Trump’s Renewed Immigration Crackdown Won’t Escape Court Scrutiny
SAN DIEGO — With a house-cleaning at the U.S. Department of Homeland Security, President Donald Trump is making it clear he wants to get even tougher on immigration.
But can he?
In his first two years in office, Trump has had a difficult time implementing his immigration agenda, with many of his policies being blocked as unconstitutional — or potentially unconstitutional — by federal courts across the nation.
New leadership at DHS may bring fresh ideas, and a stance even more hard line than before, but will run up against the same existing court rulings and likely generate a surge of new legal battles.
“I’m sure whatever Trump tries to do will be challenged,” said Peter Nunez, a former U.S. attorney in San Diego who supports tighter immigration control. “That goes without saying.”
Trump has had a particularly contentious relationship with California, where many of the immigration lawsuits are filed. But while California judges from both political parties have consistently ruled against his administration, so have courts elsewhere.
“We’re bucking a court system that never, ever rules for us,” Trump told reporters last week, adding that “we have the worst laws of any country anywhere in the world.”
Trump has placed much of his hope in the U.S. Supreme Court, where he has had a few legal victories, namely a win on his travel ban to certain predominately Muslim countries.
He said as much in his February announcement declaring a national emergency to secure border wall funding.
“We will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there,” Trump predicted. “And we will possibly get a bad ruling, and then we’ll get another bad ruling. And then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake. And we’ll win in the Supreme Court, just like the ban.”
Christopher Lasch, a law professor at the University of Denver, says the president’s legal tactics reveal his underlying approach to the law — more as a businessman conducting a cost-benefit analysis than as a constitutional officer sworn to uphold it.
“He very much understands the law in this instrumental way — how much do I have to gain, how much do I stand to lose,” Lasch said.
“The view there seems to be that there is going to be a push for policy and agenda regardless of what the law says,” Lasch added. It’s a win-win, the professor argued, because even if the president loses a legal round, his willingness to blaze ahead continues to energize his base.
Nunez pushed back on the notion that Trump is pandering to those who voted him into office.
“What he’s doing is trying to fulfill promises he made to the American public on these issues, in spite of courts that have been generally hostile to anything and everything he’s done and a Congress that’s refused to do a single thing to alleviate any part of this problem,” Nunez said.
Here is a look back at some of Trump’s major immigration policies, and how they’ve fared.
Remain in Mexico
The Trump administration’s latest legal loss came last week when a San Francisco federal judge blocked a program that sent hundreds of asylum-seekers back to Mexico to await their immigration court hearings in the United States.
The program, called Migrant Protection Protocols but known widely as “Remain in Mexico,” was designed to prevent the surge of Central American asylum-seekers from waiting out their immigration cases in the U.S. — either in detention or while released into the community. The government has argued that detention facilities are overcrowded, and many migrants who are released melt into the interior and fail to show up for court.
The program was piloted in January at the San Ysidro Port of Entry and has since expanded to other parts of the southwest border.
The judge found a likelihood that the law used to implement the program does not apply to the 11 asylum-seekers who sued, plus, it does not offer enough protections to those who are returned. He noted, however, that his order doesn’t address whether Congress could authorize such a program with more safeguards, or if it is a “wise, intelligent, or humane policy.”
DHS appealed to the 9th U.S. Circuit Court of Appeals, which temporarily stayed the decision Friday until the court can be further briefed.
The legal fight comes after a federal judge in San Francisco blocked Trump’s attempt to prevent migrants who crossed the border illegally from claiming asylum. The aim was to direct all asylum-seekers to the ports of entry, where caseflows can be metered.
But the judge said the policy was not in line with the law, which states migrants can seek asylum anywhere on U.S. soil.
The most visible piece of Trump’s immigration agenda — his border wall — won one round in San Diego last year.
A federal judge ruled the administration did not abuse its discretion in waiving environmental laws in its rush to begin building and replacing border barriers, including projects in San Diego and Calexico. Instead, the law gives wide authority to DHS when it comes to securing the border, he ruled.
The Center for Biological Diversity and California are appealing the ruling. Meanwhile, DHS continues to waive environmental reviews for wall projects elsewhere.
Another battle is brewing over Trump’s declaration of a national emergency to secure funding for more construction. California and 19 other states are trying to block the president from diverting money from other areas — including military construction projects and anti drug-trafficking programs — to fund more wall.
Similar suits have also been filed by environmental groups, as well as Texas landowners.
Legal experts say the courts will have to first determine if there is proper jurisdiction to decide such a matter, then consider whether the president is overstepping his bounds. The National Emergencies Act does not define what is and is not considered an emergency, leaving presidents with wide latitude.
Meanwhile, Trump is moving ahead with plans. Two Pentagon-funded contracts for replacement wall projects in Arizona and New Mexico were announced last week totaling $976 million.
Held up as a way to deter illegal immigration, the Department of Justice in the spring of 2018 implemented a “zero tolerance” stance: cross illegally and face criminal prosecution.
The program had a shaky rollout in Southern California, a busy federal court district used to handling only serious or particularly egregious immigration violations. Soon, the average of less than two misdemeanor illegal entry cases per month skyrocketed to more than 800 per month.
A special fast-track court was set up to hear the cases, and border-crossers were allowed to plead guilty the same day with little to no jail time.
The flow was so heavy that calendars went late into the night, interpreters could not be found for many non-Spanish speakers, attorneys had difficulty finding time to meet with clients and hearings were punctuated daily with arguments of due process violations.
The process grew so contentious that four months in, the court’s magistrate judges decided to take same-day pleas off the table, giving defendants now up to five days to decide how to proceed.
Trump backed off of true zero tolerance in response to growing public backlash over the policy’s most controversial byproduct: family separation.
But the special illegal entry court still processes the misdemeanor cases, with more of a focus on adults traveling without children these days.
Even before zero tolerance began, the Trump administration was routinely separating families. Two mothers sued, kicking off what became the landmark litigation in San Diego that resulted in the reunification of thousands of families and a stern rebuke of how the administration disregarded the family unit.
The class-action litigation and related lawsuits, overseen by U.S. District Judge Dana Sabraw, does not outright ban family separation when parents are criminally prosecuted. But it does require families to be reunited as soon as the criminal case is over, for the duration of their administrative immigration process that follows.
Separations are also permissible when the children appear to be in danger, the parentage is in doubt or the parent is deemed unfit.
The case also forced a blueprint for tracking separated families in the future, to avoid the chaos that caused at least 400 parents to be deported and left kids in the U.S. fighting immigration cases on their own.
Trump said last week he has no plans of reinstating family separations, blaming the practice on the Obama administration — which separated families but on a much smaller, limited scale. In the same breath, Trump went on to imply separations helped stem border crossings.
“I’ll tell you something, once you don’t have it that’s why you have many more people coming. They are coming like it’s a picnic, like ‘Let’s go to Disneyland.’”
With the order to keep families together during the civil immigration process, the Trump administration says it now faces a shortage of detention space to house them.
The administration has repeatedly criticized the terms of a 1997 court settlement known as the Flores agreement, which puts limits on the amount of time children can be held in immigration detention and regulates their housing conditions.
But the family separation case has bumped up against the Flores agreement, leaving the administration with a few options: detain the families together; separate the family and house the children in shelters with parental consent; or release the families in the community on parole.
Faced with the surge in arriving migrant families — many who are claiming asylum — the government said it has been left with no other option than to release the families on parole, sometimes with GPS monitoring.
The so-called “catch and release” practice has been widely criticized by conservatives as an incentive for families to continue to migrate north. The Trump administration says once released, the families disappear into the U.S. and wait years for their immigration cases to proceed, with few showing up for their hearings.
According to Justice Department data, removal orders were filed against 4,599 asylum-seekers in 2017 who failed to show up for court. About 119,000 asylum applications were filed that same year.
The administration tried to amend the Flores settlement in Los Angeles federal court, to lengthen the time kids could be detained, but a Los Angeles judge denied the request last July.
Courts have also found problems with the broad detention of asylum-seekers. A federal judge in Seattle earlier this month ordered bond hearings within seven days for those who pass the initial “credible fear” screenings. The U.S. must also prove why the migrants shouldn’t be released.
However, in another case, the Supreme Court handed Trump a victory last month when it comes to legal immigrants who have past crimes on their records that could trigger deportation. The 5-4 vote upheld the government’s ability to take such immigrants into custody and hold them indefinitely during their immigration case, even if they served their sentences long ago.
The fate of so-called Dreamers has been an early point of contention in the Trump era, one the president has tried to use as a bargaining chip with congressional Democrats when it comes to overhauling immigration laws.
The 2012 Deferred Action for Childhood Arrivals, or DACA, program, allows young people who were brought illegally to the U.S. as children to go to school or work in the U.S. as long as they register and remain law abiding.
When the attorney general announced in September 2017 that he was terminating DACA, several lawsuits followed.
So far, DACA has survived.
In one lawsuit, filed by California Attorney General Xavier Becerra, the University of California and others, a federal judge in San Francisco issued a preliminary injunction that allows current DACA participants to renew their status.
The government has twice petitioned the U.S. Supreme Court to intervene, and the high court has declined once already. In November, the 9th Circuit upheld the preliminary injunction, ruling the plaintiffs were likely to win on their claim that the termination of DACA was “arbitrary and capricious” and therefore unlawful.
In a new attempt to get it before the high court, the government has argued that the 9th Circuit ruling orders the U.S. to “preserve a policy that affirmatively sanctions the ongoing violation of federal law by 700,000 aliens who have no lawful immigration status and no right to the policy’s continuation.”
Other lawsuits are ongoing in New York, Texas and Washington, D.C.
In the summer of 2017, the Trump administration began requiring cities to cooperate with immigration enforcement to be eligible for federal anti-crime grants.
Many communities and states that have enacted so-called “sanctuary” policies pushed back with lawsuits, including California.
The Trump administration has argued that laws that prohibit local law enforcement from sharing the immigration status of those in their custody creates a public safety issue. In turn, some cities and states argue that residents who fear immigration enforcement are less likely to cooperate with local police, in turn making communities less safe.
So far, the courts have largely sided with the states.
In December, a Manhattan federal judge ruled in favor of New York state and city, Connecticut, New Jersey, Washington, Massachusetts and Virginia, stating the information-sharing requirement “impinges on (the states’ and city’s) sovereign authority and their citizens’ liberty to be regulated under their preferred state and local policies.”
The ruling follows similar ones in California, Illinois and Pennsylvania, although none of the orders have resulted in a nationwide injunction on the DOJ grant rules.
In reaching their decisions, some judges pointed to a 2018 Supreme Court decision, penned by conservative Justice Samuel Alito, that struck down a federal law that required states to ban sports gambling. That could temper Trump’s chances at the high court.
One of the few immigration moves to make it to the Supreme Court has been Trump’s executive order severely restricting travel to the U.S. from several predominately Muslim countries for national security reasons. Two lower federal appeals courts had earlier blocked it.
In June, the high court found in favor of Trump in a 5-4 vote split along ideological lines. The ruling affirmed the president’s power to secure the borders, despite his anti-Muslim-tinged remarks made in conjunction with the travel ban.
“We must consider not only the statements of a particular president, but also the authority of the presidency itself,” Chief Justice John Roberts wrote.
The ban affects travel from eight nations, six of them predominately Muslim: Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela.
©2019 The San Diego Union-Tribune
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