A Major Blow to Immigration Policy

WASHINGTON (CN) - Mothers and children held in immigration prisons since the summer of 2014 must be set free while the court decides the constitutionality of the policy that put them there, a federal judge ruled.

The Department of Homeland Security expanded its detention policies last summer when increased violence and instability in Central America and Mexico led to a surge in immigration, particularly of children.

DHS and its immigration enforcement arm stepped up detention to try to deter immigration, though many of the detainees were found to have a "credible fear" of persecution in their home country, which could qualify them for political asylum.

On Feb. 20, U.S. District Judge James Boasberg ordered the DHS and its Immigration and Customs Enforcement arm to stop it.

Boasberg found that detaining immigrants as a means of deterring others from crossing the border violates the Fifth Amendment, the Immigration and Nationality Act, the Administrative Procedure Act and DHS regulations.

He granted an injunction in R.I. L-R et al. v Jeh Charles Johnson, et al., ordering the DHS director to release the detainees and stop the automatic detention policy while its merits are examined.

The class action complaint was filed Jan. 6. Ten immigrant mothers and their minor children, the lead plaintiffs, claimed they all had been found to have a credible fear of persecution in their home country. None had a criminal history and all have family members in the United States who offered shelter and support while the families go through asylum proceedings, Boasberg wrote in his 40-page order.

Each plaintiff was refused bond after establishing credible fear of persecution. Although they were eventually released, the families filed the class action to fight what they say is an illegal DHS policy.

They claimed, and Boasberg agreed, that the DHS policy to detain immigrants despite their credible fears, in order to deter others from immigrating, violates the Immigration and Nationality Act, is arbitrary and capricious under the Administrative Procedure Act and ICE policies, and violates constitutional guarantees of due process.

In Zadvydas v. Davis, Boasberg wrote, the court determined that "government detention violates [the Due Process Clause] unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow non-punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint."

DHS and ICE argued that the plaintiffs are not U.S. citizens and entered the country illegally, so they have very few due process protections. But Boasberg found that courts have made it clear that once a person is in the United States, he or she has due process rights.

"[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law," Boasberg wrote, citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

As people apprehended within the United States and with the possibility of legitimate claims to asylum, Boasberg said, the plaintiffs have clear rights to due process. To justify the detention, the government must be "preventing flight" or "protecting the community."

The government's interest in this case is particularly insubstantial, Boasberg wrote, because it argues only vague "national security interests" and complains that the influx of migrants "force[s] ICE to 'divert resources from other important security concerns' and 'relocate' their employees," but does not claim that the diversion or relocation will weaken the agency.

"Defendants have not conjured up the specter of an influx's overwhelming the country's borders or wreaking havoc in southwestern cities," Boasberg wrote. "The simple fact that increased immigration takes up government resources cannot necessarily make its deterrence a matter of national security, with all the attendant deference such characterization entails."

The government's power over immigration is subject to significant constitutional limitations, Boasberg said. The plaintiffs and their class suffer irreparable harm by the DHS's continued detention, and that harm is not balanced by the public interest in this case.

As asylum-seekers, the plaintiffs have slightly different legal status than refugees. Refugees apply for protected status while outside of the United States; if accepted they enter the country legally as refugees.

Asylum-seekers apply for the protection after having entered the United States, legally or illegally. Because the asylum process was set up to enable this protection, once an asylum-seeker has submitted an application, called an I-589, he or she is in the country legally, awaiting a decision.

Immigration agencies customarily released asylum-seekers pending resolution of their case, until the Central American wars of the late 1970s and 1980s brought millions of asylum-seekers to the United States. The Reagan administration then began jailing the vast majority of them, to deter others. Though that policy eventually was found to be illegal, it took 10 years of litigation to establish.

In 2014, faced with the influx of families, the Obama administration in effect reinstituted the Regan-era policies, opening new immigration prisons, often in remote places, expanding others, and handing out contracts to private agencies to act as jailers. The Obama administration made no secret of the fact that it was doing this for the deterrent effect.

Boasberg enjoined the policy.

He set a status conference for March 6.

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