Federal judges shut down Trump administration in 3 immigration cases

Impeachment isn't the only trouble President Donald Trump is facing. Last Friday, three different federal judges rejected his attempts to drastically restrict the immigration system. Trump was soundly rebuffed in his efforts to indefinitely detain children and parents, speed up deportations, and use faulty biometrics in removal proceedings risking the arrest of U.S. citizens. One judge called Trump's proposed new policy "Kafkaesque" and another compared his proposed fast track deportation procedures to "decision making by Ouija board or dart board, rock/paper/scissors, or even the Magic 8 Ball."

These important rulings demonstrate that while the legislative branch is concentrating on the vital question whether Trump abused his office by illegally seeking a "favor" from the Ukrainian president to dig up dirt on a Democratic rival in exchange for military aid, the judicial branch is fully discharging its independent duty to prevent the executive branch from running roughshod over the Constitution. These rulings as a welcome example of how our system is going toe to toe with Trump in defending the rule of law.

On Sept. 27, Judge Dolly Gee of the U.S. District Court for the Central District of California rejected new regulations proposed by the Trump administration which would have allowed children and their families to be held in immigration detention for indefinite periods, eliminated minors' entitlement to bond hearings and removed the requirement that facilities holding children be licensed by the states. Describing the government's defense as "Kafkaesque," Judge Gee refused to alter a 20-year-old consent decree, know as the "Flores agreement," that requires children to be held in state-licensed facilities and released in most cases within 20 days. Judge Gee held that the Flores agreement is part of a final, binding judgment agreed to by the government that was never appealed and remains in effect. Absent 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 White House promptly issued a statement condemning the decision, falsely claiming that it "perpetuates the loophole" which an "activist" judge had "created" by imposing her "own vision in place of those duly enacted laws," conveniently ignoring the fact that the Flores "consent decree" was by definition consented to by the U.S. government.

Meanwhile, Judge Ketanji Brown Jackson in the U.S. District Court in the District of Columbia rejected a policy shift announced by the Trump administration in July which would have expanded the scope of undocumented immigrants subject to the fast-track deportation procedure known as "expedited removal," which allows immigration authorities to remove an individual without a hearing before an immigration judge. "Government actors who make policy decisions in their official capacities cannot succumb to whims or passions while rulemaking;" Judge Jackson held," instead, they must carefully evaluate all of the relevant facts and circumstances and take into account the feedback they have to solicit and receive from interested members of the public."

It was in condemning the arbitrariness of the new policy that Judge Jackson compared Trump's proposed fast track deportation procedures to "decision making by Ouija board or dart board, rock/paper/scissors, or even the Magic 8 Ball." The American Civil Liberties Union, which argued the case, praised the court's rejection of "the Trump administration's illegal attempt to remove hundreds of thousands of people from the U.S. without any legal recourse."

The third decision was the most comprehensive, coming in a 37-page ruling by Judge Andre Birotté in the Central District of California. The case centers on "immigration detainers" issued by U.S. Immigration and Customs Enforcement to federal, state and local law enforcement agencies authorizing them to keep an individual in custody up to 48 hours after their scheduled release to give ICE time to determine the individual's immigration status, and, if necessary, take the detainee into custody for removal from the United States.

One of the four alternative criteria for removability is biometric confirmation of the alien's identity and immigration status. The case was filed by the ACLU of Southern California on behalf of Gerardo Gonzalez. On Dec. 31, 2012, despite the fact that Gonzalez is a natural born United States citizen, ICE issued an immigration detainer to the Los Angeles County Sheriff's Department requesting that Gonzalez been keep in custody pending removal from the country. He was never interviewed by an ICE agent. His detainer was based solely on a check of an electronic database, without a final order of removal signed by an immigration judge.

Following a bench trial in May, last Friday Judge Birotte issued an extensive ruling containing 150 detailed Findings of Fact and 55 authoritative Conclusions of Law, which taken together constitute a scathing indictment of ICE's reliance on biometric data when it comes to the awesome power of the government to hold people in custody. Judge Birotte found 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." A Department of Homeland Security study found that the class of admission field in one database was wrong for 12% of individuals studied. An internal email from a senior ICE official complained that individuals are determined to be removable based on agency database checks, "only to later discover that the person is a United States citizen." Just during one ten month period, Judge Birotte found that 771 immigration detainers were lifted because the individuals were either U.S. citizens or otherwise not subject to removal.

Consequently, Judge Birotte found that ICE violates the right of all "persons" under the Fourth Amendment to be protected against "unreasonable searches and seizures" by "relying on an unreliable set of databases to make probable cause determinations for its detainers." Accordingly, he issued a permanent injunction covering Gonzalez and all current and future persons subject to an immigration detainer issued by ICE enjoining the agency from issuing detainers based solely upon unreliable database searches, within the Central District of California, which includes an ICE hub in Orange County from which immigration detainers are issued in 43 states, Guam and Washington, D.C.

All told, these three important decisions in the hotly contested field of immigration, which Trump has targeted for cruel and draconian restrictions, demonstrate that our independent judicial system remains prepared to strike down policies and regulations that strike at the heart of the Constitution. It also reaffirms that effective legal redress is being sought and secured by organizations around the country, such as the ACLU and state attorneys general, who are not intimidated by Trump's threats and bombast but are instead tenaciously committed to protecting and defending the constitutional rights of all persons in the United States, citizens and non-citizens alike. 