On January 22, 2025, the Laken Riley Act (S.5) was passed by the House and was sent to President Donald Trump to be signed into law. The Act contains three controversial immigration provisions. The first requires the detention of foreign nationals accused of certain crimes. The second provision grants state officials standing to bring lawsuits against the Secretary of Homeland Security for injunctive relief if the Department of Homeland Security (DHS) fails to detain and remove from the United States individuals who are subject to expedited removal. The third provision grants state officials standing to bring lawsuits against the Secretary of Homeland Security for injunctive relief if the DHS authorizes humanitarian parole to a group of foreign nationals as a class and, in so doing, causes harm to the state or its residents.
Section 2 of the Laken Riley Act requires the detention of any foreign nationals who:
Once enacted, the new law will make it mandatory for Immigration & Customs Enforcement (ICE) to detain any individuals who are even charged with one of the specified crimes, if they also are inadmissible under one of the relevant Immigration and Nationality Act (INA) provisions.
While the determination as to whether an individual is present in the U.S. without having been admitted is relatively straightforward, it is unclear how the government will apply the second two grounds of inadmissibility relevant to the above-noted determinations as to whether detention is mandatory. INA §212(a)(6)(C) makes inadmissible anyone who has ever made a false claim to U.S. citizenship in order to achieve any state or federal benefit. This could include, for example, someone who registers to vote on a driver’s license application or who completes an I-9 falsely indicating that they are a U.S. citizen. In addition, this section makes inadmissible anyone who has ever procured an immigration benefit through fraud or willful misrepresentation. In some cases, individuals who are lawfully present in the U.S. are inadmissible on one of these grounds; for example, they may be inadmissible but have an approved waiver that allows them to be physically present in the country despite their inadmissibility. It is unclear whether only such individuals, who have already been determined to be inadmissible on this ground, would be subject to mandatory detention upon being charged with a relevant crime, or whether DHS is required to investigate whether any foreign national who is arrested for a relevant crime may be inadmissible on this ground.
Even more vexing to apply is the final inadmissibility ground mentioned, INA §212(a)(7), which makes inadmissible anyone who, at the time of application for admission to the United States, lacks a required entry document such as a visa or passport. This ground of inadmissibility typically is applied at the time that an individual seeks admission to the United States; in most circumstances, it is only relevant at the port of entry. (The only time INA §212(a)(7) is relevant to individuals in the interior of the United States is in the context of expedited removal, which is discussed in more detail below). Moreover, anyone who is physically present within the U.S. without having been admitted or paroled is already inadmissible under INA §212(a)(6)(A), so it is unclear why INA §212(a)(7) was included in the Laken Riley Act, and whether it will include any individuals not already inadmissible under INA §212(a)(6)(A).
Waivers are not granted to overcome inadmissibility under INA §212(a)(7); people only overcome this inadmissibility ground by reapplying and presenting the proper documentation.
Section 3(a) of the Laken Riley Act amends section 235 of the INA, the section authorizing the use of expedited removal, to note that states’ attorneys general or other authorized state officers have standing to sue the Secretary of Homeland Security for injunctive relief in the event that they allege “a violation of the detention and removal requirements” in INA §235(b)(1) or (2). In order to sue under this provision, the state official must demonstrate that DHS’ failure to enforce the foregoing provisions has resulted in harm to the state or its residents, including financial harm of $100 or more.
Those sections allow low-level DHS officers to summarily deport individuals from the U.S. without a hearing before an immigration judge at the port of entry if they are inadmissible under INA §212(a)(6)(C) or §212(a)(7). In addition, if a foreign national is located anywhere in the interior of the United States and was not lawfully paroled or admitted to the U.S. and cannot prove that he or she has been in the U.S. for two continuous years prior to the arrest, they are also subject to expedited removal. Those who have been expeditiously removed from the U.S. are barred from returning, absent a waiver, for the next five years for any purpose. However, INA §235(a)(4) states that, in the discretion of the Attorney General, applicants for admission who are subject to expedited removal may be permitted to withdraw their application for admission and to depart immediately from the United States. The Laken Riley Act’s characterization of the detention and removal “requirements” in INA §235 is therefore not entirely accurate, as officers are not required to remove individuals but may allow them to withdraw their application for admission and simply leave.
That said, INA §235(b)(1)(B)(ii) does require the mandatory detention of individuals who are subject to expedited removal but lodge an asylum claim, pending a final determination of credible fear of persecution and, if not found to have such a fear, until removed from the U.S.
There are several questions about how this provision will be applied, including but not limited to the following:
Section 3(b) of the Laken Riley Act also allows a state official to sue DHS for injunctive relief if the release of a foreign national on bond or parole harms the state or its residents, including financial harm of over $100.
Section 3(d) of the Laken Riley Act amends INA §212(d)(5), which grants DHS a broad, discretionary authority to “parole into the United States temporarily…on a case-by-case basis for urgent humanitarian reasons or significant public benefit…”. The Laken Riley Act adds to this statutory section a provision allowing state officials to sue DHS for failing to grant parole on a case-by-case basis for humanitarian reasons or significant public benefit, if such failure harms the state or its residents, including financial harm of over $100.
This statutory provision gives statutory effect to portions of a similar executive order promulgated by President Trump on January 20, 2025, entitled, “Securing Our Borders.” That order calls for the termination of “all categorical parole programs that are contrary to the policies of the United States established in [Trump’s] Executive Orders, including the program known as the ‘Processes for Cubans, Haitians, Nicaraguans, and Venezuelans.’” The language of this Executive Order and of the Laken Riley Act suggest that the Trump administration interprets INA §212(d)(5)’s use of the phrase “on a case by case basis” to refer solely to individuals rather than group determinations of parole eligibility. Although that is not the only viable interpretation of the INA, nor is it the longstanding interpretation of this provision. There is no doubt that there is a humanitarian basis for granting parole to those eligible for Temporary Protected Status, a program by which DHS may designate nationals of a country for U.S. immigration benefits because it is unsafe to return to their home country due to extenuating circumstances such as ongoing civil war or environmental disasters. The Laken Riley Act objects to the grant of advance parole to individuals in these circumstances solely because the designation is made on a group rather than an individual basis.
There remain several open questions about how the Laken Riley Act will be interpreted and applied in practice. However, its early passage, together with the President’s executive orders, signals an extreme hardline approach to immigration enforcement over the next four years.
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