D.C. Circuit Won’t Block Trump Alien Registration Requirements

As I explained in 2018, the Immigration and Nationality Act (INA) requires all aliens who are here — lawfully and otherwise — to register their presence, but it wasn’t until Trump’s return that DHS began fully enforcing that requirement. In April, Judge Trevor McFadden of the U.S. District Court for the District of Columbia denied a motion filed by four organizations to block those new registration requirements from taking effect, and on August 12, the U.S. Court of Appeals for the D.C. Circuit denied those organizations request for a stay of the registration requirements pending appeal. The American people have a right to know who’s here, and a key component of Trump’s “self-deportation” push is now in place — for the time being, at least.

A Brief History of Alien Registration in the United States

This story begins during the lead-up to our entry into World War II, when in response to concerns about so-called “fifth columnists” in the United States, Congress passed the “Alien Registration Act of 1940”, also known as the “Smith Act” after its primary sponsor, then-Rep. Howard W. Smith (D-Va.).

As Britannica explains, the Smith Act “made it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group or society devoted to such advocacy”.

That’s true, but Title III of the Smith Act also required aliens 14 or older who were in this country for 30 days or more to be registered and fingerprinted (if they had not been registered and fingerprinted when they obtained their visas), while mandating that the parents and guardians of aliens under 14 years of age complete this process for their kids.

Aliens would register at the local post office or other locations designated by the then-Immigration and Naturalization Service (INS) commissioner, and those who willfully failed or refused to comply with these requirements (or a separate change-of-address requirement) were subject to a fine or imprisonment.

Aliens were then issued a Form AR-3 as proof they registered, but as Judge McFadden explained in his April order:

Over the decades, the administrative state would dilute these statutory requirements by regulation. In 1944, the [INS] eliminated the division responsible for universal registration and shifted registration from post offices to ports of entry and INS offices. … And in 1950, the INS suspended the use of the AR-3. … Instead, the INS subbed in preexisting immigration forms that were only available to aliens with legal immigration status, like the Form I-151 for lawful permanent residents or the Form I-94 for aliens with a record of lawful entry. … So through regulation, aliens who had entered the country illegally were effectively exempt from the statutory registration requirements, since there existed no process by which they could register. [Internal citations omitted.]

Regardless, when the INA was first enacted in 1952, the Smith Act registration regime carried over to the immigrant visa requirement in section 211 of the INA and to the “Registration of Aliens” provisions in sections 261 through 266 of the INA.

Actually, as Judge McFadden noted, section 264(e) of the INA goes the Smith Act one better, requiring aliens 18 and older to carry and have in their “personal possession any certificate of alien registration or alien registration receipt card issued to” them or face a $100 fine and a 30-day jail sentence.

So, if you’ve never seen an actual “green card”, just ask one of your lawful permanent resident alien friends to show you theirs — nearly every LPR I’ve known carries it.

Trump’s Executive Order 14159

Illogically, for 80 years, the INS and DHS only required legal aliens who had been vetted and complied with the visa-issuance and admissions processes to register. Respectfully, that’s like requiring only DEA-certified physicians and licensed pharmacists to obey our drug laws.

That changed on January 20, 2025, the day Trump returned to the White House and issued Executive Order (EO) 14159, “Protecting the American People Against Invasion”.

Section 7 of that EO, captioned “Identification of Unregistered Illegal Aliens”, directed the DHS secretary, in coordination with the State Department and attorney general, to: “immediately announce and publicize information about the legal obligation of all previously unregistered aliens in the United States to comply with” the INA registration requirements; “ensure that all previously unregistered aliens in the United States comply with” those requirements; and “ensure that failure to comply with” those “legal obligations … is treated as a civil and criminal enforcement priority.”

The New “Alien Registration Requirement”

In accordance with EO 14159, as I’ve previously reported, DHS Secretary Kristi Noem announced on February 25 that she would begin enforcing the INA registration requirements as part of a suite of tools her department would use “to track illegal aliens and compel them to leave the country voluntarily”.

DHS then set up an “Alien Registration Requirement” web page for aliens to use to determine whether they are required to register, with a link to the new Form G-325R, “Biographic Information (Registration)”, which they can complete online.

And, on March 12, DHS published an interim final rule (IFR) laying out these new requirements (to take effect on April 11) and inviting public comments on them.

Coalition for Humane Immigrant Rights v. U.S. DHS

Which brings me to the challenge brought against the new requirements in the IFR, and a complaint filed on March 31 in the D.C. District Court captioned Coalition for Humane Immigrant Rights [CHIRLA] v. U.S. DHS.

In their complaint, CHIRLA and three other organizations — the United Farmworkers of America, CASA, and Make the Road New York — alleged that the IFR “violates the procedural and substantive requirements of the Administrative Procedure Act” (APA), and that “absent intervention” by the district court, “all [aliens] — as well as U.S. citizens wrongly suspected of being [aliens] — will be exposed to a new criminal enforcement regime and a ‘show me your papers’ country, … without regard to the statutorily mandated guardrails of the APA”.

As my then-colleague Rob Law explained in February 2022, “before a regulatory change can occur” under the APA, “the relevant executive branch department must publish the proposed change in the Federal Register, explaining the justification for the revision and giving the public at least 30 days to provide feedback”.

DHS asserted, however, that it was publishing this rule as an IFR “without prior notice and opportunity for comment” because it is a “procedural rule”, that is, “a rule of agency organization, procedure, or practice”.

On the contrary, the CHIRLA plaintiffs argued:

With just 30 days’ warning, the IFR abandons the eighty-year-old approach to registration and imposes a new universal registration scheme and attendant civil and criminal liabilities on an enormous number of people. According to Defendants’ own estimates, between 2.2 million and 3.2 million people would be newly required to register.

Judge McFadden’s Order

In his April order, Judge McFadden never got to the facts of that argument or any of the others that the plaintiffs raised in their motion or complaint, finding instead that they failed to show they have standing to bring the case to begin with.

As he explained:

Standing is a “bedrock constitutional requirement.” … It requires that a plaintiff “possess a personal stake” in the outcome, which “helps ensure that courts decide litigants’ legal rights in specific cases, as Article III [of the U.S. Constitution] requires.” … Standing doctrine thus “serves to protect the ‘autonomy’ of those who are most directly affected so that they can decide whether and how to challenge the defendant’s action.” … And it ensures that “the Framers’ concept of the proper — and properly limited — role of the courts in a democratic society” is vindicated, by ensuring decisions meant for the political process are left to the political process. [Internal citations omitted.]

The first ellipsis above referenced U.S. v. Texas, the 2023 opinion in which the Supreme Court rejected a challenge brought by Texas and other states to Biden administration’s policies that ignored INA mandates requiring DHS to detain criminal aliens, on the ground that even states lack standing to force the federal government to take enforcement actions.

Thus, enforcement advocates who were sore about the ultimate outcome of Texas should take comfort in the knowledge that what goes around comes around.

Judge McFadden’s standing analysis consumes 14 pages of his 21-page order, and it gets arcane, but the key takeaways are that none of the four plaintiffs showed that they had either “organizational standing” — that is, that they “suffered a concrete and demonstrable injury to [their] activities” because of the rule — or that it had “associational standing”.

With respect to associational standing, as the court explained:

An organization has standing to bring suit on behalf of its members when three requirements are met. First, “its members would otherwise have standing to sue in their own right.” … Second, “the interests it seeks to protect are germane to the organization’s purpose.” … And third, “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” [Internal citations omitted.]

Here, Judge McFadden concluded, none of the groups showed that “any of their individual members would independently have standing to challenge the” IFR.

Because the groups failed to demonstrate a “’substantial likelihood’ of standing”, the judge denied their motion to stay the effective date of the IFR and a preliminary injunction.

D.C. Circuit Court’s Per Curiam Order

On April 28, the CHIRLA plaintiffs filed a notice of appeal of Judge McFadden’s order with the D.C. Circuit, and on May 2, they filed a Motion for Stay or, in the Alternative, Injunction Pending Appeal of his order.

Not surprisingly, they disagreed with Judge McFadden’s standing conclusions, arguing that each of them has organizational standing (and that CHIRLA had associational standing to boot) in the course of ultimately asserting that they would face “irreparable harm” if the IFR were to remain in effect.

On August 12, a three-judge panel of the D.C. Circuit issued a brief per curiam order (unsigned but issued for the panel as a whole) denying plaintiffs’ motions for a stay or injunction pending appeal and allowing the IFR to proceed for now.

Simply put, the circuit panel concluded that the plaintiffs “have not satisfied the stringent requirements for an injunction pending appeal”, but the panel did order expedited consideration of the case.

Note that this wasn’t what most would think of as a “pro-Trump” panel. Judge Karen LeCraft Henderson has been on the circuit court since she was appointed by President George H.W. Bush in 1990, Judge Robert L. Wilkins was a 2014 appointee of President Obama, and President Biden nominated Judge Bradley Garcia, who was confirmed in May 2023.

* * *

The American people have a right to know who’s in their country. Yet illogically, for 80 years only aliens here legally were required to register with the government. Now that DHS is forcing those here illegally to register, too, any aliens who don’t want to disclose their identities are free to leave — which is at least one point of the whole exercise.