IMMIGRATION: “Where do the children play? Yusuf Islam
JACK E. URQUHART© July 11, 2018
The American immigration system is an incomprehensible jungle governed by ramshackle “rules” ranging from Congressional legislation to memoranda of policies and practices. These “rules” are in constant flux, tossed about in a turbulent sea stirred by disruptive partisan wars. The resulting chaos inflicts daily humanitarian harm without perceptible benefit. Sound immigration reform seems a shared goal for all American citizens. Problem-solvers, however, seem drowned out by nosily interesting incendiaries.
Congress and the Executive Branches have almost unlimited authority over the immigration arena. Correspondingly, Congress and the Executive have the responsibility to sensibly and constitutionally improve our failed immigration system. The challenge is considerable. Meeting the challenge requires leadership actually committed to improving the American immigration system rather than using non-citizens as pawns in partisan bickering.
A measure of the increasing chaos in our immigration system is the rise in Judicial review of immigration decisions made by Congress and the Executive. In stark contrast to the immigration decision-making authority the Constitution grants Congress and the Executive Branches, the Judicial Branch has quite limited authority over immigration policy. In general terms, Court immigration authority is a check on whether Congressional or Executive immigration decisions are unlawful. As expected, Courts historically defer to Congress and the Executive, and rarely find that Congress or the Executive has acted unlawfully in their control over immigration.
Two quite recent cases, however, are characteristic of recent cases in which Courts have found immigration decisions made by Congress, the Executive, or both, are illegal. A common thread is Executive action that is ill-conceived and excessive.
July 9, 2018, a United States District Court forcefully rejected the Attorney General’s attempt to alter the terms of a 1997 agreement on the terms of detaining non-citizen children.
June 20, 2018, America’s President blasted out an Executive Order, demanding the Attorney General promptly petition the Court to change the terms of a federal court consent decree—the Flores Agreement. Following orders, the Attorney General filed for the change the very next day. The change desired by the President and the Attorney General was to alter the Flores Agreement to permit ICE to indefinitely detain non-citizen minors in unlicensed ICE family residential facilities.
The Attorney General described these changes as “limited.”
The Court disagreed. The Attorney General, the Court wrote, actually wanted to “light a match to the Flores Agreement and ask this Court to upend the agreement by judicial fiat.” The Attorney General’s request was for the Court to permit the Government to clearly breach the Flores Agreement that protected children from indefinite detention and limited detention in state licensed facilities.
The Court found the Attorney General’s court filing “a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate.” Flores v. Sessions, CV-85-4544 (C.D. Cal. July 9, 2018), appeal pending, No. 18-56204 (9th. Cir. 2018).
A few weeks earlier, the United States Court of Appeals for the Third Circuit found that the “jurisdiction-stripping” provisions of the Immigration and Nationality Act as applied by the Attorney General violated our Constitution. Martinez, et al. v. Attorney General of the United States of American, No. 17-2159 (3rd Cir. June 18, 2018).
By way of background, four non-citizen children and their mothers fled from El Salvador and Honduras to the United States in 2015. Within hours of crossing the border they were arrested by the Border Patrol. They were briefly detained in Texas, and, then, transferred to a detention facility in Leesport, Pennsylvania. Employing expedited removal proceedings, the children’s asylum claims were denied, and they were ordered removed. The children, ages 3, 4, 7 and 16, apparently, were denied asylum at the credible fear screening stage. The immigration officials who decided their fate, did not doubt that the children had a credible fear of abuse and persecution in their respective countries of origin. Instead, the immigration officials felt the children could not establish that they were persecuted for reasons itemized in the asylum-worthy laundry list, like race or religion.
Shortly after their detention, the children asked for the federal courts to review the conduct of their credible fear screening. The imagination does wonder just how a 3-year-old is screened for credible fear and is expected to establish precisely why he or she is persecuted. Regardless, the children’s initial claims were not reviewed by a federal court because the Immigration and Nationality Act strips the courts of jurisdiction to review the merit of the immigration officials’ decisions. Moreover, the children had no constitutional rights at all, because they did not have “sufficient connections” with this country at the time of their arrest.
The children were held in the Pennsylvania detention center for over two years. While detained, the children applied for Special Immigrant Juvenile status. SIJ status was legislated by Congress in 1990 to safeguard abused, abandoned or neglected immigrant children who meet rigorous eligibility requirements. The children met all those requirements and were granted SIJ status. Their SIJ status required and received the consent of the Secretary of the Department of Homeland Security.
Reversing years of policy, the current Attorney General ignored the children’s SIJ status, continued the children’s detention, continued prosecuting their expedited removal, and continued to insist the SIJ children had no rights under our Constitution. Never before has any administration taken these positions.
After earning SIJ status, the children, again, invoked a constitutional right to Writ of Habeas Corpus. With SIJ status, they urged the right to have a federal court determine whether their detention and denial of asylum was lawfully decided by immigration officials.
The Attorney General persisted in the claim that the children had no constitutional rights, and therefore, no right to invoke the Writ of Habeas Corpus.
The Third Circuit detailed the seemingly obvious reasons that a denial of any constitutional rights to a child who was within a “hair’s breadth” of Lawful Permanent Resident status “eviscerates” the purpose for which Congress created SIJ status. As applied by the current Attorney General, the jurisdiction-stripping provision of the INA was unconstitutional. It violated the First Amendment’s protection of the Writ of Habeas Corpus.
The power of Congress and the Executive over immigration is unquestionably broad. However, it is not limitless. The Judiciary retains the responsibility to ensure adherence to our Constitution.
Our constitutional democracy will forever struggle with obstacles unknown and perhaps even unimaginable to more authoritarian regimes. These obstacles may even appear farcical to autocrats who impose their will without serious restraint. America’s immigration system is and has been flaw-ridden. It needs serious rehabilitation. But as H.L. Mencken reminds us through the ages: “For every complex problem there is an answer that is clear, simple, and wrong.”
Sound immigration reform will not be achieved by bullying, posturing, and dehumanizing. Grandstanding displays that are both impractical and inhumane are unhelpful regardless of which partisan group they may delight. Our Constitution must be read for its living warmth of heart and transcendent values.
Problem-solvers are sorely needed. Such people instinctively know that children must never be used as toys by adults playing partisan games. A final irony emerges from the two cases just discussed: No one did or could argue that the children posed any threat to any American citizen. Nor did anyone question that their arduous journey to and across our border was driven by persecution in their home countries.
America must protect its borders. America cannot open its borders to all who suffer. Taking that as a given, America will not achieve sound immigration reform by making a mockery of its abiding commitment to human rights and the rule of law. Our values-however differently we may view them—abhor child abuse.