History shows Trump will face legal challenges to detaining immigrants
In this case, the asylum applicants challenged mass immigrant detention and various policies that violated their right to counsel. The court found that the U.S. government had been transferring Central American asylum seekers from major urban areas where they could readily secure counsel to remote locations where they could not. The Ninth Circuit Court of Appeals affirmed a broad injunction barring the U.S. government from restricting access to counsel.
The Orantes-Hernandez decision was the culmination of a coordinated litigation strategy pursued by public interest lawyers to challenge the U.S. government’s treatment of Central American asylum seekers. Leading immigrant rights advocates, along with private law firms doing the legal work pro bono, planned the suits and divided up the work.
In a 1991 case, American Baptist Churches v. Thornburgh, the executive branch settled a suit brought by Salvadorans and Guatemalans. The plaintiffs claimed the U.S. government was biased against their asylum claims because the U.S. was allied with the governments in power in those countries. The settlement required the U.S. government to hear again the asylum claims of more than 100,000 Central Americans.
This line of litigation ultimately contributed to legislative reform.
In 1990, Congress passed legislation that created Temporary Protected Status for noncitizens who fled the violent conditions in El Salvador, and additional countries designated by the president. Temporary Protected Status has permitted thousands of noncitizens to remain in the United States until the violence has calmed.
Despite these successful challenges, the use of detention in immigration enforcement increased with the immigration reforms of 1996. Immigrant detention continues to be criticized – and litigated. For example, in response to an increase in women and children fleeing widespread violence in Central America, the Obama administration began detaining thousands of unaccompanied minors and entire families.
In Flores v. Lynch in 2016, the Ninth Circuit stated the detention of Central American minors was not required by law. However, the court did not protect parents from detention in the same way.
Class action for reform
U.S. immigration agencies have proved resistant to change. In an empirical study of immigration litigation in the 1980s, Professor Peter Schuck of Yale and attorney Theodore Wang concluded that the success of immigrants in class actions suggest the U.S. government’s immigration agencies are uncompromising. They are enforcement-oriented to a fault, they said.
Recent years have continued to see challenges to immigration detention. In Jennings v. Rodriguez, the Supreme Court currently has before it a class action raising the question of whether immigrants, like virtually all U.S. citizens placed in criminal detention, must be guaranteed a bond hearing and possible release from custody. This case challenges, on constitutional and statutory grounds, lengthy immigration detentions without any opportunity for release.
Detention appears as if it will be an important part of Trump’s immigration enforcement plan. As historically has been the case, legal challenges will almost certainly follow.
Kevin Johnson is Dean and Professor of Public Interest Law and Chicana/o Studies, University of California, Davis. This article is published courtesy of The Conversation (under Creative Commons-Attribution / No derivative).
