Two recent cases in federal courts, one in the Supreme Court and the other in a Chicago federal appeals court, demonstrate how the courts can limit the power of the Trump Administration to carry out its severe crackdown on illegal immigration.
On Tuesday, the Supreme Court rejected an argument that has been used to justify deportations for immigrants convicted of felonies. Justice Neil Gorsuch, the Justice nominated by President Trump, was the deciding vote. He felt that the federal law dictating deportation for those guilty of “a crime of violence” is too vague, and that “a government of laws and not of men can never tolerate that arbitrary power.”
In Chicago, a federal appeals court denied a request from Attorney General Jeff Sessions for cities to hand over detained immigrants for deportation as a condition to be eligible for certain crime-fighting grants. Judge Ilana Rovner, a judge appointed by Republican President George H.W. Bush, wrote that Congress did not include any immigration enforcement conditions when they authorized the federal grant funds, and as such the Department of Justice could not create any such condition.
VERDICT: One of President Trump’s larges legacies will be the number of judges he has appointed to the courts. Despite the inevitable partisan bias of the judges being appointed to the courts, judges still operate under the rule of law.
As such, it is refreshing to see judges appointed by conservative presidents maintaining their judicial integrity in pushing back against the executive branch’s attempts to expand their authority in their illegal immigration crackdown.
After a lengthy battle in the Supreme Court in Sessions vs. Dimaya, the deportation law in place for immigrants convicted of violent felonies was discarded for being “unconstitutionally vague”. The case was originally brought to the Supreme Court in January of 2017, right after the death of Justice Scalia. The vacancy in the Court left the ruling deadlocked 4-4. After Justice Gorsuch joined the court, the case re-opened in October of 2017. On Tuesday, Justice Gorsuch became the deciding vote, leading to the end of this unclear law.
The original case follows James Dimaya from the Philippines, who came to the United States in 1992 as a lawful resident at 13 years old. After committing residential burglaries in 2007 and 2009, Dimaya was to be deported for committing “aggravated felonies”. This began a discussion of which offenses were to be considered a part of this category, as it varied between courts and judges. Since deportation is no small punishment, the law was called into question for its vagueness, which left immigrants vulnerable to the whims of the courts and “arbitrary power” as worded by Gorsuch.
Although Justice Gorsuch was appointed by the Trump administration, and voted conservatively on a previous immigration case in the Supreme Court, his swing left in this case is not entirely surprising. Gorsuch champions himself as an advocate of due process, which can sometimes swing in favor of conservative rulings and sometimes in favor of liberal ones, in this case, the latter.
VERDICT: This ruling is a huge win for immigration activists, as it will save perhaps thousands of immigrants from deportation. The law in question was too vague to persist, as its lack of standardization created a lack of proper justice. It will be interesting to see whether or not a new law will come to replace this one in coming months.
As of recent, California has been leading the way in establishing sanctuary cities for immigrants who might need a safe and protected place to be amidst all of the immigration reform that has left so many families uncertain of their futures in the United States.
Unfortunately for those who are in support of immigration safety zones, a recent federal court ruling has found that immigration is a federal matter, not a state one. This verdict has significant impact mainly because it means that the federal government can overrule anything that the states do to protect immigrants within their borders.
The supremacy clause is what is behind this ruling which basically states that state law must follow federal law when outlined by the court or congress.
Our Verdict: While the government may be able to pass laws on immigration, it is an overstep to control which states choose to be sanctuary states and which do not. It should be up to the states to decide based on overall constituency approval of whether or not they decide they want any law, specifically this one regarding providing safe haven.
On Thursday, Immigration and Customs Enforcement raided a rural Tennessee company and arrested and detained 97 immigrants. The company was a meat-packing company called Southeastern Provisions in Bean Station. This is said to be the largest immigration raid in a decade, since President Bush was in the White House, reflecting Trump’s hard stance on immigration. Of those detained and arrested, ten were for federal immigration charges, one for state charges, and 86 were detained for being in the U.S. illegally. Of those 86, 32 were released almost immediately, while the other 54 continue to be detained.
The raid was enacted under the guise of a federal criminal search warrant for the meat-packing company, which was under suspicion for tax evasion as well as hiring immigrants in the country illegally, without checking documentation. This investigation began after the local bank noticed the large sums of money that Southern Provisions was withdrawing. Southeastern Provisions has yet to be indicted with any criminal charges. The working conditions at the company were also under scrutiny, as many workers were made to work overtime without extra pay, and made to work in harsh physical conditions, such as working with bleach without goggles or other protection.
VERDICT: As this was the one of the largest immigration raids in history, it is easy to see that Trump is not backing down from his bottom line on immigration. On Friday, the day following these arrests and detainments, Trump also announced the end of the “Catch and Release” policy which would allow immigrants to be released after being detained, while waiting for a hearing. Immigration Activists have denounced this raid, citing that people are afraid to leave their homes for fear of being detained. Additionally, the economic burden is a clear problem for families of these workers, creating an immensely difficult situation for this community.
President Trump signed a memo on Friday directing his administration to end the “catch and release” policy, which is when immigrants who show up at the border are released from detention while waiting for their cases to be processed.
The memo that President Trump signed does not actually require any immediate or concrete steps to enact these changes; rather, the memo directs officials to tell the president what steps they are doing to end “catch and release” practices. Though this memo doesn’t require direct policy change, it shows how Trump is willing to use executive action to take steps to solve a problem he has complained Congress will not.
VERDICT: The memo is just another step the Trump administration has taken in the past week to begin acting on their tough immigration talk. President Trump ordered the National Guard to patrol the border with Mexico as a response to the lack of funding for the border wall in the budget bill.
Of course, the memo President Trump signed does not necessarily require direct action, but it may begin a process that would end the “catch and release” practice as it is now. It will be important to pay attention to see if any actions do come as a result of this memo.
As noted in our April 3rd blog, the Department of Justice sent a memo to immigration judges at the end of March announcing that it would impose a quota for immigration judges in an attempt to address the nearly 700,000 case backlog in immigration courts. Immigration courts are not independent; they report to the Attorney General, which allows the department to impose the quota.
Not everyone is in favor of such a quota. Dana Leigh Marks, the spokeswoman for the National Association of Immigration Judges, says the quota will only complicate matters in immigration courts. Because an individual can move to reopen a case so long as they are still in the country, Ms. Marks believes that the quota might lead to more appeals. Since a judge’s performance is in part measured by the quota, individuals can use that as leverage to appeal more cases.
There are also ethical concerns with imposing such a quota. Ms. Marks highlighted in an interview with National Public Radio (NPR) how people may question if the judge made a decision based on legal judgement or were they only concerned with meeting the quota. Such a question can lead to more appeals in an already backlogged system.
Ms. Marks does not just point out the problems with a case quota in immigration courts; she proposes two solutions as well. The first is to get more resources, which Congress has worked to address through budgeting for 100 more immigration judges in the last budget cycle. The second proposed solution is to make the immigration courts independent from the Department of Justice. Ms. Marks notes that “the mission of an independent and neutral court is incompatible with the role of a law enforcement agency.”
VERDICT: The idea of an independent immigration court has already been studied, and it has been endorsed by the American Bar Association, the Federal Bar Association, and other legal scholars. Imposing a minimum quota on immigration judges infringes on the judicial independence of judges and the due process of individual cases in the system.
It is unlikely the immigration court system will be moved outside of the Department of Justice anytime soon, so we may be able to see if the quota system has its desired effects on the backlog in the immigration court system.
In February, Defense Secretary, James Mattis announced a directive that immigrant, non-citizen veterans of the U.S. military would not be at risk for deportation, and given the ability to become naturalized citizens. In recent events, it appears as if Immigration and Customs Enforcement has ignored this order, and began the deportation proceedings for Chinese native, Xilong Zhu, who served in the army for seven months before being honorably discharged, detained for three weeks, and eventually released.
Zhu’s situation is especially complex due to the nature of his enlistment into the military. When he came to the United States in 2009, Zhu came under a student visa. He attended school at Beloit College in Wisconsin, and graduated in 2013, at which time he enrolled in the Military Accessions Vital to the National Interest (MAVNI) program, which works with immigrants to fast-track citizenship in return for language or medical skills. However, the program was placed on temporary hold in 2013, leaving Zhu without an option but to enroll in an education program to keep his visa. He enrolled at University of Northern New Jersey, which turned out to be a sting operation by the Department of Homeland Security, looking for immigrants with faulty visas. Zhu’s lawyer, Margaret Stock, has called this operation “federal entrapment”.
ICE is not regarding Zhu’s status as a veteran as a reason to hold deportation, because they say that Mattis’s policy does not protect Zhu. ICE considers Mattis’s policy as just covering veterans brought to the U.S. as children, DACA recipients, which Stock firmly protests.
VERDICT: Though this situation is a complicated one, it seems as if ICE has directly disobeyed Mattis’s directive, and taken a very conservative definition of which veterans he was looking to protect. Mattis must make his position clearer on this matter. A class-action lawsuit has also arisen due DHS’s false university, and the entrapment that followed for many immigrants. It will be interesting to see how the dispute is settled.