Refugees without green cards get temporary protection from detention

Robyn Brown, director of immigration programs at World Relief, got some welcome news at around 11 p.m. on Monday. A federal court in Massachusetts had issued a preliminary injunction preventing U.S. immigration authorities from detaining refugees in the United States for not yet obtaining a green card.

She’d been following the lawsuit with alerts set up through the court monitor website CourtListener, but she somehow missed the alert about the judge’s decision earlier in the day. It wasn’t until she saw someone else comment on the case that night that she finally realized what had happened.

“I was so excited,” Brown said. “I had been kind of very discouraged earlier in the day, honestly. And then to see this good news in the evening was just a huge encouragement … and a reminder to me that God is working in all things, in the hard and the good, and He is accomplishing His purposes in ways that I can’t understand.”

Judge Richard G. Stearns of the U.S. District Court for the District of Massachusetts on Monday granted a request for a preliminary injunction preventing the Department of Homeland Security from detaining any refugees simply because they hadn’t yet received green cards. The request came during a lawsuit filed by six refugees and two refugee organizations.

Refugee advocates have celebrated the injunction, saying it brings much-needed relief to refugees in the United States. But some experts question whether the court properly interpreted federal immigration law.

Stearns noted in his decision that Immigration and Customs Enforcement in 2010 adopted a policy position that said a refugee’s failure to obtain a green card and permanent residency in the United States was not a sufficient basis, in and of itself, for detaining that refugee. But he also noted that last December, and then again last month, the Trump administration issued different guidance. According to the administration, any refugees who hadn’t yet obtained permanent residency or a green card were to be detained, per the instructions of federal law, until authorities had reviewed their case and granted them release back into the country.

Federal law states, “Any alien who has been admitted to the United States … who has not acquired permanent resident status, shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States.”

But Stearns said that the Trump administration, in citing that law in its February guidance, had wrongly equated “custody” with “detention.”

“The term ‘custody’ has not historically been treated as synonymous with the term ‘detention,’” Stearns wrote. “Context clues, moreover, compel the conclusion that there is a distinction between the words. The purpose of the ‘custody’ is to ensure an administrative adjustment of status, not to ensure physical presence for removal. And the statute refers to a ‘return’ to ‘custody.’ Refugees are not detained upon arrival and thus cannot be ‘returned’ to detention.”

DHS lawyers did not oppose the plaintiffs’ request for a preliminary injunction, according to the text of the judge’s decision. WORLD reached out to DHS and the U.S. Department of Justice for comment, and neither agency immediately responded.

“It is largely a sigh of relief,” Brown said of the decision. “Refugees across the U.S. do not need to live in fear that they will be detained simply because they have not yet received a green card.”

Following reports that refugees in Minnesota were being detained and flown out of state, recently arrived refugees have lived in fear that they may be next, Brown said. While the new court injunction prevents that from happening, she explained that it does not relieve them from the prospect of having to review their refugee applications with immigration enforcement officials in interviews. And Brown said it can be traumatizing for some refugees to have to retell their stories of abuse.

“Individuals that flee their country and become lawfully admitted refugees to the United States have already had to go through a very arduous process of describing why they fled their country,” Brown said. “It can be very invasive to be sharing about, you know … sexual violence that has been experienced by them, torture, just terrible circumstances that have caused them to have to flee their country.”

But while the court’s decision might relieve refugees of the fear of detention, some experts say that it does so by misinterpreting federal law.

“From reading the decision, it doesn’t appear that the judge is necessarily well acquainted with immigration law,” said George Fishman, a senior legal fellow at the Center for Immigration Studies. He added that that was unsurprising, since a 1996 federal law largely keeps U.S. District Court judges out of removal proceedings.

Fishman pointed to law’s requirement that refugees without green cards after a year must “return or be returned to the custody” of the government so that they can be vetted again.

“Obviously, the operative question for the judge was, ‘Well, what does custody mean?’ Does custody mean DHS then can or must detain that alien during the inspection?” Fishman said.

Fishman argued that, in the text of federal law, custody and detention aren’t as distinct as the judge found them to be in his ruling. The Federal Register notice that put the relevant statute into effect in 1998 during the Clinton administration explained in its preamble that detention and custody are much more synonymous than the judge’s ruling would suggest.

“Section 209(a) of the Act states that a refugee must be returned to the ‘custody’ of the [Immigration and Naturalization] Service for inspection and examination,” the regulation states. “The ‘custody’ requirement for refugees applying for adjustment of status can be met if the Service maintains sufficient control over the applicants to make a determination of their admissibility to the United States as immigrants and to institute removal procedures if they should be found to be inadmissible.”

“So it’s not crystal clear, but it’s certainly not crystal clear that custody cannot be detention,” Fishman explained. “I would certainly think [it] could encompass detention even if it doesn’t necessarily demand detention.”

Since the federal government did not adequately respond to the plaintiffs’ arguments saying custody and detention were different before this week’s ruling, Brown explained that it might be difficult for the government to appeal the preliminary injunction to a higher court. As the lawsuit proceeds, the District Court could still render a different decision about the matter—or make the order permanent—after trial or other resolution of the case.

Until then, Brown hopes the injunction will remain in place.

“I think it’s important for the public to be aware that there are many, many very committed advocates and individuals who particularly love refugees who are concerned about their ability to remain in the U.S. and for the U.S. government to keep its promises to them,” she said. “And they are willing to go to great lengths in litigation and through advocacy efforts to stand up for them.”