President Trump’s immigration policies are getting hit with wave after wave of lawsuits.
In just the past few weeks, the Trump administration has faced a series of legal setbacks on a range of efforts to overhaul immigration, from using military funds for a border wall to detaining asylum-seekers.
The administration is also handling two federal lawsuits over an asylum restriction announced last week, with advocacy groups vowing to sue over a policy revealed Monday that would expand deportation authorities for undocumented immigrants.
{mosads}Immigration groups challenging Trump’s policies argue that they are unlawful and harmful to not just their organizations, but to immigrants and U.S. citizens as well.
But the president’s supporters argue — despite the court losses — that opponents are adopting a strategy of delay and deny when it comes to anything Trump proposes on immigration.
Trump has increasingly turned to executive action to implement his immigration agenda, as legislation on the topic — often considered to be a third rail in politics — has stalled out in a divided Congress.
Cracking down on immigration is a well-worn tactic for the president, who has criticized previous administrations’ policies and decried the current immigration system as the “dumbest” and “worst” in the world.
There’s been a noticeable uptick recently in new policies, each triggering a legal challenge.
Cecilia Wang, head of the American Civil Liberties Union’s (ACLU) Center for Democracy, pushed back against the notion that Trump is taking action as Congress struggles to pass immigration legislation.
{mossecondads}Instead, she characterized his efforts as fitting into the larger pattern of the administration’s tougher immigration laws, and suggested that the recent actions could be an attempt to shore up support in Trump’s base ahead of the 2020 election.
“I don’t think that the Trump administration is stepping into a legislative vacuum. I think that the president went into office with a very clear agenda to go after immigrant communities, and to go after people who are seeking asylum in the U.S.,” Wang said. “And so the proliferation of lawsuits that the ACLU and others have brought is a response to the extreme number and unlawful extent of those Trump administration policies.”
The most recent policy actions have centered on asylum laws, an area of frustration for the president in recent months. It was a lack of action by Congress on asylum legislation that spurred Trump to announce nationwide immigration raids, although it appears those efforts have so far resulted in few arrests.
The president has faced losses on asylum laws in the past. A 2018 presidential proclamation that denied asylum to immigrants who entered the U.S. illegally was blocked by the courts. And the administration’s policy of separating migrant families apprehended at the border in order to prosecute the parents caused national uproar, until Trump signed an executive order to end the practice.
Trump officials are now seizing on provisions included in the Immigration and Nationality Act to implement some of their policies.
Attorney General William Barr pointed to a measure in that law when issuing an order earlier this year requiring that asylum-seekers who pass a “credible fear” test be detained throughout the rest of their proceedings.
“There is no way to apply those provisions except as they were written — unless paroled, an alien must be detained until his asylum claim is adjudicated,” Barr wrote in his order, which overturned a 2005 Board of Immigration Appeals ruling that found asylum-seekers are eligible for bond if they can show a credible fear of persecution or danger if they exit the U.S.
But a federal judge in Seattle disagreed, finding it unconstitutional to detain asylum-seekers indefinitely.
The 9th Circuit Court of Appeals sided with that judge for the time being in a ruling on Monday, declining to halt the order as requested by the administration. But the appeals court did grant a stay on another order issued by the judge that directed officials to release undocumented immigrants within seven days of requesting a bond hearing, finding that and other requirements to be “too burdensome.”
The administration hit back at the appeals court ruling, promising to fight for Barr’s order.
“Based on the unprecedented theory that illegal aliens who recently entered the country have a constitutional right to be released on bond into the United States, the district court struck down a statute passed by bipartisan majorities in Congress during the Clinton administration specifically requiring certain aliens to be detained pending their asylum proceedings,” White House deputy press secretary Steven Groves said in a statement Monday.
“We strongly disagree with that decision and expect to prevail on the merits of the appeal and to see the law upheld,” he added.
Justice Department lawyer Scott Stewart also pointed to the act in federal court in D.C. on Monday, arguing that it grants the attorney general the authority to enact additional restrictions for asylum-seekers.
Stewart was defending an asylum rule adopted by the administration last week that renders migrants who pass through another country before arriving at the U.S. southern border ineligible to claim protections.
Mitchell Reisch, a lawyer representing the Refugee and Immigrant Center for Education and Legal Services and the Capital Area Immigrants’ Rights Coalition, said the new asylum rule conflicts with the federal statute because the law explicitly stipulates instances when a migrant cannot be granted asylum. He argued the administration is unlawfully acting outside the provisions set by the federal act.
Judge Timothy Kelly, a Trump appointee, is expected to rule soon on whether to grant a temporary restraining order to block the new asylum rule, and a federal judge in San Francisco will oversee a hearing Wednesday on whether to grant the same request in a similar lawsuit challenging the rule.
Acting Homeland Security Secretary Kevin McAleenan cited the Immigration and Nationality Act in expanding expedited removal authorities for immigration officers, making it easier for asylum officers to order the deportation of immigrants who are unable to immediately prove that they’ve been in the U.S. for two years.
The ACLU and the American Immigration Council have promised to challenge that policy, which was first announced on Monday and went into effect the following day.
Aaron Reichlin-Melnick, a policy analyst with the American Immigration Council, said immigration groups have to go to court in order to quickly protect migrants who could potentially be put in danger as a result of the new policies.
Advocacy groups have pointed to the life-and-death nature of asylum cases in arguing that migrants who fear persecution or other danger in their home countries should be protected in the U.S.
“Some of these policies, like the travel ban, can be overturned by a new president within little effort, but others will take much longer to overturn,” Reichlin-Melnick wrote in an email. “And for those who were affected by the policies, there may be no way to repair the damage.”
Trump’s legal fights on immigration have also made their way to the Supreme Court.
A federal district judge in California last month blocked officials from accessing military funds to build a wall on the southern border, and the 9th Circuit Court of Appeals refused to lift the injunction while the full order is appealed, finding that groups challenging the administration are likely to succeed on their claims.
Trump had declared a national emergency earlier this year in order to divert the military funds for a border wall. His administration is now asking the Supreme Court for an emergency stay on the lower court rulings so that officials can start using the Pentagon funding for the border wall.
The Supreme Court is expected to issue that decision in the coming days.
The justices also announced last month that they will review cases on Trump’s decision to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
Christopher Hajec, the director of litigation for the conservative Immigration Reform Law Institute, said he believes the cases will ultimately play out in the president’s favor. But that the lawsuits are causing the policies to be delayed in the meantime.
“It’s just a massive onslaught,” he told The Hill. “There are groups that are so well-funded, that they just have the resources to go after anything and their donors expect them to do that. And it’s just an all-out legal war on Trump, but it’s not having a huge effect yet.”
Advocacy groups have strongly denied that they are going after Trump solely for the purpose of going after him. Wang, with the ACLU, noted that her group has repeatedly filed lawsuits challenging policies implemented by several administrations, including under former President Obama.
And she noted that the ACLU has a nearly “perfect win record” when it comes to getting injunctions blocking Trump’s immigration policies, with the exception of the Supreme Court’s ruling allowing the president’s travel ban on individuals from several majority-Muslim countries.
Both Wang and Reichlin-Melnick categorized as Trump going to the extreme when it comes to immigration measures, far beyond the steps recent past presidents and administrations have taken. That, they said, has all but forced immigration advocates’ hands when it comes to going to court.
“And so what we’ve really seen is just one extreme anti-immigrant measure after another and the litigation is in response to that,” Wang said.