Welcome To The Next Big Court Battle Over Trump’s Immigration Policies

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The Trump administration’s immigration policies have taken a beating in federal court over the past few weeks, with multiple judges issuing injunctions to force the administration to undo the damage caused by forcibly separating thousands of immigrant families. Now, a lawsuit filed by 17 Democratic attorneys general seeks to go further. Starting later this week, the attorneys general will ask a federal judge in Seattle to order the Trump administration to reunite every family without charging them for the travel costs, to declare the separations unconstitutional, to stop turning away asylum-seekers at legal border crossings, and to ban the indefinite detention of migrant families in shelters not licensed to hold children.

The family separation policy has already been struck down by federal courts and somewhat rescinded by a White House executive order, and the administration has begun reuniting families, though thousands remain separated.

But the lawsuit — filed by the attorneys general of Washington, California, Maryland, Oregon, New Mexico, New Jersey, New York, Iowa, Illinois Minnesota, Rhode Island, Vermont, North Carolina, Delaware, Massachusetts, Pennsylvania, Virginia, and the District of Columbia — is taking aim at the policies they see coming down the pike to replace family separations.

They are likely to find a sympathetic ear when they appear in court on July 27.

In an recent order giving the state attorneys general a green light for expedited discovery, U.S. District Judge Marsha Pechman slammed the “egregious nature of the Government’s conduct.”

“The kind of family separations currently being implemented by the Government are proven to cause immediate and extensive psychological harm to both children and parents; the damage is only worsened with the passage of time,” she wrote. “Plaintiffs present evidence of substandard conditions of confinement, combined with threats to minors of detention and/or permanent separation from their families. These are circumstances which demand swift review and response.”

Later in the order, responding to the Trump administration’s argument that it would be too burdensome for them to hand over data and records regarding the family separation policy, Pechman sternly replies that any cost or time burden on the administration “is far outweighed by the damage being inflicted on the children and parents whose interests the States are representing in this matter.”

Bob Ferguson, the Attorney General of Washington state and the lead litigator in the case, agrees.

“The American people deserve to know who in the government has been making these decisions and how those decisions are impacting people,” he told TPM.

Border blockade

The states’ lawsuit cites a slew of news reports that immigrant families with children who attempt to seek asylum at official ports of entry on the U.S.-Mexico border are being physically blocked from doing so by U.S. agents, forcing them to cross the border illegally.

“We have declarations from asylum-seekers saying they came to the border and were told, ‘Sorry, we’re full,’ and were turned away,” Ferguson told TPM. His legal complaint asks the court to strike down the policy, stating: “This unlawful practice exacerbates the trauma already suffered by refugee families while simultaneously artificially increasing illegal entry violations.”

<<enter caption here>> on June 26, 2018 in Brownsville, United States.
A Honduran woman, fleeing poverty and violence in her home country, waits along the border bridge with her family after being denied entry into the U.S. from Mexico on June 25, 2018 in Brownsville, Texas. (Photo by Spencer Platt/Getty Images)

Avideh Moussavian, a senior policy attorney at the National Immigration Law Center, says the denial of entry at the southern border is just one of many ways the Trump administration has gone after asylum seekers. Recent Department of Homeland Security and Department of Justice policy changes aim to make anyone who crossed the border illegally ineligible for asylum, and to deny asylum to survivors of gang violence and domestic violence.

“They’re trying to prevent people from claiming asylum and trying to categorically narrow the number of people eligible in the first place. They’re creating physical and legal impediments,” Moussavian said. And by sweeping those fleeing violence into the mass-family separation policy, she added, “the government has tried to vilify and criminalize the parents who are rightfully, legally exercising their right to pursue asylum.”

The lawsuit also cites reports that U.S. officials are pressuring parents to drop their asylum petitions — no matter their legitimacy — by telling them that doing so is a necessary condition of getting their children back. The attorneys general are asking the court to ban this practice as well.

On a conference call with reporters Tuesday, attorney Katie Shepherd with the Immigration Justice Campaign said the interviews her team has recently conducted with families held in the Karnes detention center outside of San Antonio, Texas, support these allegations. 

“The vast majority if not all of the parents have been through multiple layers of coercion,” she said. “They were asked to sign papers they didn’t understand because they do not read or write. They were not given copies of the forms. They were told that by signing the paperwork they can be reunified with their children more quickly. They were told that if they did pursue their asylum cases they would invariably lose and be deported anyway. They were not told that they could both be reunited with their children and pursue their asylum cases. The administration has essentially been holding their children as hostages.”

Indefinite detention

As the Trump administration moves to construct several more facilities designed to hold immigrant families for long periods of time, and confirms to courts their intention of asking parents to waive their child’s right to stay in a facility appropriate for children, the state AG’s lawsuit seeks to ban that practice as well.

“We are asserting that the government cannot reunify families and incarcerate them indefinitely,” Ferguson told TPM.

The case will come before Judge Pechman just a few weeks after two whistleblowers came forward with graphic accounts of the impact such detention can have on immigrant children.

Two doctors who work as consultants for the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, Scott Allen and Pamela McPherson, wrote in a letter to the Senate’s Whistleblower Protection Caucus in mid-July that many of the children currently in ICE custody today are suffering acutely. Their report included an account of a child who lost a third of his body weight in detention, an infant whose internal bleeding went undiagnosed for five days, “numerous children” accidentally given adult doses of a vaccine, and several children who suffered “severe” injuries at the Karnes facility, which was previously a medium-security prison.

Living in such a jail-like setting, the doctors reported, can cause permanent psychological damage to children, including lifelong anxiety, depression and post-traumatic stress.

“In our professional opinion, there is no amount of programming that can ameliorate the harms created by the very act of confining children to detention centers,” they wrote.

Additionally, the biggest facilities currently holding immigrant families are not licensed by states to care for children. The Trump administration tried to argue in federal court to loosen the standards for detaining children, but their efforts were forcefully rejected by U.S. District Judge Dolly Gee in Los Angeles.

On Friday, among their other pleas for relief, the state AGs will ask Judge Pechman to “enjoin Defendants from placing children in unlicensed facilities.”

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