Federal courts have dealt two major setbacks to President’s Donald Trump’s immigration enforcement strategy on the southern border, preventing him from commencing his plan to detain families for longer periods and to expand the administration’s power to fast-track deportations.
In rulings late Friday, federal judges in California and Washington, DC, blocked two Trump rules from going into effect. One would have eliminated the 20-day limit on how long immigrant children can remain in adult detention facilities. The other would have allowed the administration to deport tens of thousands of immigrants without a hearing.
Both are key pieces in the administration’s efforts to drive down the number of asylum seekers showing up at the southern border.
Almost 458,000 families were arrested at the border between October 2018 and August 2019 as unprecedented numbers of families flee rampant crime, violence, and corruption in Central America. Trump has seen these rising numbers of border arrests, generally considered a proxy for levels of unauthorized immigration, as a crisis worthy of declaring a national emergency in February.
Trump still has many other tools at his disposal to target migrants on the border: they can be returned to Mexico to await decisions on their asylum applications, barred from obtaining asylum if they passed through another country before arriving in the US, or sent back to the Northern Triangle countries of Guatemala, El Salvador, and Honduras to seek protections there.
But Friday’s rulings will slow down those strategies, unless they are reversed on appeal — proving that the courts have increasingly become a barrier to Trump’s immigration agenda.
Trump won’t be able to detain families indefinitely
The 20-day limit on the detention of immigrant children in adult detention facilities is grounded in a decades-old court order known as the Flores settlement agreement, which created baseline standards of care for immigrant children in detention.
US District Judge Dolly Gee found Friday that the Trump administration’s rule eliminating the 20-day limit, which was published in August, conflicted with the Flores agreement — preventing it from going into effect as previously scheduled in October.
The Trump administration has repeatedly cited the agreement as an obstacle to keeping families together — once the 20 days are up, they say they have no choice but to keep parents in detention while they face immigration court proceedings, which could last months or even years, and to transfer the children to Department of Health and Human Services custody. HHS then administers their care in less restrictive settings and releases them as soon as possible to verified “sponsors,” who are usually children’s extended family members.
A California court ordered the administration to stop separating families in long-term detention, and Trump moved to end the practice in a June 2018 executive order. There were, however, still instances of family separation reported thereafter.
That practice may have finally stopped, if only because the acting DHS Secretary Kevin McAleenan announced September 23 that the administration would begin sending most immigrant families arrested along the southern border back to Mexico to await their immigration court hearings, rather than keeping them in detention.
The administration still wants to be able to detain families for longer periods; McAleenan has said that the rule would have provided the administration with another option for handling family cases.
“After the Flores regulations are finally adjudicated and put in place, that time limit will be alleviated and it will be [another] option for managing cases,” he said. “We will hold them together in an appropriate setting through their immigration proceeding.”
In the meantime, requiring families to wait in Mexico serves as a way to “keep families together and not in custody,” he said.
Returning families to Mexico en masse raises its own concerns. Recent reports have shown that migrants sent back to Mexico under the policy have been robbed, kidnapped for ransom, raped, tortured, and killed. The State Department, meanwhile, has issued travel warnings for US citizens traveling through areas along the border where migrants tend to wait.
The administration does have another option: releasing families into the interior of the US while they wait for their hearings, as prior administrations have done. But Trump officials have argued that there is no way to ensure that immigrants will actually show up for their hearings if they are allowed to roam free.
Most immigrants do voluntarily show up for their court hearings. Immigration judges ordered immigrants deported when they failed to appear in immigration court in about 25 percent of cases in fiscal year 2018, similar to rates over the previous five years.
Most immigrants will still get their day in court
The Department of Homeland Security had published a rule in July that could have been used to deport an estimated 20,000 people annually without them ever setting foot in a courtroom or seeing a lawyer. It represented a massive expansion of the administration’s immigration enforcement apparatus that would have restricted many immigrants’ access to a full and fair hearing, advocates have argued.
Immigrants facing deportation typically have a short, initial hearing before a judge and a government attorney to learn about their rights and how their case will proceed. They are usually given time to retain a lawyer and prepare their case, which includes gathering documents attesting to experiences that might make them eligible for relief from deportation or protections under the asylum system or international torture agreements.
They then have to wait for another hearing in which they actually argue why they should be permitted to remain in the US before an immigration judge makes a decision in their case. Immigrants with currently pending cases have been waiting almost two years on average for that second hearing, according to the most recently available data.
This whole process is typically lengthy, and with good reason: Immigrants have a right to seek protection in the US and should be afforded a full opportunity to do so. The administration rule’s, however, would have condensed that process for many immigrants to a matter of weeks, which most immigration attorneys say is not conducive to building a legal case in their favor.
Under current law, the US has only been able subject a small proportion of immigrants to these “expedited removal” proceedings: namely, individuals who are arrested within 100 miles of a land border within two weeks of their arrival. But the rule would have also included immigrants found anywhere in the US if they arrived within the last two years, a substantially larger group. That would have given the US Immigration and Customs Enforcement a green light to sweep communities across the country for unauthorized immigrants and deport them quickly.
McAleenan, the acting DHS secretary, had defended that the rule was grounded in his authority under immigration law to have “sole and unreviewable discretion” to alter who is subject to these fast-tracked deportation proceedings. But US District Judge Ketanji Brown Jackson found Friday that the administration likely didn’t abide by proper rulemaking procedures in publishing the policy without offering the public advance notice and the opportunity to comment, blocking it temporarily from going into effect.
“The court rejected the Trump administration’s illegal attempt to remove hundreds of thousands of people from the U.S. without any legal recourse,” ACLU attorney Anand Balakrishnan, who argued the case, said in a statement.