US Border Patrol officer Tekae Michael stands near prototypes of US President Donald Trump's proposed border wall on November 1, 2017 in San Diego, California. The concrete and steel structures, erected in a remote area in San Diego, will be tested for 30 to 60 days to determine which design meets the needs to secure the border, US Customs and Border Patrol Protection said in a statement. Authorities said that in considering the mockups -- built by six companies from across the United States -- they will evaluate a number of characteristics including anti-breaching, anti-climbing and anti-digging capabilities. / AFP PHOTO / FREDERIC J. BROWN (Photo credit should read FREDERIC J. BROWN/AFP/Getty Images)

How a clutch of class-action lawsuits against Trump government challenges its anti-immigrant policies

In addition to the experiences of political violence and instability in their countries, asylum seekers fleeing to United States of America now face the danger of losing their children to detention by immigration authorities. In the aftermath of Trump administration, according to the petition filed by the known civil rights defenders and a non-profit organization American Civil Liberties Union (ACLU), the children are forcibly separated from their parents as soon as they cross the borders seeking asylum. ACLU has filed a national class-action suit against multiple government agencies.

In the recent past, Trump administration has taken aggressive measures to limit immigrants into the USA, and some of those policies still face strong global opposition for its patent discrimination, such as travel ban on Muslim-majority countries, and canceling of Deferred Action For Childhood Arrival (DACA), which protected undocumented children in the States. However, one of the subtle, lesser known attacks on refugees, who form a comparatively more vulnerable immigrant groups, is by keeping them detained in holding facilities away from their family members. The idea is straight-forward: keep the mother away from the child forcefully, and they will stop looking at USA as a safe haven against the violence they face back home.

Jeff Sessions, the US Attorney General, openly attacked the current American immigration system by calling it “fraud” and that “…dirty immigration lawyer make false claims of asylum, providing them with the magic words needed to trigger the credible-fear process”. He gave examples of cases where people were found to have taken advantage of the system. The White House has taken a strong stand linking terrorism with immigrations and relied on selective usage of data, such as highlighting the number of immigrant prisoners and the high number of immigrants following a family member to the United States, hoping to sway public opinion in support of their anti-immigrant sentiment.

In the light of these perverted political strategies, and the increasing global tendency to be anti-immigration, the class action suit filed by ACLU is of high significance and reflective of the Trump administration’s regressive stand on human rights and dignity of life.

The petition has been filed by ACLU on behalf of mothers, named Ms. L and Ms. C, native of the Democratic Republic of Congo and Brazil respectively. In the case of Ms. L, fearing nearing death in Congo, she escaped with her daughter to the Unites States. On entering through the port of San Diego, they sought asylum and were given an initial screening interview before an asylum officer. On a favourable report, she was allowed entry but after four days her daughter was moved to a detention facility situated across the country in Chicago. Her daughter is 7 years old and is in detention, states apart from her mother or anyone she knows without an explanation or an official statement. Ms. L has brought the action against the US Department of Homeland Security, US Customs and Border Protection, US Citizenship and Immigrations Services seeking to be reunited with her daughter while they await the final decision on their asylum status.

The petition details the agony of the separated mother and her child. The daughter is traumatized, alone and frightened because of an administrative policy designed to break the parents into not returning to US or prospective refugees from entering the borders.

Unlawful separation

The Fifth Amendment of the US constitution reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The fifth amendment applies to Ms. L and her daughter and the arbitrary separation has no purpose other than the government objective to discourage immigration. Such an aggressive measure taken without any hearing violates the natural justice principle of due process.

The class action suit challenged the federal government agencies on other grounds such as violation of asylum statute wherein non-US citizens with a well-founded fear of prosecution can obtain asylum, violation of Administrative Procedure Act, which prohibits action that is arbitrary and capricious. The move of removing the daughter from the company of her mother and keeping her in detention with little access to each other violates the rights of the refugees under the US law. The petition has asked the Court to declare the separation unlawful and reunite them.

Ms. C’s case is similar and in this case she was illegally prosecuted and spent 25 days in prison while her 14-year old son was in a holding facility in Chicago. There has been no indication of the reason behind the move, or if Ms. C is an unfit parent in any way.

The Class suit

For a plaintiff to be able to pursue a suit as a “class action:, she must meet certain requirements stated in Federal Rule of Civil Procedure 23 that is, numerosity, commonality, typicality, and adequacy of representation.

According to the petition, the lawyers and advocates report they are witness to hundreds of cases where families have been separated after apprehension. Thus apart from the parents who have been taken away from their children, the proposed class will include the parents who are at risk of losing their children to this systematic policy move. The class of people qualifies the test of numerosity.

The commonality test is settled in Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) where it was held that, “commonality only requires a single significant question of law or fact”. In a civil suit such as this, the notion should be more liberal considering the high implications of the question of law for the public at large.

The petition also clarifies the stand with,

“…All class members assert the same due process right to family integrity. Their constitutional claims present the same legal question of whether Defendants may separate them from their minor children without any hearing and demonstration that they are unfit parents. Their APA claims raise the common legal issue of whether it is arbitrary and capricious for Defendants to separate a parent and child without providing a reasoned explanation. And, should the government later provide reasons to separate class members from their children, their claims will raise the common legal question of whether the Due Process Clause permits Defendants to take away their children without providing a fair predeprivation process. Any one of these common issues, standing alone, is enough to satisfy Rule 23(a)(2)’s permissive standard…” 

A few days after ACLU filed the petition, the mother Ms. L was released from her detention but she is not united with her daughter.

Morality at stake for political gains

This is only the first symptom of a much larger issue affecting the country. If United States is now taking such extreme measures in terms of its administrative policies to ensure that refugees do not seek asylum in the United States, it leaves very limited scope of negotiation on humanitarian grounds. The drastic, inhuman “tactical approach” to the immigration policy stinks of moral bankruptcy. Parents are torn away from their children in the hope that they will be terrorized to come back and deter other people in similar situation, if that is not terrorism what is? The irony is, a family leaving their home because of political violence is returned because of political motives, to be in a stateless condition.

The invisible wall that POTUS has already sanctioned between the world and the US requires international sanctions, and most importantly immigration and refugees rights in the world needs development to secure any agency for negotiation for the most vulnerable community in the world.

Shivangi Misra is a Delhi-based lawyer and works with Lawyers Collective. Her areas of interest are Equality and Anti-discrimination law. 

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