The U.S. Court of Appeals for the District of Columbia (D.C. Circuit) recently issued an opinion in Refugee and Immigrant Center for Education and Legal Services (RAICES) v. Mullin, blocking a key Trump border policy that bars illegal entrants from seeking asylum. It was likely inevitable given the claims at issue and the partisan makeup of the circuit court, but the case will now head down Constitution Avenue to the Supreme Court, where the real decision will be made — and the future security of the border will be determined.
PP 10888
On January 20, 2025, President Trump issued Presidential Proclamation (PP) 10888, “Guaranteeing the States Protection Against Invasion”.
Premised upon the authority given the executive in sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), section 1 of the proclamation suspended entry by “aliens engaged in the invasion across the southern border” (i.e., illegal entrants) and section 2 restricted their ability to apply for asylum under section 208 of the INA.
Section 3 of the PP, again using the powers in sections 212(f) and 215(a) of the INA, suspended the entry of both illegal entrants and aliens stopped at the ports who failed “to provide Federal officials with sufficient medical information and reliable criminal history and background information” necessary to determine whether they are inadmissible under sections 212(a)(1) through (3) of the INA, which bar the admission of aliens on health-related, criminal, and national security grounds, respectively.
Section 4 of Proclamation 10888 relied on the federal government’s duty to “protect each state against invasion” in Article IV, section 4 of the U.S. Constitution to, again, “suspend the physical entry of any alien engaged in the invasion across the southern border of the United States”.
Returning to sections 212(f) and 215(a) of the INA, section 5 of the proclamation directed DHS, DOJ, and the State Department to “take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States”.
Sections 212(f) and 215(a) of the INA
Throughout the Biden administration, I wrote at length about the expansive power Congress gave the president in section 212(f) of the INA to suspend the entry of aliens into the United States — usually but not exclusively in response to arguments that the president needed Congress to act before he could secure the border.
Section 212(f) states, in pertinent part:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Section 215(a)(1) isn’t quite as sweeping in its scope, but it may be more relevant to the ultimate outcome of this case. It states:
Unless otherwise ordered by the President, it shall be unlawful- (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.
Not to jump ahead of the story, but take a look at pages 83 through 119 of the D.C. Circuit’s opinion, where Judge Justin Walker, dissenting in part from the majority opinion, offers a comprehensive historical look at the authorities in section 212(f) and 215(a) of the INA and what he deems the president’s “inherent executive expulsion power”.
Or just read his “bouncer” hypothetical on page 117, which will likely be more relatable to most people’s experience than the letter Lord Grenville sent to the Marquis of Buckingham in September 1792.
The Guidance
“To implement the Proclamation’s directives”, the D.C. Circuit explained, DHS “issued informal guidance via three emails, a memorandum, and training materials sent to immigration enforcement officials”.
That guidance advised immigration officers that migrants who crossed the Southwest border between the ports illegally were “not permitted to apply for asylum”, and suspended entry of (and barred asylum applications from) aliens encountered at the Northern and Coastal borders illegally who were unable to provide medical and criminal history information to show they weren’t inadmissible under sections 212(a)(1) through (3) of the INA.
Under the guidance, aliens were to be expelled through one of two processes: (1) “direct repatriation”; or (2) “expedited removal”. The former is less formal and roughly akin to what’s traditionally referred to as a border “return” with no legal consequences, while the latter — “distinct from expedited removal under” section 235(b)(1) of the INA as the circuit made clear — includes the issuance of an actual removal order.
Though not expressly highlighted by the court, aliens subject to either process are apparently detained throughout the processing and repatriation/removal period.
Off to the RAICES
Two weeks after Trump issued PP 10888, RAICES and other advocacy groups filed a complaint in the U.S. District Court for the District of Columbia (D. D.C.), asking the court to declare the PP unlawful and to enjoin both the proclamation and the guidance.
The matter was assigned to Judge Randy Moss, and on July 2, he issued an order that, inter alia, vacated the guidance and enjoined the PP:
to the extent that it authorizes extra-statutory and extra-regulatory removals or repatriations of covered individuals; precludes the individual plaintiffs and class members from accessing their statutory rights to apply for asylum; precludes the individual plaintiffs and class members from applying for and, where appropriate, obtaining withholding of removal; and departs from the Convention Against Torture (“CAT”) protection screening standards [in current regulations].
Statutory Withholding and CAT
“Withholding of removal” (“statutory withholding”) is a humanitarian protection under section 241(b)(3) of the INA that’s similar to asylum, with key differences: The burden of proof for statutory withholding is higher (that it’s “more likely than not” the applicant will be persecuted as opposed to a “well-founded fear” of persecution for asylum); and the benefits of statutory withholding — essentially a bar to removal to a specific country or countries and a work permit — are less lavish than for an asylum grant, which places an alien on a path to a green card and citizenship.
Both statutory withholding and asylum contain a “nexus” requirement, in that applicants must establish that the persecution feared would be inflicted — in whole or significant part — on account of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
CAT has no such nexus requirement, but applicants must by regulation show that it’s more likely than not that they will be subject to torture “by or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity”.
The Circuit Stay Panel Narrows the Injunction
DOJ asked the D.C. Circuit for a stay pending appeal of Judge Moss’s order, and on August 1, 2025, a three-judge stay panel of the court blocked it to the degree it vacated portions of the PP barring illegal entrants from applying for asylum, and narrowed the scope of that order to aliens “present in the United States while Proclamation 10888 and/or its implementation is in effect” — not to those who may come later.
Under its August 1 order, however, the panel denied the government’s request for a stay of Judge Moss’s injunction as it related to aliens seeking statutory withholding and CAT.
The Latest D.C. Circuit Order
Which brings me to the latest order, by a different three-judge panel of the D.C. Circuit court: Judge Walker (a Trump I appointee); Judge Cornelia Pillard (appointed by President Obama); and Judge J. Michelle Childs, who was nominated by President Biden and authored the majority opinion, from which Judge Walker dissented in part.
The majority concluded that the “text, structure, and history” of the INA, “make clear that in supplying power to suspend entry by Presidential proclamation, Congress did not intend to grant the Executive the expansive removal authority it asserts”, specifically and in particular the ability to bar aliens who entered illegally from applying for asylum.
Note that the asylum statute, section 208 of the INA, is written in an unusual manner.
It begins at subsection (a) by stating, “Any alien who is physically present in the United States or who arrives in the United States ... irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable” under the “credible fear” component of the expedited removal process for aliens encountered at the border and ports in section 235(b)(1) of the INA (emphasis added).
There are limited exceptions to that application rule in section 208(a) of the INA for aliens who can be removed to a “safe third country”, aliens who fail to apply for asylum within one year of arrival, and aliens previously denied asylum, but those impediments aside, any alien can apply for asylum.
In section 208(b)(1)(A) of the INA, however, Congress gave the executive discretion to deny asylum, even to aliens who have shown that they are statutorily eligible for that protection.
What the proclamation and guidance are essentially attempting to do is to skip the application step as unnecessary given that the president has concluded that aliens who have entered illegally won’t be granted asylum in the exercise of discretion.
That was a no-no according to the majority, which found that every alien must receive an opportunity to seek asylum under sections 208 and/or 235(b), but as Judge Walker explained the majority’s opinion in the context of expedited removal under section 235(b)(1) of the INA:
The majority does not contest that the President may deny all asylum applications. If a President decides to do that, all [section 235(b)] does is confer upon individuals the special privilege of being forced to languish in a detention facility while their individual asylum applications get inevitably denied. That is pretty odd.
In short, however, the majority affirmed Judge Moss’s grant of summary judgment, concluding that the INA doesn’t allow the president to remove illegal entrants “under summary removal procedures of his own making”, doesn’t allow the executive to suspend such aliens “right to apply for asylum” or deny them “access to” statutory withholding of removal under the INA, and doesn’t allow DHS to “curtail mandatory procedures for adjudicating” those aliens’ CAT claims.
Unlike the discretionary protection of asylum, statutory withholding and CAT are mandatory, in that an applicant who shows statutory eligibility must be granted those forms of protection.
Accordingly, Judge Walker concurred with that part of the majority’s opinion, while dissenting from much of the rest.
On to SCOTUS
White House spokeswoman Abigail Jackson promised DOJ would “seek further review of” what she termed “this badly flawed decision” as per the Washington Post, and Jackson added, “we are confident we will be vindicated”.
Given how critical Proclamation 10888 and its implementing guidance has been to the administration’s border successes, many in Trump II likely hope Jackson’s confidence is rewarded, but anecdotally I’ve been told that large numbers of migrants are massing on the Mexican side of the border, waiting for this order to take effect.
DHS should have enough detention beds to handle a minor surge of “asylum seekers” at the U.S.-Mexico line coming to take advantage of the D.C. Circuit order, but a repeat of any given month there under Biden could tip that balance. That said, a reminder that the border is never dispositively secure may be the opening “mass deportation” advocates have been waiting for to push their plans.