THE OTHER SHOE DROPPED Thursday in Oakland when a federal judge expanded his earlier order protecting the immigration status of two dozen international students to cover all similarly situated students throughout the United States.
At the close of a hearing on May 14, U.S. District Judge Jeffrey White entered a preliminary injunction to preserve the immigration status of approximately 25 international students at Bay Area colleges and universities while their lawsuits against the government proceeded to a final resolution.
At that time, White said he had not decided whether the injunction should be given nationwide effect. He promised to study that issue and advise the parties promptly of his decision.
Nationwide injunctions have been a flashpoint with President Donald Trump’s administration, whose representatives contend that when the government loses a case, the court order should only apply to the specific parties that sued it, not all people similarly situated throughout the country.
The administration has raised its position frequently and the issue was argued in another group of cases before the U.S. Supreme Court on May 15. No decision has yet been rendered in that matter.
Thursday’s order made it clear that White resolved the question in favor of making relief available to all international students who are in the same situation as the plaintiffs.
Among the reasons for his decision, White wrote, “At each turn in this and similar litigation across the nation, Defendants have abruptly changed course to satisfy courts’ expressed concerns. It is unclear how this game of whack-a-mole will end unless Defendants are enjoined from skirting their own mandatory regulations.”
Immigration status severed by SEVIS
The dispute involves international students who hold F-1 visas allowing them to study (and, in certain pre-approved circumstances, work) in the country.
The Trump administration used a matching process to compare a list of all 1.3 million F-1 visa holders to another list that included the names of individuals who had some type of negative or derogatory information associated with their names.
The matching process produced 16,000 names, which was later reduced to 6,400.
Without any individualized determination, the administration began terminating the SEVIS, or Student and Exchange Visitor Information System, records of students who were on the list of matches. Roughly 4,700 students had their SEVIS records terminated before courts around the country began to intervene.
SEVIS is the tracking system that U.S. Immigration and Customs Enforcement uses to track students with F-1 status in the country. Termination of their SEVIS records put the affected students at risk of deportation or other adverse actions.
After the involvement of the courts and public backlash, the administration backpedaled and said it was restoring the SEVIS records of all the students who had their status terminated, and gave assurances that the students would have no negative consequences as a result of the period of termination.
Based on those assurances, the government’s lawyers told the judge that there was no ongoing harm to the students and therefore no need for him to issue any injunction against the government.
White did not find the government’s assurances to be meaningful. He identified a number of areas where the assurances were contradicted by the actions and statements of government officials. He said that it was not speculative “to conclude that, in the absence of an injunction, Defendants would abruptly re-terminate SEVIS records without notice.”
White noted that while many cases challenging the administration’s action were filed throughout the country, the case before him was the only one in which a nationwide injunction was requested.
He found that nationwide relief was appropriate in this case because the legal challenge — that the government’s actions violated the federal Administrative Procedure Act — was the same in all parts of the country and in that situation nationwide relief was arguably the norm.
The case for ‘nationwide relief’
White also noted that prior court decisions have recognized that there is a “particularly strong claim for uniform, nationwide relief” in the immigration context.
He used unusually sharp language to make the point that the policy that generated the lawsuit was “a uniform policy that uniformly wreaked havoc not only on the lives of Plaintiffs here but on similarly situated F-1 nonimmigrants across the United States.”
On that basis, he said that his order would not only protect the plaintiffs in the litigation before him but also “similarly situated individuals nationwide.”
One issue of potential importance was not discussed in White’s order.
The rules that govern litigation in federal courts provide that when a court enters an injunction, the party asking for the injunction — usually the plaintiff — must post “security” to cover any damages caused to the defendant by the injunction in the event that when the matter is finally resolved, the plaintiff does not win the case.
Security means collateral, typically in the form of a bond.
While security is required, the judge issuing the injunction has wide discretion to determine the amount — if any — of any bond, and in litigation against the federal government, courts typically do not require plaintiffs to post a bond.
The rationale is that many plaintiffs suing the government are non-profit corporations or individuals who do not have the wherewithal to obtain a bond in a meaningful amount. Requiring them to post a bond would likely discourage them from suing.
White followed that course and exercised his discretion to waive the bond requirement.
One big beautiful bombshell?
His opinion does not mention whether he was aware of the fact that in the early morning hours on Thursday, after an all-night session, the U.S. House of Representatives passed a budget bill called the “One Big Beautiful Bill” that included a provision that makes the issue of a bond in federal litigation potentially of great importance.
Buried in the thousand-plus-page bill, there is a provision seemingly unrelated to the main subject of the legislation, that says, “No court of the United States may … enforce a contempt citation for failure to comply with an injunction… if no security was given when the injunction or order was issued.”
In other words, a federal court that finds that a party has violated its injunction may not use its power to hold a party in contempt if a bond was not required when the injunction was first entered. The bill makes that provision retroactive to injunctions issued before the bill’s enactment.
Courts have traditionally relied on their power to hold parties in contempt as an important — perhaps the most important — tool for making certain that their orders are obeyed.
The bill does not require that the bond be in any specific amount. That has led some legal commentators to suggest that a bond in any amount — even a single dollar — would technically comply with the bill’s proposed language.
Judge White’s order does not include such a provision; he simply waived the bond requirement.
Whether that proves important will depend, among other things, on the legislative process.
While the provision eviscerating the court’s contempt power is in the bill approved by the House, it will not become law unless the bill is also approved by the Senate and signed by the president.
Requests for comment on the decision by the parties’ lawyers were not immediately returned.