Last week I highlighted some of the ironies in President Biden being sued for implementing a travel ban. The ACLU was quick to file a lawsuit. Interestingly, the ACLU did not reference Trump v. Hawaii. It will be interesting to see if the Department of Justice acknowledges this lack of precedent. The plaintiffs in the ACLU case are two Immigration Advocacy groups based in Texas. Surprisingly, they chose to file the case in the more favorable D.D.C. instead of Texas or a border state.
Similar suits are expected to be filed. I predict California will file in NDCA (San Francisco), Maryland in DMD (Greenbelt), and New York in SDNY (Manhattan). The ACLU and other plaintiffs may seek a national injunction. It’s ironic how forum shopping and national injunctions are now being embraced by those who previously criticized them.
A noteworthy point is that none of the plaintiffs are actual asylum-seeking refugees. Instead, they argue a “diversion of resources” theory of standing reminiscent of Havens Realty:
Under the Rule, Las Americas’ clients are now required to show an intent to apply for asylum or fear of return before receiving a credible fear interview. This forces Las Americas to adjust its representation strategy and redirect resources to prepare individuals with genuine fear, limiting the number of clients they can assist.
These groups should proceed with caution. While the Court has not overturned Haven’s Realty in Acheson v. Laufer, this could be an opportunity for the Court to support a Biden policy while addressing self-inflicted Article III injuries.
