The Supreme Court ruling against the Trump administration's effort to end the Deferred Action for Childhood Arrivals program (DACA) has been well covered in the news. DACA offered protection from removal for "dreamers," or people who arrived in this country as children but who are unauthorized. The ruling allows DACA to stand as policy, though there may well be further efforts to halt the program. The future of the policy largely lies with the upcoming election.
In addition to this landmark ruling there have been three other recent decisions to note.
I. Children in Custody
In the first case, a federal judge ordered Immigration and Customs Enforcement to release all of the children in its custody due to concerns about exposure to COVID-19. A huge victory, at least on the surface. The judge did not specify that parents must also be released. If ICE insists on holding parents, this could set up another family separation crisis.
Immigrant children are held by the U.S. government through several agencies. Customs and Border Protection may hold unaccompanied children and families with children, usually for 72 hours or less, before making a determination to deport, release or transfer them. Currently, almost everybody picked up by CBP, including unaccompanied minors, are being deported immediately with almost no processing and no opportunity to seek asylum.
Unaccompanied children, at least prior to the border closure in March, were typically transferred to the Office of Refugee Resettlement, where they would be detained until a family member or community sponsor could be located. There are just over 1,000 children in ORR custody right now, a very small number by recent standards - mostly because new arrivals are simply being deported.
Families with children, at least those that are able to remain together, are typically transferred to Immigration and Customs Enforcement, which detains families in one of three facilities (two in Texas, one in Pennsylvania). These children are the focus of the judge’s order: “Citing recently reported coronavirus cases among detained families, as well as allegedly lax masking and social distancing enforcement at two family detention facilities in Texas, U.S. Judge Dolly Gee ordered ICE to release all minors who have been held for more than 20 days.”
The catch is that Gee does not have the authority to mandate the release of parents - her authority is directly tied to oversight of the Flores Settlement agreement that provides guidance for the treatment of children in custody. The choice is that ICE must either release the parents as well, or separate the families by placing children with community sponsors or other family members. Unless pressed to do otherwise, ICE will almost certainly try to continue detaining the parents - which means separating children from parents yet again.
Members of Congress issued a letter to the Department of Homeland Security and ICE leadership asking that families be released together.
"Family separation should never be this country's policy. Medical organizations have long stated that the practice creates extraordinary harm to children," the lawmakers wrote in their letter to Acting Homeland Security Secretary Chad Wolf and Acting Immigration and Customs Enforcement (ICE) Director Matthew Albence. "Detention of children for any amount of time, even with their parents, causes physical harm and irreparable trauma."
ICE has until July 17 to release all of the children in custody. Take a moment to sign our petition demanding that families be released together.
II. Public Health Service Act
The next case involved a direct challenge to the administration’s authority to summarily expel children and asylum seekers under a Center of Disease Control policy that Trump has used to essentially shut the border down to everyone - including refugees and unaccompanied children. The ACLU, Oxfam and the Center for Gender and Refugee Studies sued on behalf of a 16 year-old boy from Honduras and his father. From the ACLU’s release on the judges initial ruling in favor of the child:
A federal court has once again provisionally blocked the deportation of a Honduran boy in the first legal challenge to the Trump administration’s order restricting immigration at the border based on an unprecedented and unlawful invocation of the Public Health Service Act, located in Title 42 of the U.S. Code...
U.S. District Judge Carl Nichols issued a ruling from the bench today prohibiting the removal of the boy under Title 42 protocols as the lawsuit continues. The judge agreed with the plaintiff's central argument that the CDC had likely exceeded its authority in ordering the expulsion of children and asylum seekers under the public health laws. (emphasis added).
This case may establish the necessary precedent to bring an end to Trump’s border expulsions policy, which has so far led to over 40,000 people removed at the border without any due process. Though the ruling this week does not by itself do that - it is an important first step toward bringing this tragedy to an end.
III. Transit Ban
Finally, a court ruling on Tuesday will end - for the time being - the Trump administration’s efforts to close off asylum to anyone who transits a third country prior to reaching the U.S. border. The so-called “transit ban” had effectively ended asylum for anyone arriving at the U.S./Mexico border who was not a Mexican national. The transit ban was clearly intended to target Central American refugees, but ultimately impacted refugees from all over the world who travel through several countries in Latin America before arriving at the U.S. border.
The case was brought by the Capital Area Immigrant Rights Coalition, and was focused on the administration’s violation of rule-making procedures and public notification requirements related to the transit-ban. The merits of the policy itself are also under judicial review in a separate case. In a communication to coalition partners, CAIR’s litigation director, Claudia Cubas, wrote:
In CAIR Coalition v Trump, Judge Timothy Kelly, a Trump appointee sitting on the federal bench in D.C., just vacated the third-country transit rule (the Administration’s asylum ban II barring asylum seekers who passed through third countries en route to the US without seeking asylum in other countries) in its entirety, based on the government’s failure to follow APA notice-and-comment. The court also declined to stay its decision, so it goes into effect right away.
These rulings are part of larger efforts to restore asylum policies in the United States. Toward that end, we encourage everyone to take part in Virtual Asylum Advocacy Days on July 14-16. The Asylum Working Group and Interfaith Immigration Coalition are organizing virtual legislative visits with your members of Congress. There will be a virtual training session to help prepare in advance. You can sign up here.