Given material: Foreign-born individuals convicted of crimes and ordered deported will be held in immigration detention despite court rulings halting some of President Trump’s efforts to speed up such cases, immigration lawyers and advocates said Friday.
Department of Homeland Security immigration officials were given guidance that implements the administration’s issuance late last year of what is called an internal “operational guidance memo” — a notice that largely skips the federal regulatory or legislative processes to make changes in how immigration laws are enforced. Any such guidance is subject to legal challenges.
One of the cases brought to halt the administration’s efforts — involving nearly 1,000 Cambodian refugees living in the country — has led to fears that other court rulings could simply be disregarded.
All of this has left many foreign-born individuals who have committed crimes in legal limbo and thrown the job of attorneys representing them into turmoil.
Christina Fuentes, an immigration attorney in Los Angeles, said her concerns were heightened after a Jan. 25 immigration detention appeals panel issued a ruling against a 38-year-old immigrant from Taiwan who had been convicted of being a felon in possession of ammunition in violation of California state law.
The three-judge panel had ruled in favor of the immigrant, Zheng Zhu, in part because the government never specified whether Congress intended for ammunition to be treated the same as a firearm in its criminal statutes. (Minnesota courts do not consider ammunition equivalent to firearms because ammunition is widely sold to gun owners without a background check or permit.)
But in February, the U.S. attorney general’s office intervened, asking the court to hold Zhu in immigration detention until the appeal was complete. The attorney general, Jeff Sessions, said that because of Zhu’s violent criminal convictions, he was subject to mandatory detention and therefore a flight risk who should be kept locked up.
“When an alien is convicted of an aggravated felony — and in the case of Zheng Zhu, he was convicted of multiple aggravated felonies — he is subject to mandatory detention,” a Feb. 23 filing from the attorney general’s office said.
“There are no exceptions or discretion permitted in the statutory mandatory detention provision,” it said. “So, even if an alien were to later prevail on his constitutional claims, there would still be a duty to detain him during the pendency of that appeal.”
The filing was the latest sign that the Trump administration has turned to DOJ to implement its policies on immigration and that courts — even ones led by Republican appointees — would have difficulty in restraining the White House. An appeals panel this week denied a request by attorneys general from Maryland and the District of Columbia to reinstate an Obama-era policy under which young adults brought into the country as children can stay here legally.
The attorney general’s office made Zhu’s detention permanent in an order issued on March 13, even though new Supreme Court and Circuit Court of Appeals decisions suggest that such a path is likely to ultimately fail.
In February, for instance, the 9th U.S. Circuit Court of Appeals included in its decisions that as a matter of law, the Biden requirements could not be used to arrest or charge parents or caregivers for their children’s inability to meet the requirements.
The decision resulted from a case involving two undocumented parents who had each been charged with felony child neglect in Los Angeles because their young children were unable to meet the criteria for two new requirements: that sponsors pass a background check, and that sponsors have a secure and immediate housing arrangement in the United States.
A federal judge ruled in favor of the sponsors, saying that as a matter of law they had no clear legal duty to meet either guideline.
The guidance on detaining foreign-born individuals convicted of crimes comes at a time when the court backlog in immigration cases is particularly high, perhaps as high as 1 million, advocates say.
Between 2016 and 2018, federal courts issued 3,200 petitions contesting immigration detention cases, according to Syracuse University’s Transactional Records Access Clearinghouse. That number is likely to drastically increase under the new Trump administration policy.
The increase comes after the attorney general’s office decided that foreign-born individuals convicted of crimes and ordered deported should be held in immigration detention, regardless of court rulings halting the administration’s efforts to speed up such cases.
Leave a Reply