US history shows Trump’s detention of immigrants could run into legal wall

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LATEST BUSINESS NEWS| President Donald Trump has followed through on his promise to ramp up immigrant detention as part of immigration enforcement. His Executive Order on border security and immigration describes a “new normal” that will include the detention of immigrants while they await removal hearings and removal.

Trump’s order expressly announces the end of “catch and release” of undocumented immigrants after their apprehension, which allowed them to post a bond and be released from detention while their removal proceedings moved forward.

Rather than doing something new, President Trump is simply expanding the use of immigrant detention. Immigrant detention has long been a tool in the arsenal of the U.S. government in immigration enforcement. It goes as far back as the detention of Chinese immigrants on Angel Island in San Francisco Bay, which began processing immigrants in the late 1800s. Detention of immigrants as a method of immigration enforcement saw an upswing at the tail end of the 20th century. In the 1980s, President Reagan’s administration used detention to discourage Central Americans, thousands of whom were fleeing civil wars, from migrating to the United States.

Other groups have also been detained on a broad scale. Several U.S. presidents responded to mass migrations of Cubans in the 1980s, who came in the Mariel boatlift, and Haitians fleeing political violence, with detention.

The Obama administration still allowed for noncitizens to bond out of custody while their removal proceedings were pending. But it also employed immigrant detention liberally – including the mass detention of Central American families. Obama set records for the number of removals during his first term.

The long history of detention has an equally long history of legal challenges. These are likely to continue in the Trump administration, which has made detention a cornerstone of its immigration enforcement plan.

History of immigrant detention

Courts have regularly been asked to intervene to curb the excesses of immigrant detention.

In 1989, during President Ronald Reagan’s and later George H.W. Bush administrations, a class action lawsuit was brought against the U.S. government by asylum applicants from El Salvador and Guatemala in Orantes-Hernandez v. Thornburgh. In class actions, a group of similarly situated persons band together to challenge a policy or practice.

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