A federal judge said Monday he may use his authority to order ICE agents in Boston not to arrest and detain immigrants who show up for scheduled visits at government offices.
“I’m inclined tentatively to believe that I have jurisdiction and that a plausible claim has been made” against ICE, US District Court Judge Mark Wolf said Monday. “But that could change.”
Wolf made his equivocal declaration after sparring for hours with lawyers for five immigrants and their spouses who are suing the Department of Homeland Security and attorneys for the Department of Justice.
Wolf stopped short of saying Immigration and Customs Enforcement in Boston had broken the law when it and another federal agency worked together to bring unauthorized immigrants seeking legal residency in for interviews at government offices, only to have those immigrants detained and in some cases deported, according to internal agency communications. Attorneys suing the government said those immigrants could have qualified to stay in the country through a process known as provisional waivers.
Wolf challenged a Department of Justice attorney who said that ICE had no legal obligation to consider whether any of those immigrants were eligible for provisional waivers, a process set by the Homeland Security department that allows immigrants seeking legal residency the opportunity to stay in the United States while their applications for legal status are being considered.
Wolf presented to Mary Larakers, a Department of Justice attorney, a scenario of an immigrant mother breastfeeding her newborn, an American citizen. If that newborn had health problems and was too fragile to leave the United States with his mother, would ICE consider her circumstances before deporting her?
“I think ICE does consider that,” Larakers said.
“The claim is that ICE doesn’t. To me it’s plausible because so far in this case I’ve found ICE to be ignorant of its legal obligations,” Wolf said referring to his May decision that ICE had broken the law by holding immigrants in county jails for months without sufficient notice to contest their detentions, a violation of the government’s own regulations.
He noted that in depositions taken in July, Rebecca Adducci, the acting Boston Field ICE director, told lawyers for the immigrants that she did not even know about the process for provisional waivers.
“How could they be considering them?” Wolf asked.
Lawyers for the immigrants said they are seeking an injunction against ICE’s practice of detaining immigrants seeking legal status, arguing it was “arbitrary and capricious.”
Wolf initially challenged them on that argument and said that the federal government has the prerogative to go after such “low-hanging fruit” instead of “drug dealers and rapists” who would be harder to capture.
Wolf said the Trump administration has given new direction to DHS to detain people with final orders of removal, even if they have committed no other offense, a reversal from the Obama administration, which prioritized cases where an immigrant had committed violent crimes.
The Trump administration “says we’re not going to give low priority to people with final orders of removal, even if they are married to US citizens and their children will suffer greatly if they are temporarily separated from their alien parents,” Wolf said to Adriana Lafaille, a lawyer for the Massachusetts American Civil Liberties Union, which along with lawyers for WilmerHale is representing the immigrants and their spouses. “Why is that not a discretionary decision?”
But Wolf said he could find that ICE had violated regulations if the agency had conducted arrests and detentions without considering the provisional waiver process.
In 2016, the Obama administration extended those waivers to people with final orders of removal.
Government lawyers said Wolf did not have jurisdiction over the case because none of the immigrants in the lawsuit were in detention, and district courts do not have a say in immigration removal orders.
But lawyers for the immigrants said Wolf has jurisdiction if he finds that the immigrants’s due process rights were violated.
The immigrants suing the government all have final orders of removal against them but are trying to stay in the country by filing for legal status through their spouses, who are all American citizens.
Lafaille said that the immigrants are not challenging ICE’s discretion about who it deports. The case is about making sure ICE recognizes regulations instituted by the DHS, which oversees it.
“What we’re talking about here is a regulation that is law and that law constrains the agency in the area of removal,” Lafaille said.
Summing up the immigrants’ argument, Wolf said the provisional waiver creates a “legal obligation to do what enlightened, common sense says civilized societies should do.”
“Wouldn’t it make more sense economically, wouldn’t it be more humane not to separate a mother from her child for six months or two years while this process is being pursued?” Wolf asked Larakers during the hearing.
“I also understand that there is harm that when families are separated. There is inherent harm,” Larakers said. “However, the system was set up . . . so that people who have orders of removal against them [should have them] executed.”
At the end of the hearing, Wolf asked Lafaille what kind of relief the immigrants were seeking.
She replied that absent a risk to public safety or national security, ICE should be prevented from detaining and deporting their clients as the government decides whether they qualify for the provisional waiver.
Lafaille said that any order should extend to Kirstjen Nielsen, secretary of Homeland Security. “If I direct an order to the secretary of Homeland Security and it’s not obeyed, the director of Homeland Security could be held in civil or criminal contempt of court,” Wolf said. “That seems to be what you’re asking.”
“Yes, your honor,” she replied.
Wolf will hold another hearing Tuesday. ICE officials, including Adducci, are expected to testify.