Legal Victory Should Be First Step Toward Expanding Sanctuary

UUSC applauds the decision of District Court Judge William Orrick last Tuesday to block the implementation of the Trump administration’s executive order to cut funding to so-called “sanctuary cities” nationwide. This preliminary injunction reaffirms the right of local governments to serve all their residents, regardless of immigration status, and to limit their cooperation with federal immigration enforcement programs like civil “detainers” that operate outside the court system and—frequently—in violation of the constitution itself.

However, this case also highlights the ways in which undocumented residents will continue to be at risk, even in so-called “sanctuary” jurisdictions. The court’s decision may have found this particular executive order to be a blatant case of overreach, but it leaves many of the tools that the federal government can still use to compel local jurisdictions to share information with Immigration and Customs Enforcement (ICE) through the criminal justice system untouched. This continues to expose undocumented folks to the threat of raids and family separation. It therefore points to the need for “expanded sanctuary” policies that end mass arrest and over-policing, not just traditional sanctuary.

President Trump’s January 25 executive order on “Enhancing Public Safety in the Interior of the United States,” was blatantly unlawful and unconstitutional from the start—especially in its threat to designate “sanctuary jurisdictions” as “not eligible to receive federal grants[.]” The District Court on Tuesday ruled that it is only Congress, not the President, who has the power to attach conditions to federal grant programs. Our democratic Constitution ensures that the legislative branch makes the law, not the dictates of one individual, and Judge Orrick observed in his ruling that Congress has repeatedly failed to pass legislation in recent years that targets sanctuary cities in ways similar to this executive order.

It is important to recognize, however, the limitations of what the courts alone can do to protect sanctuary policies. The ruling does not, for instance, remove the laws already on the books that compel cities to cooperate with federal immigration enforcement in other quite dangerous ways.

The three federal grant programs with immigration conditions already attached to them require local jurisdictions to share information with ICE about a person’s immigration status when detained. Because this part of federal law still stands, even so-called “sanctuary cities” must send the fingerprints of every person they arrest to a federal database that is shared with ICE. As San Francisco argued in its complaint in this case, this effectively “allows ICE to determine the immigration status of everyone in San Francisco custody.”

This means that under existing law, there are still serious limitations around how much a sanctuary city can protect its undocumented residents through purely immigration-related policies. As Albert Saint Jean from the Black Alliance for Just Immigration (BAJI) has put it, “ As an undocumented person, if you are arrested for jumping [a subway turnstile], that arrest means your fingerprints will be taken and given to a federal database and guess what—now ICE knows where to find you. This is the knowledge that facilitates ICE raids. All in a sanctuary city.”

This is one of the many reasons why “sanctuary” policies for one group of people will never suffice until we have expanded sanctuary for all. Undocumented people will never be protected from raids so long as our cities don’t also end racist and discriminatory law enforcement practices that expose certain communities to systematic mass arrest and mass incarceration.

Inspired and informed by the analysis of Mijente, BAJI, Black Youth Project 100, and other groups leading the front-line struggle against criminalization, the UUA and UUSC have joined together to launch the “Love Resists” campaign to stand in solidarity with the movement to expand sanctuary and end all policies that criminalize and stigmatize anyone in our communities.

Rights Reading

Our weekly roundup of what we’re reading: a few select articles from the front lines of human rights that we don’t want you to miss. This week, we are highlighting the ways that the Trump administration’s policies are affecting an already vulnerable immigrant population.

Jeff Sessions Prepares DOJ For Crackdown On Unauthorized Border-Crossers, Elise Foley, Huffington Post, April 11, 2017

With the ultimate goal of detention, Attorney General Jeff Sessions is preparing harsher policies for undocumented immigrants with non-violent criminal offenses. Despite these non-violent offenses, such as illegal re-entry and document fraud, Sessions evoked dangerous and harmful imagery, using words such as “war zones, beheadings, depravity and violence, drug cartels, killing innocent citizens” to describe these non-violent offenders these policies are aimed at, criminalizing undocumented immigrants and painting them in a dangerous light.

Some of the policies cover prosecution for those harboring or transporting immigrants, felony prosecution for re-entry and multiple misdemeanors, and tighter border controls. There was no mention of how these policy rollouts would be funded or what other resources this would take.

Read more about criminalization and the harmful effects it has on minority communities here.

How Police Entanglement with Immigration Enforcement Puts LGBTQ Lives at Risk, Sharita Gruberg, Center for American Progress, April 12, 2017

LGBTQ immigrants are especially vulnerable to the new administration’s executive orders on immigration enforcement. The LGBTQ community already interacts with local law enforcement due to discrimination, profiling, and higher rates of violence and intimate partner violence. The executive orders have called for deportation of undocumented immigrants, many that are seeking asylum here because their lives are in danger. “LGBTQ people face widespread persecution in much of the world, with 76 countries criminalizing people based on their sexual orientation or gender identity and expression.” Deportation in these cases can result in death.

Mixing local law enforcement and immigration enforcement increases the danger that LGBTQ people face. LGBTQ immigrants will be less likely to come forward in instances of violence, discrimination, and domestic violence for fear of deportation. Their lives are more at risk both here in the United States because they are less likely to come forward and their lives are also threatened for fear of deportation.

Read a blog post about a UUSC staff member’s experience meeting an LGBTQ asylum-seeker in detention here.

Trump Plan Would Curtail Protections for Detained Immigrants, Caitlin Dickerson, The New York Times, April 13, 2017

“A decision to simultaneously abandon detention standards could have disastrous consequences for the health and safety of these individuals.”

The Trump administration is cutting back on already low standards and protections for immigrants being held in detention centers. For over 15 years, basic standards, such as regular suicide checks, ensuring translation is provided, and adequate medical care, have always been met. However, even these basic services are now at risk under the new administration. A regulatory office that oversees these protections and standards is being closed.

The Office of Detention Planning and Policy, which created policies to prevent sexual assault and protect pregnant detainees will also be shut down. A report released by a Homeland Security inspector just last month, cited health and safety concerns and even found that violent and non-violent offenders were sharing spaces.

UUSC partner, Community Initiatives for Visiting Immigrants in Confinement (CIVIC), filed a complaint calling for a federal investigation into reports of sexual abuse, assault, and harassment in immigration detention facilities. Read more here.

Rights Reading

Our weekly roundup of what we’re reading includes a few select articles from the front lines of human rights that we don’t want you to miss. This week’s catch up on the recent rulings on Trump’s travel bans, human rights violations in Burma (Myanmar), and immigration in the United States.

Two Federal Judges Rule Against Trump’s Latest Travel Ban, Alexander Burns, The New York Times, March 15, 2017

 “This is a great day for democracy, religious and human rights. I am very pleased that the processing of my mother-in-law’s paperwork will not stop now but more importantly that this Muslim ban will not separate families and loved ones just because they happen to be from the six countries.” -Mr. Elshikh

Two federal judges, from Hawaii and Maryland, blocked the Trump Administration’s revised travel ban earlier this week. This is the second setback since Trump issued the new executive order banning travel from certain Muslim-majority countries. The first block was from a federal court in Seattle. The federal judges both argued that the travel ban was discriminatory and based on religion, making it unconstitutional. In addition, the lawsuits mention that the executive order harms the operations of various organizations, schools, and hospitals overseas.

Learn more about the effects these executive orders are having on immigrant families in our blog, DHS Memos Threaten Immigrants’ Rights, Families, and Safety.

Myanmar must ‘allow Rohingya to leave camps’, Al Jazeera, March 16, 2017

Former U.N. Secretary, General Kofi Annan, was appointed to lead a commission by Burma’s (Myanmar) current de facto leader, Aung San Suu Kyi to investigate tensions between Buddhists and Muslims in the country. The commission released a report stating that Burma must close internally displaced persons (IDP) camps that have been housing and trapping thousands of Rohingya, Burma’s Muslim minority, for the past five years. The Rohingya are not recognized citizens and are denied basic rights, including healthcare, education, and often, humanitarian aid. The report also recommends that the U.N. to run an independent investigation into the ongoing violence and persecution of that has been taking place over decades.

Today, UUSC President and CEO Tom Andrews, along with other human rights leaders, gave testimony on the humanitarian situation in Burma. Click here to watch the hearing and join our call for a Commission of Inquiry at uusc.org/truthforrohingya.

Donald Trump’s Crackdown On Undocumented Immigrants Is Silencing Exploited Workers, Dave Jamieson, Huffington Post, March 8, 2017

The Trump administration’s crackdown on undocumented immigrants may have opposite consequences than intended. Christopher Williams, a lawyer who works closely with undocumented immigrants states, “I honestly think it’s creating an incentive to hire more undocumented workers, because now they’re even more vulnerable to being exploited.”

In light of the recent raids, some workers are even denying back pay, afraid of providing their home addresses for fear of deportation. The increase in raids and deportations are creating unsafe working environments to an already vulnerable population.

 

Asylum-Seeking Families at Risk Under Trump’s Aggressive Immigration Policies

In just over a month, the new administration has executed a multi-pronged assault upon refugees and asylum-seekers who need humanitarian protections that the United States can and must provide.

Legally, people who are on U.S. soil, and meet the definition of a “refugee” should be granted asylum protections. This means that they face or fear persecution if they were returned to their country of origin based on their race, nationality, religion, political opinion, or membership in a particular social group.

98% of CAM applicants report exposure to danger in communityThe U.S. has seen a dramatic rise in asylum claims in the past decade, largely fueled by escalating violence and widespread international gang activity that has created a deadly crisis in El Salvador, Honduras, and Guatemala, often referred to as the “Northern Triangle” of Central America. Families seeking asylum have fled the region at incredibly high rates. From 2008-2014, asylum applications increased over 1,000% in the countries that neighbor the Northern Triangle and rose 370% in the United States.

In FY2016, Customs and Border Protection (CBP) apprehended nearly 60,000 unaccompanied minors and 77,857 families nationwide, most at the southwestern border. Many of these families were Central Americans seeking asylum in the United States. The U.S. Citizenship and Immigration Service reports conducting nearly 100,000 credible fear screenings of asylum seekers in FY2016, with extremely high granting rates: nearly 80% of people that pundits and critics call “illegal immigrants” have a credible fear of persecution in their home country.

Refugees from the Northern Triangle

In 2014, the Obama administration created a limited refugee resettlement program allowing some children in the Northern Triangle to apply for refugee protections and be reunited with a parent who is a legal resident in the United States. The program was touted as saving children the dangerous journey through Central America and Mexico, and allowed them to seek asylum at the U.S. border. Since November 2014, there have been nearly 11,000 applications for the program and approximately 1,800 children have been reunited with their parents here in the United States with either refugee status or humanitarian parole. UUSC researchers spent the last year conducting research about how to make the Central American Minors In-Country Refugee Processing Program (CAM) even more effective and have direct testimony from CAM participants about the need for this life saving pathway to safety.

The children who use CAM are in imminent danger at the hands of gangs and corrupt police where they live. When asked why they applied for refugee status, CAM applicants have shared reasons like:

  • “I received threats from a gang member. Before that, two friends of mine who played on the same soccer team in which I played appeared dead . . . he told me that if I did not want something to happen to me or be killed, I should leave the neighborhood.”
  • “My fear sometimes is that my baby will get sick at night . . . no one leaves and if they leave they have to be accountable for where they go to the gangs. . . [my baby] suffers from epilepsy and I have to go for treatments in San Salvador, when we go we try to do everything fast, to return early . . . it is very difficult to live constantly with fear.”
  • “I am afraid to leave the house now because gang members meet outside my house . . . My family and I are in danger . . . if we do not give the [rent] they are going to kill one of us . . . you cannot live in peace.”

However, President Trump’s January 27, 2017 executive order suspending all refugee resettlement for 120 days likewise suspended CAM. While a handful of CAM refugees who had already been granted refugee status have been able to fly to the United States in the weeks since the 9th Circuit Court stayed the presidents’ executive order, the administration has effectively halted refugee processing. This avenue to refuge is now closed for thousands of Central American children who may have to begin their application almost from scratch when and if CAM is reinstated.

Part of the border wall in Nogales, Mexico.
Part of the border wall in Nogales, Mexico.

With the refugee program halted, children will need to travel through Mexico to seek asylum at the U.S. border. There, too, the administration appears poised to cause immense harm to asylum-seeking families and children. DHS Secretary Kelly’s recent memos indicate that the department will:

  • Extend the border wall to make entry into the United States more difficult.
  • Deport asylum-seekers to Mexico or place them in U.S. detention centers while they await a decision on their case, placing families in inhumane prison-like conditions that we know causes lasting harm.
  • Strip protections for unaccompanied children that are guaranteed by law and charge parents with “human trafficking” for bringing their children to the United States.

Alarmingly, reports from El Paso, Texas, indicate that CBP agents have already turned asylum-seekers back from official ports of entry, denying them even the chance to make their asylum claim.

DHS Memos Threaten Immigrants’ Rights, Families, and Safety

Over the long holiday weekend, Department of Homeland Security (DHS) Secretary John Kelly issued two memos spelling out the implementation of Donald Trump’s recent executive orders on immigration. These memos eliminate all doubt that the administration intends to follow through on the worst of its threats in the orders signed on January 25, 2017. The memos also harden into national policy some of the most egregious human rights abuses advocates have been witnessing on the border and in our cities in recent weeks.

This is not “business as usual.” Secretary Kelly’s memos take unprecedented steps at removing long-held constitutional and statutory protections in immigration proceedings, continue to criminalize immigrants, and put children and parents lawfully seeking refuge at risk of criminal charges and separation. UUSC remains vigilant in watching the Trump administration’s efforts to expand policy in ways that violate civil and human rights and continues to work with our partners on the ground to support those affected by these unnecessary, harmful policies.

Here is a quick rundown of some of the troubling activities outlined in the memos.

Immigration and Customs Enforcement (ICE) agents can easily target just about any undocumented person for deportation and deny them due process protections.

The administration is throwing out years of “prosecutorial discretion” guidelines that had offered a small bedrock of security, however tenuous, for undocumented families. Under this new regime, anyone targeted by an ICE agent or picked up during a raid is at risk of being deported. This could separate parents from their U.S. citizen children and expel people who have lived in this country for decades or longer. The memos also designate as an enforcement priority deportation of anyone who has committed a “chargeable criminal offense,” even if they have never been arrested, tried, or convicted.

The memos will likewise expand the use of “expedited removal,” which allows ICE to deport people without any legal proceedings. This form of summary removal will now apply to every undocumented immigrant who can’t prove they have been in the country for more than two years, stripping an even wider category of immigrants of their Fifth Amendment right to due process. Such hasty deportations can be a matter of life and death since deportees from the United States are often singled out for persecution by criminal groups in Central America and Mexico.

People will be increasingly criminalized because of their immigration status.

In calling for heavier prosecution of crimes related to the southern border, Secretary Kelly has swept together grave matters like human trafficking with innocuous and victimless immigration offenses. Many of these offenses, like giving a false social security number to an employer or driving without a license, are all but inescapable for undocumented people who need to work and put food on the table. Aggressively prosecuting immigration violations will push even more innocent people into deportation proceedings. It will basically make it a crime to survive as an undocumented person in the United States.

More concerning still, there is a serious danger that these new policies will slam asylum-seekers with “illegal entry” charges if they cross the border at an “improper time or place,” which would violate international law by making it a crime to seek protection. Advocates have already heard reports that this is happening in some locations.

Asylum-seekers can be detained en masse, with little hope of parole, or worse – pushed back across the border.

Secretary Kelly has called for the near-total restriction of parole for immigrants in detention currently awaiting their court dates (many of which will be years in the future due to backlogs in the system). We have heard stories of ICE arresting and re-detaining people previously released, as well as refusing to consider parole applications from asylum-seekers.

This form of detention, in facilities run by private prison contractors, allows for the long-term incarceration of people who have done nothing worse than a civil immigration violation.

The memos will also allow DHS to send people back to Mexico to await the completion of removal proceedings regardless of whether they are Mexican nationals. Treating asylum-seekers this way would amount to a violation of international law, which forbids pushing people back across the border without screening if they have expressed fear for their safety.

Strip protections for unaccompanied children that are guaranteed by law and charge parents with “human trafficking” for bringing their children to the United States.

Currently, children who cross the border alone are protected from summary deportation under the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA). Kelly’s memos redefine the term “unaccompanied child” to exclude refugee children who cross the border without adults, but subsequently reunite with their parents in the United States. This would open the door to placing children of any age into expedited removal and denying them their lawful protections under the TVPRA.

Finally, Kelly’s memos target undocumented parents for deportation or criminal charges under human trafficking laws if their children seek refuge in the United States. Parents from Central America often have few options to help their asylum-seeking children escape their persecutors apart from hiring a smuggler because criminal networks now control nearly all border crossings. The Secretary’s memos permit DHS to prosecute these parents as accessories to smuggling and human trafficking, essentially criminalizing them for protecting their children’s safety.

 


In response to concerns about how the Trump administration is likely to proceed, UUSC has joined with the Unitarian Universalist Association on an unprecedented course of action to align ourselves together, united in purpose to protect the values of our democracy and those vulnerable populations among us.

As a first step, we have prepared a Declaration of Conscience stating in the strongest possible terms our commitment in these troubling times. By signing the declaration, you join us in affirming our core values and declaring our willingness to put them into action. We encourage you to read the full declaration here, and add your name.

Rights, Rulings, and Raids: Unpacking recent events

The past two weeks have been an emotional roller coaster of partial victories and terrifying setbacks for immigrants, refugees, and their allies. While we have felt confusion and fear, for the work ahead we need clarity and hope.

This series aims to put recent events in context by looking closely at positive signs for the future, some of our deepest challenges, and the work that remains.

The “Muslim ban” order is defeated (for now)

The Trump administration’s notorious “Muslim ban” has been handed a series of well-deserved defeats in the courts over the past two weeks. On February 3, a district court judge in Washington issued a temporary restraining order that forbids the Trump administration from implementing the ban. Later that week, the Ninth Circuit Court of Appeals upheld that decision. On February 13, a district court in Virginia issued a similar ruling. And yesterday, the government announced that it would not appeal the Ninth Circuit’s decision, effectively conceding defeat. While litigation on the constitutionality of the ban will proceed in the Washington State district court, the administration is signaling that it has all but abandoned its defense of the original order.

This was a great, if temporary, victory for refugees, immigrants, and advocates, including UUSC. Every day that the government is prevented from carrying out the executive order is a day that family members can reunite in the United States, refugees can continue to reach safety, and our founding principles are shielded from the administration’s assault on due process, equality before the law, and religious freedom.

Ninth Circuit Court of Appeals Building in San Francisco, CA
James R. Browning United States Court of Appeals Building
Hope for the future

The fight against the ban is far from over. The administration claims to be working on a new draft of the executive order, which will accomplish many of the same invidious ends but be less vulnerable to legal challenge. Moreover, if the order is voluntarily rescinded by the president without being decisively thrown out by the courts, there is no guarantee that it won’t be revived.

The good news is that the Ninth Circuit’s 29-page decision reaffirmed three fundamental principles of our democracy that will continue to serve as a roadblock to similar executive orders in the future. They offer a firm position from which to challenge all efforts to sneak discriminatory orders past the courts, regardless of the specific form these will take.

  1. The president’s control over immigration and national security is not absolute.

While the executive branch has considerable discretion in matters of foreign policy and immigration, it is still subject to the constitution. In its brief, the government argued that the president’s travel ban was “unreviewable” by the courts. However, the judges flatly rejected this claim, saying that it “runs contrary to the fundamental structure of our constitutional democracy.”

The president does have latitude to restrict immigration in the interests of national security, but it must be based on an actual analysis of the risks involved. It cannot serve as a blanket cover for discrimination or for violations of human rights. At this point, the government has not provided sufficient evidence that the refugee and immigration programs the executive order assailed pose a genuine security risk.

  1. Everyone has constitutional rights, even if you are a non-citizen and/or undocumented.

One of most the important sections of the U.S. Constitution is the 14th Amendment, which states that the government shall not, “deny to any person within its jurisdiction the equal protection of the laws.” While non-citizens are not afforded the same rights as citizens, courts have long held that there are limited constitutional protections for all people in the United States, regardless of immigration status.

The government tried to deny this fact in defending its travel ban, arguing that only U.S. citizens could raise constitutional challenges. The judges sharply dismissed this assertion, thereby reaffirming a fundamental civil rights principle.

  1. Discrimination, even when disguised, is still illegal.

In defending its actions, the government tried to assert that the travel ban had nothing to do with the president’s oft-repeated demand for a “total and complete shutdown of Muslims entering the United States.” This runs contrary to Trump’s own campaign website, as well as to a close advisor stating that Trump himself called it a “Muslim ban” and asked for guidance on “the right way to do it legally.”

In fact, Trump’s expressed intention to discriminate against Muslims on the campaign trail does matter greatly to this case, even if the administration now argues that no such intention existed at the time of the order. As the Ninth Circuit’s decision states: “[C]ircumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.” (Emphasis added).

Finally, a law or regulation that is “facially neutral” may still be harmful and discriminatory against a particular group of people, and thus unconstitutional. For the same reason that states cannot get away with attacking minority voting rights through “poll tax” laws that don’t specifically use words like “race,” “black,” or “white,” the president likewise is not permitted to target Muslims, simply by avoiding the use of specific terms in his executive orders.

What happens next?

The “Muslim ban” executive order is one piece of a multi-pronged assault on immigrant and refugee communities. At the same time that advocates have been celebrating the temporary defeat of one executive order, the effects of two others are being felt in communities across the country, in the form of terrifying raids and restrictions on asylum-seekers that threaten the safety of us all.

Part two of this series will examine ongoing consequences of the immigration executive orders at the U.S.-Mexico border and in cities across the country.