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ICE's "Catch and Remove" Policies Likely to Fail Under Equal Protection

JURIST Guest Columnist, Irene Scharf, of the University of Massachusetts School of Law discusses how the "catch and remove" policies of the Immigration and Customs Enforcement violate the equal protection clause of the U.S. Constitution...

In early April, the ACLU filed a lawsuit challenging recent arrests being conducted by Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS) within the Trump Administration's Executive Branch tasked with enforcement of the U.S. immigration laws. The case, Calderon v. Nielsen, could have significant effects on immigrants in the Massachusetts region, as it challenges the Administration's apparently new policy of "detain and remove." This policy, operating in Lilian Calderon's case, a mother of two, caused ICE agents to show up at the administrative offices of the U.S. Citizenship and Information Services (USCIS) in Rhode Island, an office that processes various immigrant applications. Ms. Calderon, who was brought here as a three year-old without authorization and who has had an outstanding deportation (technically "removal") order since her father lost his request for political asylum while she was a teenager, later married a U.S. citizen. Her husband applied to regularize her immigration status; she was detained when they were in the Rhode Island USCIS Offices for an interview to verify the legitimacy of their marriage. After their in-person interview, which apparently went well, was completed, ICE agents, waiting outside these interview area, approached them and took Lillian into federal custody, where she remained for weeks, until the ACLU's court action produced her release. Others named in the complaint include a mother being held in Boston after she and her husband attended a similar type of interview along with another couple who fears even attending their interview because the husband could be detained thereafter.

This new policy is surely inhumane, but is also likely unconstitutional, violating the due process and equal protection clauses of the United States Constitution. The ACLU's class action lawsuit against the Trump administration and ICE, on behalf of her husband and several other area families, for this detainment policies, is a welcome addition to the ongoing and often successful litigation against this Administration, whose continued war against immigrants through the use of callous and illegal actions has not been particularly successful to date, though it has succeeded in terrorizing many. A positive result in this litigation could help stave off subsequent aggressive attempts by this Administration to continue to put a bulls-eye on immigrants.

There is irony in one arm of the U.S. government, USCIS, conducting interviews to ensure that a marriage is legitimate so they can approve "green cards," or lawful permanent residence, for those in legitimate marriages with U.S. citizens, and another arm of the government, ICE, waiting outside those offices to detain those same applicants for a situation forced upon Lilian when she was three years old. If Lilian wants to obtain that green card, she must appear at the USCIS offices for that interview. But if she appears, the Trump Administration has her put into federal custody, to be released only after lawyers go into federal court on her behalf. Here that court was the United States District Court for the District of Massachusetts.

Undoubtedly, the Administration is attempting to discourage people who are in legitimate marriages with U.S. citizens from filing these applications, which are authorized under U.S. immigration laws. So far 14 families from Massachusetts, Rhode Island, and Connecticut have experienced the wrath of this new policy. Some of its victims have remained in detention for many months. It is likely that, as a result of these arrests, which are not limited to the New England area, thousands around the nation, will delay filing their applications, fail to file, or fail to appear for their marriage interviews and have their applications denied, now that this policy is in force.

The ACLU is alleging, rightfully, that the ICE policy of "catch and remove" violates the law in several ways, first, by ignoring duly-enacted USCIS regulations, which, since 2016, have permitted applicants for legal status through their spouses to remain here pending the outcome of the administrative process. Discouraging people with lawful claims to apply for immigration benefits by torturing the Immigration and Nationality Act (INA) and its regulations in the way the Administration is doing should not withstand the scrutiny of this litigation. The President is fighting a political battle here, but twisting the legitimately-enacted law in the process.

This inhumane policy is likely illegal in other aspects as well, and seems inspired by other legal actions pending against the Administration's varied attempts to both restrict and to discourage immigrants to this country.

The Calderon litigation seems inspired by the ongoing battle to deny the Administration's attempts to cancel DACA, or Deferred Action for Childhood Arrivals. This program was announced by former President Obama on June 15, 2012 and implemented by the Department of Homeland Security. It enabled people who were brought into the country without authorization before the age of 16 to apply for "deferred action" (a form of discretion) and a work permit. The program had enrolled nearly 800,000 people in the United States by September 5, 2017, when Attorney General Sessions announced its imminent end. Following announcements of this new policy by letter, a press release, and a Q&A, several lawsuits, including by several state governments, were filed to challenge DACA's rescission.

The lawsuits challenging the rescission have, to date, been notably successful. Since the sudden attempt to rescind DACA, three federal district courts (California, New York, and the District of Columbia) enjoined the Administration's plans to terminate the program on March 5, 2018. For months this meant that only that those who had already received DACA could file to renew it; no new applications were accepted. In the meantime, in February, the United States Supreme Court denied the Trump Administration's request for certiorari in a California Federal District Court's ruling that new DACA applications must be accepted. That case will be reviewed by the Ninth Circuit Court of Appeals. Then, on April 24, a judge for the District Court for the District of Columbia ruled that the Trump administration must again accept new DACA applications; the judge stayed that decision for 90 days to allow the DHS to explain why it was rescinding the program.

This challenge to DACA's rescission, based on claims of equitable estoppel, due process violations, and failure of equal protection, seems to have inspired the Calderon litigation. Like the DACA lawsuits, Calderon subjects the DHS to legitimate legal challenge based on arguments similar to those made against the Administration's sudden attempt to cancel DACA. There, the litigants are arguing that the government invited DACA-eligible young people to apply for its benefits, only to now use their personal information, gained only as a result of that "invitation," against them. Also, DACA recipients relied, to their detriment, upon when they "came out from the shadows" and identified themselves to the government (many had been snuck across the border by their parents when they were very young, only to be in jeopardy since September 2017 when President Trump announced DACA's cancellation.

A similar situation exists with regard to those applying to regularize their status based on marriages to U.S. citizens. Like the DACA recipients, these legitimately and legally married individuals relied on the regulatory and legal scheme of U.S. law for reassurances that they would be able to remain safely in the U.S. while their applications for legal status were being adjudicated. Now, caught in the federal government's net, they are, literally, being put in the pan to fry.

Having one branch of the government "inviting" applicants to come forward and be interviewed so that the government can ascertain the legitimacy of their marriage only to have another branch arrest them when the interview is over represents a breach of faith that must also constitute a violation of due process. Yet there is another serious claim in this litigation, that the Administration is breaching the U.S. Constitution's equal protection clause by detaining these applicants, a challenge that reflects the litigation against President Trump's so-called Travel Ban. In those challenges, plaintiffs are recalling several statements made by the President, during his campaign and beyond, evidencing his racial animus against non-"white-skinned" people, especially when they are immigrants. The opponents have cited reports that Trump has said he prefers immigrants from Norway, a largely "white-skinned" nation, to prove that his immigration policies reflect unlawful bias. Recall that, shortly after Trump was inaugurated, his Administration instituted a ban against immigrants from nations whose citizens are largely of the Muslim faith; ongoing challenges to that policy, largely successful so far, are relying on his expressions of racial animus as evidence that the policy violates equal protection of the laws. This litigation was before the U.S. Supreme Court two weeks ago.

Similarly, this "catch and remove" policy flies in the face of equal protection principles of fair treatment enshrined in our democratic system. While USCIS is claiming that they did not coordinate these arrests with ICE, nonetheless, both agencies are arms of the DHS. It seems likely that the courts will agree that an operation of one agency of a federal department constitutes the action of another from the same department.

Time will tell who will prevail here, but, from someone who teaches her students to "under-promise but over-perform", I am hopeful that our federal courts will see through whatever arguments the Administration comes up with and declares that this is yet another attempt to impose vindictive, illegal actions against innocent victims.

Professor Irene Scharf is a Professor at the University of Massachusetts School of Law where she currently leads the Immigration Litigation Clinic. Professor Scharf was re-appointed to a second term on the Board of Publication of the American Immigration Lawyers Association and is the editor-in-chief of The she an active member and blog author in a nationwide movement of law professors who are encouraging the use of "Best Practices" in legal education.

Suggested citation: Irene Scharf, ICE's "Catch and Remove" Policies Will Fail Under Equal Protection -- DNP, JURIST - Academic Commentary, May. 16, 2018, http://jurist.org/forum/2017/06/Irene-Scharf-ICE-Equal-Protection.php

This article was prepared for publication by Krista Grobelny, Section Editor for JURIST Commentary. Please direct any questions ot comments to her at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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