Washington, DC–Week Three of Trump’s presidency continues to deliver blows to the immigrant community, as U.S. Immigration and Customs Enforcement (“ICE”) launched a series of “targeted enforcement operations” across the United States. Specifically, there is an escalation in immigration raids in these seven states: California, Georgia, Kansas, New York, North Carolina, Texas, and Virginia.
Business As Usual?
ICE released a statement explaining that these raids are “just business as usual,” and that the agency regularly conducts “targeted enforcement operations” with extra personnel. However, ICE agents have deviated from their usual tactic: instead of picking up what ICE labels “criminal aliens” from county jails, agents are now entering streets and neighborhoods to make these arrests.
Mexican Consul Carlos Gonzalez reported a significant increase of undocumented Mexican nationals apprehensions in Austin, TX, with people being arrested because they were in the wrong place at the wrong time.
“I see a truck. And then police ICE on the vest of the guy,” says Margaret Saldana, who runs a child care business in North Austin. “[H]e’s putting handcuffs on the driver. And I was like – kind of, like, shocked. And then on the other side, there was another agent handcuffing the passenger.”
So, while the driver may have been the intended ICE target, the passenger–who was undocumented but has no criminal conviction–was also arrested because being undocumented makes one deportable.
“Operation Cross Check”
The American Immigration Lawyers Association’s headquarter in Washington, DC (“AILA National”) has received information about these targeted enforcement operations. Dubbed “Operation Cross Check,” these immigration raids focus on three populations:
- Fugitives – Anyone with an outstanding order of removal;
- Individuals who re-entered after they were deported, regardless if they have a criminal conviction upon re-entry into the United States or not; and
- At large “criminal aliens” – Anyone with any criminal conviction.
AILA National reports that those individuals who are identified in the course of an Operation Crosscheck action against a specific person, may also be picked up if they fall within the broader enforcement priorities outlined in the Executive Order. Note that the new priorities are so broad that any undocumented individual could be deemed a priority. AILA National encourages people to report these targeted enforcement raids to email@example.com and other immigration advocacy groups.
Legal Tip: If you or anyone you know have been subjected to an ICE raid, make sure to appear at the immigration court hearing with an attorney. If you are appearing without an attorney, you may ask the immigration judge to give you more time to find one. The court will provide you with a listing of immigration attorneys in the area. If you do not show up in court, the immigration judge will order you summarily deported, without any chance of finding a way to lawfully stay in the United States.
Washington v. Trump: The Judges Have Spoken
These ICE raids have garnered further scrutiny because they seem to surge right after all three judges from the Ninth Circuit U.S. Court of Appeals have unanimously ruled in Washington v. Trump to deny the federal government’s emergency request to lift the temporary restraining order (TRO), which is halting the implementation of the travel bans. This decision came in a lawsuit filed by the states of Washington and Minnesota. The states claim that the bans contained in the President’s January 27, 2017 Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” violate the Constitution and the laws.
This 3-0 decision sent a strong message to the President: (1) He cannot shield himself from court review by claiming “national security;” (2) He may only set policies that are consistent with the U.S. Constitution; and (3) Key parts of the Executive Order banning refugees and noncitizens from seven Muslim-majority countries are likely unconstitutional.
1. The President’s Executive Orders Are Reviewable by the Courts.
The court rejected the federal government’s claim that the President’s immigration policies—even those involving national security concerns—are unreviewable by the courts. In fact, it is the court’s role to consider constitutional challenges to executive action. The court explained: “[t][here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
2. The States Have “Standing” to Challenge the Executive Order.
In order to bring a lawsuit, a plaintiff must have “standing,” which is a legal stake in the outcome of the case. The Court found that Washington and Minnesota have an adequate stake because the states’ universities will suffer harm from the executive order. Specifically, the executive order prevents students and faculty from the banned countries from travelling for academic or personal reasons. It affects the universities’ ability to attract students and faculty from these seven affected countries. And, some of their students and faculty will be stranded outside the United States.
3. The Federal Government Is Unlikely to Win Its Appeal Because the States Have Alleged a Due Process Violation.
The court declined to “stay,” or lift, the TRO because it concluded that the federal government was not likely to win on the appeal of the TRO. In fact, the court indicated that the district court properly issued a TRO because the plaintiffs have a viable due process claim. The court stated that the federal government has not shown that “the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”
4. The Federal Government Did Not Establish Harm Resulting From the TRO.
The Court found that the federal government failed to allege any harm that would warrant staying the TRO. It pointed out that the government did not allege that any noncitizens from the seven countries perpetrated terrorist attacks against the United States. By contrast, the states did show harm to their public universities if the Executive Order were reinstated.
5. There Is A Strong Public Interest in Both Security AND the Free Flow of Travel, Family Relationships and Non-Discrimination.
The Court noted the competing public interests on both sides of this suit: “On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
The President Tweeted “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE,” which is almost comical, since he had just been soundly defeated in federal court by 3-0. What is far from a laughing matter is his accusation that the security of the United States is “at stake” because of how the Judiciary works: as a check and balance system that prevents the Executive office from usurping power with total disregard to the U.S. Constitution and the rule of law.
So what happens now? The lawsuit continues in trial court to determine whether this particular Executive Order is lawful and constitutional. In the meantime, U.S. Customs and Border Protection has resumed admission of nationals from the seven predominantly Muslim countries banned by the Executive Order. However, this case is far from over. The President can easily issue another Executive Order that would sidestep the complications of this current one, and in the blink of an eye, another travel ban would take effect.
Legal Tip: While the seven-country ban has been lifted, for now, one can never be too cautious when traveling, especially if you are a nonimmigrant, permanent resident (green card holder), or have dual citizenship. Make sure to consult with an immigration attorney prior to departing for an international flight. If possible, sign and execute a Form G-28, Notice of Entry of Appearance as Attorney or Accredit Representative, and bring this form with you when you exit the United States. If you run into any complication upon your re-entry, contact your attorney so you have adequate counsel and representation.
Kristine Tungol Cabagnot is an attorney, advocate, and author specializing in immigration and nationality law. She may be reached at firstname.lastname@example.org.