NOI 19: Why Are U.S. Courts Blocking the Trump Administrations Immigration Agenda?

Today we discuss why the courts are doing so much in the area of immigration, and why we should all be grateful for an independent judiciary.

Jacob Tingen: Welcome back to Nation of Immigrants. Thank you for tuning in once again. It’s been awhile, there’s been a lot of stuff in the news, and not so much entirely focused on immigration. There is, of course, the whole specter of impeachment and whistleblower stuff and Ukraine. So we haven’t seen compelling headlines on immigration issues recently. However, over the weekend some interesting headlines came out, and I grabbed a couple today.

Jacob Tingen: The two that I kind of want to just touch base on, because I do feel like they’re a little related, are these two. So one from the Los Angeles Times, “A bad day for Trump administration on immigrant front as it suffers three legal defeats in one day.” And then another, “A former ICE chief melts down,” from Slate Magazine. So we’re going to talk about why I pulled out those two headlines, what they have to do with each other, and why they’re important and relevant to talk about. So let’s get started.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law, with your host, Jacob Tingen.

Jacob Tingen: All right. So like I mentioned, a couple of headlines really stuck out to me today. The first one is this one about the legal defeats. Of course, I was curious what specific policies were kind of blocked from going into place. And that is the focus of today’s discussion. So we talked about this previously in a prior episode of Nation of Immigrants, about the Flores settlement agreement and how the Trump administration had announced a policy, they wanted to provide an update to the settlement agreement.

Jacob Tingen: We talked about this previously, how the settlement agreement was in place because of abuses of minor children, immigrants in particular, through our immigrant detention and enforcement policies. That happened in the 80s. And then in the 90s this litigation developed, and ultimately it came into this Flores settlement agreement where the court and the parties just kind of all agreed, “Okay, well we’re going to put in place these protective measures for the detention of immigrant children, make sure that they are protected, while Congress figures out a legislative solution.”

Jacob Tingen: And we’re still waiting. A legislative solution to protect the rights of immigrant children in particular. Yeah, so basically the Flores settlement agreement is controlling law, and it will remain that way until additional regulations are promulgated which satisfy the requirements of the Flores settlement agreement, or until Congress acts and creates laws to fill in kind of this gap that the Flores settlement agreement’s holding together.

Jacob Tingen: So what the Trump administration had proposed doing was … Under the settlement agreement it appears that they can propose a set of rules and say, “Well, how about these rules? We’re going to promulgate these regulations to fill in that gap and make sure that minor immigrant children are protected.” And then they have to submit those rules to a judge. And pursuant to the settlement agreement and how it’s worded, it looks like the judge can just say, “No.”

Jacob Tingen: And that’s what happened. So they submitted these rules, and we went over them briefly. If I recall, basically it was an effort to try to keep families with immigrant children all detained together. They haven’t been able to do that because under the Flores settlement agreement they have to release children in a particular period of time, a very short period of time. And so they’ve been releasing these family units together, which makes the most humanitarian sense given how things are currently set up.

Jacob Tingen: And so the Trump administration has said, “Well, what if we have family detention centers with top notch food?” That was one of the things that one article I’d read had said. That they’ll be in nice places, they’ll be in nice jails. And so this Flores settlement agreement was the target of these regulations, and to say, “Hey, look, we have a solution to this problem, which is we’re going to just detain families, and we’re going to move their proceedings through in three months.”

Jacob Tingen: And if you’ve listened to my Nation of Immigrants podcasts, you’re probably aware that our immigration court system is not what I would call a fully functional system. Some might say it’s dysfunctional, and others might say it’s irredeemable, as other headlines I’ve seen lately have been calling it. So, anyway, these regulations about essentially detaining families were what was proposed. And I think probably nothing is done halfway, so I’m sure it proposed lots of other changes as well.

Jacob Tingen: But in the end, this is what the judge had to say. She said, “The new rules that planned violated the terms of the Flores settlement agreement. Judge Dolly …” And I don’t know if it’s Gee or Gee. ” … issued a strongly worded order shortly after, slamming the changes proposed as Kafkaesque and protecting the original conditions of the agreement.” Remember, this is an administration that literally argued that children are not entitled to toothbrushes and soap in jail.

Jacob Tingen: And so when Judge Dolly Gee looks at this and calls it Kafkaesque, I believe her. I don’t think that’s an exaggeration. And so, basically, she says, “Barring a change in law through congressional action, defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets.” And so, basically, she just said the regulations did not further the intent of the settlement agreement, which is to protect the interests of minor children. And so I’m happy that that happened. I mean, I’m happy that we have judges who are protecting minor children, immigrant or otherwise. And then, some people might say the counterpoint to all of this is, “Well, but they’re immigrants, they’re violating our laws,” those kinds of things.

Jacob Tingen: But one of the issues that I kind of want to draw out more in these conversations is that when we let vulnerable populations suffer in this way … And it is suffering. I mean, you should go online and read about some of the things that are happening to these kids. I read recently about some kids, if it’s like two kids, they might be separated from mom or dad, and then an 11-year-old and, say, a three-year-old are placed in a cell together. And that 11-year-old is just supposed to watch after this three-year-old. Sometimes the three-year-old will walk around in a soiled diaper the entire day. The 11-year-old is supposed to just change that diaper. And where’s he going to get a diaper?

Jacob Tingen: So it just leads to some results that are not inspiring, and that I think fall short of what the US is as a nation. So you can read more about conditions of children in jails if you want. And maybe that’s worth a whole day focusing here, just looking at that and not so much legal issues but just the human side.

Jacob Tingen: But anyway, enough of that, the Flores settlement agreement remains intact. And so it looks like for now the Trump administration won’t be able to implement a plan where whole family units are remaining in jail, just for three months while they eat top notch food, while they wait on proceedings. And so that’s a good thing.

Jacob Tingen: So the other decision was a little more difficult, a little more complicated to explain. We haven’t really talked about it in a past episode. So, basically, there’s this interesting procedure where local jurisdictions cooperate with ICE in this strange way. And then ICE issues what’s called a detainer request, where basically they ask a local jail to continue to hold onto an immigrant for an additional 48 hours from beyond when they would normally be released.

Jacob Tingen: So to give you a practical look at what that looks like, since I know that sounded like legalese, is basically, let’s say you’re an immigrant and you’re in jail and the judge says, “Okay, you’re free to go.” And then a police officer says, “Actually not really, ICE wants you, so we’re just going to keep you here for an extra two days.” Yeah, that’s for real, that’s happening. I think that, in my head, it’s pretty clear that that’s unconstitutional. Many, many courts and judges have declared that that’s unconstitutional. And for a lot of reasons. And yet it is one of these things that’s being debated as to whether or not there’s actually authority under the law to do that. And even if there is a law, whether it’s constitutional.

Jacob Tingen: And so, basically, the second decision that came out, a US district judge issued a permanent injunction barring ICE from relying solely on databases when issuing so-called detainers. So what’s interesting about this lawsuit is that it isn’t about … Yeah, ICE is also blocked from issuing detainers to state and local law enforcement in states where there isn’t an explicit statute authorizing civil immigration arrests on detainers, according to the judge’s decision. And so that’s kind of a separate issue, because a lot of these local jurisdictions are being held liable for holding immigrants based on an ICE detainer. Which is, again, a whole other can of worms and an interesting legal theory that we can get into on another episode. In fact, we will. And more on that in the future.

Jacob Tingen: But, basically, this decision has blocked ICE’s ability to issue detainers, and ICE may respond by going into the community a little more aggressively. They do round up many people while they’re already being held in jails. And so then they, I guess, collect them is the correct term, at jails during that 48 hour period. What’s to prevent them from getting these people before they would normally be released from jail? I’m not exactly sure. I don’t know why ICE has to wait until they’re free to go to then impose an additional two days to take their time and come get people. But that is the way that it’s currently done.

Jacob Tingen: So long story short, this judge issued a permanent injunction barring ICE from issuing detainers to state and local law enforcements unless the state has a state statute authorizing that. And they’ve issued an injunction barring ICE from relying solely on databases. So I’m not exactly sure what that means, but I imagine that ICE has databases with information about people.

Jacob Tingen: But what’s interesting about this decision is that it says that a lot of the information in the database is incorrect. And so what ends up happening when they issue these ICE detainers and they ask local law enforcement to hold on to somebody for an extra two days, a lot of times they end up picking up US citizens or people with lawful status. And so, again, for a lot of people they say, “Oh, well, you know, I’m fine if they’re doing this to immigrants, because if immigrants break the law, they should, you know, get out of the country, whatever.” But this goes to the core of my argument about a lot of this immigrant advocacy is, if we don’t protect immigrants this is eventually going to start happening to us.

Jacob Tingen: And in this particular realm, this is happening to US citizens, because US citizens have been picked up, rounded up and held based on ICE detainers. I personally have had clients who said, “I am a US citizen, why are you arresting me?” And I literally had an ICE agent tell one client, “That’s what they all say.” Which if that’s what they all said, maybe we should stop and slow down a bit. So this is a problem. If you have a policy that’s rounding up US citizens because of flawed database data, yeah, I can see why a judge would say, “You know what? Let’s stop this until you fix your database problems, and then maybe we can look at picking this back up again.” So, yeah, I think that these are positive things for not just immigrants, but for America.

Jacob Tingen: So let’s talk about though the broader implications of what’s happening. I mentioned this other headline that I saw, which was, “Former ICE chief Thomas Homan melts down.” And so it’s this video … I’m not really one for mocking news articles. And whether it is or not is your choice, you can read the article. But the attitude of the ICE chief when he’s testifying … And the article is about how they’re interrupting each other and how he doesn’t seem to respect the authority of the House Committee. And that’s a whole other argument.

Jacob Tingen: What I want to draw out from his testimony is his frustration, because he kind of says at one point, “We’re trying to enforce our nation’s immigration laws, but we’re being blocked at every turn.” And so I feel like a lot of people do feel that way, and they say, “Well, these activists judges are doing this, that, and the other.” What I want to respond to that is, “Hold on a second, it’s not an activist judge thing, it’s a legal thing.” One of the reasons that there is so much conflict about these issues is, again, if we don’t protect the most vulnerable population, then these kinds of things can start to happen to you and me, to US citizens, to non-immigrants as well.

Jacob Tingen: And so why are so many things being blocked in our courts? Well, maybe, just maybe, it could be because some of these initiatives are unconstitutional, or they fall short of our ideals of what the US should be. And so I just want to invite those who have this knee-jerk reactions, “Well, why is this happening?” Or, “Why are these activists judges acting in this way?” I mean, I get those arguments. I understand the knee-jerk reaction. Heck, I understand the reactions that aren’t knee-jerks, right?

Jacob Tingen: But what I’m trying to say is, if you look closely at some of these issues and some of the things that we’ve talked about … I mean, even in jail people get toothbrushes. So why wouldn’t immigrant children? Just because somebody’s not from here it doesn’t mean we shouldn’t treat them with dignity and respect. And if in your view, dignity and respect means they should be deported, that’s fine. But should they be abused? And some of you might say, “Oh, well that’s a mischaracterization.”

Jacob Tingen: I would say that if we endorse a system that separates children from parents, and then still has not reunified more than a hundred of those children with those parents because we just … And they never will, because we just don’t know where those parents are. Then we’ve failed as a society, right? If we’re intentionally causing this level of distress to families … And take all the asylum arguments and put them to the side. There’s virtually nothing that I think can justify that response to what’s happening to separating families in that way and creating these kinds of problems.

Jacob Tingen: So, yeah, that is what’s happening, and that’s why these initiatives are being challenged so much in court, because they are unconstitutional, they are harmful, and they don’t quite live up to what we expect as a country, as the United States of America. And what we stand for in the international community. And I think as you listen to this podcast, and as you look at other resources, you might be inclined to agree.

Jacob Tingen: So, look, to all the former ICE chiefs out there, I get that you’re frustrated. I get that it seems that every time you try to do another thing to bring about an initiative to further your administration’s goals, that this might be frustrating. But this might be a time to look at those goals and say, “Okay, well the way we’re going about this isn’t actually accomplishing those goals.”

Jacob Tingen: And look at … I mean, even just reviewing this podcast, right, everything you’ve done to deport more people has actually increased the backlog in the immigration courts and made it less likely to deport people. It has led to greater inefficiencies and greater suffering. That’s not even meeting your goals. So there’s a better way to do this, but they involve taking a step back and reconsidering the plan.

Jacob Tingen: So that’s it for Nation of Immigrants today. If you want to support the podcast, you can go to jacob tingen.com, click on the button for donations. You can also get a Nation of Immigrants T-shirt here soon. We have some in the office, so if you’re local you can literally just come by, knock on the door and say, “Hey, I’d like a T shirt.” I’d be happy to give you one. We’ll have them up on our store soon at store.tingen.law. Don’t forget to subscribe to our YouTube channel, follow us on iTunes, Facebook, Twitter. Thanks again for listening, and this is Jacob Tingen signing off.

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President Obama: America is a nation of immigrants.

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