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ICE Keeps Challenging Federal Courts’ Authority — And Losing.

ICE Agents in V formation in front of a painter american flag
ICE Agents in V formation in front of a painter american flag
Alexis Warren,
ACLU Immigrants' Rights Project
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February 14, 2018

In a recent span of 10 days, four courts issued decisions that could literally save lives.

Our clients live across the United States, but all have been swept up in ICE’s aggressive new campaign to target communities previously considered low-priority for immigration enforcement, with ICE attempting to deport them as quickly as possible. Since July 2017, we have challenged this bully tactic in federal district courts across the country, filing cases on behalf of communities of Iraqis in Michigan, Indonesians in New Hampshire, Somalis in Florida, Cambodians in Southern California, and Indonesians in New Jersey.

Between Jan. 25 and Feb. 2, judges across the country temporarily blocked the deportations of the four latter cases. The Iraqis, whose case was the first to be filed in June 2017, have already received a nationwide stay. For varying reasons, all these communities previously enjoyed a reprieve from deportation, in some cases for decades. However, with the change in administration, a target was placed on their backs. As Thomas Homan, ICE’s acting director, declared at a December press conference, “The president has made it clear in his executive orders: There’s no population off the table.”

However, in ruling after ruling, judges have taken issue with the government’s argument that these noncitizens — because of existing final orders of removal, some of which are decades old — have no meaningful opportunity to access the immigration court system to present their claims that they face grave harm if deported.

Moreover, they have rejected the government’s assertion that federal courts lack jurisdiction to rule on such matters. While ICE argues that our clients should confine themselves to prevailing upon existing immigration channels, the federal judges recognized that, without their intervention, individuals would likely be deported before they have a chance to do so.

In carrying out this campaign, ICE has shown little to no regard for the circumstances in immigrant’s countries of origin or the reasons they fear danger upon return. Instead, the agency has demonstrated it is willing to ignore our asylum laws and to repeatedly — and unsuccessfully — challenge federal courts’ jurisdictions in order to deport people as quickly as possible.

Under the Immigration and National Act, the government cannot deport a noncitizen to a country where their particular race, religion, nationality, membership in a particular social group, or political opinion puts their life or freedom at risk. The United States has also committed to adhere to the United Nation’s Convention Against Torture, and thus cannot deport a noncitizen to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In the face of these legal barriers, ICE has focused its energy on trying to stop communities fighting deportation from receiving sufficient time to reopen their cases before immigration judges, who might find they qualify for protection under these laws. The agency’s hasty approach, in the face of such high stakes, has raised flags for the judiciary.

In the case of 1,400 Iraqis, many of whom fear that their religious affiliation and time in America will mark them as targets by ISIS, Judge Goldsmith of Michigan found, “While cost and efficiency in administering the immigration system are not illegitimate governmental concerns, such interests pale to the point of evaporation when weighed against the potential lethal harm Petitioners may suffer.”

When weighing the future of Indonesian Christians in New Hampshire who fear religious persecution, Judge Saris of Massachusetts drew parallels to the 1939 U.S. decision to turn away Jewish refugees aboard the St. Louis, who were seeking safety. The ship returned to Europe, where 254 of the passengers were murdered in the Holocaust.

“After the Holocaust boats were turned away during World War II, the country said “Never again are we going to do that,” Judge Saris explained, “So I think we don’t want to put them on the ship back unless somebody has had a chance to look at whether there’s a really bad situation for them.”

We are currently defending two of our victories on behalf of the Indonesians in New Hampshire and the Iraqis in Michigan in the federal appeals courts for the First and Sixth Circuits, respectively. As more communities come under attack, we will continue to petition the courts to affirm immigrants’ rights in the face of an administration bent on discarding them. Thus far, federal judges have stepped up to the task.

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