The court was divided 4-4.
The Department of Homeland Security has begun launching raids against undocumented immigrants, including many women and children, and rushing them into deportation proceedings. As many as 121 asylum seekers have been taken into custody in Georgia, North Carolina, and Texas.
The raids were announced two days before Christmas, and families began being targeted right after New Year's Day. The government has been deploying female officers accompanied by medical staff, using police cruisers equipped with car seats—a clear indication of the “threat level” the targeted immigrants pose.
Why is DHS targeting families fleeing horrific violence in Central America, people who had no choice but to run? According to a Jan. 4 statement by DHS Secretary Jeh Johnson, the crackdown is a response to a spike in the number of asylum-seekers presenting themselves at the border. “Our borders are not open to illegal migration,” he wrote. “If you come here illegally, we will send you back consistent with our laws and values.” He said the current raids target those with “final orders of removal.” But his statement is profoundly misleading.
First of all, presenting oneself at the border to claim asylum is not “illegal immigration.” A person fleeing persecution is supposed to present herself to an immigration officer to claim asylum. Following the law is not illegal.
Secondly, it has been a matter of longstanding policy and practice to treat recent entrants with no criminal record as a low priority for removal. But the 2016 raids are focusing on recent entrants, wrongly treating them as if they were a national security threat or people with extensive and felonious criminal records.
This flies in the face of common sense. And even more troubling is that these orders of deportation—supposedly final—are being issued with levels of due process one might expect to see in a country like Saudi Arabia. Common features include mislabeled notices, improper service, coercion, and woefully inadequate legal representation. Many of the recipients may well qualify for asylum or other protection—but are not given a chance to fairly make their case.
What, then, is DHS trying to prove, going after children and families? Is this really, as Johnson says, an attempt to “secure the border” and perhaps gain the support of impossible-to-please immigration restrictionists?
Meanwhile, the fear in the Latino community is palpable and deplorable. The raids are increasing distrust of law enforcement in immigrant communities, which discourages crime reporting and weakens the effectiveness of law enforcement itself.
My colleagues in immigration law offices around the country are fielding a rush of calls from desperate clients who want to know if they should leave their homes for any reason, even to go to routine court dates.
Ultimately, this is a misguided and ill-advised move by DHS. Sensible prioritization means going after the dangerous people first. We should be going after serious criminal offenders, not terrified children and parents who came to this country seeking asylum.
Hassan Ahmad is immigration attorney in McLean, Virginia and tweets at @HMALawFirm.