Courts, Constitution, Laws, Immigrants


A federal district court in California ordered a temporary halt to a new regulation that would bar asylum-seekers at the southern border. The order came late Wednesday in a case filed in the northern district of California after the regulation went into effect last week. Another challenge to the regulation was dismissed by a Washington DC federal judge earlier on Wednesday, with that judge ruling that the organizations filing the DC lawsuit did not have legal standing to do so. While the judge in DC did not rule on the merits of the case or the legality of the regulation, Judge Jon S. Tigar did:

“This new rule is likely invalid because it is inconsistent with the existing asylum laws,” Judge Tigar wrote in his ruling on Wednesday, adding that the government’s decision to put it in place was “arbitrary and capricious.”…

“Judge Tigar voiced concern about forcing asylum seekers to apply for protection in Mexico or Guatemala. “We don’t see how anyone could read this record and think those are safe countries,” he said, referring to the rule’s language that migrants must apply to the first safe country.” 

Another ruling on Wednesday severely limited the application of a law making it a misdemeanor offense to cross the border without authorization:

“A federal appeals court in California substantially narrowed the government’s ability to charge people for crossing the border illegally — a case that could invalidate hundreds of prosecutions that were at the core of the Trump administration’s separations of migrant families last year….

“In an opinion written by Judge Jay Bybee, a George W. Bush-appointee, the court decided that the second part — eluding officers — could only apply to immigrants who are at a valid border crossing but who try to enter by evading detection, not immigrants picked up on the U.S. side having crossed somewhere else. …

“The ruling is a second strike to the statute. The Ninth Circuit has already held that part one of the illegal-entry crime — entering at an improper time or place — does not apply to people who cross the border where officials can see them, in person or over cameras, and then seek out an officer and claim asylum. Those migrants are clearly not trying to avoid detection, court rulings have held.” 

Latest Administration Attack on Immigrants

The latest administration attack on immigrants came on Tuesday, with an extension of the power of ICE agents to summarily deport people without a hearing. Previously, unauthorized migrants who were apprehended within 100 miles of the border, and within 14 days of crossing, were subject to “expedited removal.” This week, the administration said expedited removal would now apply to all undocumented immigrants anywhere in the country who have been present in the United States for less than two years.

A blog post from the Advocates for Human Rights warns:

“Expedited removal, a product of the 1996 Illegal Immigration and Immigrant Responsibility Act, gives low-level immigration officials the power of judge, jury, and executioner of deportation orders. This is particularly disturbing given the record of misconduct and lack of accountability that permeates federal immigration enforcement.”

Immigration attorney David Isaacson asks

“How, exactly, is an undocumented immigrant stopped on the street supposed to prove to the satisfaction of an ICE officer that he or she has been here for more than two years?  Some people may have pay stubs or tax documents or evidence of rent payments, but most would not be carrying such things, leaving them to hope that a family member could provide evidence to the ICE officer’s “satisfaction” in time.  And what if the officer simply chooses not to be “satisfied” by the evidence, or at least pretends not to believe it?” 

The expansion of expedited removal comes at the same time as reports of an attempt to deport another U.S. citizen, a 17-year-old high school student. CBP ignored his passport and birth certificate, and held him in custody for three weeks, eventually releasing him on July 23 after massive publicity about the case. 

“Galicia wasn’t allowed to use the phone for the three weeks he was in CBP custody, Sanjuana said. But he has been able to make collect calls to his mother since since Saturday, when Galicia was transferred to ICE’s custody. 

“[His mother] said she met with CBP officers last week and presented them with Galicia’s birth certificate and some other documents but was unsuccessful in getting him released. She plans on presenting the same documents to ICE officers later this week. 

“I presented then with his original birth certificate and other documents and they ignored them. So now I’ve faxed over all the documents to the ICE agent handling the case,” [immigration attorney Claudia] Galan said. “He’s going on a full month of being wrongfully detained. He’s a U.S. citizen and he needs to be released now.” 

Yes, Immigrants Have Constitutional Rights 

Yes, Undocumented Immigrants Have Constitutional Rights

One common refrain in comments about immigration is “Well, they’re not citizens so they don’t have rights” Not true, my friends. The Constitution gives rights to all persons within the United States, not just citizens. 

The Fourth Amendment protects  “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures..” That’s “the people,” not “the citizens.” That’s why immigration agents need a judicial warrant to enter a home. 

A car, however, is not a home, so immigration agents assert the right to break car windows and drag immigrants out, as they did in Minneapolis last week and Monday in Kansas City, captured on Facebook Live video. Is that allowed under the Constitution? I doubt it—the Constitution strictly limits what police can do to people in a vehicle, so it stands to reason that there must be some limits on ICE, too. The limits on police behavior have developed over time, with court rulings in individual cases defining what “searches and seizures” are reasonable and unreasonable. 

The Fifth Amendment guarantees “due process of law” in criminal cases. The Sixth Amendment guarantees jury trials in criminal cases and the Seventh Amendment extends the right to jury trial to civil cases “where the value in controversy shall exceed twenty dollars.” 

Immigration proceedings are defined as non-criminal and also non-civil. In deportation proceedings, where someone can be forced to leave their home and family and job and community, there is no right to trial by jury. While immigrants in deportation proceedings have a right to be represented by an attorney, that right is only as deep as their pockets: they must pay for their own attorneys or go without.

The ultimate arbiter of what is and is not constitutional is the federal court system. Getting a federal court decision takes a long time, and a lot of resources. With the administration disregarding U.S. laws and with Congress unwilling to act, the courts are the final hope for protecting the rights of immigrants, the rights of citizens, and the constitutional system of rule of law.


About Mary Turck

News Day, written by Mary Turck, analyzes, summarizes, links to, and comments on reports from news media around the world, with particular attention to immigration, education, and journalism. Fragments, also written by Mary Turck, has fiction, poetry and some creative non-fiction. Mary Turck edited TC Daily Planet,, from 2007-2014, and edited the award-winning Connection to the Americas and AMERICAS.ORG, in its pre-2008 version. She is also a recovering attorney and the author of many books for young people (and a few for adults), mostly focusing on historical and social issues.
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