San Diego’s federal courts played a crucial role during Donald Trump’s first presidency, both in the administration’s attempts to implement its border and immigration policies and the legal efforts to block those hardline practices.
The U.S. Attorney’s Office in San Diego ramped up criminal prosecutions of illegal border entry cases under the “zero tolerance” crackdown on illegal immigration. The workload created the need for a special courtroom dedicated to fast-tracking those defendants for removal and sometimes required judges and attorneys to work late into the night resolving the cases of recently detained border crossers. Meanwhile, the American Civil Liberties Union and other civil rights groups filed lawsuits in San Diego federal court to block border wall construction projects, family separations, courthouse immigration arrests and other key Trump administration practices and policies.
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And in each case, the federal judiciary spoke, setting precedents and approving settlements that could be ripe for tests.
As Trump’s second stint in the White House nears, immigrant rights groups and civil rights attorneys are preparing to renew old courtroom fights as well as gearing up for new legal battles on proposed plans, such as mass deportations and the end of birthright citizenship.
“Even though the election results didn’t go the way we wanted, the Constitution didn’t go away, the civil rights of people in this country didn’t go away,” Alvaro Huerta, the director of litigation and advocacy at the Immigrant Defenders Law Center, said. “We’ll use the resources we have to make sure immigrants are protected.”
Huerta said that when Trump took office eight years ago, immigrant advocates were blindsided because they didn’t know how much Trump “would try to get away with.” This time around, advocates know what to expect and are better organized, Huerta said.
Like last time, some of that key litigation is expected to land in U.S. District Court in San Diego.
‘Zero tolerance’
A little more than a year into Trump’s first term, his administration launched its “zero tolerance” crackdown on illegal immigration. The policy meant that the U.S. attorney’s offices along the southwest border, including the Southern District of California, which covers San Diego and Imperial counties, were directed to criminally prosecute every person who crossed the border illegally.
The Edward J. Schwartz United States Courthouse, left, and James M. Carter & Judith N. Keep United States Courthouse, right, in San Diego. (Meg McLaughlin / U-T file)
Before the policy was implemented, San Diego federal prosecutors had typically targeted undocumented migrants who had serious criminal records or a history of multiple illegal crossings, while first-time crossers were typically subject to civil deportations. Supporters of the crackdown argued criminal prosecutions would serve as a stronger deterrent than civil deportations. Critics argued that the speed with which such prosecutions occurred — some migrants pleaded guilty to a misdemeanor charge and were sentenced, all on the same day they’d been apprehended, under a fast-track program known as Operation Streamline — amounted to “assembly line justice” that jeopardized defendants’ rights to due process.
Criminal arrests of undocumented migrants also meant that adult parents could be taken into criminal custody, while any children they were traveling with were placed in government care — the basis of Trump’s family separation policy. When parents were released from criminal custody and then placed into civil immigration custody for removal from the U.S., they had no idea where their children had been taken.
In the first six months after the zero-tolerance policy was implemented in early 2018, federal prosecutors in San Diego and Imperial counties filed 6,461 misdemeanor illegal entry cases, according to a Union-Tribune analysis at the time. That was a massive increase compared to the 22 such cases filed in 2017.
But within a year, criminal prosecutions under the zero-tolerance crackdown had slowed dramatically along the California-Mexico border. The U.S. Attorney’s Office at the time did not give a reason, but local Border Patrol officials said agents were overwhelmed by the number of migrant arrivals and did not have the time to document apprehensions in the more robust way required for criminal prosecutions. Instead, the agents were routing most people apprehended at the border into the civil immigration system, as had been the norm before.
Legal challenges
While the zero-tolerance fast-track prosecutions played out on the criminal side of the federal courthouses in San Diego, the civil docket was filling up with legal challenges to various Trump administration policies. That’s to be expected, as most major federal policy or regulation changes are challenged in court one way or another. But immigrant rights attorneys said it reached another level during Trump’s first term.
“It was an onslaught of litigation,” said Huerta, the Immigrant Defenders Law Center attorney who at the time worked for the National Immigration Law Center.
People seeking asylum in the United States are seen through a fence at the San Ysidro Port of Entry Friday, Nov. 9, 2018, in San Diego. (AP Photo/Gregory Bull)
Gina Amato Lough, the directing attorney for the Immigrants’ Rights Project at Public Counsel, a Los Angeles-based public interest law firm, said the first Trump administration’s intense focus on immigration enforcement was “absolutely chaotic and overwhelming.”
While there was litigation challenging Trump’s policies filed in federal districts across the nation, the San Diego federal court was the venue of several important lawsuits. Among them was a lawsuit challenging Trump’s discretion to waive environmental laws to build border fencing. U.S. District Judge Gonzalo Curiel, who’d previously drawn Trump’s ire for approving a $25 million class-action settlement against Trump University, ruled in favor of the president. The 9th U.S. Circuit Court of Appeals later upheld his ruling.
Another lawsuit challenged Border Patrol’s practice of making civil immigration arrests inside the federal courthouse. U.S. District Judge Dana Sabraw, who is now chief judge of the district, issued an emergency halt of the practice, writing that the “court is not an ‘arrest pad’ nor will it ever be” and that the practice “invades the decorum and dignity of the court.”
Another lawsuit revolved around the practice of “metering,” which involved U.S. officials turning away asylum seekers at border crossings if those crossings were deemed to be at capacity. Furthermore, those people then were deemed ineligible to seek asylum when the Trump administration implemented a rule requiring asylum seekers to first seek refuge in Mexico or elsewhere. U.S. District Judge Cynthia Bashant initially ruled people who had been turned back at the border were not subject to the third-country asylum ban if they had arrived before it was implemented. She later ruled “metering” itself was unconstitutional. The 9th Circuit affirmed her rulings last month.
Waiting the morning of July 18, 2019, in Tijuana, hundreds listen as a few numbers are called to go to the U.S. border to meet with U.S. immigration officials. Under a Trump administration rule, migrants arriving at U.S. on the southwest border would be ineligible to apply for asylum if they had failed to file for safe haven in another country en route to the United States. (Nelvin C. Cepeda / U-T file)
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But perhaps the most significant lawsuit filed in San Diego was one led by the ACLU that challenged Trump’s family separation policy. Sabraw halted the practice, ruling it unconstitutional and describing it as “brutal (and) offensive,” and later ordered the government to reunite separated families. That litigation continued into Biden’s presidency, and last year his administration agreed to settle the suit. As part of the settlement, which ACLU’s executive director called the most important in the organization’s 103-year history, the federal government will be barred until at least 2031 from reenacting immigration policies that separate children and parents.
In a recently published document the ACLU calls its roadmap for protecting civil rights and civil liberties under a Trump administration, the organization promised to enforce the deal. “Should a second Trump administration try to bring back family separation at the border, we’ll take them to court for violating our settlement agreement,” the ACLU proclaimed.
What comes next?
Despite the settlement and the ACLU’s promise to enforce the ban on family separations, Amato and others fear the second Trump administration will try to bring it back in one way or another. Trump has picked Tom Homan, one of the architects of the family separation policy, to be his “border czar.”
Huerta said migrant advocates are expecting a “huge ramp up” of worksite immigration raids as part of the mass deportations the Trump campaign promised, as well as crackdowns on immigrants and other minority groups potentially similar to Trump’s first administration.
FILE – In this Dec. 5, 2017, file photo, acting Director for U.S. Immigration and Customs Enforcement Thomas Homan, right, speaks as U.S. Customs and Border Protection Acting Deputy Commissioner Ronald Vitiello, looks on at a Department of Homeland Security news conference in Washington. (AP Photo/Andrew Harnik, File) AP Photo / Andrew Harnik, Archivo
Amato said that Project 2025, a controversial conservative roadmap for a second Trump presidency, has given immigrant rights advocates a blueprint for what to expect in the coming years. Even though Trump has tried to distance himself from the policy plan, he has tapped many of its creators for key roles in his government.
“At least we have the benefit of knowing what he’s threatening to do,” Amato said.
It’s a common sentiment among organizations — and the state of California — that are ramping up to litigate against the Trump administration. The second time around, they say they’re better prepared.
“We know to take Trump at his word when he says he’ll roll back environmental protections, go after our immigrant and LGBTQ+ communities, attack our civil rights, and restrict access to essential reproductive care,” California Attorney General Rob Bonta said in a speech two days after the election. “… As Attorney General, I’ll continue to use the full force of the law and authority of this office to address injustice.”
Huerta and Amato said there has been a lot of coordination among immigrant rights advocates and sharing of resources and lessons learned from the first Trump administration.
“The immigrant rights movement is much bigger and more organized than it was eight years ago,” Huerta said. “And we’re even more ready to take on Trump.”
