They haven’t yet reached the US border, but their attorneys have already stormed Washington DC. A dozen migrants in the caravans marching toward the American border have filed a lawsuit accusing Donald Trump et al of violating their Fifth Amendment rights — even though they have yet to set foot in the country:
Twelve Honduran nationals, including six children, are listed as plaintiffs in the lawsuit. The suit, which was filed Thursday in the U.S. District Court in Washington, D.C., said it is widely known that Guatemala, Honduras and El Salvador are “undergoing a well-documented human rights crisis.” The lawsuit also claims that the plaintiffs’ right to the Administrative Procedures Act and the Declaratory Judgement Act were being infringed upon. …
The lawsuit points to Trump’s claim that he will prevent the caravan from entering the U.S. It claims that the president cannot stop asylum-seekers by employing the military — when they have a fair claim. The suit criticized the president’s alleged attempt at stoking “fear and hysteria” by claiming that criminals and gang members have joined the caravan.
The suit cited a Trump interview with Fox News’ Laura Ingraham, where the president laid out plans to build tent cities to house migrants. The suit questioned the functionality of such a project, and asked if these living quarters would qualify under the Flores Agreement of 1997. The agreement protects asylum-seekers’ rights and limits how long minors can be held.
If the jobs report this morning came as a gift to Donald Trump and the Republicans, this lawsuit provides a nice pairing to it. Trump seized on the immigrant caravans to highlight immigration issues going into the midterms, which has contributed to enthusiasm among Trump’s base. He arguably overplayed that hand by asserting executive authority to unilaterally change birthright citizenship, which might have lost some voters by recklessness and an unnecessary broadening of the fight.
This, however, plays right into Trump’s strategy. At its heart, his campaign message on the caravan is its arrogance in dictating immigration policy to the US. What could be more arrogant than suing the US to demand entry and better housing before they even arrive?
The language in the suit itself provides evidence of this, too. For instance, in arguing that Trump’s public statements show an intent to create “indefinite detention” in tents, the suit asserts that “the issue of detaining people in tents indefinitely brings about more unconstitutional conduct by our President,” emphasis mine. Er … whose president? Trump isn’t the president of the plaintiffs; if they were legal US residents, they wouldn’t have to file a lawsuit in the first place.
Then there’s also this, emphasis again mine:
This Court should also note that President Trump has begun hysterically asserting without any evidence that “many criminals” and “many gang members” are in this “onslaught” of migration. In an effort to create fear and hysteria, Trump has gone so far as to call this “an invasion of our Country.” Despite these statements and actions, Trump has been unable to produce any evidence of criminals and gang members within the caravan, which has largely proceeded peacefully on its journey. Plaintiffs now request that this Court declare Trump’s policy positions/initiatives outlined in this Complaint unconstitutional, to end this case and controversy.
“Largely,” eh? That’s not exactly a comforting thought, and it tacitly admits that there’s been violence along the way. Furthermore, the US has the right to make that determination, especially when caravans organize to confront the border en masse as a political movement, which this clearly has become at the least.
That’s not to say that the complaint is entirely empty, however. The suit raises serious questions about the proposed tent facilities under the Flores agreement, especially regarding the housing of children, which has already been an issue in court for the administration. It also points out that US law allows asylum seekers to get a hearing to challenge any determination of unsuitability:
The only way President Trump can mandate permanent detention without even a bond hearing is for those persons to be designated as “you are an arriving alien” upon entering the United States. See Garza-Garcia v. Moore, 539 F. Supp. 2d 899, 906 (S.D. Tex. 2007). There are two other designation: (2) “You are an alien present in the United States who has not been admitted or paroled.”; or (3) “You have been admitted to the United States, but are removable for the reasons stated below.” See United States v. Castaneda-Barajas, No. CR-11-2069-RMP, 2011 WL 3626786, at *6 (E.D. Wash. Aug. 16, 2011). These two designations, however, permit asylum seekers to have a bond hearing. So, taking President Trump at his word—that his policy position/initiative is to detain people in tents until they have to go back to central America—President Trump must be directing officials to designate all Caravanners as “you are an arriving alien.” Id. The problem with this designation however is that the law requires Defendants to permit all such designated persons to challenge their designations; consequently, Trump’s policy of keeping all persons detained until they must leave the country necessarily violates due process rights. See Garza-Garcia, 539 F. Supp. 2d 899.
The problem here for the lawsuit is its ripeness. No one has yet been denied any due process. Trump’s public comments do not make a constitutional violation, at least not yet. Until these plaintiffs reach the border and make an attempt to enter the country and actually suffer these now-hypothetical injuries to their “rights,” they don’t have a case. This lawsuit is a stunt, timed to embarrass Trump right before the midterm elections — timing which suggests that the caravans themselves are a stunt too. The caravans just didn’t get to the border in time, so their attorneys are trying to make the argument in a lawsuit instead.
If that’s the case, though, it’s bound to backfire. Voters are not going to look with much favor on a lawsuit asserting that roving bands of migrants have a constitutional right to dictate border policy — and if it succeeds, it’s likely to raise temperatures on immigration policy to further restrict asylum from this point forward. This plays right into Trump’s hands, so much so that one has to wonder whether he’s been barking about military deployments and tent cities just to goad them into a lawsuit.
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