The Marriage Maneuver

October 19, 2022

IRLI shows court why injunction is unlawful

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) submitted a friend-of-court brief in a Maryland district court in support of the U.S. Department of Homeland Security (DHS), which is being sued by aliens in a case putting at issue whether immigration law should be rewritten by the court in a way that would provide a large incentive for marriage fraud.

The plaintiffs are a class of aliens who have been given final orders of removal but still seek to stay in the country. The aliens, who had married U.S. citizens at some point but never received green cards on that basis, seek to have the execution of their removal orders suspended so they can apply for certain discretionary relief without being arrested and deported while applying for that relief. If they are deported, they will have to wait years before they can return. If they apply for and are granted the discretionary relief, they still will have to leave the country, but will be able to return more quickly.

As IRLI points out in its brief, the law as written is heavily against the plaintiffs’ position. Final orders of removal are to be executed, and there is no basis in a statute or regulation for the court to order their execution suspended here. Nor does executing those orders when aliens subject to them come in for meetings with immigration officials violate the aliens’ constitutional rights.

Even more tellingly, a recent Supreme Court decision makes clear that Congress has stripped the lower federal courts of jurisdiction even to issue class-wide injunctive relief to aliens challenging some aspect of the removal process, as this class of aliens is doing here. By statute, only the Supreme Court may grant such relief.

“Congress could have written the law differently,” said Dale L. Wilcox, executive director and general counsel of IRLI, “but the reason it didn’t is clear. If the law were to give aliens who have been ordered removed because they were illegal aliens or were convicted of a crime a trouble-free path to citizenship by getting married, a massive incentive for marriage fraud would be created. And the court certainly has no power to create that incentive itself by rewriting the law to suit its own policy choices, not Congress’s. A decision in favor of DHS here is thus important for the rule of law, which is rule by the people through their elected representatives, not rule by unelected federal judges.”

The case is Sanchez v. Mayorkas, No. 8:19-1728 (D. Md.).