo).

The Lafferty memo explained that when the TVPRA was first implemented, AOs “made independent factual inquiries under the UAC definition” when deciding whether they had jurisdiction over an asylum application filed by an alien who claimed to be a UAC.

That original guidance was superseded by a May 2013 USCIS memo issued by then-Acting Asylum Division chief Ted Kim (Kim memo), which had allowed AOs to rely on initial UAC determinations that had already been made by HHS, ICE, or CBP.

More importantly, however, the Kim memo also provided that absent “an affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum”, USCIS would adopt a previous determination that the alien was a UAC “and take initial jurisdiction over the case”.

Simply put, under the Kim memo, even a former UAC who was now an adult would still be considered a UAC unless another agency said otherwise, and USCIS could take initial jurisdiction over that alien’s asylum application; under the Lafferty memo, AOs could decide whether they had initial jurisdiction over an asylum application filed by a UAC who had “aged out” or been reunited with a parent or guardian.

Finally, it should be noted that paragraph (d)(8) of section 235 states:

Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the principal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.

Neither the Kim memo nor the Lafferty memo are “regulations” under that paragraph, as neither was subject to notice and comment rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. § 553.

J.O.P. v. USDHS. On July 1, 2019, three plaintiffs — identified as J.O.P., M.A.L.C., M.E.R.E., and K.A.R.C., filed a complaint in the U.S. District Court for the District of Maryland (D. Md.) against DHS and USCIS, alleging the change in policy in the Lafferty memo violated the APA and the Due Process Clause, as well as a motion for a Temporary Restraining Order (TRO).

The case (J.O.P. v. USDHS) was assigned to Judge George Hazel, and on August 2, 2019, he granted the TRO, enjoining DHS from enforcing the Lafferty memo and ordering the department to retract any adverse asylum decisions it had rendered under that memo. In October 2019, Judge Hazel issued a preliminary injunction with the same terms.

The plaintiffs thereafter alleged, however, that USCIS continued to follow a footnote in the Lafferty memo that required AOs to defer to IJ determinations finding immigration courts had initial jurisdiction over asylum applications filed by erstwhile UACs, which was not permissible under the Kim memo (which, of course, predated Matter of M-A-C-O-).

On December 21, 2020, Judge Hazel issued an order certifying a class of aliens consisting of individuals who “prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the” Kim memo had been determined to be UACs but who were 18 or older when they filed an asylum application with USCIS.

Somehow — given how straightforward the issues are — this case managed to limp along for years. In February 2023, it was assigned to Judge Stephanie Gallagher of the D. Md.

Finally, on July 30, 2024 — just over four months before the 2024 presidential election, the parties filed a proposed settlement agreement with Judge Gallagher.

Under the terms of that agreement, USCIS would keep initial jurisdiction over asylum applications filed by class members, who would also be exempt from restrictions in section 208(a)(2)(B) of the INA that bar applications filed by aliens who failed to seek asylum within one year of arrival.

All of that said, under the proposed agreement, USCIS could find it lacks initial jurisdiction if the alien was “placed in adult immigration detention after a Prior UAC Determination but before filing their asylum application”.

Finally, the proposed agreement required the government to issue a “superseding memorandum explaining and implementing” the agreement within 90 days of the court’s approval of the agreement, and redefined the class to include any alien who prior to the issuance of that superseding memorandum: (1) had been determined to be a UAC; (2) filed an asylum application with USCIS; (3) had turned 18 before filing that application; and (4) had not received a final asylum decision from USCIS.

“Cristian, a 20-Year-Old Class Member from Venezuela”. On November 25 — 20 days after Donald Trump was again elected president but before he took office — Judge Gallagher gave her final approval to that proposed agreement. Under the terms, she retained jurisdiction over that class and the agreement. Which brings me to the events of March 15.

That day, according to an Emergency Motion to Enforce the Settlement Agreement filed with Judge Gallagher by the class counsel on April 14, ICE removed a class member identified pseudonymously as “Cristian, a 20-year-old from Venezuela, with a pending asylum application, to a maximum security prison in El Salvador”. He had filed his asylum application with USCIS in December 2022, but hadn’t received a decision by the time he was removed.

That said, Cristian wasn’t removed under the INA; he was purportedly removed under the Alien Enemies Act (AEA) pursuant to Presidential Proclamation (PP) 10903, “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua”, which I’ve discussed elsewhere at length.

Note that the plaintiffs specifically claim that they aren’t asking Judge Gallagher “to determine the scope of the Government’s removal authority under” the AEA. Rather, they largely view that 11th hour Biden administration settlement agreement as a contract and are seeking the benefit of its terms.

Then, on April 16, the plaintiffs asked for a TRO to prevent what they described as “the imminent removal of another Class Member”, an 18-year-old identified as “Javier” who was arrested by ICE on March 19 while “working at his job at a hair salon in Washington, DC”. USCIS allegedly received his asylum application on December 12, 2024 — 39 days before the inauguration.

The Government’s Opposition. On April 17, the government filed its opposition to the plaintiffs’ motion to enforce the settlement agreement.

The government made three key arguments: (1) the court lacks jurisdiction to review Cristian’s removal under the AEA because, as the Supreme Court recently held, such challenges can only be brought in habeas; (2) Cristian is not a class member because he has been designated as an “alien enemy” under PP 10903; (3) the settlement agreement only covers the removal of aliens under the INA, not the AEA.

Judge Gallagher’s Memorandum Opinion. Judge Gallagher wasn’t buying it, issuing a Memorandum Opinion on April 23 in which she concluded that this was simply a “contractual dispute” between the two parties and that she would “thus apply standard contract principles to assess the enforceability of the Settlement Agreement”.

Interestingly, she “assumed, without deciding, that Cristian is subject to the AEA Proclamation and that the AEA Proclamation is lawful”. She found, however, that nothing in the settlement agreement mentions the AEA (which wasn’t invoked until nearly four months after the agreement was signed), and therefore Cristian remains a class member entitled to enforcement.

Given these findings, she concluded that “under contract law principles, Cristian, and any other Class Member who has been removed in violation of the Settlement Agreement, must be returned to the United States to await adjudication of his asylum application on the merits by USCIS” and ordered the government to “facilitate Cristian’s return … so that he can receive the process he was entitled to under the parties’ binding Settlement Agreement”.

She expounded on that latter obligation, explaining

facilitating Cristian’s return includes, but is not limited to, Defendants making a good faith request to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States to await the adjudication of his asylum application on the merits by USCIS.

My Take. Nothing I’m about to say is a knock on Judge Gallagher — a deal’s a deal, and from her perspective the government hasn’t lived up to its side. That said the deal involved only removals under the INA — not the Alien Enemies Act — and she likely should have distinguished the two better.

But nothing underscores the ridiculous nature of section 235 of the TVPRA better than this case.

The provision in that law giving USCIS initial jurisdiction over asylum claims made by UACs in removal proceedings is clearly intended to protect minors who have no parents or guardians here — not children with parents here, let alone former UACs who are now adults capable of making their own claims and hiring their own lawyers.

The Lafferty memo was perfectly reasonable, though to be fair the government should have issued regulations implementing section 235 at some point in the nearly 17 years — over four different administrations — since the TVPRA was passed.

Speaking of administrations, I’d love to know what role the Biden White House played in the negotiations in this case. Among the 257 documents in J.O.P., 15 were status reports filed with the court between September 2020 and March 2023, eight status updates “regarding mediation” after Biden took office. And yet no settlement agreement was finalized until after it became apparent Trump was coming back.

What exactly was there to discuss? USCIS has preliminary jurisdiction over asylum applications filed by former UACs who are now adults, or it doesn’t. That’s an hour-long discussion, and the class here would have closed a lot sooner — and the rules agreed upon — had it been finalized earlier.

If you’re wondering why “border czar” Tom Homan now must find hundreds of thousands of “missing children”, look no further than section 235 of the TVPRA, which incentivized hundreds of thousands of adults to pay smugglers to bring those kids here. Any sensible person knew it was a bad idea when it was passed.

Section 235 of the TVPRA, already one of the worst immigration provisions on the books, is now being used to force the government to return an alleged member of Tren de Aragua — a criminal organization the president argues has been weaponized by a hostile government to destabilize the United States.