The Trump administration has secured a somewhat rare victory at the district court level in an immigration case out of Oregon. On Thursday, two immigrant advocacy groups were denied a requested temporary restraining order (TRO) that would have guaranteed attorney access to detainees brought up on deportation-related charges in, but then removed from, the Beaver State.
In a six-page opinion and order, U.S. District Judge Ann Aiken, a Bill Clinton appointee, said the plaintiffs did not yet make a clear enough showing that such alleged behavior by Immigration and Customs Enforcement (ICE) agents is unconstitutional.
“Plaintiffs allege that ICE obstructs and delays attorneys from meeting with their detained clients before it transfers their clients out of state,” the judge explained. “Plaintiffs’ Motion for TRO is DENIED.”
The litigation was filed earlier this month by the Innovation Law Lab, a Portland-based group of lawyers, activists, and tech professionals focused on immigration reform and upholding constitutional rights.
In a 35-page complaint and concomitant 21-page motion for a TRO, the plaintiffs allege various violations of the First Amendment, Fifth Amendment, and the Administrative Procedure Act (APA), the federal statute governing the behavior of administrative agencies like ICE.
“The U.S. Constitution requires that individuals subject to the government’s unilateral power of detention, transfer, and extraordinary rendition must have the right to access counsel before any transfer or rendition,” the lawsuit begins. “Recent federal agency action, however, has undermined this sacrosanct safeguard.”
The complaint details the allegations:
> “[F]ederal agencies have commanded their vast resources and innumerable agents to assault the people—immigrants and non-immigrants alike. Undertaking the orders of the President ‘to do all in their power to achieve the very important goal of delivering the single largest Mass Deportation Program in History,’ federal agencies—which are mere creatures of law with an ironclad obligation to always obey the law—have largely abandoned the law, especially the law on immigrant detention, and their constitutional, statutory, and regulatory obligations.
> In this spirit, federal agencies have adopted officially sanctioned policies, patterns, and practices designed to achieve quota deportations at all costs—even if that means violating the right to access counsel that is enshrined in the Fifth Amendment.”
In their request for emergency relief, the plaintiffs asked the court to “immediately” enter a TRO barring the government “for three business days from transferring” immigration detainees out of Oregon so as to give the detained individuals time to meet with counsel.
Painting a dire picture, the plaintiffs accused ICE of detaining “citizen and immigrant alike” in “violent sweeps” that then “trap” such detainees in the government’s “vast detention network: a network that spans from Tacoma, Washington, to Guantanamo Bay, Cuba, to Sudan to Libya to CECOT—a notorious torture center in El Salvador.”
The plaintiffs’ Kafkaesque recitation of ICE activity recalls a flashpoint in the second Trump administration’s immigration control campaigns—the use of so-called “third-country” deportation flights. In fact, the plaintiffs clearly allege they think this is happening to Oregonians.
“Individuals arrested in immigration enforcement actions may not only be rapidly transferred outside of Oregon and far from their communities of support, but they can also be sent quickly to third countries—like South Sudan, Eswatini, El Salvador, or Libya—where they have never been before and where the government takes the position that they are beyond the reach of this Court’s jurisdiction and ability to remedy any unlawful detention or transfer,” the lawsuit states.
The government, in turn, said the plaintiffs were raising much ado about a very simple fact of ICE’s operational capabilities.
“Plaintiffs’ requested relief is overbroad, unworkable, potentially contrary to law, and otherwise improper,” the 45-page opposition motion filed by the Department of Justice reads. “As to the transfer prohibition in particular, ICE does not have any overnight detention facilities within Oregon. Any alien arrested in Oregon that ICE determines will remain in custody must be transferred out of state.”
To hear the DOJ tell it, “[a]lmost all adult” Oregon detainees are transferred to the ICE facility in Tacoma, Washington. Such detainees “routinely” access attorneys in “several” ways, the DOJ claims.
“The thrust of Plaintiffs’ complaint is that detainees are not being given sufficient access to attorneys,” the government’s response reads. “The way to remedy that harm would be to mandate increased access in some fashion. But there is absolutely no reason for the Court to restrict Defendants from detaining individuals in particular locations. Whether a detainee is held in Oregon or Washington does not impact his ability to interact with a lawyer; there is simply no connection between attorney access and whether an individual is transferred out of state.”
The DOJ also argued that ICE has “clear statutory authority” to make immigration-related arrests even without a warrant under two different prongs of the Immigration and Nationality Act.
And, for now, at least, the court sided with the government.
“At this preliminary stage, the Court finds that Plaintiffs’ declarations present evidence of Defendants’ practices and policies that may violate a detainees’ constitutional rights or conflict with Defendants’ own rules and regulations,” the brief bit of legal analysis supplied by the court reads. “However, Defendants have presented evidence contradicting Plaintiffs’ allegations and the testimony and evidence in the declarations does not show that the law would ‘clearly favor’ Plaintiffs.”
While giving a very terse explanation for her reasoning, the judge more or less suggests the plaintiffs have raised some general issues of constitutional concern while at the same time outright saying “there is some doubt” they are likely to succeed on the current set of facts.
To that end, the court says the immigrant advocates need to show more and at this moment have not shown enough.
“It may be that evidence from other witnesses, or the addition of a party is necessary to establish a more concrete connection between the injured party and the rights Plaintiffs seek to enforce,” Aiken muses.
The judge gave the plaintiffs two weeks to file an improved motion for a TRO. The government will then have two weeks to respond. After that, the plaintiffs will have two weeks to reply to the government.
A hearing on the next TRO request is slated for December 12.
https://lawandcrime.com/high-profile/there-is-simply-no-connection-trump-admin-wins-rare-district-court-victory-in-immigration-case-about-attorney-access-to-detainees/