Sunday, May 27, 2018
By Irene Sharf, Prof. of Law, UMass Law School, guest editor
In Federal District Court in Boston on May 22, 2018, federal agents, responding to pointed questioning by Judge Mark Wolf, claimed that they had halted their controversial practice of arresting undocumented immigrants who present themselves to government offices while in the course of applying to regularize their immigration status. The Boston ICE field office acting director, Thomas Brophy, told the judge that the practice had occurred under his predecessor, but that, in February when he took over, he eliminated it. An ICE spokesman would not clarify whether this was a local or a nationwide change in the Trump Administration’s policy targeting immigrants.
A May 22, 2018 article in the Boston Globe (Maria Cramer) Federal judges in Boston are often sharply critical of ICE tactics), highlighted the criticism to which ICE has recently been subject by Boston’s federal judges. This criticism was made, for example, after the January 2018 ICE arrests of seven people at immigration offices in Massachusetts and Rhode Island, often immediately after they completed interviews with the office that processes applications for legal residency, USCIS (U.S. Citizenship and Information Services).
In early April, the ACLU filed a lawsuit challenging these recent arrests. The case, Calderon v. Nielsen, seems to have had a significant effect that should benefit immigrants in the New England region. The case challenges the Administration’s policy of “detain and remove,” in operation in Lilian Calderon’s case. A mother of two, she was detained by ICE agents at the USCIS offices in Rhode Island, where she and her United States citizen husband had appeared for an interview to process her application for legalization through their marriage. Lilian was brought to the U.S. as a three year-old without authorization; she has been subject to deportation since her teens, when her father lost his bid for political asylum. After their in-person interview in the USCIS office, which apparently went well, ICE agents took her into federal custody, where she remained for weeks, until the ACLU’s class action lawsuit.
The ACLU launched several objections to the policy, challenging it based on constitutional grounds that it violates the due process and equal protection clauses of the United States Constitution. The case, brought against the Trump administration and ICE on behalf of the Calderons and several other area families, adds to the ongoing and often successful litigation against this Administration, whose continued attacks against immigrants have not been particularly successful to date when challenged in court.
This “detain and remove” policy pits one arm of the U.S. government, USCIS, against another arm of the government, ICE, whose officers hover outside the USCIS offices as it conducts its interviews. For people like Lilian to get legal status, she must attend an interview at the USCIS office. But, once there, President Trump’s Administration is seeing to it that some applicants are arrested and placed into custody.
This tactic is likely a poorly-veiled attempt to discourage those in legitimate marriages with U.S. citizens from applying for the benefits to which they are entitled. It is also likely that, as a result of the policy, whose continued existence is now in question, many thousands will delay filing their applications, fail to file, or fear appearing at their interviews and have their applications denied.
The ACLU’s specific charges against this policy is that it violates the law by ignoring USCIS regulations that permit applicants like Lilian to stay in the U.S. while their applications are being processed. Additionally, the challenges reflect those made against the Administration’s failed attempts to cancel the DACA program last September, when Attorney General Sessions announced its imminent end. That announcement was immediately challenged through several lawsuits, including by state attorneys general. These lawsuits have so far been notably successful. Three federal district courts (California, New York, and the District of Columbia) enjoined the Administration’s plans to terminate the program in March. The case is on review by the Ninth Circuit Court of Appeals. And, on April 24, a judge for the District Court for the District of Columbia ruled that the Trump administration must accept new DACA applications, staying his decision for 90 days to allow the DHS to explain why it was rescinding the program.
The DACA rescission challenges are based on claims of equitable estoppel, due process violations, and unequal protection, all seemingly providing inspiration for the Calderon litigation. These arguments can be used in the Calderon case, as these married couples relied on the regulatory and legal scheme of U.S. law that, once married, they could remain safely in the U.S. while their applications for legal status based were being adjudicated. Having one branch of the government “invite” applicants to come to interviews only to have another branch arrest them when the interview is over represents a complete breach of faith in the U.S. legal system.
Additionally, the ACLU’s equal protection claims reflect those raised in ongoing challenges to the President’s Travel Ban, that it was inspired by the President’s racial animus against non-“white-skinned” people. Cited reports that Trump prefers immigrants from Norway, a largely “white-skinned” nation, have been submitted, along with other proof, to establish his use of racial animus to develop these policies. The arguments have also been largely successful to date, reflected at recent U.S. Supreme Court arguments.
In the case of the Calderons and others, the government has set a trap for people who are following the law, regulations, and existing practice. While USCIS claims it did not coordinate with ICE in these arrests, each is nonetheless an arm of the same federal department, the Department of Homeland Security; the arrests are likely to be found to have originated from the same office.