from the government-can’t-win-without-cheating dept
Since it’s easier to jump people who aren’t criminals than to actually track down criminals, ICE — especially in certain parts of the country — is sending its masked officers to hang around courtrooms and arrest people who are just trying to follow the rules to gain permanent residence in the United States.
This tactic is deployed far more often in “blue” states. Any locale that hasn’t been sufficiently loyal to Trump is seeing ICE officers flood courtrooms to take advantage of this administration’s evil bullshit. Government lawyers are instructed to dismiss immigration proceedings, immediately converting migrants engaged in the legal migration process into “illegal” entrants subject to deportation.
Here’s how that’s going in New York City, one of Trump’s favorite targets for criticism, the groveling of Mayor Eric Adams notwithstanding:
Half of all immigration court arrests nationwide were in New York City in late May and early June, according to an analysis published by news outlet The City.
Between May 26 and June 8, federal officers arrested 134 people in lower Manhattan immigration courthouse buildings, accounting for nearly a third of all immigration arrests in New York City in that period, the outlet found.
Naturally, this casual cruelty accompanied by the deliberate eradication of due process rights has resulted in litigation. And, like many places where ICE and the Trump administration are being sued over deportation efforts, these actions have resulted in some pretty scathing public (and published) criticism from federal judges.
In this case, it’s Judge Dale Ho, who handles cases in the Southern District of New York, where a lot of this super-sketchy ICE activity is taking place. Migrants showing up for mandated immigration court check-ins are showing up only to discover their cases have been dismissed, turning them into easy targets for the numerous ICE officers roaming the halls.
Judge Ho is far from impressed. His ruling [PDF] cites both laws the DOJ is trying to use interchangeably to salvage ICE’s courthouse arrests. But the laws say two different things and Judge Ho isn’t going to let the government pretend they’re pretty much the same thing, just so it can keep trying to meet an insane arrest quota the DHS and ICE swear isn’t actually an arrest quota.
Given that detention under § 1225(b)(2) is essentially mandatory and that detention under § 1226(a) is largely discretionary, it follows that whichever statute Mr. Lopez Benitez is subject to is potentially dispositive here. That is, if Mr. Lopez Benitez was detained as a noncitizen “seeking admission” to the country under § 1225(b)(2) (as Respondents argue), his detention would be mandatory. If, instead, he was detained as a noncitizen “already in the country” under § 1226(a), Jennings, 583 U.S. at 288-89, (as Mr. Lopez Benitez argues) then his detention is discretionary and he would be, at a minimum, entitled to an appeal before an immigration judge.
To be sure, the line between when a person is “seeking admission” as opposed to being “already in the country” is not necessarily obvious. For instance, someone who has just crossed the border may technically be “in” the country but is still treated as “an alien seeking initial entry.” Thuraissigiam, 591 U.S. at 114, 139 (holding that a noncitizen detained “within 25 yards of the border” is treated as if stopped at the border). But there is no dispute that the provisions at issue here are mutually exclusive—a noncitizen cannot be subject to both mandatory detention under 1225 and discretionary detention under § 1226, a point that Respondents conceded. It therefore follows that if Mr. Lopez Benitez was detained pursuant to one provision, he cannot be subject to the other.
The government has conceded the point about mutual exclusivity, as the court notes above. But then it proceeds to pretend that this mutual exclusivity doesn’t actually matter, pretty much arguing that the only thing that matters is what the government wants to accomplish, rather than the laws it uses/misuses to ensure it has enough ends to justify the (unconstitutional) means.
The judge goes on to say it is “indisputable” that the government is treating the plaintiff as someone who is already in the country (and seeking to stay here) but finding itself unable to eject him fast enough is now trying to pretend that someone who has already been in this country for two years is still in the process of “seeking admission.” The government’s pretense that both things can be true at the same time forms the basis for its courthouse arrests, and it really doesn’t want to lose this easy way to bump up its detention stats.
But Judge Ho isn’t having it.
In sum, the Court declines to credit Respondents’ position that Mr. Lopez Benitez is “seeking admission” to the United States and is thus subject to mandatory detention under § 1225(b). Respondents’ concessions in their exhibits regarding Mr. Lopez Benitez’s arrest, release, and subsequent re-arrest are, by themselves, a sufficient basis to conclude that he was detained pursuant to § 1226. But even without those concessions, a proper reading of § 1225(b) compels the conclusion that it does not apply to Mr. Lopez Benitez. Again, the Court need not reach the outer limits of the scope of the phrase “seeking admission” in § 1225(b)—it is sufficient here to conclude that it does not reach someone who has been residing in this country for more than two years…
Pretending both statutes are interchangeable isn’t just egregiously (and deliberately) stupid, it’s also a violation of due process rights. If the government wants Section 1226 to apply (and its filings until just recently indicate it does), then Benitez is entitled to a hearing before an immigration judge. Dismissing this case just to expedite removal isn’t constitutional.
The damage this does goes far beyond what’s inflicted on victims like the plaintiffs in this case. It undermines the integrity of the court, as well as the trust placed in it by people like the plaintiffs, who are making a good faith effort to follow the path to legal residency, only to see the floor cut out from below them by an opportunistic law enforcement agency that apparently can’t “win” without cheating.
Back to the judge:
To summarize: Mr. Lopez Benitez has lived in this country for more than two years, works in construction, and has no criminal record. He is an applicant for asylum and voluntarily appeared for a regularly scheduled proceeding in immigration court. At the conclusion of that proceeding, masked federal agents suddenly appeared, forcibly separated him from his U.S. citizen siblings, detained him in a room without a bed or access to a shower for three days, and then shipped him halfway across the country. They offered no explanation as to why they did this until, more than a week later, they filed their Opposition to Mr. Lopez Benitez’s Petition.
And now here’s the government, as summarized by Judge Ho:
Not to worry, Respondents say, because even if Mr. Lopez Benitez has a valid claim for his release, he can appeal to an immigration judge. He just has to stay incarcerated for weeks in a far-flung location while the appeal plays out, during which the immigration judge will consider various factors such as whether he is a risk of flight or a danger to the community—factors that Respondents cannot say one way or the other if DHS even considered in making its initial detention determination. That option, the Court concludes, is inadequate to address the denial of due process that Mr. Lopez Benitez was entitled to in the first instance.
Here’s how this all adds up, and it certainly adds up to be the base-level, moronic cruelty we’ve come to expect from this sadistic administration, which truly enjoys destroying everything it touches.
Mr. Lopez Benitez appears to be far from alone. His counsel assert that his treatment is part of a “nationwide campaign,” as set forth in an ICE internal memo that has been described in various media reports, which suggests that millions could be swept up in the same way. For their part, Respondents cannot confirm or deny the existence of such a new policy. Yet, they appear to maintain that they must categorically detain all undocumented immigrants who they believe have entered the United States unlawfully—no matter how long they have been residing in the country since. In practice, Respondents seem to be detaining some arbitrary portion of such individuals as they leave their regularly-scheduled immigration court proceedings. But treating attendance in immigration court as a game of detention roulette is not consistent with the constitutional guarantee of due process.
Filed Under: dale ho, dhs, doj, donald trump, due process, evil, judge dale ho, mass deportation, new york, trump administration
