What a week.
Last week began with a preliminary injunction temporarily preventing President Obama from implementing his executive action plan to protect millions of immigrant families from deportation. The week ended with a preliminary injunction temporarily preventing the Obama administration from continuing its policy of prolonged detention of refugee women and children along our southern border. One injunction to stop the Obama administration from helping immigrant families; the other to prevent the administration from continuing to harm them.
On Monday, February 16, 2015, the week began with an order by Judge Andrew Hanen of U.S. District Court for the Southern District of Texas in State of Texas, et. al. v. United States. In that case, Judge Hanen issued a preliminary injunction temporarily preventing the implementation of the Obama administration’s expansion of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of American Citizens and Residents (DAPA) programs. These programs were announced by President Obama on November 20, 2014, in a speech detailing a multitude of actions that the administration would take on immigration. The President stated that his administration would prioritize immigration enforcement for criminal aliens and threats to national security and permit undocumented individuals who are not enforcement priorities to “come out of the shadows,” apply for deferred action and receive temporary work authorization.
“Felons not families. Criminals not children. Gang members, not a mom who’s working hard to provide for her kid.” said the President to the nation on November 20, 2014. And indeed, the DAPA and expanded DACA programs provide a much needed respite for the millions of undocumented families who have resided in our country, worked in our country, raised their children in our country for many years.
The preliminary injunction issued by Judge Hanen is a temporary blow to the millions of parents U.S. citizen and lawful permanent resident children who finally felt a glimmer of hope about their ability to keep their families together.
Most legal experts agree that as the Chief Executive, President Obama is authorized to set priorities for immigration enforcement and that the Immigration and Nationality Act and the Code of Federal Regulations authorize the Attorney General to grant employment authorization for individuals who have received deferred action. In light of the sound legal basis for the DAPA and DACA programs, the temporary injunction is likely to be lifted in the future. In fact, in an effort to keep these programs moving, the Obama administration announced that it would file a request for a stay of the preliminary injunction this week.
I applaud our President for using his constitutionally granted authority to provide some protection to the hardworking families that have resided in the United States for years, worked hard, contributed to the economy and communities. True to his word, the President is taking steps to allow hard working immigrant families to come out of the shadows and live without fear.
But while his soaring speech brought proud tears to my eyes on November 20, 2014, because I knew the positive impact these programs would bring to so many immigrant families, it also brought back the memory of the kids and moms detained for weeks and months on end by this same president. I remembered the women and children who fled for their lives and asked for the protection of the United States, whom I helped through the Artesia Pro Bono Project. To them, his words were nothing more than a slap in the face.
Since June of 2014, the administration has been detaining the most vulnerable– women and children refugees – in centers near our southern border without bond. The Obama administration argues that these families pose a threat to national security. The administration argues that these families should not be released on bond to pursue asylum protection in the United States. The administration pushes them through immigration removal proceedings with unprecedented speed and limited access to legal counsel.
This brings us to the second preliminary injunction of the week – issued in RILR v. Johnson on Friday February 20, 2015 in U.S. District Court for the District of Columbia. In that case, Judge James Boasberg enjoined the Department of Homeland Security (DHS) from continuing its shameful policy of jailing refugee women and refugee children from Central America at our southern border to deter others.
The government argues that the detention of these women and children is necessary to deter a mass influx of future immigrants that would threaten national security. In RILR v. Johnson, the American Civil Liberties Union (ACLU) filed suit on behalf of the mothers and children who have fled extreme violence in their home countries. The women and children on behalf of whom the suit was filed fled horrific violence, death threats, rape or persecution in their home countries before fleeing to the United States. These women and children established a “credible fear” of harm in their home countries, meaning that there is a “significant possibility” that they will establish eligibility for asylum protection in the United States.
Despite these facts, the DHS continues to argue that the families must be detained in order to prevent others like them from seeking protection in the United States. In issuing the preliminary injunction Judge Boasberg stated that the “incantation of the magic word ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty.”
Judge Boasberg’s order means that these refugee families are entitled to individualized bond determinations, which involve questions about whether they pose a danger to the community or a flight risk that requires their detention. Judge Boasberg’s order means that these families can no longer be held without bond or with an unreasonably high bond simply to try to prevent others from coming to the United States in the future.
The DHS has not yet indicated whether it will challenge the preliminary injunction.
The week was a rollercoaster. At the start, I found myself deeply disappointed by a judge’s decision. By the end of the week, I was thrilled that another had seen the specious arguments of DHS for what they were – excuses to jail families in an unjust and inhumane manner. Judge Boasberg’s decision means that the government can no longer do so without repercussion.
It was a heck of a week – let’s see what happens next.
Written by Jennifer Casey, AILA Member and Artesia Pro Bono Project Volunteer