October 1, 2019
Friday the Trump administration had a bad day in court, which generally means good (or at least promising) news for everyone else. Yesterday the Los Angeles Times broke down three main rulings that all went against the administration. I’m using their framework here with a few added details.
Huge: The Flores Settlement agreement is still standing. Probably the biggest news is that the federal judge overseeing the Flores Settlement agreement lambasted Trump’s team for trying to kill Flores with new rules that violated the intent of the agreement. Quoting at length here:
In the first setback Friday for the Trump administration, U.S. District Judge Dolly Gee said new rules it planned to impose violated the terms of the Flores settlement. Gee issued a strongly worded order shortly after, slamming the changes as “Kafkaesque” and protecting the original conditions of the agreement.
Gee wrote that the administration cannot ignore the terms of the settlement — which, she pointed out, is a final, binding judgment that was never appealed — just because leaders don’t “agree with its approach as a matter of policy.”
Barring a change in the law through Congressional action, she said, “Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets. That violates the rule of law. And that this court cannot permit.”
The new regulations would have eliminated minors’ entitlement to bond hearings and the requirement that facilities holding children be licensed by states. They also would have removed legally binding language, changing the word “shall” to “may” throughout many of the core passages describing how the government would treat immigrant children.
What was at stake? The Flores Settlement agreement, among many other very important things, does not allow the government to hold children for more than 20 days in unsecure facilities. Which means, within three weeks of being detained, a child must either be released to family, a community sponsor, or placed in a facility licensed by state agencies for taking care of children. In 2016 federal court determined that this standard applied to children even if they are still with parents. This means, for example, that Immigration and Customs Enforcement cannot hold families with children for more than 20 days. Trump does not like this. The administration had offered a new set of rules that would allow the federal government to establish its own licensing procedure as a way to get around this provision of the Flores agreement. The judge, obviously, did not agree.
Another important feature of the settlement agreement that has emerged over the last two years is the extra oversight it provides to federal detention of children within that 20-day time frame. From Human Rights First:
In June 2017, the district court found that the government was failing to comply with its obligations under the Flores Settlement agreement. Some children and their parents were being held in family detention in secure, unlicensed facilities for up to eight months—well beyond the five-day time limit or the exception of 20 days previously authorized in times of emergency or influx. Additionally, the district court found that the government had failed to meet other obligations regarding Border Patrol facility conditions, including:
- inadequate provision of food;
- inadequate access to clean drinking water;
- unsanitary and unsafe conditions;
- freezing temperatures, and;
- inadequate sleeping conditions.
The district court therefore ordered the government to appoint a Juvenile Coordinator to oversee compliance with the Agreement. Additionally, the order established that if conditions had not improved to reach substantial compliance with the Flores Settlement Agreement one year after the appointment of the Juvenile Coordinator, the judge would reconsider the plaintiff’s request to appoint an Independent Monitor.
As a result of this oversight, conditions in Border Patrol facilities came to light this past June as part of the mandated inspections of these facilities. It would be better, of course, if the administration would simply abide by the standards in place. Absent such a commitment, not likely under Trump, it is important to keep Flores in place because of the court mandated oversight.
The second ruling that went against Trump involved the Immigration and Customs Enforcement use of detainers - orders issued to local law enforcement to hold someone in custody for up to 48 hours so ICE can come arrest them. At issue was ICE’s reliance on databases - which has led to faulty arrests. From the LA Times:
In the second decision Friday, U.S. District Judge Andre Birotte Jr. issued a permanent injunction barring ICE from relying solely on databases when issuing so-called detainers, which are requests made to police agencies to keep people who have been arrested in custody for up two days beyond the time they would otherwise be held.
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.
The decision affects any detainers issued by an ICE officer in the federal court system’s Central District of California.
That designation is significant because the Pacific Enforcement Response Center, a facility in Orange County, is an ICE hub from which agents send out detainer requests to authorities in 43 states, Guam and Washington, D.C. It is covered by the Central District.
The implications of the ruling are significant. ICE issued 160,000 detainers last year, and, as the article reports, a majority (70 percent) of ICE arrests are of people who have been detained by police (though not necessarily charged, much less convicted of a crime). So, limiting ICE’s ability to use local law enforcement in this way is significant.
Limiting the use of database-only information as the basis for detainers is important as well. For example, in a seven-month period, ICE issued detainers 42 different times against U.S. citizens from its databases.
Finally, a federal court blocked the administration’s efforts to expand expedited removal proceedings.
In a third defeat in less than a day for the Trump administration, a federal judge blocked it from vastly extending the authority of immigration officers to deport people without first allowing them to appear before judges.
The decision late Friday came before the policy, which was announced in July, was even enforced. The move would have applied to anyone in the country less than two years.
More detail from NPR:
The procedure, known as "expedited removal," has previously been used to deport undocumented immigrants who cross into the U.S. by land without an immigration hearing or access to an attorney if they are arrested within 100 miles of the border within two weeks of their arrival. In July, the administration expanded the rule to include undocumented immigrants who couldn't prove they had been in the U.S. continuously for two years or more, no matter where they were in the country.
In a 126-page report issued just before midnight on Friday, U.S. District Judge Ketanji Brown Jackson issued a preliminary injunction on the policy change. She stated that the administration did not follow the correct decision-making procedures, such as the formal notice-and-comment period required for major federal rule changes, and likely violated federal law in failing to do so. She said that "no good cause exists for the agency to have not complied with these mandates in this instance."