I.M. v. U.S. Customs and Border Protection, et al., No. 1:20-cv-3576-DLF (D.D.C., filed Dec. 11, 2020) and No. 22-5071 (D.C. Cir., filed Mar. 18, 2022)

I.M. is a sustainable agriculture entrepreneur and founder of a nonprofit organization that promotes sustainable farming who came to the United States on a B-1 visa to learn more about sustainable agricultural practices. Despite having been admitted for this purpose in 2019, when he attempted to reenter the country in 2020 on a valid B-1 visa he was detained on erroneous grounds by a Customs and Border Protection (CBP) officer, who unilaterally decided to revoke I.M.’s visa and expel him from the country under the expedited removal statute, 8 U.S.C. § 1225(b)(1)(A)(i). At no point did I.M. have an opportunity to obtain judicial review of CBP’s legally and factually incorrect decisions to detain him, revoke his visa, and deny him admission to the country.

On December 11, 2020, I.M. filed a habeas petition and complaint against federal government defendants, including CBP, seeking vacatur of his removal order and reinstatement of his B-1 visa. I.M. argued that an unappointed CBP employee exercising unreviewed, unilateral discretion to revoke his visa and remove him violated the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. The Appointments Clause requires that federal government officials who exercise significant authority be appointed by the President or, with Congress’s authorization, by a Head of Department or a court of law. I.M. claims that the decisions of CBP employees to unilaterally order removal under the expedited removal statute are void unless those employees were appointed consistent with the requirements of the Appointments Clause.

The government filed a motion to dismiss the complaint and petition on jurisdictional grounds in late February 2021. On January 1, 2022, the court granted the Defendants’ motion to dismiss in a sealed opinion. On March 18, 2022, Plaintiff filed a notice of appeal with the D.C. Circuit. Briefing is complete and the D.C. Circuit held oral arguments on January 25, 2023. A decision is pending.

• Complaint
• Government’s Motion to Dismiss
• Plaintiff-Petitioner’s Opposition to Motion to Dismiss
• Government’s Reply in Support of Motion to Dismiss
• Plaintiff-Appellant’s Opening Brief
• Harvard Immigration and Refugee Clinical Program Amicus Brief
• Defendants-Appellees Answering Brief
• Plaintiff-Appellant’s Reply

Counsel: Democracy Forward Foundation, National Immigrant Justice Center, Latham & Watkins

Contact: Mark Fleming, National Immigrant Justice Center, mfleming@heartlandalliance.org

Additional links:
• NIJC, DHS and CBP Sued for Unconstitutionally Allowing Unappointed Border Employees to Deport Immigrants (Dec. 11, 2020).