Last week I flagged some of the ironies in that President Biden would soon be sued for enacting a travel ban. The ACLU was the first out of the gate with a suit. The ACLU does not even cite Trump v. Hawaii. Let’s see if DOJ acknowledges the anti-precedent. The Plaintiffs in the ACLU case are two Immigration Advocacy groups in Texas. But they did not dare file the case in Texas, or anywhere near the border. Rather, the ACLU filed suit in the far more friendly-D.D.C.
There will be other similar suits. My predictions on venue: California will file suit in NDCA (San Francisco, not Sacramento), Maryland will file in DMD (Greenbelt, not Baltimore), and New York will file in SDNY (Manhattan, not Albany). The ACLU, and other plaintiffs, will likely seek national vacatur. So everyone, please switch sides on forum shopping and national injunctions.
One quick item to flag. None of the plaintiffs here are actual refugees seeking asylum protection. Rather, the refugee groups assert some kind of “diversion of resources” theory of standing that sounds in Havens Realty:
Under the Rule, Las Americas’ clients must now “manifest” an intent to apply for asylum or a fear of return before receiving a credible fear interview. As a result, Las Americas must revamp its representation strategy and divert resources to preparing individuals who have a genuine fear to manifest such a fear before entering the United States, significantly limiting the number of clients it can serve.
These groups should be careful. The Court could have, but did not overrule Haven’s Realty in Acheson v. Laufer. But this could be a nice opportunity for the Court to rule in favor a Biden policy while scaling back self-inflicted Article III injuries.
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