Legal fights over due process rights for migrants and asylum-seekers who illegally cross the US border are reaching a fever pitch this week on both the national and world stages as President Trump viciously attacked immigrants’ constitutionally mandated due process rights Sunday.
“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” the president tweeted.
Pushing to protect such rights for vulnerable populations arriving at the southern border from Central America, attorneys are in a frantic rush to petition US courts and international governing bodies to halt any further separations and challenge the president’s recent executive order to detain families together.
Trump’s order directs Department of Homeland Security (DHS) officials to continue the administration’s draconian “zero-tolerance” policy of criminally prosecuting all undocumented border crossers, and contains exceptions that still allow for the splitting up of families.
While the administration maintains there has been no change in the policy, US Customs and Border Protection (CBP) Commissioner Kevin McAleenan said his agency would stop handing over migrants for prosecution until the government decided on a policy that didn’t result in the “extended” separation of families.
Attorneys, however, argue that Trump does not have the legal authority to indefinitely detain families, as his order conflicts with the nearly 20-year-old Flores court agreement requiring that children must be held in the “least-restrictive” conditions possible. In 2015, a federal court ruled that to uphold the older settlement, children must be released from detention jails within 20 days. Trump’s executive power can’t overturn a federal court decision.
Thus, the Justice Department asked Federal Judge Dolly Gee Thursday to alter the settlement to allow the Trump administration to indefinitely detain families after illegally crossing the border. The emergency motion, filed in Los Angeles, seeks to change the provisions of Flores that prohibit detention of migrant children for longer than 20 days, as well as its requirement that children be held in licensed, state-approved daycare-like jails.
Peter Schey, the lead attorney representing migrant children in the Flores case, told The Washington Times he is considering asking the District Court to block any deportation of a parent who has been separated from their child until they can be reunited. Digging in, Schey said that the government’s filing Thursday is “deceptive and dishonest,” and that the administration is trying to deflect blame for separating families after intense public backlash.
Karen Tumlin, director of legal strategy at the National Immigration Law Center concurs, saying that under the general rules of civil procedure, the Trump administration could have at any time requested a modification of the Flores injunction, and could have done so even before it implemented its zero-tolerance policy. “Creating your own crisis by a policy choice to rip families apart, in my mind, doesn’t justify a change in the law,” she told reporters last week.
Trump administration officials have falsely insisted that they have had to separate families under its zero-tolerance policy because of Flores protections. Trump has called the protections “loopholes,” and has blamed Democrats for failing to reverse them, saying the laws “force” the administration to have to separate families under its zero-tolerance policy.
Moreover, as Truthout previously reported in an in-depth piece this month, not only is there no statute mandating that the government criminally charge families who cross the border without permission, there have long been alternatives to both separating families and placing them together in immigrant jails.
The Trump administration shuttered the most humane, least-restrictive alternative program that provided families with social services last June, for instance. The terminated Family Case Management Program and other, similar programs have proven to be cheaper, more legally effective and less of a strain on an already-overburdened immigration system.
Meanwhile, Trump’s executive order has sown confusion among federal officials trying to carry it out at the southern border. The order instructs heads of government agencies to make jail space available for families, including instructing the Department of Defense to “construct such facilities if necessary.” Immigration officials followed the order with a notice Friday seeking up to 15,000 more beds to detain families.
Additionally, the Pentagon told The New York Times that as many as 20,000 migrant children could be incarcerated on four US military bases. Officials, however, didn’t say whether their parents would also be detained on the bases. Worse still, according to documents obtained by Time, the US Navy is planning to construct “temporary and austere” tent cities to detain 25,000 migrants at abandoned airfields on remote bases in California, Alabama and Arizona.
Children and/or families’ time within these new jailing spaces, however, still remains temporary as long as Flores remains intact. Flores attorneys believe the prior legal precedent is in their favor — something Justice Department attorneys may also be wary of, as a Department spokesperson emphasized that the administration’s recent request to alter Flores “is no substitute for a move by lawmakers.”
Congress Seeks Legislative Changes
After rejecting a more hard-line immigration package last week, House lawmakers are expected to vote Wednesday on a “compromise” immigration measure backed by House Speaker Paul Ryan that would codify the president’s order seeking to detain migrant families together indefinitely.
The measure would carve out a path for Dreamers facing the loss of protections under the Deferred Action for Childhood Arrivals program to apply for legal status. The bill, however, also includes a promise of more than $23 billion for Trump’s border wall, and would curb authorized family-based immigration. The bill also does nothing to reunify the more than 3,700 children who have been separated from their parents since October.
Before Trump signed the executive order last week, Republicans drafted a new version of the compromise bill that would undo Flores with a provision requiring DHS to keep families together while parents go through legal proceedings. The bill’s latest draft now allocates $7 billion to expand three family detention jails that Immigration and Customs Enforcement already operates.
“[The Ryan-compromise bill] moves toward the idea that ‘OK, we’ll do bigger and better detentions, but we’ll do it around families, and the separations might not occur, but we’re going to ratchet up the detention facilities for for-profit private prisons,'” said Rep. Raúl Grijalva (D-Arizona) during a press call.
Additionally, several Republican lawmakers have introduced their own stand-alone bills focusing on how asylum cases are handled at the border. Those bills would mostly keep families together in detention jails while authorizing hundreds of new immigration judges and requiring the DHS to prioritize resolving family cases. If the compromise bill fails — a likely outcome — the House may look to a narrower measure addressing the detention of migrant families.
“I think the entire purpose of this manufactured crisis by the Trump administration was to try to jam through legislation in Congress to give them very broad powers to detain and deport people with no due process or protections,” said Kerri Talbot, legislative director of the immigrant rights advocacy group Immigration Hub.
Flores lead attorney Schey told Huffington Post that even if the compromise bill passed, however, “it wouldn’t have an immediate impact.” Rather, according to Schey, the government would again have to return to court and ask Judge Gee to terminate the settlement, which Schey and his counsel will oppose.
Even if they lose after an appeal, Schey and his team will simply file another lawsuit and put the federal government right back where it started before trying to defeat Flores through legislation. “Even if they succeed in getting some legislation that’s onerous and inhumane, I wouldn’t be surprised if a year or two later we can get it set aside,” Schey said.
Still, Congress maintains broad authority to change immigration laws, making legal challenges more difficult. Ultimately though, Congress cannot pass laws that are ruled unconstitutional, and courts could, in the end, find that lengthy family detentions violate the rights of families — though that process could take years.
“By no means is [the Flores case] the exclusive place where challenges can be brought to the administration. Current and ever-changing challenges can be brought regarding separations, and now family jailing,” Tumlin said. “I think that litigators across the country … will be looking to ensure that the administration is abiding by its duties under the existing [Flores] injunction, under the Constitution and under other federal immigration law.”
Prior Challenge Moves Forward
As Congress and attorneys battle over Flores this week, a separate class-action challenge brought by the American Civil Liberties Union (ACLU) in February over the administration’s practice of separating families could be decided as early as Wednesday.
ACLU lead attorney Lee Gelernt has requested that District Judge Dana Sabraw issue an expedited preliminary injunction forcing the government to immediately halt separations and create a speedy process for reunification since Trump’s order contains broad exemptions and provides no process to reunite families.
The ACLU filed the federal lawsuit in California on behalf of “Ms. L,” a 39-year-old asylum-seeking mother who traveled with her 7-year-old daughter from the Democratic Republic of Congo to Mexico. Ms. L was separated from her daughter shortly after surrendering to immigration agents at the San Ysidro Port of Entry near San Diego in December.
Although Ms. L and her daughter were reunited in March, the class action lawsuit remains ongoing, contending Ms. L’s constitutional right to due process was violated.
On Friday, an attorney for the government confirmed numerous reports that the government has no real mechanism in place for reunification. Attorney Sarah Fabian told the court that there’s no system of communication between the Office of Refugee Resettlement, tasked with the care of separated children, and the detention jails where their parents are incarcerated.
A fact sheet released Saturday by the DHS, however, claims that authorities know the location of all separated children, and are working to reunite them. Still, reports of now-freed migrants who remain unable to find their kids contradict the government’s assertions.
Moreover, the fact sheet sparked further controversy by outlining that parents who sign a “voluntary departure order” green lighting their own deportation can expect to be reunited with their children.
“We have no reason to believe that [voluntary deportation] is the fastest way for parents to be reunited with their children,” Efrén Olivares, an attorney for the Texas Civil Rights Project, told reporters on Sunday. “Putting them in that position is not a voluntary [deportation]; it’s being obtained under duress.”
The Justice Department has until Wednesday afternoon to respond to the ACLU’s request for a preliminary injunction.
International Lawyers Join the Fray
Legal battles are also playing out at the international level this week.
Last month, the Texas Civil Rights Project, Women’s Refugee Commission and the Immigration Clinic at the University of Texas School of Law, among others, filed emergency request to the Inter-American Commission on Human Rights (IACHR) to put a stop to the administration’s practices. The request was filed on behalf of five parents who had been separated from their young children by CBP officials in South Texas.
The IACHR followed up on that request Friday, demanding details about the Trump administration’s treatment of separated children and the reunification process, including details about the locations of separated families, their psychological state and conditions inside the federal jailing spaces in which they are being detained. The government likewise has until Wednesday to respond, but can file for an extension.
“This demand for answers by the Inter-American Commission represents a key first step toward rendering a decision that could lead to stopping the Trump administration’s inhumane and illegal practices,” Texas Civil Rights Project’s Olivares said Sunday. “The Commission has asked the government to provide the justification for separating the children from their parents. … So, we’ll see how the State Department responds to that question.”
The United States is a founding member of the Organization of American States, from which the IACHR draws its jurisdiction, and its decisions are binding for signatory members. Still, the IACHR has no international enforcement mechanism, and the Trump administration has recently dismissed other international governing bodies.
The administration left the United Nations Human Rights Council last week after a UN special rapporteur on the rights of migrants issued a strongly worded statement condemning the practice of separating families, and urging the government to reunite families.
In response to the UN’s criticism of the Trump administration’s zero-tolerance policy, among other long-standing international issues, Nikki Haley, the US ambassador to the UN, claimed the international community is disproportionately focused on Trump’s actions while ignoring the “reprehensible human rights records of several members of its own Human Rights Council.”
According to Olivares, however, the UN could still request to visit detention jails and interview state officials. Responding to Truthout’s question about whether the legal organizations would file a separate petition to the IACHR challenging the conditions of detention if the Flores settlement is overturned or modified, Olivares said attorneys “will review each development as it comes.”
Still, immigrant rights advocates and attorneys continue to stress that, instead of any legislative or legal action that would kill Flores and detain families together indefinitely, the Trump administration must simply reverse its zero-tolerance policy.