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News analysis

White House delivered terrible day in trio of federal immigration lawsuits

Trump administration officials faced a trio of losses in federal courts Friday, as judges in Washington D.C. and Los Angeles blocked plans by Homeland Security to fast-track deportations, undo a long-standing agreement on the detention of migrant children, and barred the agency from relying on a flawed database to issue detainers for people held by local law enforcement. 

While the White House continues to forge ahead on new immigration restrictions and continues to raise border barriers along dozens of miles in California, Arizona and Texas, the administration also found itself on losing on three fronts, as federal judges ruled against Trump administration lawyers and issued permanent injunctions. 

U.S. District Judge Dolly M. Gee in Los Angeles delivered the first blow early Friday, when she ruled against a move to undo the landmark 1997 legal deal known as the Flores Settlement, which set national standards for the detention, release and treatment of migrant children in federal custody. During Friday's hearing, Gee made it clear that she doubted the administration's arguments. "Just because you tell me it’s night doesn’t mean it’s not day," Gee said.  

She added that if the administration wanted to repeal the consent degree, "It is certainly within your rights to seek relief from Congress." 

Among the guidelines that were outlined in the consent degree—the result of a lawsuit filed on behalf of a 15-year-old Salvadorian girl— the government is required to release immigrant children to guardians or place them in facilities within 5 to 20 days of detention, and those facilities must be the "least restrictive setting appropriate to the minor’s age and special needs."

The new rules would have removed required bond hearings for minors, and allowed immigration officials to operate facilities without state licensing. Additionally, the rules would have altered strict language under Flores from "shall" to "may" in key requirements regarding how the government would treat children. 

In recent months, the Trump administration has challenged the Flores Settlement, arguing that it was one of several "legal loopholes" that created a system of "catch and release" and encourages migrant families to come to the United States. On August 21, Homeland Security Secretary Kevin McAleenan announced the termination of the rule, allowing the indefinite detention of children and immigrant families while their case moves through an increasingly backlogged court system. 

The Flores lawsuit was originally filed against for then-Attorney General Janet Reno, but was updated to include ousted Attorney General Jeff Sessions, and then was again renamed to include current Attorney General William Barr, along with each year's replacement Homeland Security secretary. 

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The just-decided case was one of more than a dozen separate lawsuits launched by civil rights and environmental groups against the administration in the last two years. While the administration has win some cases, especially in the U.S. Supreme Court, which recently overturned a lower court's injunction that blocked administration officials from denying asylum to immigrants who reach the southwestern border without seeking refuge in a "safe third" country, the administration has been hit with lawsuit after lawsuit, often with temporary or permanent blocks placed as the cases move through the courts. 

Even the Supreme Court's unsigned opinion was limited only to the injunction put in place by U.S. District Judge Jon Tigar, and while advocates fumed about the decision's implications, the case will continue to move forward in his court. 

As the administration attempted to undo parts of Flores, Justice Department lawyer Sarah Fabian found herself the target of opprobrium after she argued in front of the 9th Circuit Court in June that the administration did not have to provide toothbrushes or beds for detained children, and was questioned by Judge A. Wallace Tashima, a retired Marine who was one of thousands of Japanese-Americans imprisoned in interment camps in Arizona during World War II. 

"It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, that’s not ‘safe and sanitary,'" Tashima asked. "Well, I think it’s—I think those are—there’s fair reason to find that those things may be part of 'safe and sanitary,'" Fabian replied.

Fabian is also part of the team that will argue for the government in a class-action lawsuit based in Tucson over long-running problems in the Border Patrol's Tucson Sector stations scheduled to begin in January 2020. 

The three-judge panel remaindered the case back to Gee mid-August. 

However, in a sharply-critical 24-page opinion, Gee wrote that the court "cannot permit" Trump and his officials to undo the 22-year-old agreement, and blocked Homeland Security and the Justice Department from undoing the Flores Settlement. 

"The blessing or the curse – depending on one’s vantage point – of a binding contract is its certitude. The Flores Agreement is a binding contract and a consent decree. It is a final, binding judgment that was never appealed," Gee wrote. "It is a creature of the parties’ own contractual agreements and is analyzed as a contract for purposes of enforcement," Gee said. "Defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy." 

Plan to expand fast-track deportation blocked

In Washington D.C., U.S. District Judge Ketanji Brown Jackson issued a preliminary injunction, and stymied a plan to expedite the deportation of migrants "without further hearing or review." 

While DHS officers have been able to use a process known as "expedited removal" for people who were encountered within 100 miles of the border, or had been in the country for less than 14 days, in late July, DHS issued a rule change, and said that it would apply expedited removal to "non-citizens" encountered anywhere in the United States who had been in the country for up to two years. 

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As Jackson noted in her 126-page ruling, the rule change came "more than two and half years after President Donald Trump issued an executive order that demanded that DHS expand its established expedited removal practices." 

Make the Road New York, La Unión Del Pueblo Entero or LUPE, and WeCount!, filed the lawsuit, and are represented by the American Civil Liberties Union, the American Immigration Council, and the law firm, Simpson Thacher & Bartlett LLP. 

Jackson agreed with the plaintiffs that agency officials likely violated the Administrative Procedure Act, an act that guides how executive branch officials can alter federal policy, and that they "failed to take the established flaws in the preexisting expedited removal system into account before it reached the conclusion that the expedited removal process should be applied to a broader category of non-citizens." 

"Both the public interest and the balance of the harms weigh in favor of the issuance of a preliminary injunction," wrote Jackson. "Consequently, DHS is prohibited from applying the expanded expedited removal policy to anyone to whom it would apply, while this action proceeds,"she wrote. 

"Based on the evidence presented here, it is also likely that Plaintiffs will be successful in persuading the Court that DHS’s New Designation rule was promulgated in an arbitrary and capricious fashion," Jackson wrote. 

"The court rejected the Trump administration’s illegal attempt to remove hundreds of thousands of people from the U.S. without any legal recourse," said ACLU attorney Anand Balakrishnan said in a statement. "This ruling recognizes the irreparable harm of this policy.”

"Once again, a single district judge has suspended application of Federal law nationwide–removing whole classes of illegal aliens from legal accountability," complained White House officials in a statement to the LA Times. "For two and a half years, the Trump administration has been trying to restore enforcement of the immigration laws passed by Congress. And for two and half years, misguided lower court decisions have been preventing those laws from ever being enforced—at immense cost to the whole country." 

ICE database 'deficient' & use of 'detainer requests' may violate 4th Amendment

While Gee was issuing her ruling, U.S. District Judge André Birotte Jr. rendered his decision in class-action lawsuit from 2013 over the use of detainer requests by ICE officials based on information from a database that Birotte called "deficient." 

In 2012, ICE issued a detainer for Gerardo Gonzalez, a United States citizen, and he was held at the Los Angeles Sheriff's Department even after he "would otherwise have been released from custody," Birotte wrote. 

Gonzalez was held by the sheriff's department based on information from ICE's Pacific Enforcement Response Center in Laguna Niguel, California, which issues detainers requesting local law enforcement agencies hold people until ICE agents can arrive. Operating 24 hours a day, the PERC issues detainers to 42 states and two U.S. territories—all but Arizona, Alaska, Washington, Oregon, New Mexico, Colorado, Oklahoma, Colorado and Florida. 

However, the database contains errors. According to court documents filed as part of a series of stipulated facts as part of the lawsuit, from May 2015 to February 2016, the PERC issued 12,797 detainers, and of those, 771 were lifted because the person was "otherwise not subject to removal." In 42 cases, the person was a U.S. citizen. 

"Further, evidence introduced in this case includes dozens of additional examples of U.S. citizens wrongly subject to detainers because of database errors, Birotte wrote. "The result, of course, is that many U.S. citizens become exposed to possible false arrest when ICE relies solely on deficient databases," Birotte wrote. 

The program operated as part of the controversial Secure Communities program, which attempted to deputize local law enforcement agencies to work with ICE. However, the program fell out of favor, and in 2014, the Obama administration rescinded the program in an attempt to focus the agency on "priority" enforcement. 

In Feb. 2017, Trump reinstated Secure Communities and ICE officials continued to request detainers, even for agencies that refused to, or could not by law, agree with the detainers. 

In Arizona, only four agencies operate under Secure Communities, or the 287g program, including the Arizona Department of Corrections, the Mesa Police Department, the Pinal County Sheriff's Office, and the Yavapai County Sheriff's Office. 

ICE has long argued that the program is important to enforcement efforts, including a comment on its website that 43,300 "convicted criminal aliens" were deported because of the program. However, data from the agency analyzed by the Transnational Records Access Clearinghouse, a non-partisan project based at Syracuse University, showed that the agency's own internal records, showed that 10,893 people were deported. Of those, only 4,850 people were removed under Secure Communities were convicted of a serious crime, TRAC said. 

In his ruling, Birotte was critical of ICE and U.S. Citizenship and Immigration Services, writing that "the databases on which ICE relies for information on citizenship and immigration status often contain incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability." 

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While CIS's database was "the 'spine' of USCIS functions," Birotte noted, the agency's "primary function is not to provide indica of citizenship or to  establish probable cause for removal." Instead, the agency is meant to manage a person's "A-File" or "Alien file" that's shared and transferred among DHS personnel and offices as "needed in support of immigration benefits and enforcement actions," he wrote. 

"ICE does not look at databases for a single record that affirmatively indicates probable cause for removal, but instead weaves together a patchwork web of databases owned and maintained by separate and distinct agencies to make complex determinations about citizenship, immigration status, and removability," the judge wrote. "No single database contains all the information needed to make a probable cause determination; no one piece of information provides ICE probable cause to issue a detainer to members of the Probable Cause Subclass, and the supplementation of additional databases—each with its own deficiencies—does not provide sufficient indicia of probable cause." 

Birotte wrote that examples shown at trial of U.S. citizens being "wrongly subject to detainers because of database errors" were examples that "illustrate the real-life impact of the relying on a makeshift set of databases to make citizenship and immigration status determinations." 

Even more notably, Birotte wrote that while databases can be used to establish probable cause, he believed that ICE violates the 4th Amendment by "issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests in state statute." 

DHS is expected to file challenges in all three rulings. 

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