Migrants sue Trump!

Lawsuits will not solve America's immigration problems.

Some of the participants in the caravan from the Northern Triangle have hired a D.C. lawyer and filed a lawsuit against the president, the attorney general, and various other federal officials. When you read the complaint, it becomes clear that this lawsuit, like the caravan, is a stunt. And neither the caravan nor the lawsuit is intended to help anyone who really needs it. The purpose of the lawsuit is to get a district court judge to prevent the government from denying asylum to caravan participants. Once this is done, the plaintiffs will argue that the government cannot follow its normal procedures.

The plaintiffs claim that Trump's declaration that U.S. troops will stop the caravan from entering the U.S. "is shockingly unconstitutional." The plaintiffs assert that the Fifth Amendment's due process clause prevents the government from acting. The plaintiffs, however, do not have constitutional rights. "An alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application . . . ." Landon v. Plasencia, 459 U.S. 21, 33 (1982). It is only after "the alien gains admission to our country and begins to develop the ties that go with permanent residence [that] his constitutional status changes accordingly." Id. The fundamental rule that "'aliens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with the country'" still applies. Vang v. Gonzales, 237 Fed.Appx. 24, 29 (6th Cir. 2007) (quoting United States v. Vedugo-Urquidez, 494 U.S. 259, 271 (1990)). But the lawsuit is really intended to force the government's hand under the Flores agreement. An agreement that resulted from a lawsuit filed in 1985 and was never intended to apply to situations beyond the facts that created it. The insurmountable problem is that Flores is based on the Fifth Amendment's due process clause, and the members of the caravan, not having entered the U.S., do not have the protection of the Constitution. 

               The Flores lawsuit.

In 1985, Jenny Lisette Flores was a 15-year-old girl who left El Salvador hoping to find her aunt who lived in the United States. Jenny was caught at the U.S. border and detained in pitiful detention conditions. At the time, unaccompanied children were kept in conditions that included being detained with unrelated adults and in unsanitary conditions. The length of these detentions depended on how quickly the government processed the cases. Rather than release Jenny to her aunt, the government took the view that unaccompanied children could be released only to their parents. After 12 years, the  Flores case was settled.  

The settlement agreement required the government to release unaccompanied children as soon as possible and in no event could they be detained more than 20 days. The agreement specified the persons or entities to whom the children could be released: (1) parents, (2) legal guardians, (3) adult relatives, (4) an adult designated by the parents or the legal guardians as capable of caring for the children, (5) a licensed program willing to accept legal custody, or (6) an adult individual or entity seeking custody when there are no reasonable alternatives to long-term detention. The Flores agreement led to rules that addressed the length of time during which unaccompanied children could be kept in detention and the conditions in which they could be held. 

During the Obama administration, there was an increase in the number of Central American families seeking asylum. To deter asylum seekers, the Obama administration decided to keep families in detention and deport them as soon as the process could be completed. In response to a legal challenge, the court held that the plan violated the Flores agreement. The Court of Appeals for the Ninth Circuit decided that the Flores agreement prevented the government from detaining the children for the purpose of deterring asylum seekers. This broadened the Flores agreement from unaccompanied children to all children and led to the problem of separating children from their parents. Although the Ninth Circuit did not hold that the agreement required the release of parents, the government began releasing the parents and the children because the three detention facilities were full. The government has two options: (1) separate the children from their parents to satisfy the terms of the Flores agreement, or (2) release families pending resolution of asylum petitions or the criminal charges of illegal entry. The latter often leads to the government losing track of the released families. 

Where's Congress?

Although our government consists of three branches, only two of the three have appeared on stage. Missing from this is the most important branch: Congress. Congress, the law-making branch, prefers to sit in the wings and carp about what is going on, rather than accepting its role and trying to fix the immigration mess.

So without Congress taking action, we are left with the Judicial Branch fumbling its way through lawsuits that are not capable of, nor is it this branch's job, developing a coherent immigration policy. And the Executive Branch will continue to react to situations as they arise. The results are usually less than desirable. Congress should listen to Senators Grassley, Cruz, and Tillis and act.