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Red states exploiting anti-immigrant judicial ‘pipeline,’ legal experts say

In this June 18, 2020, photo, Deferred Action for Childhood Arrivals (DACA) students celebrate in front of the Supreme Court after the Supreme Court rejected President Donald Trump's effort to end legal protections for young immigrants in Washington. Less than five months from Election Day, President Donald Trump is positioning himself as the spokesman for voters resisting a new wave of cultural change, ready to ride any backlash from the protests calling for racial equality and police reform and this week’s Supreme Court rulings extending protections to gay workers and young immigrants. (AP Photo/Manuel Balce Ceneta)

EL PASO, Texas (Border Report) – The legacy of Donald Trump is alive and well in federal courtrooms where attorneys general in red states are waging an all-out war on the rights of Black and brown immigrants, some legal advocates say.

This politico-judicial “pipeline” starts in conservative enclaves in Texas and Louisiana – where challenges to Democratic administration initiatives such as ending Title 42 and the Migrant Protection Protocols began – and moves on to the Fifth Circuit Court of Appeals in New Orleans and then the United States Supreme Court, the advocates allege. The legal wrangling in friendly courts is being used to block lawful access to immigration benefits and as a sounding platform for ultraconservative views.

“This is an anti-immigrant judicial pipeline and it’s real,” said David Leopold, past president of the American Immigration Lawyers Association (AILA). “It runs through Texas and onto the Fifth Circuit with judges appointed by Trump and now to a Supreme Court that Trump radicalized by the appointment of conservative judges.”

Speaking with reporters on Tuesday, the legal advocates expressed concerns that immigration is “the canary in the coal mine” for the far right. If the judicial strategy trumps White House immigration initiatives, it will spread to other issues, with Texas already having tested how far it can roll back abortion rights and Gov. Greg Abbott questioning the right of undocumented immigrant children to receive a free public education.

Graphic courtesy Pew Center

Mexican American Legal Defense and Education Fund President and General Counsel Thomas Saenz said the education initiative likely will hit a brick wall due to numerous federal statutes protecting the rights of minors. Also, most children of undocumented immigrants are U.S. born and have an automatic right to public education.

Texas Gov. Greg Abbott. (file photo)

“Nonetheless, Abbott used (it) to bolster his campaign with irresponsible dog-whistle challenges,” Saenz said. He added that Abbott is trying to twist a court system that has been a bastion of rights for minorities since the Civil Rights era, to one that denies immigrants their rights.

“This is not how things should work. The goal (of the separation of powers) is that no group would have too much power,” added Allen Orr Jr., immigration lawyer and president of AILA. The courts “are basically thwarting the will of voters, picking winners and losers based on politics, not” on the Constitution.

Karen Tumlin, founder and director of the Justice Action Center, said some states are using federal courts to keep a “Shadow Trump Administration” in power, sometimes with attorneys general getting some of their legal counsel from former Trump collaborators.

Protesters staged a demonstration outside the U.S. Consulate in Tijuana saying Title 42 discriminates against migrants from Latin America. (Jorge Nieto/Special for Border Report)

“Since President Biden took office, we’ve seen a pattern of red states co-opting the legal system to keep a shadow Trump administration in office on immigration policy. Now, what the Supreme Court does in the Remain in Mexico case will determine how emboldened this red state strategy continues to be both on immigration and other progressive issues — and if the Supreme Court will allow this misuse of our judicial system,” she said.

The legal experts said they expect the conservative judicial pipeline to prevent President Biden from ending Title 42 on schedule May 23. That will delay the end of swift expulsions of newly arrived undocumented migrants only long enough for the administration to better prepare to accommodate asylum seekers and avoid overcrowding at border processing centers, the experts said.