Six months ago, President Trump set a March 5 deadline for winding down an Obama program for immigrants who arrived in the US illegally as children. But federal courts stand in the way, with the underlying message that legal principles matter for all people.
MARCH 5, 2018 NEW YORK—When Clete Samson was a government prosecutor at the Department of Homeland Security’s special immigration court, he says that respecting the constitutional rights of immigrants accused of breaking US laws was part of the job.
“It’s a myth that noncitizens don’t have constitutional rights because they are non citizens,” says Mr. Samson, who for eight years prosecuted cases for Immigration and Customs Enforcement (ICE). “I hear it a lot now in all these immigration debates, that these individuals don’t even have due-process rights.”
A lot of his job entailed fending off constitutional habeas corpus challenges from immigrants detained by ICE, says Samson, who now runs a national immigration practice at Kutak Rock’s Omaha, Neb., office. But their right to have the opportunity to contest the government, he and other legal experts note, remains one of democracy’s most fundamental values: No government can deprive a person of liberty without a giving valid reason ruled by law.
And beyond such rights granted to individuals by the United States Constitution, this value in many ways also governs the restrictions that Congress placed upon the actions of executive agencies in the 1940s. In general, that legislation barred federal agencies from creating or changing administrative procedures in an “arbitrary or capricious” way. One senator at the time called the law “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated” by federal government agencies.
But amid the nation’s stormy debates over immigration the past year, a number of federal courts have been taking a closer look at the rights that immigrants hold as their lives become enmeshed in the decisions of federal agencies – especially the due-process rights of those being detained by ICE and the future status of the Deferred Action for Childhood Arrival (DACA) recipients.
Six months ago, President Trump said he would wind down the DACA program by Monday, giving Congress time to come up with a legislative solution. But federal courts have put a halt to the president’s decision to wind down the program, ruling in part that his action most likely violated the administrative procedures requirements.
‘As ancient and important a right as any …’
Last week a divided Supreme Court grappled with the due-process rights of detained immigrants, and whether it was proper for a federal court to order ICE to provide bail hearings every six months. The conservative majority concluded that the federal law did not require such bail hearings, and that the court exceeded its authority by adding this requirement.
But the majority in the 5-to-3 decision sent the case back to the lower court to determine whether the indefinite detention of certain immigrants, who were not granted regular bail hearings, would violate the Constitution.
In a dissent he read from the bench, Justice Stephen Breyer objected to what he saw as a narrow, technical ruling of the majority and argued that constitutional due-process protections should have been presumed: “The Constitution does not authorize arbitrary detention,” he said. “And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.”
Immigration a gray area
Still, the president and agencies such as the Department of Homeland Security have a lot of discretion in how they choose to administer their legal authority over immigration.
“Immigration is a weird space in that the government is given a little more latitude to exercise [the process] how it wants to,” says Sarah Pierce, an immigration policy analyst at the Migration Policy Institute in Washington. “It’s considered kind of a foreign policy right on the part of the federal government.”
That means “there’s confusion in the legal field as well” about the rights of DACA recipients and noncitizen detainees, she adds. “It’s a legal gray area.”
In fact, Samson served in a special immigration court run by the Department of Homeland Security – an executive agency rather than the separate and co-equal federal judiciary. Congress gave the executive branch the authority to set up immigration courts as part of its responsibilities to protect the nation’s borders.
Despite the injunctions that two federal courts placed on the president’s decision to wind down DACA by Monday, “both courts have flat out said that there’s no dispute that the Department of Homeland Security has the authority to end this DACA program,” says Mr. Samson. “But they just didn’t pass the ‘arbitrary and capricious’ test, in the courts’ view.”
The Trump administration sought to appeal those injunctions directly to the Supreme Court, but last week the high court declined to bypass the appeals court, the usual next stage of judicial review.
Protections for all people
The federal court rulings agreed that there is no “right” to DACA and the government need not accept new applicants. Existing DACA holders may continue to re-apply for two-year extensions, the courts said.
But despite the gray areas – all the details of immigration laws and the discretion federal agencies have to enforce them – the values of due process and fairness remain firmly established for immigrants and noncitizens, experts say.
“The Constitution for the most part uses the language ‘people,’ so when you’re talking about 5th Amendment rights, 14th Amendment equal protection rights, or in all the Bill of Rights, everywhere you see ‘people,’ the Supreme Court has established that ‘people’ does mean people. It does not attach to and is not limited by citizenship status, but rather by presence here in the United States,” says Elissa Steglich, professor at the University of Texas, Austin, Law School and head of its immigration clinic.
Beyond the Constitution, these rights are “also important guideposts for how our institutions work,” Professor Steglich says, “and making sure every court, every immigration court, views every immigrant before it equally, and provides the same level of diligent review and consideration regardless of race, or language they speak, or where they hail from in the world.”
Role for Congress
Questions still exist about how much leeway the Supreme Court may allow Mr. Trump, or any president, to make discretionary decisions about immigration policy, including those affecting the rights granted to immigrant detainees now being held indefinitely.
But the fate of the DACA recipients and their future status, most all experts agree, should come from Congress rather than presidential discretion – which the Trump administration argues was already abused in former President Barack Obama’s creation of the program.
“At the end the end of the day, DACA has to go through Congress, one way or the other,” says Patricia Gannon, partner in the immigration practice group at Greenspoon Marder in New York. “Kill the dream or don’t kill the dream, but do your job.”