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Lawlessness in the Trump Administration

 

It Starts at the Top

In just one week, it has been reported that the President told Border Patrol officers to violate the law, assured his appointed acting DHS Secretary that he would pardon him for breaking the law, and that he is serious about using taxpayer dollars to fund political retaliation against Democrats.  All of this lawlessness occurred after the DHS Secretary and the acting Deputy Secretary resigned, along with the withdrawal for nomination and subsequent resignation of the acting ICE Director, and rumors of other potential resignations, reportedly due to concerns that they were or are unwilling to further stretch or break the law in ways advocated by the President and immigration czar/policy-in-chief Stephen Miller.  

This is life under the lawless Trump administration.  The last two years have been filled with Trump policy after Trump policy in which courts across the country, under judges appointed by both Democrats and Republicans, have either ruled unlawful or have been temporarily enjoined given the likelihood of being ruled unlawful.

“Since the beginning, the Trump administration sought to thwart the rule of law with unlawful, irrational, and cruel immigration policies that have subsequently been enjoined by courts across the country,” said Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel.  “But in the last two weeks Trump outdid himself, clearly and publicly exhibiting that promoting lawlessness in this administration starts with him and extends to his administration,” said Jaddou.

“The American people deserve leadership and solutions on immigration, not lawless schemes designed to create maximum chaos,” said David Leopold, Counsel to DHS Watch, Chair of Immigration Law at Ulmer & Berne LLP.  “Since he took office two years ago Trump has become Stephen Miller’s lapdog, allowing the 33 year-old to wield virtually unchecked authority over immigration and border security, imposing a long list of cruel and illegal immigration policies and proposals, many of which have been blocked by the courts.”

The following is a partial list of lawsuits in which multiple courts have struck down Trump administration immigration policies:

Trump Family Separation Policy

A Republican-appointed judge in San Diego ordered the Trump administration to generally stop separating families, to reunite almost 3,000 families separated under the Trump administration’s family separation policy, and to prohibit the deportation of parents without children.  Among other remaining issues, the case is ongoing given new information from the Health and Humans Services Inspector General that thousands of additional families were separated, but unreported, by the Trump administration.    

End of Deferred Action for Childhood Arrivals (DACA)

Three federal courts — in California, New York, and the District of Columbia — have separately enjoined the Trump administration from unlawfully ending DACA.  The case is currently pending before the Supreme Court.

End of Temporary Protected Status (TPS) and Deferred Enforced Departure (DED)

Multiple lawsuits have been filed across the country challenging the Trump administration’s attempts to unlawfully end TPS and DED for the vast majority of current participants.  Two courts — one in New York and another in San Francisco — have temporarily enjoined the Trump administration’s actions in scathing opinions against the Trump administration, one painfully describing their repeated lawless actions.

Citizenship Question on Census

Several courts have ruled that the Trump administration violated the Constitution and the Administrative Procedures Act when it attempted to include a citizenship question in the 2020 Census, thereby prohibiting the administration from including the question.

Muslim Travel Ban

Multiple courts across the country struck down the Trump administration’s attempts to ban Muslims from travelling to the United States.  Only after rewriting the Muslim travel ban three times, and after failing during lower court review, did the Supreme Court uphold the administration’s ban.

Blocking Lawful Asylum Requests in Between Ports of Entry

A policy prohibiting lawful asylum applications from people arriving in between ports of entry, clearly authorized under the Immigration and Nationality Act, was temporarily enjoined.

“Remain in Mexico” Policy for Lawful Asylum Seekers

A policy to require lawful asylum seekers to wait in Mexico while their cases are adjudicated, a process that can take months or years, was temporarily enjoined.

Ending Asylum for Most Survivors of Domestic and Gang Violence

A federal court permanently enjoined the Trump administration from generally barring asylum protection for survivors of domestic and gang violence, an attempt by the Trump administration to close the door on the majority of asylum applicants from Central Americans.  

Violations of Policy on Detention of Asylum Seekers

In 2013, 95% of asylum seekers were paroled out of detention while they awaited the adjudication of their cases.  But under the Trump administration, nearly zero asylum seekers were paroled.  A federal court blocked the Trump administration from this virtually blanket policy, requiring them to follow their own policy of case-by-case parole determinations.   

Blocking Access to Abortion for Detained Immigrant Girls

A federal court ruled that the Trump administration must stop blocking immigrant girls in federal custody from exercising their legal right to obtain an abortion.   

Unlawfully Barring Federal Funds to Local Jurisdictions

Multiple courts have blocked Trump administration actions to bar federal funding to local jurisdictions who value public safety over the blind enforcement of immigration law.  Moreover, multiple lawsuits around the country have shown that blindly enforcing immigration law by honoring ICE detainers places local jurisdictions and officers at great risk of constitutional and state law violations, thereby exposing them to financial liability.    

Unlawful Delay of International Entrepreneur Parole

The federal court in the District of Columbia ruled that the Trump administration unlawfully delayed the implementation of the International Entrepreneur Rule (IER) intended to provide a path for foreign national entrepreneurs to come to or stay in the U.S. to create or grow companies.  The administration only then resorted to proposing a new regulation to eliminate IER.  

Approvals of Legitimate H-1B Cases Only After Filing Lawsuits

Increasingly, companies seeking high-skilled workers are finding that in order to obtain approval of a legitimate and approvable H-1B petitions under the Immigration and Nationality Act, they must file lawsuits.  Only then does USCIS approve such petitions, an action that should not require a lawsuit under the law.