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Culture War Roundup for the week of May 26, 2025

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What does this mean?

Unikowsky is not describing the state of the law, but by what he thinks would be good policy were it the law. As a result, the only meaningful read you should take from his writings are specifically what he thinks would be good policy for achieving his goals.

Did they play games in court, in order to do so (e.g., dragging their feet, after being court-ordered to deport a criminal, or misleading the courts about the status of aliens)

Yes, they did. The Biden administration policy in US v. Texas was specifically about 'prioritization' of aliens with final orders of removal, including those with final orders of removal for criminal behavior, to such a point as to not ever do it for wide portions. Instead, the Biden administration issued a memo telling all DHS staff that they would not deport such illegal immigrants, and then told the courts that they Tots Weren't Making Decisions On This Memo, and then made decisions completely in line with the memo's directives.

Now, the final orders of removal themselves were Article I administrative law judges. If you want specifically Article III court orders in the context of immigration, you'll have to look a little further back. The Obama administration, when DAPA/DACA was being challenged, swore before court both in writing and orally in the court proper that they would not issue any new determinations under the new policies, in order to avoid having the judge issue a preliminary injunction. And then the issued literally over a hundred thousand.

The only way to interpret this Advisory is that, despite the Government’s multiple assurances that no action would be taken prior to February 18, 2015,in reality, between November 24, 2014, and February 16, 2015, the DHS granted approximately 100,000 applications pursuant to the revised DACA, the terms of which were established in the 2014 DHS Directive that is the subject of this suit. Indeed, the opening sentence of the Advisory notes that these actions were taken “pursuant to the November 20, 2014 . . . memorandum at issue in this case.” [Id. at 1]. Counsel for the Government confirmed this interpretation in open court.

Could you please elaborate on this?

Civil proceedings against citizens have extremely minimal due process protections, and almost always operate on a "preponderance of evidence" standard rather than "clear, unequivocal, and convincing evidence" one. Your own example (lawyer dog) was a criminal context where the courts have found a right to an attorney less urgent than advocates or judges are calling for illegal immigrants here. There are extremely few situations where an American citizen facing criminal charges can defend themselves by complaining that a form does not provide sufficient information about what must be done to achieve some legal defense; indeed, SCOTUS has recently allowed felony convictions over harmless paperwork errors based on interpretations of the law that were not clearly evident to experts.

There are ways to square this circle, but they ultimately give a solution where the rights of illegal immigrants are paramount, and the rights of citizens may sometimes, eventually, maybe, possibly be protected if the current makeup of the relevant appeals courts likes you in particular.