New Court Filing Challenges Chad Wolf’s Appointment in Order to Preserve DACA

Immigrant youth filed an amended claim in federal court to challenge changes to the Deferred Action for Childhood Arrivals (DACA) program, arguing the changes were unlawfully implemented based on the illegitimate appointment of Acting Department of Homeland Security (DHS) Secretary Chad Wolf. The legal challenge not only calls out the Trump administration’s failure to abide by its own laws but could serve as a pathway to fully restore the DACA program.

The complaint filed on August 28, 2020, in the U.S. District Court for the Eastern District of New York challenges the recent changes the Trump administration made to the DACA program. The complaint adopts similar legal arguments used in a different lawsuit that challenged the appointment of USCIS Chief Ken Cuccinelli. In that case, a federal judge found Cuccinelli’s appointment unlawful and used it to strike down various policies issued during his tenure aimed at eroding the due process rights of immigrants, including directives that sped up asylum seekers’ initial screenings and then limited extensions of those hearings. 

“We are back in court because this is, yet again, the latest unlawful installment by the administration, and its latest assault on DACA is just as unlawful as the first,” Mayra Joachin, an attorney for the plaintiffs with the National Immigration Law Center, told Bloomberg.

The complaint centers on a July 28th memorandum issued by Wolf, which bars first-time applicants from obtaining DACA, requires annual renewal of work permits as opposed to every two years, and limits travel abroad under advanced parole. The complaint contends that the memorandum calling for all these changes should be invalidated because Wolf was unlawfully appointed and, therefore, lacked the authority to issue said memorandum. 

“The designation of Defendant Wolf as Acting DHS Secretary was made in contravention of the Appointments Clause of the U.S. Constitution, the Federal Vacancies Reform Act (“FVRA”) and the Homeland Security Act (“HSA”). As a result, Defendant Wolf lacks the authority to revoke critical components to the DACA program purportedly made through the Wolf Memorandum,” the complaint states.

Earlier this month, the Government Accountability Office determined that the previous head of DHS, Kevin McAleenan, had been improperly designed as the Acting DHS Secretary, and thus, appointments made by McAleenan would also be deemed invalid, including Wolf and Cuccinelli.  

Immigrant Legal Defense and Immigrant Defense Advocates put forth a similar argument when challenging the validity of 15-year contracts signed by ICE in order to expand immigration detention in California, noting that Wolf’s illegitimate appointment should place those contracts under legal jeopardy.

The Wolf complaint is the latest development in an ongoing battle between civil rights organizations and advocates alleging clear violations of law and procedure in the Trump administration's incessant war against immigrants. 

In this case, the complaint may serve to invalidate Wolf’s July 28th memorandum. If successful, it could lead to a general reinstatement of the DACA program in full, at least for a period of time.

NILC represents the group of young visionary people who filed the complaint, Make the Road New York, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School. 

As COVID Spreads, Advocates Demand Release of Immigrants in California Detention Facilities

The spread of COVID-19 in immigrant detention facilities has detainees, advocates, and elected officials demanding action by state and federal authorities. California is home to five detention facilities, which currently have the capacity to detain as many as 5,000 individuals daily, with thousands cycling through each year. 

Despite ICE’s claims that they would limit enforcement during this pandemic, attorneys continue to see individuals placed into detention at an alarming rate. Of those detained, an estimated 95% are held in facilities operated by for-profit corporations, with a track record of negligence, inhumanity, and placing their financial interests above the needs of detainees or staff. Advocates have maintained that these facilities are overseen by a rogue agency, ICE, and run by private operators who lack minimal standards of transparency or accountability.

Ongoing immigration detention not only further endangers those detained but also greatly adds to the current public health crisis. A nationwide study developed by the Nature Public Health Emergency Collection estimates that coronavirus outbreaks among a minimum of 65 ICE facilities (59%) would overwhelm ICU beds within a 10-mile radius. Outbreaks among a minimum of 8 ICE facilities (7%) would overwhelm local ICU beds within a 50-mile radius. 

What follows is an overview of what is known about the current status of COVID-19 and those detained at each of the five immigration detention facilities in California.

Adelanto Detention Facility – Detention Capacity: 1,940 (Operated by The GEO Group Inc), Adelanto, CA

The Adelanto Detention Facility, the largest and historically deadliest facility in the state, has maintained its notorious status with reports of abuse and horrific conditions faced by immigrants during the pandemic. Reports have emerged of COVID-19 infections in the facility, but due to ICE’s seeming obfuscation, it is unclear how many detained individuals or staff have contracted COVID-19. Advocates have alleged that ICE has secretly banned testing for COVID-19 inside the detention center and may be suppressing the truth as to the spread of the virus inside. 

Detainees inside the facility have alleged that GEO, the operator of the facility, has exposed them to hazardous chemicals. This includes having chemicals sprayed every 20-30 minutes in close proximity and, at times, directly at them.

Those who have been exposed say they have suffered health complications such as rashes, nosebleeds, breathing difficulties, headaches, and nausea, Reuters reported.

Otay Mesa Detention Facility - Detention Capacity: 1,230 (Owned and operated by CoreCivic), San Diego, CA

The Otay Mesa Detention Facility, which holds approximately 1,230 individuals, was the site of the largest outbreak of COVID-19 in the state and, at one point, was the largest outbreak in any ICE facility in the nation, with more than 160 individuals testing positive. Tragically, the facility was also the site of the first detainee COVID-19 death, with 57-year-old Carlos Escobar Mejia passing away from the illness in May. 

Employees of CoreCivic have gone on record with local news outlets citing inadequate health and safety conditions. Credible reports have emerged that CoreCivic has used violence and intimidation against detainees who have asked for basic supplies for medical safety and hygiene. In one particularly egregious case, CoreCivic attempted to require detainees in the facility to sign legal waivers before providing them with personal protective equipment. Detainees who protested this requirement were subsequently pepper sprayed.

Imperial Regional Detention Facility - Detention Capacity: 700 (Operated by the Management and Training Corp), Calexico, CA

The Imperial Regional Detention Facility is one of the state's largest and most remote detention facilities. The facility had its first positive COVID-19 case in May but has not yet reported increased numbers inside the facility. Imperial County itself has had one of the highest death rates for COVID-19, with only two hospitals serving the entire region.

The facility itself remains a virtual black hole for legal representation, with advocates and detainees noting the lack of legal resources and support for those detained inside the facility.

Mesa Verde Detention Facility - Detention Capacity: 400 (Operated by The GEO Group Inc), Bakersfield, CA

The Mesa Verde Detention Facility is currently the site of the most active outbreak of COVID-19 among all civil detention facilities in the country. Advocates believe there are currently over 50 cases of COVID-19 at the facility. This past week, dozens of individuals tested positive for COVID-19, with a federal judge noting ICE’s “deliberate indifference” to the threat posed by the pandemic and ordering mass testing of everyone inside the facility. 

This outbreak comes after months of advocacy by detained individuals highlighting the horrific conditions in the facility and the potential for COVID-19 outbreaks. According to individuals inside the facility, the exposure to COVID-19 is the direct result of recent transfers from individuals who were previously in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), including individuals who had previously tested positive for COVID-19. The policy of facilitating transfers from CDCR into ICE custody is in direct contradiction to Centers for Disease and Control Prevention (“CDC”) guidance, yet it has continued during this pandemic despite a months-long campaign targeting Governor Newsom to end the voluntary practice. 

Yuba County Jail - ICE Detention Capacity: 210 (Operated by the Yuba County Sheriff's Office), Marysville, CA

The Yuba County Jail is the only non-private facility in the state that holds ICE detainees. The facility holds ICE detainees alongside those in county custody and presents an extremely high risk for COVID-19. The jail has been under a consent decree for over 41 years to improve conditions and disability access at the jail, and today, conditions today remain oppressive. 

Advocates have been told that detained individuals are on lockdown 19 hours a day and that there is at least one confirmed case of COVID-19 at this facility. The jail administrators have acknowledged not having enough masks or proper protective gear for those inside the facility despite being paid millions by ICE to house detainees. Detainees inside the facility have staged numerous actions and hunger strikes to shed light on the conditions they face. They have expressed an alarming lack of hygiene supplies, including soap. Detainees are confined in crowded and unsanitary conditions and are unable to maintain safe social distancing. The facility has historically been plagued by sanitation, cleanliness, and welfare issues. 

Conclusion 

There is a high probability that COVID-19 will soon be officially confirmed in every immigrant detention facility in California. It is not a question of if but when these facilities will be further infected and of how many people will suffer and possibly die. 

Detention facilities are structurally incapable of providing any meaningful form of social distancing, with multiple individuals confined to a single room or cell and often dozens of individuals living in a shared pod. ICE itself relies on a detention system in which individuals facing deportation or removal may be transferred between multiple facilities quickly and without oversight. The current structure and operations of these facilities within California enable the rapid spread of this deadly disease. Moreover, as deportations from detention centers continue, the US immigration detention system is directly contributing to the further spread of COVID-19, not just within our nation’s border but throughout the world.

Four Immigration Changes to Keep an Eye on in 2020

2020 has been a year of substantial changes to immigration law and policy. Here are four significant changes related to immigration to track in the coming months.

DACA and the future of the program

Following the Supreme Court’s ruling on June 18, 2020, declaring that the manner in which the Trump Administration ended the DACA program was unlawful, the future of this program, which protects undocumented youth immigrants, remains uncertain, with various potential outcomes on the table. 

In the weeks following the court's ruling, Trump had claimed that he was prepared to sign an executive order providing a pathway to citizenship for DACA applicants. However, details of this announcement have yet to be fully disclosed, with many expressing concern that the DACA program and its recipients are once again being used as political bargaining chips in Washington. 

The latest news on the program indicates that the Trump administration will not accept any new DACA applicants and will review the program in its entirety.  

On July 28th, the Department of Homeland Security (DHS) issued a  memorandum stating that the agency will:

• Reject new and pending initial requests for DACA;

• Reject new and pending requests for advanced parole absent exceptional circumstances; and,

• Shorten DACA renewal periods to one year instead of two years.

Be sure to check the USCIS DACA page for additional updates and guidance and discuss your particular case with an immigration attorney. For now, it appears too early to tell what the final resolution of all of this will be, but the one thing that seems certain is change is on the way. 

Increased fees for asylum and citizenship

In a move that many have decried as part of an ongoing agenda to reduce immigration and bar humanitarian relief, the Trump administration has announced a dramatic increase in immigration application fees, including an 80% increase for naturalization applications and a first-time fee for asylum applicants that will take effect on October 2, 2020.  For now, there is no proposed fee increase for DACA applications. 

Advocates have noted that the increase in fees for naturalization may be directly linked with an agenda to reduce the number of immigrants obtaining the right to vote in future elections. While the fee of $50 for asylum applications may appear to be nominal, it does send a clear message that the United States is not looking to greet asylum seekers with open arms.

The US now joins only three other countries in the world-- Australia, Fiji, and Iran -- in imposing asylum application fees.

Mass immigration restrictions during COVID-19

This year has been marked by a systematic attack on immigrants and their advocates. The federal executive has engaged in a methodical dismantling of asylum protections, a sharp narrowing of family-based immigration for all but the most wealthy of immigrants, and an all-out war on non-citizens who have contact with law enforcement or are in detention.

With the spread of the Coronavirus throughout the globe, the Trump administration has continued this attack and effectively shut down almost all forms of legal immigration to the United States.  Since January of 2020, there has been a reported 94% decline in non-immigrant visas. In addition to the suspension of visas, the administration has effectively halted the entry of migrants and asylum seekers at the border and limited the number of refugees in 2020 to less than 200.  Within the United States, there have been delays in issuing decisions on pending green card and naturalization applications.  

Immigration advocates have noted that the administration has seized the pandemic to achieve what many believe was long-desired goals, essentially ending legal immigration, particularly to migrants, asylum seekers, and those obtaining status through family petitions. 

"You would expect that during this massive public health and economic crisis that the administration's agenda would be sidelined, but instead, it's been as aggressive if not more aggressive than it's ever been," Sarah Pierce, a policy analyst at the Migration Policy Institute, a think tank based in Washington, told CNN in an interview. 

The systematic abuse of power against immigrants is not unique to the Trump administration, however, the anti-immigrant driven agenda, malice and lack of disregard for basic due process protections openly endorsed during a global pandemic is a disturbing affirmation of the xenophobic character of this administration. 

Federal court blocks “public charge” rule  

In a July 29, 2020 decision, Judge George Daniels of the U.S. District Court of the Southern District of New York temporarily blocked the Trump administration’s “public charge” rule.  This rule, which went into effect on February 24, 2020, is yet another attempt by the Trump administration to limit who can apply for lawful permanent residency for discriminatory reasons. 

In his decision, Judge Daniels stopped the Trump administration from continuing to enforce the public charge rule  “for any period during which there is a declared national emergency in response to the COVID-19 outbreak.”

While this decision is a victory for our community as it temporarily freezes the application of the “public charge” rule, this is not a final decision as the government is expected to appeal the ruling.  Given the rapidly changing situation and potential impact of the public charge rule, it is all the more critical to speak to a qualified immigration attorney about your individual case.

For more information about the lawsuit and your rights, click here. 

This blog post by ILD is intended for informational purposes only and should not be taken as legal advice.  If you have specific questions for yourself or your family, please contact ILD or another qualified immigration attorney. 

AB 32 Ruling May Change Immigrant Detention Forever

A federal court in San Diego is set to rule on a case involving the use of private detention facilities, with broad implications for immigrants in detention in California and perhaps nationwide. 

The suit initiated by the GEO Group Inc., one of the largest private prison companies in the world, was brought against the state of California when it passed AB 32, a groundbreaking bill that banned the operation of all private detention facilities within its border, including private civil detention facilities used by the federal government to house immigrants. GEO was joined in the suit by the federal government, with both parties claiming that AB 32 is an unconstitutional overreach by the state of California, and asked the court to invalidate the law and also declare current contracts in place for facilities as valid and immune from challenge.

The law prohibits private operators from signing any new contracts after January 1, 2020. Advocates allege that ICE and private prison companies colluded to sign 15-year contracts weeks before the ban was set to take effect in an effort to skirt the law. The contracts have drawn criticism, including an oversight letter signed by more than 20 congressional representatives. 

During the first hearing in the case, U.S. District Judge Janis Sammartino issued a tentative ruling in favor of the state of California and appeared inclined to largely uphold the law. She referred to the lawsuit as “fascinating and complex” and noted that more than 100 members of the public had called in to listen to the hearing. 

A finding that AB 32 is constitutional would serve as a severe blow to the private prison industry, which operates multiple facilities in the state of California, including four out of the five immigrant detention facilities in the state. 

A finding that a ban of this sort is constitutional may have even broader implications for the future of immigrant detention nationwide, as more than half of all immigrants in ICE custody are held in private facilities.

As Jordan Wells, an attorney with the American Civil Liberties Union of Southern California, told the LA Times. “The ruling is as much about ICE’s private prison enterprise across the country as it is about the ban on it here in California,” he said. “Because if California can do it, then other states can as well.”

Immigrant Legal Defense (ILD) and Immigrant Defense Advocates (IDA) had submitted an Amicus Brief to the court ahead of this hearing and were invited by the Judge to present on the case. The brief, which was filed in March of this year, centers on the GEO Group’s documented history of undue influence and bad-faith dealings in the state of California.

Jackie Gonzalez, attorney for Immigrant Defense Advocates, represented both parties before the court. The following is an excerpt from her court presentation; you can read the full statement here.

It is directly against the public interest to allow private corporations to enter into sham contracts with local governments in order to circumvent federal and state laws all while evading oversight and transparency.

By circumventing the contracting laws that they are supposed to follow, GEO and the federal government have undermined the federal contracting process. Because GEO and the federal government have thus far refused to release any information about the formation of these contracts the public cannot be sure that there are not improper motives, illicit financial incentives or other malfeasance that contravene the public interest – and there is ample evidence to suggest that all of these things have occurred.

That is why we are here today and why we filed our brief. To show the court that GEO appears before you with unclean hands, and to point out just how many instances of inequitable conduct have been documented – even without the opportunity to conduct meaningful discovery on this matter.

...

I would like to leave you with one last thought: AB 32 was an expression of our State’s priorities, which value people over profits. We ask that you do not reward the bad faith conduct of a private corporation that subverts the rule of law, our democratic institutions and most importantly human life in its pursuit for profit.

A written ruling on the case is expected in the coming weeks. 

Immigrant Legal Defense and Immigrant Defense Advocates present Amicus Brief in AB 32 Litigation

ILD and Immigrant Defense Advocates will appear before the U.S. District Court for the Southern District of California to present an Amicus Brief filed in the case of The Geo Group, Inc. v. Newsom et al. related to AB 32, a California law banning all for-profit prisons and civil detention facilities.

The hearing is set to take place July 16th, 2020, before the Hon. Janis L. Sammartino.

The brief, which was filed in March of this year, centers on the GEO Group’s documented history of undue influence and bad-faith dealings in the state of California.

In the brief, IDA and ILD argue that GEO’s past conduct and “unclean hands” should bar them from relief.

The unclean hands doctrine derives from the equitable maxim that he who comes into equity must come with clean hands. This maxim “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.

In the matter before the Court, the Plaintiffs’ pattern of conduct with respect to the contracts at issue include documented instances of inequitable conduct and bad faith. This includes exercising undue influence over local cities in California with respect to Federal contracts, in the pursuit of Plaintiff’s financial benefit. Plaintiff has made promises to make extracontractual payments to local cities in order to secure the benefit of intergovernmental agreements and other outcomes. Plaintiff has sought to hide this influence from the public record, cloaking their intentions and goals under the guise of independent decisions made by local cities. Plaintiffs’ CEO has failed to truthfully testify about these activities while under oath. At present, Plaintiff remains engaged in a sophisticated effort to influence the cities of Adelanto and McFarland with respect to local permits and the contracts at hand. Equity requires that those seeking its protection shall have acted fairly and without fraud or deceit as to the controversy in issue.

Plaintiff’s inequitable and deceptive conduct directly relates to its pursuit of the detention contracts at issue. In applying the unclean hands doctrine, “[w]hat is material is not that the plaintiff’s hands are dirty, but that he dirtied them in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendants.” Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963). Plaintiffs conduct as it relates to obtaining contracts with ICE for civil detention in the state of California was rife with bad faith and deception from the outset, and culminated in the contracts for which it now seeks relief.

Read the Amicus Brief in full here

The case is The Geo Group, Inc. v. Newsom et al

Case Number: 3:19-cv-02491-JLS-WVG

Read the full oral argument presented to the court by IDA's Jackie Gonzalez here.