Judicial Reviewability of Decision to Cancel DACA

"[T]he District Court should have granted [the Government's] motion on November 19 to stay implementation of the challenged October 17 order [requiring the Government to produce documents relating to the cancellation of DACA] and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is 'committed to agency discretion,' 5 U.S.C. § 701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction)."

—In re United States, 138 S.Ct. 443, 445 (U.S. Supreme Court, Dec. 20, 2017).

Read More…

Pregnant Alien Minor Has Due Process Right To Elective Abortion, D.C. Circuit Says

"Border authorities, immigration officials and HHS [the U.S. Department of Health and Human Services] itself would be well served to know ex ante whether pregnant alien minors who come to the United States in search of an abortion are constitutionally entitled to one. And under today's decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip. (footnote omitted)

— Judge Henderson, dissenting from en banc opinion of the U.S. Court of Appeals for the D.C. Circuit in Garza v. Hargan, 874 F.3d 735 (D.C. Cir. October 24, 2017).

Read More…

FISA Probable Cause Standard Is Different From The Standard for Criminal Warrants

Foreign Intelligence Surveillance Act ("FISA") intercepts may contain national security information. If an aggrieved person (usually the target of the surveillance) is charged with a crime and seeks discovery of the FISA applications or orders or other materials, alleging the surveillance was unlawfully acquired or not in conformity with the FISA Court's authorization, 50 U.S.C. § 1806(e), (f), the Attorney General could prevent discovery by filing an affidavit declaring that disclosure or an adversary hearing "would harm the national security of the United States," in which case the federal district court reviewing the defendant's motion must "review 'in camera' and 'ex parte' the application, order, and such other materials as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." See United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011) (quoting and citing 50 U.S.C. § 1806).

Read More…