Commentary: Big Tent Ideas

MATTHEW KOLKEN: Cases Poised To Reshape US Immigration Law

Joe Ravi/Wikimedia Commons

Over the next year, several major immigration cases are poised to reshape the landscape of U.S. immigration law, specifically in the areas of birthright citizenship, asylum procedures, and the due process afforded noncitizens before they may be deported. Many of these cases are before the Supreme Court or are moving through the federal courts of appeals. Should the Trump administration secure victories, the cumulative effect would be a significant shift toward enforcement-centric interpretations of the immigration law and the United States Constitution.

The most consequential case on the Supreme Court’s calendar is Barbara v. Trump, which challenges Executive Order 14160, President Trump’s exclusion of birthright citizenship for children born on U.S. soil to undocumented parents and birth tourists. Lower courts enjoined the executive order, relying on longstanding precedent—most notably United States v. Wong Kim Ark (1898)—holding that the Fourteenth Amendment confers citizenship on nearly all persons born on U.S. soil. The administration argues that the Citizenship Clause was intended to secure citizenship for newly freed slaves, not to guarantee citizenship to the children of noncitizens with no durable legal connection to the country. Certiorari was granted in December 2025, and arguments are expected in spring 2026.

Another closely watched case, Noem v. Al Otro Lado, addresses whether an alien stopped on the Mexican side of the U.S.-Mexico border is someone “arriving in” the U.S., and the legality of the policy of “metering” asylum requests at ports of entry.  Customs and Border Protection limit the number of asylum seekers processed each day during periods of high demand. The Ninth Circuit held that the policy violates the Immigration and Nationality Act, reasoning that individuals who present themselves at ports of entry—even if turned away—are “arriving in” the United States and therefore entitled to seek asylum. The administration argues that metering is a necessary tool to manage finite resources and maintain order at ports. The Supreme Court is expected to hear arguments in early 2026.

The Supreme Court has already heard arguments in Urias-Orellana v. Bondi, a case that probes the degree of deference federal courts owe the Board of Immigration Appeals when applying the statutory definition of “persecution.” The case involves a Salvadoran family whose claims of gang threats and limited physical harm were deemed insufficient by the BIA to satisfy the burden of proof for asylum. The First Circuit upheld that determination. At stake is whether courts must defer to the BIA’s judgment, or whether judges may independently assess whether undisputed facts meet the legal threshold for persecution. A decision is expected this spring.

In the D.C. Circuit, Make the Road New York v. Noem challenges the Trump administration’s use of expedited removal, which allows immigration officers to summarily deport certain recent entrants without a full hearing before an immigration judge. A district court blocked the policy in August 2025 on due process grounds, but the government argues that Congress expressly authorized expedited removal in 8 U.S.C. § 1225(b) and intended it to apply broadly to recent unlawful entrants. Supporters view the policy as essential to deterring large-scale unlawful migration; critics argue that its expansion strips noncitizens of meaningful procedural safeguards.

Another significant case, D.V.D. v. DHS, concerns the government’s authority to remove individuals to third countries not specified in their original removal orders, without advance notice or an opportunity to raise fear-based claims related to those countries. A Massachusetts district court issued a nationwide injunction in April 2025, but the Supreme Court stayed that injunction by a 6–3 vote, allowing the policy to continue until the case is decided.  The stay does not resolve the merits. On appeal, the government relies heavily on principles of agency deference and argues that a second evidentiary hearing is unnecessary to afford due process prior to removing an alien to a third country. Even if the administration ultimately prevails, courts may still require minimal procedural safeguards.

Finally, Castañon Nava v. DHS in the Seventh Circuit addresses the limits of ICE’s warrantless arrest authority under 8 U.S.C. § 1357(a)(2), which permits such arrests before a warrant can be obtained when officers have probable cause to believe an illegal alien is a flight risk.  The case raises broader questions about the availability of class-wide relief against immigration enforcement practices and the constraints imposed by 8 U.S.C. § 1252(f)(1), which limits the injunctive relief that lower federal courts can grant in immigration enforcement cases.

Taken together, the outcome of these cases will determine if the judiciary is willing to empower executive discretion, statutory enforcement, and originalist constitutional interpretation. Whether that trend ultimately results in sweeping changes to the law remains to be seen, but the stakes are high, and if the Trump administration prevails it will result in stricter borders, faster removals, and reduced procedural protections for illegal aliens.

Matthew Kolken is a Buffalo-based immigration attorney and partner at Kolken Law, P.C., with over 28 years of experience defending immigrants in deportation proceedings, asylum cases, and appeals before immigration courts, the Board of Immigration Appeals, and federal courts, while serving as a former elected director on the American Immigration Lawyers Association’s Board of Governors.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

(Featured Image Media Credit: Joe Ravi/Wikimedia Commons)