Wins in Court Create at Least a Little Tolerance

The Trump Administration' firehose-like nature means that a story that grips the national consciousness for a week can disappear without a trace as new controversies blast their way to prominence. The news media has largely checked out of the family separation story as Vladimir Putin, Russian meddling, Michael Cohen’s tapes, and farmer bailouts have moved it off the front page. In part, that’s because the story isn’t as dramatic as it once was. The story has become one about court fights, starting with the ruling by District Judge Dana Sabraw that the government needed to reunite 1,012 migrant children five years old and younger. It has also tried and failed to get relief from the Flores settlement, which would have allowed the government to detain families indefinitely. 

According to Talking Points Memo’s Alice Ollstein, on July 27, 17 state 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 attorneys general for 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 are looking for more information on the zero tolerance policy, including the people and process involved in its creation and the way that it has been implemented. They point to the numerous stories of asylum seekers being unlawfully turned away or discouraged from seeking asylum, and the families of asylum seekers being treated as criminals and separated, even when they followed the legal procedures to apply.

“They’re trying to prevent people from claiming asylum and trying to categorically narrow the number of people eligible in the first place,” says Avideh Moussavian, a senior policy attorney at the National Immigration Law Center. “They’re creating physical and legal impediments. The government has tried to vilify and criminalize the parents who are rightfully, legally exercising their right to pursue asylum.” 

The lawsuit also seeks to stop government officials from using family reunification as an incentive for families to drop their asylum claims, or presenting dropping their claims as a necessary condition to get their children back. Legal action like this is slowly reshaping the administration’s policy, or at least the way it is implemented. 

They’re meeting with success in part because the Trump Administration has often moved too quickly from policy to practice without the necessary scrutiny to make sure policies are legal. According to lawyer Jonathan Wasden, “The policies aren’t being vetted very closely. [USCIS officials] are taking the regulations on the book and they’re putting a spin on them that is really contradictory and bears no resemblance to the original rule.”

Mary Giovagnoli worked on immigration issues under Bill Clinton, George W. Bush, and Barack Obama, and the process she recalls was a lengthy and deliberate. Today, she says, there’s a lot of “really sloppy, rapid-fire policy.” 

Those lawsuits and their incremental successes are causes for cautious hope. The rhetoric of Trump matched with measures taken by his administration tell us that immigration fights will be uphill ones for the foreseeable future, but those facing immigration-related legal issues shouldn’t give up. The fights can be exhausting, but there are a lot of smart immigration attorneys who are good fighters that can find creative solutions.

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