Judge strikes down transit ban 2.0, Ninth Circuit stays the order—08-09-23
Immigration news, in context
This is the 159th edition of BORDER/LINES, a newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we discuss the litigation around the Biden administration’s so-called transit ban 2.0.
In Under the Radar, we examine the impact to Florida’s economy from recent legislation targeting immigrants.
In Next Destination, we look at a case where ICE is apparently refusing to release several men that it cannot deport to their countries of origin.
The Big Picture
The news: In a summary judgment handed late last month in the case of East Bay Sanctuary Covenant v. Biden, federal District Judge Jon Tigar of the Northern District of California vacated the Biden administration’s so-called transit ban 2.0, a rehash of a Trump-era anti-asylum policy instituted in advance of the end of Title 42. The policy generally deems would-be asylum seekers presumptively ineligible to apply if they have not first been denied asylum in countries they’ve transited through on their way to the border (effectively meaning all non-Mexican nationals are included). There are a few exceptions, the most significant of which is the use of the CBP One app to book an appointment at a port of entry; as we’ve noted before, there are numerous technical issues with it before you get to the broader issues of there being a limited number of daily slots and not much transparency on how they’re allocated.
Tigar had also struck down the Trump administration’s version of the policy in this same case, which has now been going on for some five years, and did so on familiar grounds: that it violated the plain language of the asylum statute as passed by Congress, and the administration’s extraordinarily cursory attempts to make this order seem fundamentally different. Justice Department lawyers contended that the plaintiffs, a group of organizations that provide legal and social services to asylum seekers, lacked standing to sue, that the rule was not a categorical ban because it featured several exemptions, and that the judge didn’t have the ability to review the rule anyway on account of it being a discretionary and administrative decision on enforcement.
The judge rejected all these arguments, pointing out that the rule effectively was a categorical ban, in large part because the ways of circumventing it—being rejected for asylum in another country first, using the government’s glitchy CBP One app, or having some kind of dire humanitarian circumstances—were not particularly accessible and the the system of across-the-board rejections ran counter to the language of the statute itself.
Tigar stayed his vacatur for a couple of weeks to give the government time to appeal, which it promptly did, to the Ninth Circuit, seeking an emergency motion to stay the order pending additional litigation. In a surprise move, the circuit, which had upheld Tigar’s prior decision to strike down the first transit ban, granted the government’s motion and stayed the order last week, meaning that nothing changes for now. Still, the circuit’s decision history makes it likely that it will eventually side with the plaintiffs, in which case the government would probably appeal up to the Supreme Court. It is just the latest of a relentless drumbeat of border and asylum restrictions that have played out in the courts over the last several years, starting with Trump and continuing with Biden, much to advocates and lawyers’ chagrin.
Under the Radar
Florida’s new immigration law hurts local economy
In May, Florida governor and Republican presidential hopeful Ron DeSantis signed SB 1718, a sweeping piece of legislation supposedly intended to combat “Biden’s border crisis.” Among other things, the bill requires employers in the state to check all workers’ status on E-Verify, a federal employment eligibility-system, and penalizes them with a $1,000 daily fine for failing to do so; makes the transportation of transport five or more undocumented people, or a single undocumented child, a felony punishable by a $10,000 fine or up to fifteen years in prison; requires hospitals to ask patients’ immigration status in certain cases; and allocates $12 million for DeSantis’s ongoing effort to ship recently arrived migrants out of the state. The legislation went into effect on July 1 and is already having a significant effect on the local economy.
Some undocumented people and members of mixed-status families fled the state before the bill even went into effect, and as the New York Times recently reported, employers are having a hard time finding workers to fill the jobs they’ve left behind. The job market is incredibly tight, both in the state and across the country. Florida’s unemployment rate was 2.6 percent as of June, compared to a national unemployment rate of 3.6 percent. Despite the law having gone into effect, there haven’t actually been any crackdowns or sweeps; no one is investigating businesses for hiring undocumented immigrants, and Florida lawmakers were instead hoping for migrants to self-deport from the state. It seems they’ve gotten exactly what they wanted, to the apparent detriment of the local economy.
ICE detained asylum seekers who were granted temporary relief from deportation, lawsuit alleges
Three asylum seekers continued to be held in detention despite judges ruling that they couldn’t be returned to their countries of origin, a lawsuit filed by the American Civil Liberties Union and the Virginia and Capital Area Immigrants’ Rights Coalition claims. The men, all of whom are asylum seekers from Central America, were granted deferral of removal three or more months ago but have yet to be released from ICE custody, per the complaint filed in a federal court in Virginia. Since the men were granted deferral of removal, the government can theoretically deport them to another country where they wouldn’t be at risk of torture or persecution. The complaint alleges that ICE is “looking for alternative countries of removal despite knowing that [the men] lack citizenship in or a connection to any other country.”
When someone is granted asylum or another form of relief from deportation, ICE can appeal the decision, kicking it up to the Board of Immigration Appeals. Per the complaint, however, ICE waived its appeal or failed to appeal within the allotted period for each of the three men but has continued to keep them in detention anyway. “Continuing to hold our clients in detention for no good reason violates the Constitution, immigration law, and ICE’s own policy,” CAIR lawyer Austin Rose said in a statement to the Hill.