immigration, News

Is DACA doomed? Supreme Court may side with Trump

Activists gathered outside of the U.S. Supreme Court on Tuesday – Photo: Robin Bravender

WASHINGTON — The U.S. Supreme Court appears unlikely to salvage an Obama-era program that has allowed hundreds of thousands of young, unauthorized immigrants known as “Dreamers” to remain in the country without immediate fear of deportation.

Lawyers defending the program — known as Deferred Action for Childhood Arrivals, or DACA — argued Tuesday that the Trump administration broke the law when it rescinded the program in 2017. Hundreds of protestors echoed the sentiment Tuesday, chanting “Home is here!” and other pro-immigrant messages on the streets in front of the high court.

But the court’s conservatives seemed to disagree. During extended arguments in three consolidated cases, they seemed to endorse the legality of the administration’s decision to end the program and suggested that the question doesn’t even merit judicial scrutiny.

“I assume that was a very considered decision,” Justice Brett Kavanaugh, President Trump’s most recent appointment to the bench, said of the decision to end it. “Now we can agree with it or disagree with the merits of it … but “what is the shortfall?”

Even if the decision were illegal, the judicial branch couldn’t necessarily fix it, Chief Justice John Roberts said. “It’s not always the case when the government acts illegally in a way that affects other people that we go back and untangle all of the consequences of that.”

Justice Neil Gorsuch, Trump’s first appointee to the high court, struggled with the issue of “reviewability.”

“I hear a lot of facts, sympathetic facts … and they speak to all of us,” he said. “But what’s the limiting principal?”

Temporary protections

Photo: Robin Bravender

The DACA program was created in 2012 to allow certain immigrants who arrived to the United States before age 16 to apply for temporary protection from deportation and work permits. There were roughly 661,000 active participants in the program as of June 30.

Trump vowed on the campaign trail to “end” what he has characterized as an illegal program. His administration made good on his promise in 2017, but lower courts blocked the decision from taking effect.

In June, the U.S. House passed legislation that would safeguard the program and provide a pathway to citizenship for Dreamers. But the bill is languishing in the GOP-controlled Senate, which is unlikely to act on it any time soon.

“We hope and pray that the courts will do the right thing,” House Speaker Nancy Pelosi (D-Calif.) said at a news conference after the arguments. She pointed to the bill passed by the House more than 160 days ago, which she pledged to drop off at the office of Senate Majority Leader Mitch McConnell (R-Ky.).

On Tuesday morning, Trump tweeted that President Barack Obama had “no legal right” to create the program but said he would make a deal with Democrats to allow DACA recipients to stay if the program is overturned.

Senate Minority Leader Chuck Schumer (D-N.Y.) accused Trump on Tuesday of playing politics with the Dreamers who rely on the program. “The president’s relentless scapegoating of immigrants is the most un-American thing I can think of,” Schumer said.

Justice Sonia Sotomayor, one of the court’s more liberal jurists, took issue with the administration’s attacks on the program during the arguments Tuesday. She called it legal and said she supports its efforts to defer deportation of Dreamers — more than 90 percent of whom are employed and nearly half of whom are in school, according to a 2017 survey.

Photo: Robin Bravender

Such law-abiding immigrants and their families rely on the program, she said. Trump, meanwhile, has said he would protect DACA recipients but he hasn’t — an as-yet empty promise that she said must be considered when ruling on the case. “This is about our choice to destroy lives.”

But Gorsuch and others suggested that the administration has adequately considered such “reliance interests.”

A ruling in favor of the Trump administration would not necessarily result in the immediate deportation of these so-called Dreamers, according to Steven Schwinn, a law professor at the University of Illinois at Chicago. But it would threaten their ability to live in the United States and would deprive them of legal authorization to work and to access certain social benefits.

The ruling — expected next spring or summer — will also likely inflame partisan divisions over immigration and could influence the outcome of the 2020 presidential contest. A majority of the public backs the DACA program, polls show, though support is stronger among Democrats and Independents than Republicans.

Allison Stevens is a reporter for the States Newsroom Network of which NC Policy Watch is a member.

immigration

Editorial: As Supreme Court takes up DACA, a chance for Congress to regain some respect

Today the United States Supreme Court will hear a highly anticipated case that could determine the fate for thousands of DACA recipients. The Trump admistration is challenging a lower court ruling that blocked the administration from ending the Deferred Action for Chilhood Arrivals (DACA) program that was created by the Obama adminstration in 2012.

As more than 700,000 young immigrants nervously watch this case, the editorial board for The Washington Post explains that it is well past time for Congress to solve this issue once and for all for the Dreamers and their families:

As the Supreme Court hears legal arguments Tuesday on the Obama-era policy that provided a reprieve from removal and gave job permits to hundreds of thousands of young unauthorized immigrants, and on the Trump administration’s 2017 attempt to rescind that policy, it’s worth remembering some history. Specifically, that members of Congress of both parties have been trying, and failing, to codify those very protections for so-called dreamers since nearly the turn of the century.

It was August 2001 when then-Sen. Orrin G. Hatch, a Utah Republican, and Sen. Richard J. Durbin, an Illinois Democrat, introduced the Dream Act, outlining a pathway to legal permanent residency for migrants who entered the United States as minors, usually with their parents. Since then, repeated iterations of that measure have become enmeshed in the broader partisan impasse over immigration, even as lawmakers, including many Republicans, voiced ritual sympathy for dreamers.

An attempt to break the logjam last year, with a compromise pairing a long-term fix for the dreamers with funding for border security, including President Trump’s wall, fizzled in the Senate when he threatened a veto. Now that the president is building portions of the wall anyway, by diverting funds appropriated by Congress for the military, what possible justification can lawmakers find to avoid doing the moral and humane thing by guaranteeing a normal life for dreamers?

Perversely, it is imaginable that Congress, and perhaps even Mr. Trump, could be jarred into acting on the dreamers’ behalf by a Supreme Court ruling that removed their protections and job security. Mass layoffs and waves of deportations, along with the financial distress those would trigger, could create the sort of crisis that focuses minds in Washington when all else fails. And the fiscal and economic impact of layoffs affecting hundreds of thousands of employees, and others still in college, would be consequential. A 2017 CATO Institute study found that deporting 750,000 young people protected by the Deferred Action for Childhood Arrivals program would sap the U.S. economy by $280 billion over a decade, and the federal tax coffers by an additional $60 billion.

But Congress could regain some respect by doing the right, the obviously right, thing before the court rules.

Read the full editorial in Tuesday’s Washington Post.

Courts & the Law, immigration, News

NC justices examine state court power in immigration detention cases

An attorney for the Mecklenburg County Sheriff’s Office argued Monday that state courts cannot delve into immigration enforcement under any circumstance — even if Immigration and Customs Enforcement (ICE) detains the wrong person or officers who aren’t trained or deputized to enforce federal laws do so anyway.

The North Carolina Supreme Court heard arguments yesterday in Chavez v. Carmichael, a Mecklenburg County case that involves two inmates challenging their immigration detention status in state court. It’s a complicated case with many moving parts, but the central issue the justices are considering is whether a state court has the jurisdiction to review habeas corpus petitions from federal immigration detainees.

Sejal Zota, the legal director of Just Futures Law, argued Monday that state courts should have the power to review whether or not a threshold for state officers to make a federal immigration arrest was met.

For example, if a county has a 287(g) agreement, a partnership with ICE in which it delegates authority to local agencies to perform federal immigration enforcement in their jurisdictions, only officers who are certified (i.e. trained and deputized in the program) can make those federal arrests. A state court should have the power to inquire whether officers were certified in an arrest.

“When a county enters into a 287(g) agreement, that is not blanket authority for everyone to start doing immigration arrests,” Zota said. “It doesn’t apply to everyone.”

She also argued that a state court should be able to establish that there was state law that allowed a federal immigration arrest (the 287(g) agreement) and that the right person identified in an ICE detainer is the right person in detention.

“This is very simple fact-finding — the trial courts deal with this all the time,” Zota said.

The point of that type of inquiry would be to prevent mistakes and the deportation of people who may be citizens or in the U.S. legally.

Sean Perrin, the attorney representing the Mecklenburg Sheriff’s Office, argued that the federal government has exclusive authority over immigration matters and that a state court has “no power to do anything” once it’s established an detainee is in federal custody (whether they are held in a state jail or not).

He said that if state courts could inquire about the validity of federal immigration detainers, it would lead to 100 different jurisdictional rules across the state, which defeats the purpose of a uniform federal system.

“Mecklenburg County would have different immigration rules than Cherokee County; Cherokee County would have different immigration rules than Buncombe County and so on,” he said.

Justice Robin Hudson asked Perrin if it has to first be established that the person in the immigration paperwork is the correct person, and he said “no.” Justice Mark Davis asked what would happen if a state judge saw an issue in a case — do they just say “oh, gee, have fun litigating that in federal court?”

“Yes, exactly,” Perrin said.

He added that a state court finding an error in an immigration case would be attacking federal immigration warrants, and reiterated the federal courts exclusive control over the issue. In the event the feds get something wrong, a person might be able to file a civil rights claim against the agency that arrested them, but a state court wouldn’t have authority in a case even if a jurisdiction’s 287(g) agreement was expired.

Zota, in closing, said a state court might not be able to grant relief in an immigration case, but it always has jurisdictional authority to inquire about the basis for someone’s detention.

Commentary, immigration, Trump Administration

Trump’s destructive war on immigrants is taking a deadly toll

Journalist James Garcia authored a powerful essay recently in the Arizona Mirror that does a good job of summarizing the destructive impact of the Trump administration’s policies toward immigrants. His assessment: we won’t be able to call ourselves a nation of immigrants much longer if Trump’s relentless and bigoted policies aren’t halted soon.

This is from Garcia’s roundup of what’s happening on the immigration front:

The Trump administration wants to slash the number of refugees allowed to resettle here to 18,000 next year. That’s about 20 percent of the target set by President Obama in 2016, and the lowest government cap since 1980.

Refugees are also being affected by a policy change that dramatically expands the government’s practice of returning asylum seekers who arrive at our border to Mexico to await court hearing dates. It used to be if you made a credible claim for asylum, you could be released to a sponsor – usually a family member in the U.S. – until your case wound its way through the system, a process that often takes years.

Already about 45,000 asylum seekers have been returned to Mexico under the policy. Unless an appeals court rules otherwise, tens of thousands more asylum applicants could be sent to Mexico to live in conditions that are substandard, if not outright dangerous.

Reports have shown “that migrants sent back to Mexico under the policy have been robbed, kidnapped for ransom, raped, tortured and killed,” according to Vox.

Meanwhile, U.S. officials have penned so called “safe third country” agreements with Honduras, El Salvador, and Guatemala that require migrants to seek asylum first there if they pass through one those countries on their way to the U.S. 

The plan is almost as heartless as it is absurd. Many of the 800,000 migrants who have been arrested at our border in the past year came from those three violence-ridden nations in the first place. Honduras, El Salvador and Guatemala are all on the top ten list of countries with the world’s highest murder rates.

Legal immigration is also under assault. Read more

Commentary, immigration, Trump Administration

As Trump sets sights on the border wall, are North Carolinians willing to pay for it?

This is what happens when a preposterous campaign promise becomes an offensive reality.

No one outside of Donald Trump’s base particularly wanted the president’s expensive and ill-conceived border wall. It was, from the start, a promise made out of craven political opportunism, a bid to score points with rabid, red-meat, anti-immigrant neo-cons.

The question is: In 2019, with the news that it will cost North Carolina military bases about $80 million in new construction, does the wall still sell with Trump’s base, a population not likely to stomach military funding cuts? Indeed, what happens when an unstoppable force meets an immovable wall?

The News & Observer explained Wednesday how the diverted funds could impact some high-profile plans for North Carolina bases:

The affected projects in North Carolina include $40 million for a new battalion complex and ambulatory care center at Camp Lejeune, a previously canceled $32.9 million elementary school at Fort Bragg, and a $6.4 million storage facility for the new KC-46 tanker at Seymour Johnson Air Force Base.

Those projects join cuts at a Florida base nearly destroyed by last year’s hurricane season, a new middle school for Kentucky’s Fort Campbell and a new fire station for a Marine Corps base in South Carolina.

In all, 34 installations in the United States and eight bases in U.S. territories, including Puerto Rico, Guam and the Virgin Islands, will absorb $1.8 billion in domestic cuts to planned construction projects. Puerto Rico, which was devastated by Hurricane Maria in 2017, is losing more than $400 million in planned military construction projects.

That money will be shifted to help support 11 military construction projects to extend the border wall at locations in Texas, Arizona and California. Another $1.8 billion will be pulled from planned construction projects at bases overseas to also support the border wall construction.

The Pentagon said in a briefing Tuesday that it was justified in shifting the $3.6 billion total in military construction funds to pay for border wall construction because it had determined that the wall was necessary to support military operations along the border.

A senior defense official briefing reporters Wednesday said the only factors that were considered on whether to cut a project was whether it had an award date after fiscal year 2020, and that no barracks or family housing would be cut.

That meant that bases hit hardest by last year’s hurricane season, including Camp Lejeune in North Carolina and Tyndall Air Force Base in Florida were not spared. Tyndall will lose $17 million for a fire station.

But those are often projects that local leaders have spent years lobbying for in order to secure funding in the annual defense bill, and getting that funding is often seen as an important victory for elected leaders.

Asked how the Pentagon has explained to those local communities and leaders how the wall was a more important priority, the official didn’t answer directly but said that the hurricane-hit bases were already being repaired through supplemental hurricane funding. “We are committed to the rebuild of Tyndall,” the official said.

To get the projects back on track, however, the Pentagon will need Congress to backfill the funds, and Congress has not indicated it is willing to do that. “Conversations are ongoing with Congress,” the official said.

Only with Donald Trump do we hope campaign platitudes are just platitudes.

The Observer‘s editorial board followed through on Thursday, slamming U.S. Sen. Thom Tillis for the news, and not only for his most extraordinary flip-floppery on Trump’s border wall earlier this year.

But also for his handling of the president’s apparently politically-motivated Tweet this week, which seemed to indicate erroneously that it was Tillis, and not Gov. Roy Cooper, who asked the president for an emergency declaration in advance of Hurricane Dorian’s arrival in the Carolinas.

This story has about a 24-hour shelf life, which is to say it’s a grotesquely unimportant tidbit during Dorian, but it does capture — in one neat little shell — how strange Washington, D.C. is these days.

Stay safe during the storm.