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Kevin R. Johnson Trump's executive order ended family separations, but legal challenges remain

What has gotten lost amid the vitriolic immigration rhetoric are the legal rights of the noncitizens who have reached American soil.
Image: Trump immigration executive order
Watched by Homeland Security Secretary Kirstjen Nielsen, left, and Vice President Mike Pence, President Donald Trump signs an executive order on immigration on June 20, 2018.Mandel Ngan / AFP - Getty Images
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Although not a new problem, the current influx of migrants fleeing violence in Central America has generated massive concern in the U.S. Many of these migrants are have come to the American border seeking asylum under U.S. law, which they have the right to do. First adopting a family separation policy and then abandoning it for a policy that suggests immigrant families will be detained together, President Donald Trump has struggled to satisfy both hardliners and critics. What has gotten lost in the shuffle and political rhetoric, however, are the legal rights of the migrants in question.

Working diligently to deliver on his campaign promises to crackdown on immigration enforcement, Trump has taken a number of steps to implement a “zero tolerance” policy. This was the motivation behind his original decision to separate families, which officials hoped would work to deter future immigrants. After unified political pressure (including from Republican congressional leaders), Trump backed down and issued an executive order ending the policy.

There is no reason to believe family detention under Trump wouldn’t be the target of similar legal challenges. And humanitarian concerns are only one aspect of Trump’s potential legal problems.

Notably, however, the fact sheet issued by the White House said the Trump administration seeks to replace the family separation policy with a policy allowing for the detention of entire families. President Barack Obama’s administration operated family detention centers in Pennsylvania, Texas and, for a time, New Mexico. Critics of those centers argued that family detention was inhumane. There is no reason to believe family detention authorized by Trump wouldn’t be the target of similar legal challenges. And humanitarian concerns represent only one aspect of Trump’s potential legal problems.

First of all, keeping families in detention during the pendency of legal proceedings would require changing the consent decree from the class-action lawsuit that was initially brought against the Reagan administration as Flores v. Meese and was eventually settled under the Clinton administration in 1997 as Flores v. Reno. Known generally as the Flores settlement, this landmark decision limits the detention of migrant children.

Anticipating this, Section 3(e) of the executive order instructs the attorney general to modify the Flores settlement agreement “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings."

There are also important constutional concerns involving the rights of unauthorized immigrants and asylum seekers to due process. These concerns can only be fully understood if we look at the general rights of noncitizens seeking asylum under the U.S. immigration laws.

U.S. law allows noncitizens who flee persecution on account of race, political opinion, religion, nationality, or membership in a particular social group to seek asylum in the United States. Central Americans fleeing violence have been seeking asylum since Congress passed the Refugee Act in 1980.

Under the applicable regulations, noncitizens apprehended in the U.S. by immigration authorities still have the constitutional right to a removal hearing that complies with the due process clause of the Constitution's Fifth Amendment. An immigration court at the removal hearing is tasked with evaluating whether noncitizens should be allowed to remain in America.

But the immigration courts are backlogged, and so a considerable amount of time — months and sometimes years — can ellapse before removal hearings occur. In the past, noncitizens have been eligible for bond during this period, provided he or she does not pose a flight risk or danger to public safety. President Trump referred to this practice, which the law requires, disparagingly as “catch and release.” However, Trump signed a memo in April ending the so-called “catch and release” of immigrants into the community. Not surprisingly, the number of noncitizens requesting a bond hearing in immigration court surged almost 40 percent during the first year of Trump’s administration, according to Reuters, as more and more noncitizens were denied bond by Immigration and Customes Enforcement officers.

Noncitizens apprehended in the U.S. by immigration authorities still have the constitutional right to a removal hearing that complies with the due process clause of the Constitution's Fifth Amendment.

Some critics argue that those who are released on bond fail to appear in court when the time comes. But data show that the vast majority of families who are apprehended and bond out of custody subsequently appear at their removal hearings. Thus, a policy ordering the indefinite detention of families must be viewed in large part as a way to force desperate families to abandon possibly valid asylum claims.

Here, again, the Trump administration should anticipate legal trouble. Earlier this year, the Supreme Court in Jennings v. Rodriguez sent a case back to the lower courts to decide whether detention without a bond hearing and possible release violated due process.

Although the Supreme Court has address the lawfulness of such tactics, the lower courts have. For example, in Orantes-Hernandez v. Thornburgh, a court of appeals in 1990 found mass immigrant detention and various related policies by the administrations of President Ronald Reagan and the first President George Bush to be unlawful. The policies included detaining immigrants in remote locations where it was difficult for them to retain legal counsel. Together, the court found that the policies represented a concerted effort to deter asylum claims.

A policy ordering the indefinite detention of families must be viewed in large part as a way to force desperate families to abandon possibly valid asylum claims.

More recently, a court found that the Obama administration’s mass detention of Central Americans violated the rights of migrant children. In Flores v. Lynch (2016), the court of appeals found that detained children must be released after 20 days in accordance with the original Flores agreement. Trump’s executive order instructs Sessions to try to amend the original Flores settlement in order to allow for indefinite detention of children, which seems like an uphill battle.

There remains some confusion as to what the Trump administration’s detention policy will look like going forward. A report published by the Washington Post claims that noncitizens who were detained at the border with children would not be held at this time due to a lack of resources. Meanwhile, a Justice Department spokesperson told the Washington Post said there “has been no change to the Department’s zero tolerance policy to prosecute adults who cross our border illegally instead of claiming asylum at any port of entry at the border.”

What is clear, though, is that whatever decision the administration makes will be carefully scrutinized by legal experts and advocates working to protect the rights of everyone, citizens and noncitizens alike, who steps foot on American soil.

Kevin R. Johnson is dean and Mabie-Apallas professor of public interest law at the University of California, Davis School of Law.

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