Here's What Legal Experts Think Is the Strongest Argument in the County's Asylum Policy Lawsuit
The county is arguing in a lawsuit that the Trump administration should have followed federal procedures mandating that it give notice and seek comments before abruptly ending its “safe-release” policy last October. Courts reversed Trump’s actions to end the DACA program on similar grounds.
San Diego County’s suit challenging a Trump administration policy that’s left local officials scrambling to aid scores of asylum-seekers could pave the way for change – or more court fights – in other border states.
On Wednesday, the county called on a federal district court to order immigration authorities to resume their longtime “safe-release” program rather than release asylum-seekers on county streets without ensuring they have the resources to connect with sponsors elsewhere in the country. The complaint also urges a judge to make the federal government reimburse the county for expenses it’s incurred aiding migrants, a sum that officials reported now exceeds $1.3 million
The county’s most powerful argument, according to the immigration and administrative law experts: The Trump administration should have followed federal procedures mandating that it give notice and seek comments before abruptly ending its “safe-release” policy last October. Under that program, immigration officials reviewed asylum-seekers’ plans to connect with relatives or sponsors and helped ensure they had plans and resources in place to travel to wherever they were located.
With that program suddenly gone, the county lawsuit states, San Diego nonprofits rushed to help 40 asylum-seekers dropped at a local bus station less than 24 hours after federal authorities told them in a private meeting that they planned to end their longstanding practice. Those nonprofits report they have since tried to accommodate an average of 60 to 80 parents and young children a day.
Federal officials have said they were forced to quickly change their policies in multiple border states due to an explosion in the number of families seeking asylum.
In San Diego, that’s left the county and the San Diego Rapid Response Network, a coalition of nonprofits who have come together to aid the migrants, to step up.
In the months since the policy change, the Rapid Response Network reports it has provided more than 11,000 asylum-seeking migrants with temporary shelter and transportation to sponsors elsewhere in United States. San Diego County officials have also offered up a former county courthouse to shelter migrants and provided health screenings to a flood of migrants often arriving with the flu, infections, injuries or other conditions following a perilous journey from Central America.
“As a direct result of the subject, unlawful change in policy, under the direction of defendants, the county has suffered, and will continue to suffer immediate and apparent harms in combating the humanitarian and public health issued caused by sudden, arbitrary and capricious change or termination of the ‘safe release’ policy,” county attorneys argued in the lawsuit.
Evelyn Cruz, director of the Immigration Law and Policy Clinic at Arizona State University’s Sandra Day O’Connor College of Law, said federal procedures dictate that administration officials should have formally consulted with San Diego County governments and other stakeholders about the potential impact of changes in federal processes before halting the “safe-release” policy.
Cruz and other legal experts predicted federal courts would be mindful of the importance of that mandate when the case goes to court.
After all, Cruz said, the consequences for cities and counties could have been predicted.
In 2019 alone, El Paso has been forced to grapple with more than 32,000 migrants being brought into the city.
“I think that what this lawsuit is reminding the federal government is, ‘Yes, you may have a crisis, but you still should always take into consideration the conversation with (impacted communities),’” Cruz said.
Immigration law professor Steve Yale-Loehr of Cornell University and Bob Fellmeth, who leads the University of San Diego’s Center for Public Interest Law, said the feds’ failure to follow past rulemaking procures is the county lawsuit’s most potent argument.
Indeed, multiple federal courts have halted the Trump administration’s effort to end the Deferred Action for Childhood Arrivals on similar grounds.
‘’They have a basic due process argument,” Fellmeth said.
It’s an argument the experts agreed that other border communities could make too.
Local governments in California, Arizona or Texas also struggling to respond to a rush of asylum-seeking families could join San Diego County’s lawsuit, a prospect County Supervisor Nathan Fletcher urged in a Wednesday statement.
They could also file similar lawsuits modeled after San Diego County’s action.
Officials in El Paso, Phoenix, Yuma and Nogales, Ariz. declined or were not immediately available to comment on their plans.
Legal experts said it is difficult to predict whether a win for the county would mean the Trump administration must reinstate the program everywhere.
Technically, Yale-Loehr said, the lawsuit and any changes that might follow it only apply to San Diego County.
But Fellmeth said a ruling that denounces the federal government’s failure to follow its usual rule-making process could lead to change in other border states.
“If they win on that, it will be very germane to any other state near Mexico,” Fellmeth said.
Supervisor Kristin Gaspar, the sole supervisor to vote against pursuing the lawsuit, said Wednesday she didn’t expect the county to come out victorious.
“San Diego County is clearly facing a humanitarian crisis and my heart goes out to the asylum-seeking families,” Gaspar wrote in a statement. “I would have preferred to have a conversation to explain the unintended consequences of this change in practice rather than filing a frivolous, politically motivated lawsuit that we will not win.”
Legal experts, on the other hand, said they believed San Diego’s suit has a fighting chance. They say the county has closely tracked its spending on aid for asylum-seekers and its case rests on procedural rules that federal agencies have typically followed, two factors that bode well for county officials.
“I think it’s a good lawsuit and they raise serious allegations,” Yale-Loehr said. “We’ll just have to wait to see which judge they get.”
Maya Srikrishnan contributed to this report.