Trump’s 2025 travel ban is back—overbroad, underinclusive, and unnecessary, but likely to survive in court as a policy spectacle, just like before.

Posted on June 6, 2025 by Mike Baker

The Trump 2025 Travel Ban: Legally Sound, Policy-Wise Unnecessary and Ineffective

The Trump administration’s reinstated travel ban, targeting 12 countries for full entry restrictions and seven others for partial limitations, is almost certain to withstand legal challenge under the Supreme Court’s Trump v. Hawaii (2018) precedent. However, a close look at the policy reveals it is overinclusive, underinclusive, and redundant with existing immigration enforcement tools—making it more political spectacle than meaningful security measure.

What Does the Ban Do?

The ban fully blocks entry from: Afghanistan, Myanmar (Burma), Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.

Partial restrictions apply to: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela. In these cases, some categories of travelers from these countries face limits, but not a total ban.

Legal Foundations: Why the Ban Survives Under *Trump v. Hawaii*

The Supreme Court’s 2018 decision in Trump v. Hawaii established a highly deferential standard for evaluating presidential travel restrictions under INA § 212(f). The 2025 ban replicates the structure and justifications that the Court deemed sufficient in that case:

1. Facially Legitimate National Security Rationale:
The 2025 ban, like its predecessor, cites “national security” as its primary justification. The Supreme Court in Trump v. Hawaii ruled that courts must accept such justifications unless they are “wholly unrelated to the objective of the proclamation”. The administration’s claims of deficient vetting, high overstay rates, and uncooperative governments meet this low threshold, even if critics dispute their empirical validity.

2. Interagency Review Process:
The 2025 ban follows a multi-agency review ordered by President Trump in January 2025, mirroring the process the Court praised in Trump v. Hawaii. The Court emphasized that such reviews demonstrate “a sufficient basis” for the executive’s national security findings, even if the conclusions are debatable.

3. Avoidance of Explicit Religious Bias:
By including non-Muslim-majority nations (e.g., Venezuela, Cuba, Laos), the 2025 ban weakens claims of religious animus. The Trump v. Hawaii majority dismissed similar allegations because the third iteration of the original ban applied to only six Muslim-majority countries (of eight total), which the Court deemed “facially neutral”.

4. Rational Basis Review:
The Supreme Court applied rational basis scrutiny in Trump v. Hawaii, requiring only that the policy be “rationally related to a legitimate government interest.” This standard does not demand perfection—overinclusivity (restricting low-risk individuals) or underinclusivity (excluding high-risk countries) are not fatal flaws under this test. Courts may not “second-guess the adequacy of the President’s justifications” if they are facially plausible.

5. Precedent of Judicial Deference:
The Court in Trump v. Hawaii cited Kleindienst v. Mandel (1972), which held that courts will not “look behind” executive decisions on immigration if they offer a “facially legitimate and bona fide” rationale. The 2025 ban’s reliance on country-specific security metrics satisfies this standard, even if critics argue the metrics are flawed”.

Key Takeaway:
The 2025 ban is structured to exploit the deference granted by Trump v. Hawaii. As long as the administration avoids overt religious language and cites national security, courts are unlikely to block it—regardless of policy objections.

Legal Survival Is Likely, But Policy Justification Is Weak

The Supreme Court’s Trump v. Hawaii decision set a low bar for presidential authority under INA § 212(f): as long as the administration offers a facially legitimate and bona fide reason, such as national security, courts will defer to the executive branch. The 2025 ban, citing information-sharing deficiencies, high visa overstay rates, and weak cooperation on criminal and terrorist matters, meets this standard—even if the evidence is thin or the rationale is inconsistent.

Existing Law Already Provides Ample Tools

Overstays and Security Risks:
The United States already has robust statutory and regulatory authority to deny visas, refuse entry, and remove individuals from any country based on security concerns or visa overstays. The INA allows for:

  • Visa denials for security, criminal, or fraud concerns.
  • Targeted bans on individuals or classes of individuals from any country, based on specific intelligence or risk profiles.
  • Suspension or limitation of entry from any country that fails to cooperate with U.S. deportation or information-sharing requests.

The Ban Is Overinclusive and Underinclusive

Overinclusive:
The ban sweeps in entire populations from countries where most nationals pose no threat, punishing refugees, students, and families with no connection to terrorism or crime. This collective approach is not rationally tailored to actual security risks.

  • Most affected are students, business travelers, and families from countries like Afghanistan, Iran, and Somalia.
  • According to the Cato Institute, nationals from the 12 fully banned countries have killed one person in a terrorist attack on U.S. soil since 1975. The annual chance of being murdered by a terrorist from these nations is 1 in 13.9 billion.
  • Existing laws already empower consular officers to deny visas to high-risk individuals. Blanket bans are unnecessary and counterproductive.

Underinclusive:
The ban omits countries with documented security issues or high overstay rates—most notably Egypt, Saudi Arabia, and others—despite similar or greater risk profiles. This selective application undermines the claim that the policy is genuinely about national security.

  • Egypt and Kuwait are excluded despite the Colorado attacker being an Egyptian national with an expired visa. Kuwait has a 23.9% overstay rate for student visas but faces no restrictions.
  • Saudi Arabia and Pakistan are omitted despite historical links to terrorism and high overstay rates.
  • Syria, a state sponsor of terrorism, is excluded, while Djibouti (23.9% overstay rate) is not listed.

Exceptions, Waivers, and Corruption Risks

The ban includes a labyrinth of exemptions that undermine its security rationale while creating opportunities for selective enforcement:

  • Lawful Permanent Residents (Green Card Holders): Exempt despite the administration’s claim that nationals from these countries pose inherent risks. If threats were genuine, this exemption would be incoherent (White House Proclamation).
  • Dual Nationals: Can bypass the ban by traveling on passports from unrestricted countries, favoring wealthier or politically connected individuals (Fragomen).
  • Athletes and Major Event Participants: Exempt for events like the World Cup or Olympics, prioritizing spectacle over security (Employment Law Worldview).
  • Case-by-Case Waivers: Granted by the Attorney General or Secretary of State for “national interest,” with no transparent criteria. Past Trump-era waivers were granted to fewer than 2% of applicants, often to allies of administration officials (Boundless).
  • Special Immigrant Visas (SIVs): Afghan allies with SIVs are exempt, but their family members are not, fracturing families despite rigorous vetting (IRC).

Corruption Risks: The waiver system’s opacity allows favoritism. For example:

  • Allies of Trump’s 2024 donors could secure waivers for business associates from Venezuela or Turkmenistan.
  • The athlete exemption benefits private entities like FIFA, intertwining corporate interests with national security (Holland & Knight).

Cato Institute’s Analysis

Cato scholars argue the ban is arbitrary and disconnected from evidence:

  • The administration cites “terrorism-related risks,” yet the banned countries collectively pose less threat than excluded nations like Egypt or Saudi Arabia.
  • Immigrants from the banned countries have incarceration rates 70% below native-born Americans and 40% below unauthorized immigrants (Cato Institute).
  • Existing visa denials, deportations, and enhanced screening already address overstays and security risks without blanket bans.

Conclusion

Legally, the ban will likely survive—Trump v. Hawaii gives the executive enormous leeway. But as policy, it is unnecessary, poorly targeted, and largely symbolic. The U.S. already has all the legal authority it needs to protect itself from genuine threats, and this kind of blanket ban only distracts from smarter, more effective enforcement.

References

Posted in Travel Ban 2025 | Leave a comment

Who Must Register Under the 1940 Alien Registration Law? | 2025 Immigration Compliance Guide

Posted on May 31, 2025 by Mike Baker

Who Must Register Under the 1940 Alien Registration Law?

A Guide for Noncitizens, Families, and Legal Professionals (2025 Update)

The federal government has revived enforcement of the 1940 Alien Registration Act, requiring many noncitizens in the United States to register with immigration authorities. This post breaks down—clearly and simply—which categories of noncitizens must register, who is already considered registered, and who is exempt. If you are a lawyer, advocate, or noncitizen trying to make sense of these rules, this guide is for you.

Background: Why Is This Happening Now?

  • The Law: Section 262 of the Immigration and Nationality Act (INA) requires most noncitizens (aliens) age 14 and older who are in the U.S. for 30 days or more to register and be fingerprinted. Parents or guardians must register children under 14. Aliens over 18 must always carry proof of registration. Failure to comply can result in fines, jail, and even deportation.
  • Recent Change: As of April 11, 2025, the U.S. government is actively enforcing these rules for the first time in decades, with a new online registration process (Form G-325R).

Who Must Register?

You MUST Register if You Are:

  • A noncitizen age 14 or older in the U.S. for 30 days or more, and you do not already have proof of registration (see below for who is already registered).
  • A parent or guardian of a child under 14 who is in the U.S. for 30 days or more and does not already have proof of registration.
  • A child who turns 14 while in the U.S.—even if previously registered by a parent, you must re-register and be fingerprinted within 30 days of your 14th birthday.
  • A Canadian visitor who entered at a land port of entry and was not issued a Form I-94 and is staying in the U.S. for 30 days or more.
  • A person who entered the U.S. without inspection or admission (i.e., crossed the border illegally or overstayed a visa and never received a registration document).
  • A recipient of DACA, TPS, or other relief who was not issued an Employment Authorization Document (EAD) or other registration proof.
  • Anyone else not listed below as “already registered” or “exempt.”

Who Is Already Registered?

If you are in one of these categories, you do NOT need to register again (but you must always carry proof if you are 18 or older):

  • Lawful Permanent Residents (Green Card holders).
  • Anyone issued an immigrant or nonimmigrant visa before their last entry to the U.S.
  • Anyone issued an Employment Authorization Document (EAD)—even if expired.
  • Anyone issued a Form I-94 or I-94W (Arrival/Departure Record), even if expired.
  • Anyone who has applied for lawful permanent residence (Forms I-485, I-687, I-691, I-698, I-700) and provided fingerprints, even if the application was denied.
  • Anyone issued a Border Crossing Card.
  • Anyone paroled into the U.S. (even if parole has expired).
  • Individuals in removal proceedings (issued a Notice to Appear or similar charging document) – Already registered; no need to register again.

Who Is Exempt?

  • Diplomats and international organization representatives (A and G visa holders).
  • Certain American Indians born in Canada (under 8 U.S.C. § 1359).
  • Members of the Kickapoo Traditional Tribe of Texas.
  • Short-term visitors (in the U.S. for less than 30 days).
  • U.S. citizens and nationals (not subject to these rules).

Quick Reference Table: Who Must Register?

Category Must Register? Notes
Entered without inspection, no prior registration YES Must register within 30 days of arrival or immediately if already present
Canadian visitor, no I-94, >30 days in U.S. YES Applies to most land border entrants
Child under 14, not registered YES Parent/guardian must register child
Child turning 14 in U.S. YES Must re-register within 30 days of 14th birthday
DACA/TPS/relief recipient, no EAD/registration document YES Must register
Lawful Permanent Resident (Green Card holder) NO Already registered
Entered with visa/I-94/EAD/Border Crossing Card NO Already registered
In removal proceedings (Notice to Appear issued) NO Already registered by virtue of being placed in proceedings; no further action required
Paroled into U.S. (even if parole expired) NO Already registered
Diplomat/Int’l Org. Rep. (A/G visa) NO Exempt
Certain American Indians born in Canada NO Exempt
U.S. citizen or national NO Not subject
In U.S. <30 days NO Not subject

What Happens If You Don’t Register?

  • Criminal and civil penalties: Fines, jail time, and possible removal from the U.S.
  • Future immigration consequences: Failure to register can affect future visa, green card, or citizenship applications.
  • Proof of registration: Noncitizens age 18+ must always carry proof of registration—failure is a misdemeanor.

How to Register (If Required)

  1. Create a USCIS online account
  2. Complete Form G-325R (Biographic Information – Registration)
  3. Attend a fingerprint appointment if scheduled
  4. Download and print your proof of registration

Constitutional and Procedural Challenges to Registration Enforcement

The Department of Homeland Security’s implementation of the Alien Registration Act via Interim Final Rule (effective April 11, 2025) is facing significant legal challenges on grounds of procedural due process, notice deficiencies, and constitutional overreach. The principal arguments in current litigation include:

1. Violation of the Administrative Procedure Act (APA)

Plaintiffs in federal court argue that the rule is not a mere procedural update but a legislative action requiring notice-and-comment under the APA. The rule imposes new substantive obligations by creating a universal registration system for millions of noncitizens, designating Form G-325R as the sole compliance method, and expanding biometric requirements beyond what the statute authorizes. Courts have previously held that major policy shifts of this nature require meaningful public input.

2. Arbitrary and Capricious Rulemaking

The rule is also challenged as arbitrary and capricious because it fails to account for technological barriers faced by many registrants, lacks adequate language access, and contradicts existing exemptions for individuals in removal proceedings. Some courts have already dismissed charges where defendants lacked the ability to access or understand the online registration system.

3. Fifth Amendment Self-Incrimination Risks

Form G-325R requires registrants to disclose potentially incriminating information about their immigration status and history, raising Fifth Amendment concerns. Legal advocates argue that compelling such admissions under threat of prosecution for non-registration forces individuals to choose between self-incrimination and criminal liability.

4. Judicial Rejections of Constructive Notice

Multiple courts have dismissed charges under the registration statute, finding that “willful” violations require actual notice to defendants. Cases have been dismissed where the government failed to show that individuals had meaningful notice of the new requirements or the ability to comply.

Pending Appellate Issues

Appellate courts are now considering whether the Department of Homeland Security circumvented the Paperwork Reduction Act by implementing Form G-325R without proper approval, whether the rule’s enforcement results in unlawful disparate impact, and whether “carry papers” requirements violate Fourth Amendment protections against unreasonable searches and seizures.

Practice Note: Defense counsel should consider challenging registration-related charges on grounds of lack of mens rea, due process violations, and suppression of evidence obtained through potentially unlawful registration procedures.

Key Takeaways

  • Most noncitizens who have ever received a visa, green card, EAD, or I-94 are already registered.
  • If you entered without inspection, are a Canadian visitor without an I-94, or a child turning 14, you likely must register.
  • Always carry proof of registration if you are 18 or older.
  • If in doubt, consult an immigration lawyer.

This information is current as of May 31, 2025. For updates and official instructions, always check the USCIS website and consult with a qualified immigration attorney.

Sources: Congressional Research Service, USCIS

Source: For the original USCIS regulation and rule on the Alien Registration Act enforcement, see the Federal Register Interim Final Rule published by DHS and USCIS, March 12, 2025. This rule designates the new registration form (Form G-325R) and outlines the registration requirements effective April 11, 2025.

Alien registration 2025

Posted in Uncategorized | Leave a comment

When Paperwork Errors Don’t End Cases: The New Rules for Defective NTAs After Lopez-Ticas

Posted on May 29, 2025 by Mike Baker

Defective NTAs After Lopez-Ticas: How Recent BIA Rulings Reshape Removal Proceedings

Posted on by Immigration Law Team

A Notice to Appear (NTA) is the formal document that starts removal proceedings in immigration court. For years, missing information—such as the hearing date or time—could be grounds for termination of a case. In 2025, the Board of Immigration Appeals (BIA) issued a landmark decision, Matter of Wendi Del Carmen Lopez-Ticas, 29 I&N Dec. 90 (BIA 2025), that changed the rules for everyone involved. This decision, combined with important 2024 rulings such as Matter of R-T-P-, Matter of Aguilar Hernandez, and Matter of Larios-Gutierrez de Pablo, redefines how defective NTAs are handled.

The Core Holding: Matter of Wendi Del Carmen Lopez-Ticas, 29 I&N Dec. 90 (BIA 2025)

The BIA ruled that defective NTAs—those missing time or date information—do not automatically terminate proceedings. Key takeaways include:

  • Timely Objections Are Mandatory: Challenges to defects must be raised before the close of pleadings (usually at the first or second hearing).
  • Claim-Processing Rule: Missing time or date is a procedural flaw, not a jurisdictional error.
  • Retroactive Application: The timeliness standard established in Matter of Fernandes applies to all cases, even those initiated before this decision.
  • Binding Concessions: Respondents are bound by counsel’s admissions unless egregious circumstances (such as ineffective assistance of counsel) are proven.

2024 Precedents Shaping the Landscape

Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024)

  • Remedying Defects: Immigration Judges may amend NTAs by writing in missing time or date upon DHS motion, provided the NTA becomes a single document (complying with Niz-Chavez v. Garland) and the respondent receives at least 10 days’ notice of the new hearing.
  • No Prejudice Requirement: Respondents do not need to prove harm from defective NTAs if they object timely.

Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024)

  • Form I-261 Invalid for Cure: DHS cannot fix defective NTAs by filing a Form I-261 (supplemental notice). The Supreme Court’s Niz-Chavez “single document” rule prevails.
  • Strategic Takeaway: Object early—DHS must refile a compliant NTA or seek Immigration Judge amendment.

Matter of Larios-Gutierrez de Pablo, 28 I&N Dec. 868 (BIA 2024)

  • Retroactive Application: The Fernandes timeliness rule (object pre-pleadings) applies retroactively. Older cases cannot revive forfeited objections.

Procedural Roadmap for Practitioners

Step 1: Review NTA Immediately

Use tools like the following Python code to flag issues:

def check_nta(nta):
    required = ['date', 'time', 'place']
    missing = [field for field in required if not nta.get(field)]
    if missing:
        return "Object immediately: Missing " + ", ".join(missing)
    return "NTA appears complete"

This code checks for missing required fields in the NTA. If any are missing, it prompts you to object immediately.

Step 2: Object Before Pleadings Close

  • Failure = Forfeiture: Late objections are barred (per Larios-Gutierrez de Pablo).
  • Remedy Options:
    • Immigration Judge amendment (per R-T-P-).
    • DHS refiling (per Aguilar Hernandez).

Step 3: Document Strategy

Not objecting to accrue physical presence time for cancellation of removal is risky but permissible if documented.

Impact on Key Stakeholders

Stakeholder Rights/Responsibilities
Respondents Must act fast; bound by counsel’s decisions unless egregious circumstances are proven.
DHS Can seek Immigration Judge amendments but cannot use Form I-261 (per Aguilar Hernandez).
Immigration Judges Must enforce timely objections and ensure amendments comply with R-T-P-’s single-document rule.

Critical Takeaways

  1. Defective NTAs are not automatic tickets to termination anymore.
  2. You must object to errors before pleadings close, or you lose your chance.
  3. Courts can fix paperwork errors if you object on time, but late objections do not work.
  4. What your lawyer says in court usually binds you, unless you can prove a serious problem.
  5. These rules apply to all cases, even those that started before 2025.

Conclusion: The New Era of NTA Litigation

The 2024–2025 rulings create a procedural tightrope:

  • For Respondents: Timeliness is everything. Delay = forfeiture.
  • For DHS: Amendments are possible but constrained by Niz-Chavez and Aguilar Hernandez.
  • For Courts: Efficiency is prioritized, but due process requires strict adherence to claim-processing rules.

By integrating Lopez-Ticas with 2024 precedents, practitioners can navigate this evolving landscape with precision—ensuring compliance while zealously advocating for clients’ rights.

Full Case Citations

This post reflects the state of U.S. immigration law as clarified by the Board of Immigration Appeals in 2025. For legal advice, consult a qualified professional.

Posted in BIA, Notice to Appear | Leave a comment

Court Says No: How the President’s Tariff Powers Were Put in Check

Posted on May 28, 2025 by Mike Baker

The U.S. Constitution is clear: Congress, not the President, holds the power to set tariffs and regulate foreign trade. These are fundamental legislative powers that help maintain the balance of government and protect individual freedoms. While Congress can delegate some authority to the President, it must provide clear guidelines—no branch can give away its core responsibilities.

When it comes to emergencies, the President does have significant tools at his disposal. The International Emergency Economic Powers Act (IEEPA) allows the President to regulate international economic transactions, like imposing tariffs, but only during a declared national emergency and only to address an “unusual and extraordinary threat” to national security, foreign policy, or the economy. The President can’t use these powers for just any policy goal; the actions must directly address the specific threat cited in the emergency declaration.

To prevent abuse, there are important safeguards. The President must notify Congress when declaring a national emergency, and Congress can review and even terminate the emergency. Courts also play a critical role by reviewing whether the President’s actions stay within the limits of the law.

Court Halts Presidential Tariffs: Why the Constitution Still Matters

Key Takeaway: A federal court just reminded everyone—especially the President—that even in emergencies, our Constitution sets clear limits on government power.

The Firefighter Analogy: When Emergency Powers Go Too Far

Imagine a firefighter with a high-pressure hose, meant to put out real fires. But what if that firefighter started spraying water everywhere—on gardens, sidewalks, even houses that weren’t burning—just because they could? That’s what happened when the President tried to use emergency powers to impose sweeping tariffs on imports from more than 180 countries. The court stepped in and said, “You can use the hose—but only for actual fires.”

Who Really Decides on Tariffs?

Our country’s founders gave Congress—not the President—the power to set tariffs and regulate trade with other nations. This keeps one person from having too much control over the economy and ensures decisions are made with checks and balances.

What Is IEEPA, and Why Did It Matter?

The International Emergency Economic Powers Act (IEEPA) lets the President take action in a real emergency—like when there’s a serious threat to national security from outside the country. But the law is clear: these powers can only be used to directly address that specific threat, not for unrelated goals or as a general tool to pressure other countries.

The Court’s Unanimous Decision: A Lesson in Constitutional Guardrails

Three judges—appointed by Presidents Reagan, Obama, and Trump—looked at the case and agreed: the President’s tariffs went way beyond what the law allows. Here’s what they said:

  • Judge (Reagan appointee): “IEEPA does not give the President a blank check to impose tariffs for any reason. The law requires a real, direct connection to a declared emergency.”
  • Judge (Obama appointee): “The Constitution’s protections don’t vanish during emergencies—they are even more important.”
  • Judge (Trump appointee): “Congress, not the President, has the exclusive power over trade. Emergency powers must be used carefully and within the law.”

The court’s written opinion put it simply: “The Worldwide and Retaliatory Tariff Orders exceed any authority allocated to the President by IEEPA for regulating imports through tariffs. The Trafficking Tariffs are invalid as they do not address the threats outlined in those orders.”

The Major Questions Doctrine: Why “Big Issues” Require Clear Laws

Recent court decisions—like blocking President Biden’s student loan forgiveness and President Trump’s tariffs—share a common thread: the Major Questions Doctrine (MQD). This legal principle says that if a presidential action involves a “major question” with vast economic or political significance, Congress must explicitly authorize it. Courts won’t assume silent approval.

How It Worked in the Student Loan Case

In Biden v. Nebraska (2023), the Supreme Court rejected $430 billion in student debt cancellation. The Biden administration claimed authority under the HEROES Act, which allows “waiving or modifying” loan terms during emergencies. But the Court ruled that “waiving” $430 billion wasn’t a “modification”—it was a transformative policy requiring clear congressional approval. As Chief Justice Roberts wrote: “We expect Congress to speak clearly if it wishes to assign an agency decisions of vast economic and political significance.”

Parallels to the Tariffs Case

The U.S. Court of International Trade used similar logic to block Trump’s tariffs. While IEEPA lets the President “regulate importation” during emergencies, the court found that imposing 10% tariffs on 180+ countries wasn’t a targeted response to specific threats—it was an economy-wide policy with global trade implications. Without explicit congressional approval, such sweeping action violated the separation of powers.

What This Means for Presidential Power

Both cases highlight a judicial trend: courts will strike down executive actions that tackle “major questions” without clear statutory authority. This isn’t about partisan politics—it’s about ensuring Congress, not the President, makes transformative policy decisions. As Ilia Somin notes, the MQD acts as a “constitutional guardrail” against executive overreach, preserving the balance of power even during crises.

Why Ilia Somin Says This Case Matters

In his Atlantic analysis, constitutional scholar Ilia Somin calls this ruling “a landmark victory for the separation of powers.” He argues that unchecked emergency powers risk turning the presidency into a “quasi-monarchical office,” undermining the system of checks and balances. Somin highlights two critical takeaways:

  1. Judicial Review Works: Courts can and should step in when the executive branch overreaches, even during emergencies. As Somin writes, “The judiciary is the last line of defense against presidential overreach.”
  2. Congress Must Reclaim Its Role: Lawmakers have too often ceded power to the President. This case, Somin notes, is a “wake-up call for Congress to assert its constitutional authority over trade and emergencies.”

Why This Matters for Everyone

This isn’t just about trade or politics. It’s about making sure no one—no matter how powerful—can ignore the rules that keep our government balanced and fair. The court’s decision protects businesses, consumers, and the basic idea that laws—not individuals—should decide how our country is run.

The Constitution’s Blueprint for Freedom

When emergencies happen, it’s tempting to let leaders do whatever they think is necessary. But our system is designed to make sure power is always limited and shared. This case isn’t just about tariffs—it’s about preserving the architecture of liberty that the founders built. As Somin concludes, “The separation of powers isn’t a technicality. It’s the reason we’ve avoided dictatorship for 250 years.”

The court’s message is clear: emergencies don’t erase the Constitution. They test it. And in this test, the separation of powers prevailed.

Posted in Tariff Power | Leave a comment

Matter of Gilton Bain: When Criminal History Outweighs Family Ties in U.S. Immigration Law: Rules for Cancellation of Removal and the Role of Rehabilitation

Posted on May 27, 2025 by Mike Baker

Matter of Gilton Bain: When Criminal History Outweighs Family Ties in U.S. Immigration Law

The Matter of Gilton Bain is a significant and recently designated precedent in immigration law. The Board of Immigration Appeals issued its decision on February 6, 2025, and the Attorney General designated it as precedent on May 23, 2025. This decision clarifies how U.S. immigration judges must weigh positive equities, such as long-term residence and family ties, against a serious criminal record. Under this ruling, even individuals with deep roots in the United States can face removal if they cannot demonstrate genuine rehabilitation after recent criminal convictions. The Board emphasized the lack of rehabilitation in the face of recent criminal convictions, specifically noting the respondent’s recidivist offenses within a short timeframe in 2019 and 2020. Without clear evidence of reform, even the most compelling personal and family connections may not outweigh the negative impact of such conduct.

Case Overview: Who Was Gilton Bain?

Gilton Bain, a citizen of the Bahamas, entered the United States as a teenager in 1998 and became a lawful permanent resident in 2011. Over more than two decades, he established a life in the U.S., with significant family ties, including several U.S. citizen relatives. But between 2013 and 2020, Bain was arrested and convicted for multiple crimes, including six counts of selling or delivering controlled substances like cocaine, fentanyl, and heroin.

When the Department of Homeland Security (DHS) initiated removal proceedings, Bain applied for cancellation of removal—a form of relief that, if granted, would have allowed him to remain in the U.S. despite his criminal record.

The Legal Hurdles: Statutory and Discretionary Requirements

Cancellation of removal under section 240A(a) of the Immigration and Nationality Act (INA) is a two-step process:

  1. Statutory Eligibility:
    • Continuous residence in the U.S. for at least 7 years
    • Lawful permanent resident status for at least 5 years
    • No aggravated felony convictions
  2. Discretionary Relief:
    Even if eligible, the applicant must show they “merit” relief as a matter of discretion.
    Judges must balance positive factors (like family ties and long-term residence) against negative factors (like criminal history).

What Were Bain’s Positive Factors?

  • Long-term U.S. residence: Lived in the U.S. since 1998
  • Lawful permanent resident: Since 2011
  • Family ties: Multiple U.S. citizen relatives, including children
  • Employment history: Worked as a carpenter and held several jobs
  • Desire to improve: Expressed a wish to better himself and support his family

The Negative Factors: Criminal History and Lack of Rehabilitation

  • 2013: Arrested for possession of MDMA (case dismissed after drug court program)
  • 2018: Convicted for driving without a valid license
  • 2019-2020: Convicted of six counts of selling or delivering controlled substances (cocaine, fentanyl, heroin) across four separate occasions

Most importantly, Bain did not present any evidence of rehabilitation:

  • No participation in drug or rehabilitative classes while incarcerated
  • No documented efforts to address his criminal behavior
  • No letters, certificates, or testimony demonstrating reform

Why Did the Board Deny Relief?

Criminal history was recent, repeated, and serious.
No evidence of rehabilitation—a critical requirement for discretionary relief when a criminal record is involved.
Positive factors, such as family ties and long residence, were outweighed by the negative factors.
Hardship arguments (to himself or his family) could not overcome the seriousness of his ongoing criminal conduct.

Key Quote from the Decision:
“A respondent with a criminal record is generally required to present evidence of rehabilitation to warrant relief as a matter of discretion.”

Legal Lessons: What Does This Mean for Others?

  • Rehabilitation Is Essential: If you have a criminal record, you must show documented efforts at reform—rehabilitation classes, therapy, community service, or any steps toward positive change.
  • Recent and Repeated Crimes Are Especially Damaging: Crimes committed shortly before your hearing, or a pattern of offenses, are viewed as major negative factors.
  • Family Ties and Hardship May Not Be Enough: While strong family connections and hardship to loved ones are important, they rarely outweigh a serious, recent, and unaddressed criminal history.
  • Finality of Convictions: Immigration authorities cannot ignore or “look behind” a conviction unless it has been vacated or overturned by the criminal court.

Practical Takeaways for Immigrants and Advocates

  • Document rehabilitation: Save certificates, letters, and records of any rehabilitative efforts.
  • Seek legal advice early: Explore all options, including post-conviction relief or alternative forms of immigration relief.
  • Understand the burden of proof: You must prove not only eligibility but also that you deserve a second chance.
  • Prepare for a totality-of-the-circumstances analysis: Judges will weigh all factors, but serious criminal records require “unusual or outstanding equities” to tip the balance in your favor.

Conclusion

The Matter of Gilton Bain is a cautionary tale for anyone facing immigration proceedings with a criminal history. It underscores that positive life factors—no matter how compelling—can be overshadowed by serious, recent, and unaddressed criminal conduct. For those seeking a second chance in the U.S., genuine and documented rehabilitation is not just helpful—it’s essential.

If you or someone you know is facing removal proceedings, consult an experienced immigration attorney to discuss your options and how best to present your case.

Download Matter of Bain

Posted in Cancellation of Removal, Family ties, rehabilitation | Leave a comment