What Parts Of Trump's Deportation Order Are Most Ripe For A Lawsuit?
By Stephen Gossett in News on Feb 27, 2017 3:20PM
As the new reality of President Donald Trump’s plan to dramatically increase the scope of immigration-law enforcement sets in, legal minds are considering what, if any, aspects of the expansion in deportation priorities are most ripe for a legal challenge.
As it happens, one of the arenas that could present the best avenue for a contest is one that cities like Chicago have already rejected, in part because of its potential legal dubiousness. Since Chicago, like many other large, predominantly liberal urban centers, is a sanctuary city, its local law enforcement does not assist Immigration and Customs Enforcement agents. But the larger rollout of the 287(g) program—which essentially deputizes local police as immigration agents—in other municipalities opens up a whole tangle of civil-rights issues, according to Mike Jarecki, the Chicago Vice Chair of the American Immigration Lawyers Association.
“There’s a huge problem with racial profiling, and what it means to administer this program from the perspective of a local law-enforcement individual,” Jarecki told Chicagoist. “To be successful, do they have to actually find undocumented immigrants? And if so, what steps are they going to take to find people? Search by color of skin? Accent? Or will there be proper training from the federal level to the local level?”
San Francisco and some cities near Boston have already filed suits against Trump’s executive order that would withhold federal funds from sanctuary cities.
Another avenue most likely open to legal challenge also relates to an implementation that sanctuary cities discourage: so-called detainers. Detainers are notices sent from ICE to local law enforcement asking that an individual be held for an additional 48 hours beyond the time he or she would be released.
“There can be a lot of probable cause issues; and it’s very likely new probable cause issues will arise with this new detainer form,” Chirag Badlani, a Chicago-based attorney with focuses on civil rights and constitutional law, told Chicagoist. Indeed, many municipalities have turned their backs on detainer requests for the legitimate fear of exposing themselves to civil liability.
One of the most major components of the Trump’s deportation directive is the expansion of expedited removal, which allows for removals without going through a hearing with a judge. Trump’s guideline radically opens the window for which expedited removal is applied. It was previously applied to people encountered within 100 miles from the border and here within 14 days. Now it’s for undocumented immigrants anywhere in the country; and it targets those who’ve been here as long as two years.
Unfortunately for immigration advocates “there may not be a challenge to that as a whole,” Badlani says, “but it will ensnare a lot of ppl who are entitled to be before an imm judge.” That question of due process was already there before Trump’s expansion, and those legal concerns will only expand, according to Badlani. Many who have legitimate asylum or credible-fear claims could end up not seeing the judge to whom they are therefore entitled, he said.
Jarecki echoes the sentiment as well: “Are they going to give people the opportunity to prove that they’ve been in U.S. for more than two years?”