WASHINGTON — A federal judge in Maryland Tuesday barred U.S. Immigration and Customs Enforcement from re-detaining Kilmar Abrego Garcia, saying the Trump administration lacks plans to remove him from the United States.

“Respondents have done nothing to show that Abrego Garcia’s continued detention in ICE custody is consistent with due process,” District of Maryland Judge Paula Xinis wrote in her order. 

Tuesday’s order solidifies a temporary decision from Xinis last year that blocked immigration officials from re-detaining him. 

Abrego Garcia is a Salvadoran immigrant and longtime Maryland resident whose wrongful deportation to a brutal megaprison last year cast a national spotlight on the Trump administration’s aggressive immigration crackdown. 

His case has remained a focal point for the Trump administration, which brought Abrego Garcia back to the U.S. to face criminal charges lodged against him stemming from a traffic stop in Tennessee. 

Those charges were made while Abrego Garcia remained imprisoned in El Salvador, and after the Supreme Court found his deportation unlawful and said the Trump administration should facilitate his return. 

Abrego Garcia has pleaded not guilty to those charges of human smuggling and that case continues.

Since Abrego Garcia was brought back to the U.S., the Trump administration has tried to deport him to a third country, because he has deportation protections from his home country of El Salvador. An immigration judge in 2019 found he would likely face violence if returned there. 

Costa Rica has offered to accept Abrego Garcia as a refugee and he has agreed to be removed there, but the Trump administration has tried to deport him to three African countries: Liberia, Eswatini and Uganda.

“Indeed, since Abrego Garcia secured his release from criminal custody in August 2025, Respondents have made one empty threat after another to remove him to countries in Africa with no real chance of success,” Xinis wrote. 

Xinis added that because the Trump administration has not secured any travel documents for a third country of removal for Abrego Garcia, his detention would be unlawful. The Supreme Court deemed that immigrants cannot be held longer than six months in detention if the federal government is not actively making efforts to remove them. 

“From this, the Court easily concludes that there is no ‘good reason to believe’ removal is likely in the reasonably foreseeable future,” she wrote.

Abrego Garcia remains in Maryland with his wife, a U.S. citizen, and their three children. 

Despite immigration detention numbers receding from recent highs and even as conservative judges are opting to release more detainees by rejecting President Donald Trump’s mass detention policy, tools for detainees to seek release or appeal cases are disappearing. 

A proposed federal rule will make it harder to appeal immigration cases nationally. And a federal appeals court ruling stops immigrants from requesting release on legal grounds in three Southern states if they entered the country illegally, no matter how long they’ve been here. 

As of late January, there were 70,766 people in immigration detention, up from about 40,000 at the start of the second Trump administration, with about 74% having no criminal convictions. (The number of detainees declined to 68,289 as of Feb. 7 amid increasing releases of immigration prisoners by federal judges, even many appointed by the Trump administration.)

This month’s court ruling in the U.S. 5th Circuit Court of Appeals, which affects immigrants held in Louisiana, Mississippi and Texas, is a victory for a new Immigration and Customs Enforcement policy set last July. It requires detention without bond for many immigrants who arrived at the border without permission, even if they had been paroled with a court date. 

It comes as habeas petitions from people claiming illegal detention skyrocket — from a few dozen a week in early 2025 to thousands a week recently, according to a ProPublica report. The largest numbers of cases are in Texas, California, Minnesota, Florida and Georgia. 

Rekha Sharma-Crawford, an immigration attorney in Missouri and second vice president of the American Immigration Lawyers Association, said she believes hundreds of other federal judges disagree with the Feb. 6 appeals court order. 

‘Mandatory detention’

The ruling found that a landmark Clinton-era immigration law, called The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “unambiguously provides for mandatory detention” for people who crossed the border illegally. 

A dissenting judge, Dana Douglas, wrote that drafters of that law ”would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so.” 

Sharma-Crawford said the ruling would likely be challenged, but that it may be too late for people who may give up under the stress of detention, and agree to deportation. 

“I have a client in detention who’s been here [in the United States] 30 years, no criminal history, and has a family,” Sharma-Crawford said in an interview. “In the past the individual would be eligible for a bond hearing and be able to fight their immigration case in due course. These people are not accustomed to being in jail.”  

Homeland Security Secretary Kristi Noem praised the court decision on social media, saying “activist judges have ordered the release of alien after alien based on the false claim that DHS was breaking the law” and said the ruling proved the administration “was right all along.”

Another obstacle for detainees

Similarly, a new rule on the federal Board of Immigration Appeals makes it harder for immigrants to appeal cases like denial of asylum in immigration court.   

Open for comment until it takes effect March 9, the rule shrinks the deadline to appeal a decision to 10 days from 30 days, and the board will automatically deny a case unless a majority of the board votes to hear it.

Immigration attorney Raul Natera of Fort Worth, Texas, who posted a comment critical of the proposed rule, told Stateline it would be a “flat-out assault on due process,” because the Department of Justice could appoint board members who will not vote to hear appeals. Last year the Trump administration fired board members who had been appointed during the Biden administration. 

“Judges can make wrong decisions. If we do not ensure that those decisions can be reviewed, then there is no point to the judicial system in this country,” Natera said.

The Department of Justice argues in its proposed rule that denying appeals in most cases will speed up the process and clear a backlog of immigration cases.

Others disagree. The new rule will increase strain on courts if immigrants can no longer appeal to the Board of Immigration Appeals and instead must file more lawsuits with appeals courts, said Kathleen Bush-Joseph, a lawyer and policy analyst at the non-partisan Migration Policy Institute.

“The federal courts are already buckling under the weight of all these habeas petitions [alleging illegal detention],” Bush-Joseph said. “It’s a huge lift to be litigating all this.”

Sharma-Crawford called both measures a “numbers game” to get deportation numbers up before court challenges can make a difference. 

“All these things don’t happen quickly, and people will suffer while litigation is ongoing,” she said. “How much travesty and injustice is going to occur while the courts grapple with the legality of what the administration is doing?”

Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.

Federal Reserve Governor Lisa Cook leaves the U.S. Supreme Court on Jan. 21, 2026 in Washington, D.C, after the court heard oral arguments in Trump v. Cook. (Photo by Kevin Dietsch/Getty Images)

WASHINGTON — U.S. Supreme Court justices across the political spectrum appeared skeptical of President Donald Trump’s swift, informal dismissal of Federal Reserve Board Governor Lisa Cook, and his effort to influence the independent central bank that governs monetary policy in the United States.

The oral arguments Wednesday drew a high-profile appearance in the courtroom of Federal Reserve Chair Jerome Powell — now a target of a Department of Justice investigation. For months prior to the federal probe, Trump has threatened to fire Powell if the chair did not quickly lower interest rates.

For two hours, the justices heard arguments over whether Cook could remain on the board, as a lower court ruled, while litigation continues examining if Trump violated a “for cause” removal statute when he fired her over social media in late August. 

Trump alleged in an Aug. 25 letter posted to his Truth Social platform that Cook committed financial fraud by lying on mortgage loan documents. Trump declared he had “sufficient cause” to remove Cook based on alleged “deceitful and potentially criminal conduct in a financial matter.”

Under the Federal Reserve Act, the president can only remove board governors “for cause” — as designed by Congress in an effort to preserve the central bank’s independence. 

Trump claims his removals of members of independent government agencies are not reviewable by the courts.

Cook has denied any wrongdoing and challenged the president, the board and Powell, essentially arguing in court that an “unsubstantiated allegation about private mortgage applications,” submitted prior to her Senate confirmation, does not amount to cause for removal. Cook also argued that Trump denied her due process in not giving her notice or a chance to respond to his allegations.

Cook, an appointee of former President Joe Biden, has continued to perform her board duties, without interference from Powell.

Alito questions ‘hurried manner’ of firing

During lengthy questioning of U.S. Solicitor General John Sauer, Justices Amy Coney Barrett and Ketanji Brown Jackson asked what the risk would be in allowing Cook to remain in her job while the administration made its case to the lower courts.

“The question is: What is the harm of allowing that injunction to remain, because she’s in office now and would just continue?” Brown asked.

Sauer, Trump’s former personal defense lawyer, said the administration asserts “grievous, irreparable injury to the public perception, to the Federal Reserve, of allowing her to stay in office.”

“Do you have evidence related to the public perception, or is this just the president’s view?” Jackson, a Biden appointee, pressed back.

Sauer said the evidence regarding Cook’s two separate mortgage applications was contained in Trump’s “dismissal order,” referring to the letter posted on social media. 

Moments later, Brown asked if Cook was “given the opportunity in some sort of formal proceeding to contest that evidence or explain it?”

“Not a formal proceeding. She was given an opportunity in public,” Sauer said.

“In the world? Like she was supposed to post about it, and that was the opportunity to be heard that you’re saying was afforded to her?” Brown asked.

“Yes,” Sauer replied.

Justice Samuel Alito, one of the high court’s most conservative members, asked Sauer why the removal had to be handled “in such a hurried manner.”

“You began by laying out what you claim to be the factual basis for the for-cause removal, but no court has ever explored those facts. Are the mortgage applications even in the record in this case?” asked Alito, who was appointed to the court under President George W. Bush.

“I know that the text of the social media post that screenshots the mortgage applications is in the record. I don’t recall if the paperwork itself was in the record,” Sauer said.

Federal Reserve independence

Over several minutes of back-and-forth, Justice Brett Kavanaugh pressed Sauer on the importance of the Federal Reserve’s independence.

“Let’s talk about the real world downstream effects of this. Because if this were set as a precedent, it seems to me — just thinking big picture, what goes around, comes around — all the current president’s appointees would likely be removed for cause on Jan. 20, 2029, if there’s a Democratic president, or Jan. 20, 2033,” argued Kavanaugh, who was appointed during Trump’s first term.

“We’re really at, at will removal. So what are we doing here?” he asked.

“I can’t predict what future presidents may or may not do,” Sauer replied.

“Well, history is a pretty good guide. Once these tools are unleashed, they are used by both sides, and usually more the second time around,” Kavanaugh said.

Kavanaugh later challenged Cook’s lawyer, Paul Clement, over whether his argument was “tilting the balance too far the other direction from where the solicitor general is.”

Clement responded, “This is a situation where Congress, political animals, one and all, knew better than anyone that the short-term temptations to lower interest rates and have easy money was a disaster in the long term, but was going to be irresistible. 

“And so they tied their own hands by taking the Fed out of the appropriations process, and they tied the president’s hands,” the Alexandria, Virginia-based attorney said. 

In a statement following arguments, Cook said the case is “about whether the Federal Reserve will set key interest rates guided by evidence and independent judgment or will succumb to political pressure.”

“Research and experience show that Federal Reserve independence is essential to fulfilling the congressional mandate of price stability and maximum employment. That is why Congress chose to insulate the Federal Reserve from political threats, while holding it accountable for delivering on that mandate. For as long as I serve at the Federal Reserve, I will uphold the principle of political independence in service to the American people,” Cook continued in the statement.

Regulating interest rates — to cool inflation or stimulate the economy — is one tool the central bank uses to accomplish its dual mandate on employment and price stability.

Subpoena issued

The arguments occurred just a dozen days after Powell received a federal grand jury subpoena as part of a Department of Justice probe into allegations that he lied to Congress about multi-year renovation costs to the central bank’s District of Columbia headquarters.

The revelation of a federal investigation of Powell ignited sharp criticism, even from some Republicans. 

Powell alleged in a rare video statement that the administration’s “unprecedented action should be seen in the broader context of the administration’s threats and ongoing pressure.”

He continued, “The threat of criminal charges is a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public, rather than following the preferences of the president.”

Trump first nominated Powell in 2017 to head the Federal Reserve, for a four-year term that began in February 2018. Biden reappointed him in 2021, and Powell received overwhelming support in an 80-19 Senate confirmation vote.

Wednesday’s arguments also came less than two months after the Supreme Court heard arguments in Trump’s firing of another member of an independent federal agency, Federal Trade Commissioner Rebecca Slaughter.

Kilmar Abrego Garcia speaks to a crowd of people who held a prayer vigil and rally on his behalf outside the ICE building in Baltimore on Aug. 25, 2025. Lydia Walther Rodriguez with CASA interprets for him. (Photo by William J. Ford/Maryland Matters)

WASHINGTON — The first year of President Donald Trump’s return to the White House was defined by clashes with the judiciary branch, as the president and his administration pushed forward with an aggressive immigration agenda.

In the past year, the Trump administration has aimed to drastically change immigration policy in the United States, including by stripping millions of immigrants of their legal status and attempting to redefine the constitutional right of birthright citizenship.  

The moves have often run directly against the judiciary branch. 

Federal judges briefly stalled the Trump administration’s plans to deploy the National Guard in Portland, Oregon, for immigration enforcement. They also blocked the invocation of an archaic wartime law to expel immigrants from the country — a move that raised concerns, all the way up to the Supreme Court, about skirting the due process rights of immigrants.

In response, the president for the last year frequently battled with federal judges, such as in June, when the Justice Department sued all judges in federal court in Maryland over a two-day pause in deportations to ensure due process rights for immigrants.

Trump also fixated on certain judges that put his policies on hold, such as the District of Columbia’s Chief Judge James Emanuel Boasberg.

Boasberg blocked the Trump administration from deporting certain immigrants under the Alien Enemies Act of 1798 and ordered the return of deportation flights that, despite his restraining order, still landed at a brutal prison in El Salvador. 

Trump’s singling out of Boasberg in late March, and calling for his impeachment, prompted a rare rebuke from conservative Supreme Court Chief Justice John Roberts.

But the Supreme Court has often handed wins to the Trump administration on numerous emergency appeals. The high court allowed for deportations of immigrants to countries they have no ties to, referred to as third-country removals, and allowed the use of race in immigration enforcement in Los Angeles. 

The president has found himself at odds with a range of groups in response to his harsh immigration policy.

A group of Quakers sued the Department of Homeland Security after officials removed a so-called sensitive locations policy that limited immigration enforcement in places of worship. 

The Trump administration also faced backlash in its attempt to quickly deport Guatemalan children in the middle of the night, where a Trump nominated judge said the Department of Justice’s arguments for the move “crumbled like a house of cards.”

Out of the dozens of lawsuits against the Trump administration, here are the five most significant court cases related to the president’s immigration policies:

Alien Enemies Act

Last March, two deportation planes carrying immigrants removed under an 18th-century wartime law were ordered to return to the U.S. by Boasberg, chief judge for the District Court for the District of Columbia. 

But the planes still landed in El Salvador, and 137 Venezuelan men were sent to a brutal prison known as CECOT after Trump invoked the Alien Enemies Act of 1798. The wartime law would apply to any Venezuelan national 14 and older who was suspected of being a member of the Tren de Aragua gang. 

Boasberg then spent months probing whether Trump officials defied his order to turn the planes around. Last month, he concluded that the deportations were illegal and carried out in defiance of his order.

The 137 Venezuelan men were eventually released from CECOT last summer through a prisoner exchange. Boasberg determined that even though the men are no longer imprisoned, they still need to be afforded their due process rights and he ordered the Trump administration to propose a way to afford those due process rights. 

In the latest major development, last month he directed the administration to create a plan on how to do that, such as providing some form of video interview before an immigration judge. 

The Trump administration has argued because of the U.S. military operations to extract Venezuela’s president from the county, the situation is fluid, and they cannot provide a timeline for complying with Boasberg’s order from last month. 

The Justice Department’s most recent filing, from Jan. 12, objects to the court’s order to facilitate remote due process hearings, and “given the current political instability in Venezuela, there is a serious risk of intentional interference with remote proceedings.”

Secretary of State Marco Rubio also submitted a Jan. 12 declaration to the court, saying that “introducing the matter of the disposition of the 137 class members into these discussions at this time would risk material damage to U.S. foreign policy interests in Venezuela.” 

He added that the U.S. does not know where the 137 Venezuelan men are. 

“Given the passage of time, the U.S. government does not know—nor does it have any way of knowing—the whereabouts of class members, including whether anyone has departed Venezuela or whether the regime subsequently took anyone back into custody,” Rubio said. 

Kilmar Abrego Garcia

The wrongful deportation of Kilmar Abrego Garcia, a Salvadoran immigrant and longtime Maryland man, cast a national spotlight on the president’s aggressive immigration crackdown. 

Abrego Garcia’s case has highlighted the Trump administration’s appetite for mass deportations. The case started last March in the District Court of the District of Maryland, after Trump officials mistakenly removed Abrego Garcia to El Salvador, despite removal protections placed by an immigration judge in 2019 because it was likely Abrego Garcia would face violence if returned to his home country. 

But in March, Abrego Garcia was placed on a plane, along with Venezuelans removed under the Alien Enemies Act, to the brutal El Salvador mega-prison known as CECOT.

Federal Judge Paula Xinis ordered the Trump administration to facilitate his return, but the Trump administration took the issue all the way to the Supreme Court, arguing that it could not force another government to comply with the U.S.

The Supreme Court sided with Abrego Garcia, but stopped short of ordering his return.   

Abrego Garcia was brought back to the U.S. several months later to face a criminal indictment in Tennessee over allegations of human smuggling. He has pleaded not guilty to those charges, and another federal judge has found cause that the Justice Department brought the indictment in a vindictive move against Abrego Garcia.

Since his return, Abrego Garcia has detailed psychological and physical torture he experienced at CECOT. The Trump administration has also tried to remove him to a country to which he has no ties because of the 2019 removal protections.

Trump officials re-detained Abrego Garcia and have tried to remove him to the African nations of Eswatini, Ghana, Uganda and Liberia, despite Costa Rica’s willingness to accept Abrego Garcia as a refugee and his willingness to go. 

For that reason, Xinis ordered Abrego Garcia’s release from an ICE facility in Pennsylvania and barred the Trump administration from re-detaining him. 

She is currently overseeing Abrego Garcia’s challenge to his detention on the grounds that the Trump administration is using his imprisonment as punishment rather than for the purpose of removal. 

A Jan. 14 hearing was the most recent development in Abrego Garcia’s case. 

There, Xinis briefly conferred with his lawyers and Department of Justice attorneys regarding the timing of a final order of removal for Abrego Garcia was issued — the question was whether it was in 2019 or January 2025. 

The timing of the order of removal could determine whether the Trump administration can re-detain Abrego Garcia for removal. Xinis in December ordered Abrego Garcia’s release, because she determined the Trump administration was unlawfully detaining him and said ICE failed repeatedly to show a final order of removal existed.

Xinis said she plans to make a final decision in Abrego Garcia’s case by Feb. 12.

Birthright Citizenship

One of Trump’s first executive orders he signed on Inauguration Day was ending the constitutional right to birthright citizenship. 

Under birthright citizenship, all children born in the United States are considered citizens, regardless of their parents’ legal status. There is a small carve-out for the children born of diplomats. 

If birthright citizenship were to be eliminated, more than 250,000 children born each year would not be granted U.S. citizenship and it would effectively create a class of 2.7 million stateless people by 2045, according to a recent study by the think tank the Migration Policy Institute.

In response to Trump’s executive order, multiple lawsuits were filed and lower courts across the country have granted preliminary injunctions against the order. 

One of the challenges to birthright citizenship, brought by Democratic attorneys general, made its way to the Supreme Court, but the Trump administration asked the justices to weigh in on the issue of nationwide injunctions issued by lower courts, rather than the merits of birthright citizenship. 

The justices decided on an order that limited nationwide injunctions, such as class action suits. 

The merits of birthright citizenship are now before the Supreme Court, which is expected to hear oral arguments in February. 

That birthright citizenship case is Barbara v. Trump, which stems from a case in New Hampshire. A federal judge issued a preliminary injunction to bar the executive order from taking effect against a class of babies born on or after Feb. 20, 2025. Those children would have been denied citizenship under the president’s executive order.  

Lawmakers’ Access to ICE Facilities 

As the Trump administration continues with aggressive immigration enforcement and detention, one of the few tools Democrats have, as the minority party, is oversight of Immigration and Customs Enforcement facilities. 

More than 60,000 immigrants are detained across various ICE facilities in the country, and Democrats argue they need access to conduct oversight at the facilities. Under a 2019 appropriations law, any lawmaker can carry out an unannounced visit at a federal facility that holds immigrants. 

But after several Democrats were denied access to ICE facilities in July, due to a policy instituted by Homeland Security Secretary Kristi Noem that required seven days notice, a dozen House Democrats sued. 

Last month, a federal judge granted the lawmakers’ request to stay the new policy by Noem. But after Minnesota lawmakers said they were denied an oversight visit to an ICE facility following a deadly shooting by an immigration officer in Minneapolis, Democrats were back in court Jan. 14.

Noem required a seven-day notice, nearly identical to the policy that initially prompted the suit from Democrats last year. 

The federal judge handling the case, Jia Cobb, is probing whether the Trump administration has violated her court order.

Democrats who sued include: Joe Neguse of Colorado, Adriano Espaillat of New York, Jamie Raskin of Maryland, Robert Garcia of California, J. Luis Correa of California, Jason Crow of Colorado, Veronica Escobar of Texas, Dan Goldman of New York, Jimmy Gomez of California, Raul Ruiz of California, Bennie Thompson of Mississippi and Norma Torres of California.

Expanded Use of Expedited Removal 

A pillar of the Trump administration’s mass deportation campaign is the expanded use of expedited removal. The Trump policy allows the removal of immigrants through the interior of the country without an appearance before an immigration judge.

In March, immigration advocacy groups sued the Trump administration over the policy, arguing it stripped due process rights of immigrants. 

In August, the District Court for the District of Columbia issued a stay in the policy, temporarily blocking the Trump administration from using it. The Department of Justice appealed, and in September a panel of appellate judges denied the Trump administration’s request to lift the lower courts’ stay. 

Most recently, in December, the Trump administration defended the merits of its fast-track deportation policy before a panel of judges in the U.S. Court of Appeals for the D.C. Circuit. The Department of Justice argued that immigrants who have been in the country for less than two years without legal authorization are not guaranteed due process.

Arizona Democratic Sen. Mark Kelly speaks with reporters in the Mansfield Room of the U.S. Capitol building in Washington, D.C., on Monday, Dec. 1, 2025. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — Arizona Democratic Sen. Mark Kelly sued Defense Secretary Pete Hegseth and the department on Monday for trying to demote Kelly’s retirement rank and pay after he appeared in a video where he and other lawmakers told service members they didn’t need to follow illegal orders. 

Kelly’s suit, filed in the federal district court for the District of Columbia, says attempts by the Trump administration to punish him violate the First Amendment, the separation of powers, due process protections and the Speech and Debate clause of the Constitution.

“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him—and this or any administration—accountable,” Kelly wrote in a statement. “His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”

Kelly appeared in the video alongside Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander — all of whom are former members of the military or intelligence agencies, though none of the others are still subject to the military’s legal system.

President Donald Trump was irate after seeing the video, posting on social media that he believed it represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

DOD investigation

The Defense Department announced in late November that it was looking into “serious allegations of misconduct” against Kelly, a retired Navy captain, for participating in the video. 

Kelly said during a press conference on Capitol Hill in December the Defense Department investigation into him, along with one by the FBI into all of the lawmakers in the video, marked “a dangerous moment for the United States of America when the president and his loyalists use every lever of power to silence United States senators for speaking up.”

Hegseth, who originally threatened to court-martial Kelly, said in early January the Defense Department would instead downgrade his retirement rank and pay. 

“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”

Kelly said at the time he would challenge Hegseth’s course of action. 

First Amendment cited

The 46-page lawsuit marks the next step in the months-long saga, with Kelly asking a federal judge to declare the effort to demote him “unlawful and unconstitutional.”

“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the lawsuit states. “That prohibition applies with particular force to legislators speaking on matters of public policy. As the Supreme Court held 60 years ago, the Constitution ‘requires that legislators be given the widest latitude to express their views on issues of policy,’ and the government may not recharacterize protected speech as supposed incitement in order to punish it.”

The lawsuit alleges that the Pentagon’s actions against Kelly “also trample on protections the Constitution singles out as essential to legislative independence.” 

“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states. ”Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”

Kelly’s legal team asked the judge to grant “emergency relief” in their favor by Friday, Jan. 16.

The case was assigned to Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush.

U.S. Department of Homeland Security Secretary Kristi Noem walks past reporters after doing a TV interview with Fox News outside the White House on March 10, 2025 in Washington, D.C.  (Photo by Anna Moneymaker/Getty Images)

WASHINGTON — A panel of appellate judges seemed skeptical during Thursday oral arguments that the Trump administration erred in relying on a decades-old statute to require millions of noncitizens to register with the federal government and carry documentation.

But they did take issue with the paperwork required of immigrants without legal status as well as the consequences for those who fail to register, and questioned if the practice violated due process and self-incrimination rights.

In February, Department of Homeland Security Secretary Kristi Noem announced the agency would enforce a rule under the Immigration and Nationality Act that requires all immigrants in the country without legal status to register with the agency or risk fines or potential jail time.  

A federal court in April sided with the Trump administration, allowing the registration requirement to go through.

The suit, brought by immigration rights advocates, does not challenge the statute from 1940 requiring those without legal status to register, but instead the process used by DHS in rolling out the policy without a proper notice and comment period. The suit also challenges a penalty for not filling out paperwork, as the form is only in English and can only be accessed with an internet connection.

Administration position

Arguing on behalf of the Trump administration, Kartik N. Venguswamy from the U.S. Attorney’s Office said a notice and comment period is not needed because the form is just procedural and a new rule is not created. 

He added that the rule does not cause irreparable harm, because any harm is from outside forces, such as immigration enforcement or deportation that could follow registration with the federal government.  

Judges Patricia A. Millett, Gregory G. Katsas and J. Michelle Childs heard the case in the United States Court of Appeals for the District of Columbia Circuit. Former President Barack Obama nominated Millett; President Donald Trump nominated Katsas in his first term; and former President Joe Biden nominated Childs.

The judges raised concerns with the form itself, including one question that requires the noncitizen to report any crimes they have committed, regardless of whether they were charged or convicted. 

That wades into violation of the 5th Amendment’s protections against self incrimination, one judge said.

“That’s asking you to confess to things that no government authority is aware of,” Millett said of the final rule. “And it’s a big step toward the 5th Amendment.”

The Migration Policy Institute, a non-partisan immigration think tank, estimated that between 2.2 million and 3.2 million immigrants will have to register. The registration requirement could be a powerful tool in the Trump administration’s efforts to carry out mass deportations.

Rule has gone unenforced

Michelle Lapointe, arguing on behalf of the Coalition for Humane Immigrant Rights, said the federal government has not enforced the rule for nearly 80 years. 

The registration requirement is authorized under a wartime act known as the Alien Registration Act of 1940 that was first used in World War II. It was rarely used after that, but briefly in the aftermath of the September 11, 2001, terrorist attacks. 

During that time, any noncitizen males older than 16 who hailed from 25 countries with a Muslim majority had to register with the federal government. But the program led to no terrorism convictions and was eventually dissolved in 2016.

Lapointe said because the rule would apply to as many as 3 million immigrants without legal status, a notice and comment period must occur. Under the rule, immigrants 14 and older who are required to register will need to carry registration documents at all times or risk potential prison terms or fines of up to $5,000.

“It is solely for the process of deportation,” Lapointe said.

As the Trump administration continues with its immigration crackdown, federal immigration officials could carry out their plans for mass deportations by having easy access to records of immigrants unlawfully in the country.

But Childs seemed skeptical that the federal government couldn’t use the statute, because it’s on the books.

Katsas also said the rule is not new — the government has just decided not to enforce it since 1940.

“It seems like a more fair account” that the government is ending a long policy of not enforcing a rule that, on its face, “covers all aliens,” he said.

But Katsas said the “rule does expand the category of information and that’s new.”

That category of information includes the requirement to detail to the federal government any crime the individual has committed, which Lapointe argued would violate 5th Amendment rights. 

Registration form debated

Childs and Millett questioned the roll-out of the form, the fact that it’s only accessible online and in English, and the penalty for not registering with the federal government.

“These are forms regulating a community … where English is not their native language,” Millett said. 

Venguswamy said the forms were in English because “English is the language of the United States government at this point.” 

Earlier this year, Trump signed an executive order directing federal agencies to adopt English as the official language, including paperwork.  

Millett asked Venguswamy if it’s the government’s position that an immigrant who doesn’t understand English will not be charged or issued a penalty for failing to register. 

“I’m not in a position to speak to whether or not that is the position the government will take,” Venguswamy said. 

Millett then asked why a proper notice and comment period is not needed for a new process, even if it’s not creating a new statute. 

She gave Venguswamy an example of the IRS not changing the tax code, but issuing a new tax form for taxpayers to fill out.

“We’re gonna issue new tax forms, for everyone to fill out their taxes, we’re not creating tax obligations, just new forms in Ancient Biblical Greek,” Millett said. 

She asked Venguswamy if a proper notice and comment period would be needed for those new tax forms.

He said it would not, because it’s a change in procedure, not a change to the rule.

“Wow,” Millett said. “We can all be criminally prosecuted for not filling out our taxes unless we can find the five people in the United States who know how to speak Ancient Biblical Greek.”