Immigration in the Supreme Court, 2025 Term

At the end of each Supreme Court Term, I compile the Court's immigration rulings. Click here for a review of the immigration decisions from the 2024 Term. Sorry for the length of this post but it was a busy 2025 Term in terms of immigration.

In his second term, President Trump has been dedicated to immigration enforcement in a way not seen in any modern, if any, presidency. Some actions brought legal challenges, with several making their way to the high Court.

In the 2025 Term, the Supreme Court decided five immigration merit cases and addressed several immigration matters on its emergency, or shadow, docket. Justices Thomas, Alito (2), and Jackson wrote the three majority, one unanimous opinions in favor of the U.S. government. Justices Sotomayor, Kagan, and Jackson dissented in the immigration merit cases, except in the case of Justice Jackson's unanimous opinion for the Court in Urias-Orellana v. Bondi.

While the immigration merits cases were at about the average number for a recent Term, there were more immigration cases than usual on the Court's emergency docket. That should not be surprising in light of the administration's many aggressive immigration actions implicating serious life and liberty issues.

In the following summary, I omitted cases touching on immigration that were decided on procedural and other non-immigration grounds. Here and here. I also did not attempt to list all of the immigration matters on the emergency docket.

Overall Results

The U.S. government won 4 of 5 immigration merits case and most emergency matters. The birthright citizenship decision in Trump v. Barbara, discussed below, was the glaring exception. The U.S. government's success rate is not surprising in light of the immigration statute's broad delegation of discretion to the Executive Branch on immigration matters as well as the conservative leanings of the Roberts Court.

Merits Cases

1. Trump v. Barbara (2026)

Promising to be a blockbuster from the outset, Trump v. Barbara generated the most public attention of any immigration case in decades. E.g., here; here; here; here; here. The Court addressed whether the President's Executive Order denying birthright citizenship to the children of undocumented immigrants conflicts with the Citizenship Clause of the 14th Amendment ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.") and 8 U.S.C. § 1401(a) ("The following shall be . . . citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof").

Last year, the Court in Trump v. CASA, Inc. ruled that district courts lacked congressional authorization to issue nationwide injunctions barring implementation of the birthright citizenship executive order. The Court did not address the President's effort to restrict birthright citizenship. The delay in deciding the merits increased the suspense and, in some quarters, worry about the outcome.

A President of many firsts, President Trump became the first sitting president to attend an oral argument of the Supreme Court. He left after hearing the argument of the Solicitor General. President Trump wrote on social media that “[a] negative ruling on Birthright Citizenship, on top of the recent Supreme Court tariff catastrophe, is not Economically sustainable for the United States of America.”

After oral argument, observers predicted that a majority of justices would strike down the Executive Order. They were correct. The Immigration Professors blog published a symposium analyzing the oral arguments.

In an opinion by Chief Justice John Roberts, the Court held that the Executive order was unconstitutional. As CNN put it, the Court "knocked down Donald Trump’s effort to end birthright citizenship as it has been understood for more than a century, invalidating an executive order that was a key part of the president’s agenda even though it was legally dubious from the start."

The breakdown of the Justices was a bit complicated. The Chief Justice wrote for the Court and was joined by Justices Sotomayor, Kagan, Barrett, and Jackson. His majority opinion exhaustively looks at the history of birthright citizenship before and after ratification of the Fourteenth Amendment, with the decision in Dred Scott v Sandford (1857) a mistaken outlier. Chief Justice Roberts ends with a flourish appropriate for the last opinion before the celebration of Independence Day: "Citizenship, then and now, was the right to have rights— to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to `every free-born person in this land.' [citation omitted]. We keep that promise today." (bold added).

Justice Jackson filed a concurring opinion, in which Justice Sotomayor, joined in part. Her concurrence primarily registers disagreement with the dissent of her African American colleague Justice Thomas:

"I join the Court’s opinion in full. I write separately to respond to some of the themes in the principal dissent. Despite his longstanding endorsement of a `colorblind' Constitution, JUSTICE THOMAS now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to `freed slaves such as Dred Scott,' . . . and those who shared with them certain characteristics, post, at 1 (“no other homeland”); post, at 21 (“called America home”). It is for this reason, he says, that `children who were born in the United States but [to parents] not domiciled here' are not entitled to claim birthright citizenship. . . . But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, JUSTICE THOMAS’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery." (bold added).

Justice Kavanaugh filed an opinion concurring in the judgment and dissenting in part. Walking an extremely fine line, he concluded that the executive order violated the immigration statute but not the Fourteenth Amendment.

Joined by Justice Gorsuch, Justice Thomas filed a lengthy (90+ page) dissenting opinion. The thrust of his dissent was that "[b]oth the Civil Rights Act and the Citizenship Clause guaranteed citizenship to persons born and domiciled in the United States regardless of their race. Neither guaranteed citizenship to persons who were not domiciled in the United States." (bold added). In Justice Thomas's view, birth in the United States and domicile were necessary for U.S. citizenship.

Justices Alito dissented. His opaque dissent disputes the majority's historical account and suggests that Congress can resolve matters:

"This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake. As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of `birth tourists,' women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country. . . .

Congress can and should address their situation. The Fourteenth Amendment dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress. Congress has conferred citizenship on many people who are not made citizens by the Fourteenth Amendment, including children born abroad to American citizen parents. These people and the millions of immigrants who have been naturalized are no less American than those who are fortunate enough to be born here." (bold added).

Justice Gorsuch filed a dissenting to highlight how Justice Thomas and his understanding of the Citizenship Clause requiring that the parents be domiciled in the United States to give birth to citizen children is consistent with Wong Kim Ark v. United States (1898). He also curiously emphasized that

"respondents chose to pursue a facial challenge to the executive order at issue in this case and secured below a preliminary injunction barring every one of the order’s potential applications. Under this Court’s precedents, we can sustain that injunction only if `no set of circumstances exists' in which the order may be applied lawfully. United States v. Salerno, 481 U. S. 739, 745 (1987). That is a demanding standard, and it is not met here. Among other things, the executive order holds that children born to temporary visitors in this country, whether here lawfully or unlawfully, are not citizens. And at least to that extent, the order is consistent with the Citizenship Clause as JUSTICE THOMAS and I read it. By definition, temporary visitors to this country do not choose to make a permanent home here, and their children thus cannot claim the privilege of citizenship. Because the executive order is lawful at least to this extent, respondents’ facial challenge must fail. . . ."

Cesar Garcia points out some interesting twists to the opinions:

"While the outcome wasn’t surprising, the vote was. Only five justices . . . concluded that Trump’s order violates the 14th Amendment. Another justice, Brett Kavanaugh, found that it violates a federal law enacted by Congress, but not the 14th Amendment. If Congress were to change that law, as it is entitled to do, Kavanaugh would allow federal officials to implement Trump’s order." (bold added).

Mike Nellis had this to say about Trump v. Barbara on Endless Urgency ("It Should Have Been 9–0"):

"This was the easiest, plainest ruling any of these nine people will ever make. The 14th Amendment says what it says. A first-year law student gets this one right. A kid in a middle school civics class gets this one right. The final vote was 6–3 — six justices upheld birthright citizenship, with Chief Justice Roberts writing the majority in genuinely beautiful language . . .

Great. Mean it. So why couldn’t they all sign onto that sentence?

Because three of them — three — couldn’t get there. Three justices looked at the plainest words in the Constitution and dissented, essentially arguing that the President of the United States can narrow them by decree.

That is complete and total horseshit.

Brett Kavanaugh joined the majority to strike the order down — good, credit where it’s due — but he dissented in part, and *how* he got there is the whole tell. Kavanaugh rested his vote on a federal law, not on the Constitution. Read that again. He would not say that the Constitution *itself* guarantees birthright citizenship. He needed a statute to lean on. And a right that only stands because Congress propped it up is a right that stops standing the day Congress — or a president strong-arming Congress — kicks the prop out. So count it honestly: Three justices flat-out dissented, and a fourth voted the right way for the most dangerous reason on the menu. The vote was 6-3. The rot is deeper than the scoreboard."

2. Blanche v. Lau (2026)

The issue presented to the Court in Blanche v. Lau was whether, to deny formal admission upon return to the United States to a lawful permanent resident (LPR) who had been charged with a crime (trademark counterfeiting of shorts) but paroled him into the country, the immigration officers must present "clear and convincing evidence" of the crime. In concrete terms, the U.S. government took away Lau's "green card," which generates uncertainty about one's status – and ability to remain – in the United States. Click here for further details about the case. Blanche v. Lau is the kind of nuts-and-bolts interpretation of the immigration statute matter routinely addressed by the Court.

In an opinion by Justice Thomas, joined by the Chief Justice and Justices Alito, Gorsuch, Kavanaugh, and Barrett, the 6-3 Court held as follows:

"Respondent Muk Choi Lau, a Chinese citizen, became a lawful permanent resident in 2007. New Jersey charged him with a crime [trademark counterfeiting] in 2012. He then temporarily left the United States. Ordinarily, a lawful permanent resident who arrives in the United States after a temporary absence does not have to apply for admission because he is regarded as already admitted. 8 U. S. C. §1101(a)(13)(C). If he has committed certain crimes, however, the Government may regard him as not yet admitted. §1101(a)(13)(C)(v). Because of Lau’s pending charge for a crime, a border officer declined to regard Lau as admitted upon his return and did not admit him at the border. Instead, the officer paroled him pending the resolution of his criminal case, meaning that he was allowed to physically enter the country without being formally admitted. After Lau pleaded guilty to the New Jersey charge, the Government initiated removal proceedings and secured a removal order based on his conviction. The Board of Immigration Appeals affirmed.

The . . . Second Circuit vacated the removal order. It concluded that Lau should have been regarded as already admitted upon arrival unless the border officer had `clear and convincing' evidence that Lau had committed the crime, which it held that the officer lacked. . . . Because the Immigration and Nationality Act (INA) does not impose that requirement, we vacate the Second Circuit’s judgment." (bold added).

Joined by Justices Sotomayor and Kagan, Justice Jackson's dissent concludes as follows:

"I worry that the Court has now handed the Government a massive blank check. With today’s decision, the Court allows the Government to return an [lawful permanent resident (LPR)] to the status of `seeking an admission' upon his entry at the border, so long as the Government is able to show later that he was eventually convicted. That sequencing undermines the plain terms and basic operation of the relevant statutory scheme, which guarantees that LPRs will not be `regarded as seeking an admission' at the border unless certain exceptions apply. §1101(a)(13)(C).

To be sure, if the paroled LPR ends up being acquitted, the Government’s eventual effort to remove him on this basis will fail (insofar as the charge of removability was based only on the qualifying offense). But that is likely cold comfort to the LPR, who by then might have spent years in legal limbo . . . or worse, in detention.

Having enshrined a returning LPR’s already-admitted status, Congress could not have meant for the guarantees it was affording to be so cavalierly swept aside. By law, LPRs are as close to citizenship as one can get absent naturalization." (citations omitted).

For criticism of the decision, click here. Nancy Morawetz, who participated in an amicus brief on behalf of law professors in the case, stated that "[l]awful permanent residents are left to wonder when it is safe to travel for business, family reasons, or pleasure without jeopardizing their permanent residency status and their day-to-day lives. " The decision highlights the risks for LPRs who leave the country and seek to return.

3. Mullin v. Doe (consolidated with Trump v. Miot) (2026)

The Court decided two immigration cases on the same day, June 25. The Trump administration prevailed in both cases.

In one of the cases (actually two consolidated cases), the issue presented was whether the Trump administration can lift relief known as Temporary Protected Status (TPS) for Syrians and Haitians. President Trump has lifted TPS for nationals of many nations, which has ended their legal status and work authorization and subjected them to removal from the United States. Presidents Biden and Trump both tinkered with TPS. Last year, the Supreme Court twice stayed rulings by lower courts that barred the Trump administration from ending TPS for migrants.

As Amy Howe observed for SCOTUSBlog, it was not clear after oral argument whether the Trump administration would prevail in its efforts to strip Haitian and Syrian nationals of TPS.  But it sure did.

Justice Alito delivered the opinion of a majority of the Court except as to Part III-A., which addresses the equal protection challenge to the lifting of TPS for Haitians. Chief Justice Roberts and Justices Thomas and Kavanaugh joined Justice Alito's opinion in full. Justices Gorsuch and Barrett joined except for Part III–A. Justice Thomas filed a most jarring concurring opinion. Justice Kagan filed a dissenting opinion, in which Justices Sotomayor and Jackson joined. Amy Howe for SCOTUSBlog summarized the various opinions here.

Justice Alito wrote for the majority:

"In these cases, we consider whether respondents, who challenge the termination of . . . TPS . . . for aliens from Syria and Haiti, are entitled to orders postponing the terminations during litigation. We hold that they are not. The TPS statute plainly bars consideration of respondents’ non-constitutional claims. . . . The sole constitutional claim before us will likely fail. Citing statements made by President Trump and former Secretary of Homeland Security Kristi Noem, one set of respondents advances an equal protection claim that Haiti’s TPS designation was terminated because of the racial makeup of that country’s population. But, ironically, one of respondents’ other arguments undermines the equal protection claim by offering a strong, race-neutral explanation for Haiti’s termination: namely, that the current administration, which has terminated every TPS designation that has come up for renewal, simply opposes the TPS program, at least as it has been implemented in the past. For these reasons, the District Courts erred in granting interim relief." (bold added).

In addressing the claims that the lifting of TPS for Haitians was racially discriminatory, Justice Alito wrote for the plurality in Part III-A.: "None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications." More on this issue later.

Justice Thomas concurred in a jarring opinion. "I join the opinion of the Court in full. I write separately to address two more fundamental problems with the Miot [Haitian] respondents’ suit. First, their equal protection claim, while meritless under the Court’s precedents, was also beyond the District Court’s jurisdiction. Second, even assuming jurisdiction, the equal protection claim fails for the additional reason that aliens have no equal protection rights against the Federal Government." (bold added). Justice Thomas's second point runs counter to years of Supreme Court precedent. Even when the Court upheld the Muslim ban in 2018, it recognized that noncitizens had Equal Protection rights.

In dissent, Justice Kagan, joined by Justices Sotomayor and Jackson, disagreed with the majority on the lifting of TPS. She goes into detail about the plurality's Equal Protection analysis:

"The discriminatory-purpose inquiry is predominantly factual, so a lower court’s conclusion must stand unless clearly erroneous. [citation omitted]. Here, the District Court found that the existing record (which future discovery could supplement) `strongly suggests that [the] decision to terminate Haiti’s TPS designation was motivated, at least in part, by racial animus.' [citation omitted](observing that the President’s statements `repeatedly invoked racist tropes of national purity,' and evinced `anti black' animus). Under clear-error review, that finding governs so long as it is `plausible.' [citation omitted]. It is more than plausible: Even putting the clear-error standard aside, the Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.) So here are some of those statements. Haitians are `eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].' [citation omitted]. And: Haitians are also eating `other things too that they’re not supposed to be.' [citation omitted]. And: Haitians in the United States `probably have AIDS.' . . . And: Haiti is a `shithole country,' which is `filthy, dirty, [and] disgusting.' [citation omitted]. And: Haitian immigration is `like a death wish for our country.' [citation omitted]. And: Haitians, along with some others, are `poisoning the blood' of our country. [citation omitted]. And: `Why is it we only take people from shithole countries' like `Haiti [and] Somalia'? `Why cannot we have some people from Norway [and] Sweden?' [citation omitted] The majority briefly replies that those remarks are not `overtly racial,' . . . but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community. No very `sensitive inquiry,' . . . , is needed to see them for what they are, . . . ; judges, as we often say, are `not required to exhibit a naiveté from which ordinary citizens are free,' [citation omitted]. The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country." (bold added).

It was refreshing to read Justice Kagan, usually reserved on such matters, call out the Trump administration on its racism.

Click here, here, and here for criticism of the decision. Lucas Guttentag for Just Security writes that "[i]n Mullin v. Doe, the Roberts Court issued a sweeping rejection of lawsuits challenging the Trump administration’s summary termination of . . . TPS affecting more than a million noncitizens living and working legally in the United States. The 6-3 decision . . . dealt a blow to judicial review of unlawful administrative actions and white-washed some of the President’s most offensive and racialized statements." (bold added).

On the same day as Mullin v. Doe, the Court decided Mullin v. Al Otro Lado. It was a one-two punch to the rights of immigrants.

4. Mullin v. Al Otro Lado (2026)

This case addresses the lawfulness of an immigration policy designed to manage the number of migrants coming to the U.S. border. Amy Howe for SCOTUSBlog describes the background of the policy at issue in Mullin v. Al Otro Lado:

"The policy at the center of the dispute – known as `metering' – was adopted almost 10 years ago in response to a surge in the number of Haitian immigrants seeking asylum . . . . To implement it, [immigration officers at] the U.S.-Mexico border . . . turned back noncitizens without valid travel documents, including asylum seekers, before they could enter the United States. In 2017, the government extended that policy to all ports of entry across the U.S. border with Mexico . . . ."

The metering policy is not currently in place.

Al Otro Lado, Inc. and a group of asylum seekers brought suit challenging the metering policy. A majority of the U.S. Court of Appeals for the Ninth Circuit agreed with them that noncitizens turned away before they crossed the border had "arrived in" the United States for purposes of the statute.

The issue before the Court was whether a noncitizen stopped on the Mexican side of the U.S./Mexico border “arrives in the United States” under the immigration statute, which allows a noncitizen who has arrived to apply for asylum.

The oral argument in the case left many observers with the impression that a majority of the Justices agreed with the U.S. government that the metering policy does not violate the law. They were right.

In an opinion by Justice Alito, a 6-3 Court reversed the Ninth Circuit. He begins by approaching the case as one of basic statutory interpretation:

"This case presents a straightforward question: whether an alien who seeks to enter the United States from Mexico `arrives in the United States' when he or she is still in Mexico. In the decision below, the . . . Ninth Circuit answered `yes.' That is wrong. In ordinary speech, no one would say that a person `arrives in' a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase `arrives in the United States' is used in the immigration statutes at issue here supports an ordinary-meaning reading. So does the presumption against extraterritoriality. We therefore reverse." (bold added) (footnotes omitted).

The majority focused on the interpretation of the immigration statute. Such interpretations are routine on the Court's docket. The stakes of that interpretation in this instance are high for asylum seekers.

Justice Sotomayor read from her 35 page dissent (much longer than Justice Alito's majority opinion), which was joined by Justices Kagan and Jackson.

"The Court today holds that the Executive Branch may circumvent all these mandatory procedures by having U. S. immigration officers stand at the border and physically block noncitizens from setting a foot onto U. S. soil. They may do so even if the asylum seeker is at the threshold of a port of entry designated to receive all noncitizens who seek entrance into the country. Even if the port of entry has ample capacity to inspect that person, including an available asylum officer trained to process asylum applications. Even if the asylum seeker is certain to be persecuted, or killed, if she is turned away. . . . The majority ignores the statutory context and history, not to mention the longstanding position of the Executive Branch, all of which show that any noncitizen arriving at our doorstep and seeking admission must be inspected and allowed to apply for asylum, regardless of whether her foot has crossed the threshold. Because the Court today blesses the Executive Branch’s decision to slam the door shut on all who are fleeing persecution, despite the detailed inspection and asylum system that Congress enacted and commands, I respectfully dissent." (bold added).

Justice Sotomayor ends her dissent on a powerful note:

"Congress passed the Refugee Act in 1980 because it did not want this country to repeat the mistakes of its past. Yet if the refugees on the M.S. St. Louis [a reference to Jewish refugees fleeing the Holocaust denied admission into the United States in 1939] were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U. S. soil. The majority’s interpretation permits the Government to do that even if the refugees complied with all applicable laws and regulations, even if the port had ample capacity to inspect them, and even if turning them back would result in the very persecution from which they narrowly escaped. The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not. More people will be forced to walk along the U. S.-Mexico border in dangerous conditions, trying to find a port that will inspect them. More people will turn back and be subjected to violence because of something they cannot or should not have to change about themselves, such as their race, religion, nationality, or political opinion. Because this is neither what Congress said nor what its words permit, I respectfully dissent." (bold added) (footnote omitted).

Justice Jackson filed a separate brief dissent:

"Today, the Court issues an advisory opinion on the lawfulness of metering—a policy that has not been in place for almost five years and that the Government has no concrete plans to reinstate. In its rush to greenlight this retired practice, the majority elides serious justiciability concerns and decides legal issues entirely in the abstract. . . . [T]he writ of certiorari in this case should never have been granted. " (bold added).

Here is a discussion of the breakdown of the opinions in the case.

Besides the Court's holding causing a news stir, the Justices' readings of the opinions led to a newsworthy event. Mark Walsh for SCOTUSBlog summarizes:

"[Justice] Sotomayor . . . discusse[d] the federal `metering policy' . . . and how it . . . led to makeshift camps on the Mexican side of the U.S. border and other `dire humanitarian conditions.'

As Sotomayor goes on for 10 minutes, longer than the total of Alito’s first two opinion summaries, he at times leans back in his chair and sips from his water cup. When she wraps up, he leans forward and we expect him to move on to his third opinion.

But first, he has a response.

`There is much that I would have added to my bench statement had I known there would be a dissent read,' he says. This causes heads to turn in the courtroom. He goes on with a short substantive retort to Sotomayor, paraphrasing his written opinion’s point that `the government’s policy merely delayed entry by some aliens as a way of improving a situation that both interfered with the proper conduct of inspection and created unsanitary, inhumane, and sometimes dangerous conditions at ports of entry.' . . . .

There is some discussion afterwards in the press room . . . about what he meant by `had I known there would be a dissent read.' . . . [W]hat he seemed to mean was that he didn’t have much notice that she planned to dissent." (bold added).

Lucas Guttantag for Just Security is cutting in his criticism of the decision:

"In Mullin v. Al Otro Lado, the Roberts Court interpreted a simple statutory phrase with vast consequences. The end result is a decision that gives the executive branch license to undermine asylum protections at the border – despite contrary congressional intent – and to undercut a foundational principle of refugee law. . . . The decision does so under the preten[s]e that the metering system merely delays individuals’ access to asylum. In fact, it functionally bars them."

Click here, here , here, and here for additional criticism of the decision. I would not be surprised if the Trump administration soon reinstitutes the metering policy.

It is hard to believe that Congress envisioned authorizing the President to build barriers that prevent the arrival of asylum applicants and deny them the ability to apply for asylum. Taken to its logical extreme, Mullin v. Al Otro Lado would permit the U.S. government to place barriers beyond U.S. borders that prevent asylum seekers from reaching the U.S. border and denying them the right to apply.

5. Urias-Orellana v. Bondi (2026)

The scope of judicial review of immigration decisions is an issue that the Supreme Court has repeatedly addressed in recent years. The Court in Urias-Orellana v. Bondi unanimously held in an opinion by Justice Ketanji Brown Jackson that the immigration statute requires the courts of appeals to use the deferential substantial evidence standard of review in reviewing undisputed facts when assessing the Board of Immigration Appeals’ finding that asylum seekers did not establish the necessary persecution. See Kelsey Dallas for SCOTUSBlog. Affirming the First Circuit's denial of the petition of review, the Court distinguished the case from its previous immigration decisions requiring de novo, or independent, review under other provisions of the immigration statute in reviewing whether undisputed facts satisfy legal standards for relief from removal.

As the syllabus to the decision summarizes,

"[t]he Court rejects petitioners’ arguments that de novo review should apply because §1252(b)(4)(B) requires deference only for `findings of fact' and no subparagraph explicitly addresses the mixed question of law and fact that is the determination of persecution. However, [the Court's decision in INS v.] Elias-Zacarias [1992] and the subsequent statutory history suggest that Congress meant for the entirety of this `mixed' determination to receive deference . . . . The Court’s decisions in Wilkinson v. Garland, 601 U. S. 209 [2024], and Guerrero-Lasprilla v. Barr, 589 U. S. 221 [2020], are not to the contrary. Those cases addressed whether a mixed question qualifies as a `question of law' exempt from [the statutory] bar on judicial review . . . . [which says] nothing about the type of review the court must afford to that issue under other provisions of the statute." (bold added).

I am not convinced by the Court's distinctions between the different judicial review provisions of the immigration statute. Wilkinson v. Garland and Guerrero-Lasprilla v. Barr suggest to me the need for independent review on the mixed law/fact question of persecution.

As the discussion reveals, the Court has been grappling for several years with the standard of judicial review of various agency immigration decisions. In my estimation, this decision adds confusion, not clarity, to the review rules.

Emergency Docket

Here are a few notable orders entered by the Supreme Court in immigration matters on its emergency docket:

1. Noem v. Vasquez Perdomo (2025)

In United States v. Brignoni-Ponce (1975), the Court held that “Mexican appearance” could be one factor in an immigration stop consistent with the Fourth Amendment, but that exclusive reliance on race violated the Constitution. You get an A if you asked yourself the question "What is "Mexican appearance"?

Noem v. Vasquez Perdomo implicated the Brignoni-Ponce decision and grabbed the headlines. In mid-2025, the Trump administration deployed armed and often masked Immigration and Customs Enforcement (ICE) officers to patrol the streets of Los Angeles and stop Latina/o U.S. citizens as well as lawful and undocumented immigrants. The patrols terrified the Latina/o community. A district court entered a temporary restraining order barring the ICE officers on roving patrols from stopping and questioning Latina/os based on their race; speaking Spanish or speaking English with an accent; being present in particular locations, such as car washes and day laborer pick up points (including Home Depot stores); and working in particular types of jobs. For assessment of the roving patrols, click here and here.

Without an opinion, the Supreme Court stayed a restraining order barring racial profiling of Latina/os by roving immigration patrols on the streets of Los Angeles. Noem v. Vasquez Perdomo.

In an opinion concurring in the granting of the stay (for which Justice Sotomayor later criticized him publicly and apologized for), Justice Kavanaugh reiterated that Brignoni-Ponce allows immigration officers to consider the totality of the circumstances, including race, in making an immigration stop.  He viewed the stops as minimal intrusions, which is far from how most Latina/os view the stops.  Justice Kavanaugh further stated, without citing authority, that “[i]llegal immigration is especially pronounced in the Los Angeles area . . . . About [ten] percent of the people in the Los Angeles region are illegally in the United States—meaning about [two] million illegal immigrants out of a total population of [twenty] million.” The inflated estimate fails to account for the complicating fact that half the population of Los Angeles is Latina/o, including many U.S. citizens and lawful immigrants. One observer referred to the race-based immigration stops as “Kavanaugh stops.”

The first and only Latino on the high Court, Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. She powerfully stated that: “. . . I dissent. . . . The Government . . . has all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.” (bold added).

2. Noem v. Doe (2025)

The Court stayed an injunction barring the Trump administration's lifting of humanitarian parole granted by the Biden administration to Cubans, Haitians, Nicaraguans, and Venezuelans. Hundreds of thousands of noncitizens lost their legal status and are subject to removal from the United States. Justices Jackson and Sotomayor dissented.

3. Noem v. National TPS Alliance (2025)

The Court stayed an injunction that halted President Trump's lifting of Temporary Protected Status for Venezuelans, which allowed them to lawfully remain and work in the United States. Thousands of Venezuelans lost TPS. Justices Sotomayor and Kagan would have denied the stay. Justice Jackson dissented:

"I view today’s decision as yet another grave misuse of our emergency docket. This Court should have stayed its hand. [Moreover], the Court plainly misjudges the irreparable harm and balance-of-the-equities factors by privileging the bald assertion of unconstrained executive power over countless families’ pleas for the stability our Government has promised them. Because, respectfully, I cannot abide our repeated, gratuitous, and harmful interference with cases pending in the lower courts while lives hang in the balance, I dissent." (bold added).

Conclusion

Except for the birthright citizenship case, the U.S. government won all the immigration merits cases and most emergency matters. That is not surprising in light of the (1) broad discretion given the Executive Branch in the immigration statute and (2) the relatively conservative Court led by Chief Justice John Roberts.

With Congress for many years unable to pass meaningful immigration reform, the Executive Branch has been the primary actor in modifying immigration policy. The immigration records of Presidents George W. Bush, Barack Obama, Joe Biden, and Donald Trump reveal that the President plays a critically important role in setting immigration policy. Elections matter – especially when it comes to immigration. The Supreme Court in the 2025 Term makes it clear that elections dramatically affect immigration policy.

The Court's 2026 Term will see an active immigration docket. The Court already has granted certiorari in three cases:

(1) an immigrant detention case involving an issue it has ducked on several occasions, whether an immigrant facing lengthy detention is entitled to a hearing to seek release from custody;

(2) a case to review to review a court of appeals decision holding that noncitizens whose asylum status was terminated after criminal convictions are no longer eligible to become lawful permanent residents; and

(3) a case raising the issue whether noncitizens who successfully challenge their detention may recover attorneys' fees. As Megan Crepeau for Bloomberg Law notes, "[t]he matter is . . . timely, as the Trump administration’s deportation efforts have led to an avalanche of habeas petitions from noncitizens who claim they’re being unlawfully detained in immigration facilities." The issue in Montoya Palacios v. Liggins is whether immigration habeas corpus petitions are “civil actions” under the Equal Access to Justice Act allowing recovery of attorneys' fees to prevailing parties in suits against the U.S. government. ICE detained petitioner when he appeared at a check-in and he gained release through a habeas action. A district court denied a request for fees and the court of appeals affirmed. Cesar Garcia analyzes the issues in Montoya Palacios v. Liggins here.