Federal Administration Faces Immigration Blowback
Immigration policy under the current federal administration has met with mixed results both in terms of public opinion and the courts. Under President Trump, Immigration and Customs Enforcement (ICE) has faced criticism for its draconian treatment of migrants in border detention facilities. Likewise, recent changes in policy and procedure at the U.S. Citizenship and Immigration Services (USCIS), such as implementing a narrower definition of birthright citizenship for children born to U.S. parents abroad, has led many critics to claim that the federal government’s aim is largely to curb all immigration and to punish immigrants, rather than effect meaningful and positive reform.
The administration’s actions, on the whole, have sparked a national debate about the extent of executive power and whether statutory and constitutional checks and balances limit the executive’s purview over immigration policy. While federal courts are generally loath to place limits on executive power concerning foreign affairs and immigration, the Trump administration has tested those limits. Most recently, federal judges blocked two separate rules attempted by the administration.
The first rule change sought to eliminate the 20-day limit on how long children can remain in adult detention facilities. Despite the criticism leveled at the administration for the state of the border detention centers and the familial separation policies, the administration has persisted in seeking to broaden rather than constrain the use of these facilities. The administration’s policy conflicted with a decades-old court order known as the Flores settlement agreement that sets minimum standards of care for immigrant children in detention. While Trump officials have pointed to the agreement as an obstacle to keeping immigrant families together (they claim they are forced to keep immigrant parents detained pending court proceedings while children must then be shipped off to Department of Health and Human Services custody), supporters of immigrant rights hold to the agreement as a necessary check on the administration’s treatment of migrant families. A federal judge recently ruled that the Flores agreement does indeed still hold, preventing the administration from removing the 20-day limit for detaining children.
The second rule shot down by the courts would have allowed the administration to deport tens of thousands of immigrants without a hearing. Immigrants facing deportation are typically granted a short, initial hearing before a judge to learn their rights and how their case will proceed. Immigrants then wait for a full hearing before an immigration judge makes a final decision. Under certain circumstances, the process can be expedited towards removal; specifically, when individuals are arrested within 100 miles of a land border. The administration sought to expand these speedy removal proceedings to any immigrants who arrived in the country within the last two years. The rule would have given ICE wide latitude to engage in fishing expeditions in communities across the country and quickly deport any unauthorized immigrants discovered. A U.S. district judge recently ruled that the administration failed to follow proper administrative procedures in establishing the new policy, preventing an estimated 20,000 people annually from facing these expedited removal proceedings and losing their day in court.
