ICE Contract Facilities, Including Counties, Continue to Violate the Religious Exercise Rights of Muslim Detainees

Religious freedom is a foundational value. It is so important that the First Amendment is dedicated to protecting it and there are clear laws in place requiring all detention facilities to allow people to worship freely. But immigration authorities don’t seem that interested in living up to that promise for Muslims and other non-Christian immigrants.

There are potentially dozens of detention facilities across the country, where immigration agencies and their contractors routinely mistreat and deny basic rights to inmates. Horror stories abound of immigration authorities locking children in cages, keeping detainees in dangerous conditions, feeding them spoiled food and even dozens of women in custody having miscarriages. But the abuse doesn’t end there.

Religious discrimination against immigration detainees is also a serious and growing problem. At a federal facility in Victorville, California, prison officials blocked Muslim, Catholic and Hindu immigration detainees from worshiping in groups and from obtaining religious diets and articles. In Texas, U.S. Customs and Border Protection would only provide a pork sandwich every eight hours to a Muslim detainee.

Similarly, when five Somali Muslim immigrants arrived at Glades County Detention Center, a jail in central Florida that rents beds to U.S. Immigration and Customs Enforcement (ICE), they were denied access to a Quran, religious meals and other necessities like beads, prayer rugs and even a simple sheet of paper with a prayer schedule printed on it. When the immigrants asked why the facility wouldn’t even take minimal steps allowing them to observe their religion, they were told, “Boy, you’re in Glades County.”

Federal and Florida law protect religious liberty for all. This should mean that all people in this country, including immigrants and refugees, are guaranteed the right to observe their religion, even while incarcerated or detained. But the shocking mistreatment of the men housed at Glades and other facilities shows that we are failing to protect this fundamental right.

There is no compelling reason for Glades County—or any facility—to deny Muslims Qurans and religious meals or to interfere with their prayers. Prayer schedules are free to print out. Charitable organizations will donate Qurans. And many prisons and detention centers around the country manage to provide Muslim detainees with meals at cost and that are halal, or religiously permissible. Additionally, Glades has no trouble allowing Christians to practice their faith. But Glades has refused to provide even these minimal accommodations to Muslims. Meanwhile, taxpayers dish out more than $ 30,000 a year per detainee to facilities like Glades creating massive profits for counties and investors.

ICE “detention standards” in theory guarantee minimum humane conditions for immigration detainees housed at local jails. At Glades and at many other contract facilities, however, only the most outdated standards apply, via the facility’s contract with ICE. And, as found by an Office of the Inspector General report on all contract facilities in June 2018, ICE refuses to enforce even these weak standards: “neither [ICE] inspections nor . . .  onsite monitoring ensure consistent compliance with detention standards, nor do they promote comprehensive deficiency corrections.

The Somalis’ experience is part of a pattern at Glades, which has consistently denied Muslims access to Qurans and religious counseling and services since at least early 2017. Yet when ICE reviewed Glades for compliance with religious exercise detention standards in 2017, it found that the facility complied, despite significant evidence to the contrary.

More than a year after arriving at Glades, the five Somali men are suing Glades County Detention Center and ICE for violating both Florida and federal law. As their attorneys, we at Muslim Advocates and our co-counsel at Americans for Immigrant Justice are working to vindicate their rights and halt future violations at the Glades facility. It is time for Glades to fully accommodate all detainees’ religious practices and for ICE to hold Glades accountable by imposing financial penalties or by declining to renew the detention contract.

After being told “Boy, you’re in Glades County,” one of the Somali immigrants wondered aloud, “But isn’t Glades County in America?” Allowing detainees to practice their faith isn’t just what the law requires, it is also the right thing to do. Anything else is an insult to the Constitution and offends American values.

Yusuf Saei is a Yale Law School Arthur Liman Public Interest Fellow at Muslim Advocates. His work is focused on the religious free exercise rights of prisoners and immigration detainees.

Base Instincts: Trump's Lawyers Play to the Crowd, Not the Court

Donald Trump appeals to the base even when arguing before a court.  Filed in federal court on April 22, the president’s complaint attempting to prevent the House from subpoenaing his tax and business records reads more like a “Best Tweets of 2019” than a legal document one would hope a second year law student could produce.

Detailing the basic problems with Trump’s cause of action seems as beside the point as pointing out each of Trump’s daily fabrications. No one, not even the base, expects Trump to speak the truth or, in this case, make a conventional legal argument. The greater concern is how this complaint is inconsistent with Trump administration arguments in both the travel ban and census cases, and why Trump openly lies or, in this case, appeals to the base even when ostensibly producing a legal document.

The legal/constitutional problem with Trump’s effort to prevent Congress from obtaining his tax returns and business records is simple. Congress is constitutionally empowered under Article I of the U.S. Constitution to subpoena any document that, as the complaint acknowledges, “serves a legitimate legislative purpose.” Chairman Elijah Cummings of the House Committee on Oversight and Reform plainly met this standard when, in his “Notice of Intent to Issue Subpoena,” he pointed out that his committee has “full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The Mueller report settled any doubts about congressional capacity to subpoena Trump’s taxes and business records. Mueller pointed out that Congress under Article I has the “power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.” An investigation into Trump’s finances would clearly be germane to determine whether present obstruction of justice and corrupt practices laws are adequate and what reforms might be necessary to ensure an honest legal enforcement in the future.

The Trump complaint neither mentions the Cummings “Notice of Intent” nor the Mueller Report when trying to explain why the subpoena is an unconstitutional fishing expedition that “serves no legitimate legislative purpose.” Instead, the complaint begins with such excerpts from Trump’s Twitter account as “The Democratic Party . . . has declared all-out political war against President Donald J. Trump” and “Instead of working with the President to pass bipartisan legislation that would actually benefit Americans, House Democrats are singularly obsessed with finding something they can use to damage the President politically.”

The complaint then relies almost exclusively on broad statements Democrats made when celebrating their victory in the 2018 election to demonstrate Congress has no legitimate reason to gain access to Trump’s tax and business records. Trump’s lawyers quote Nancy Pelosi, who on election night 2018 declared, the “subpoena power” is “a great arrow to have in your quiver” and a Democratic congressional aide who stated, “Congress is going to force transparency on this president.” Horrors! This is the equivalent of a defense lawyer quoting a prosecutorial comment at a press conference that “we are going to convict Smith” as proof that the prosecution has no evidence, rather than discussing the evidence the prosecutor laid out in the opening argument.

Trump’s claim that courts should rely on Democratic campaign statements rather than official documents is particularly ironic given the administration’s demand that courts not take campaign statements into account when determining the legality of Trump administration measures.  Trump’s lawyers insisted and Chief Justice John Roberts in Trump v. Hawaii (2018) agreed that “the courts will not look behind the exercise of [presidential] discretion or test it by balancing its justification” when the president gives “a facially legitimate” reason for an immigration policy the president when campaigning for office and in office repeatedly described as a “Muslim ban.”

Whether the Supreme Court allows the Trump administration to include a citizenship question on the census will likely depend on whether the justices accept the “facially legitimate” justification the Trump administration offers in court or the illegal reasons Trump administration officials give to their political base. Democrats at press conferences merely declare they plan to subpoena the president without explaining the reasons. When they give reasons, those reasons focus on impeachment and conflict of interest, matters approximate for legislative investigation. Trump when campaigning consistently gives unconstitutional justifications that require his lawyers to put lipstick on his pigs when arguing in court.

The other sections of the complaint focus on what Republicans have said about the subpoena. The complaint does not discuss the justification Cummings gave in the “Notice of Intent.” Rather, Trump’s lawyers quote Republican members of the House Oversight Committee at great length for the motives of the subpoena. On this logic, the main purpose of the post-Civil War Amendments was to mongrelize the United States because that is how Democrats described the constitutional ban on equal protection and laws denying equal protection.

Trump’s personal lawyers engage in typical Trumpian political projection when in a campaign brief masquerading as a legal document they repeatedly accuse Democrats of attempting “to score political points . . . leading up to the 2020 election.” Investigating whether a president is handicapped by numerous conflicts of interest and his motives to obstruct justice is a core function of a legislative oversight committee. President’s Trump complaint, which ignores the actual justification for the subpoena, is better designed for Fox News than the courtroom or, worse, for Trump judicial appointees who may be more concerned with Fox News reports than the texts of official documents.

The President Weaponizes the Census

Voter ID, list purges, poll closings, gerrymandering—all well-known favorites from the conservative playbook on rigging elections. But why stop there? Why not just avoid counting minorities in the first place?

That’s what the Trump administration is trying to do by seeking to add a “citizenship question” to the 2020 U.S. Census. And it’s the subject of a highly important, but little-known case making its way to the U.S. Supreme Court right now.  Oral arguments are scheduled for April 23.

In the apportionment clause of Article I of the Constitution, the framers detailed how seats in the House of Representatives would be allocated as the nation grew. Election districts for congressional, state, and local offices must be drawn to include an equal number of people, or as near as “practicable” (for congressional districts), or “substantially” equal (for state and local districts). This means that districts must be close in population size to other district in each state. The Constitution also sets a time frame for this process by requiring a count of the population every ten years—the census—which then provides the numbers for the apportionment of congressional districts among the states.

For them, patience is a virtue that pays off generously in lasting legislative and policy victories. Jeff Timmer, a Michigan Republican who has worked to craft district lines in that state, likens redistricting to Halley’s comet. “It comes around on a recurring, predicable basis. It’s great to be a Halley’s comet expert when it comes around. But in between times, no one really has any use for it. You know, one of the inside secrets of politics is how critical redistricting is.”

Last year, President Trump’s Commerce Secretary, Wilbur Ross, announced that the upcoming 2020 census would include a “citizenship question.” Opponents of this move quickly pointed out that doing so would deter immigrant households from responding and that this would result in a severe undercount. The result? Significant funding and representation disparities disproportionately affecting communities of color. The Trump administration moved ahead nonetheless.

In United States Department of Commerce v. State of New York, U.S. District Judge Jesse Furman barred the government from including the question, taking the administration to task for “’a veritable smorgasbord of classic, clear-cut’ violations of the Administrative Procedure Act, including cherry-picking evidence to support [their] choice.”

The abhorrent racism of the Trump administration has been on full display since he took the oath of office that dark January day in 2017. And other than his immigration policies, perhaps no other issue demonstrates his contempt for communities of color more than his effort to skew the U.S. Census with the addition of a “citizenship question.” It is a strike at the very heart of our democracy and an affront to the U.S. Constitution conservatives claim to hold so dear.

In addition to the new question, the Trump administration has severely underfunded and understaffed the Census Bureau. Unlike in 2010, however, there is already a group of advocates and funders focused on both political and legal responses to the Right’s shenanigans, including lawsuits to expose government wrongdoing (or maybe more accurately “non-doing”). Nonetheless, the challenge is daunting.

In 2010, Republicans dumped $30 million into state races—triple the amount of Democrats—to wrest control of the once-in-a-decade process of congressional redistricting and then, with their new statehouse majorities, draw maps that favored Republicans and pass laws that disenfranchised Democrats and people of color.  Between a newly configured census featuring a “citizenship question” designed to exclude large numbers of minorities and disfavor urban areas and its aggressive voter suppression efforts across the country, the Republican Party could rig our system so completely that the promise of “We the People” will be permanently broken.  Will the Supreme Court allow that to happen?

The Real Threat of Trump and Barr

The Mueller Report is a cornucopia of stunning revelations of corruption and abuse of power by Donald Trump, his Administration, and his campaign.  I write to discuss one important revelation that has been highlighted, but widely misunderstood:  President Trump repeatedly attempted to obstruct justice – indeed, ordered the obstruction of justice – and failed only because his staff refused to carry out his commands.  Jeff Sessions refused to “unrecuse” from the Russia investigation; Reince Priebus retrieved Sessions’ proffered resignation letter so that Trump could not use it as a “shock collar” to tame the Justice Department; Don McGahn refused to carry out Trump’s order to fire Special Counsel Mueller; Rick Dearborn refused to communicate Trump’s order that Sessions limit the Special Counsel’s jurisdiction to future elections; KT McFarland did not follow Trump’s order to draft an internal cover-up memo; and on and on.  One moral that might be drawn from this story is its happy ending:  the President’s attempts to obstruct justice were thwarted at every turn by conscientious public servants.  One commentator on NPR even went so far as to declare triumphantly that these episodes show that the system works.  This is wrong.  The system did not stop the President from obstructing justice; specific individuals did.

As many have remarked, it is chilling to know that it is a pattern and practice of this President to obstruct justice.  But what makes the realization downright frightening is the fact that not one of those conscientious public servants still serves in the Trump Administration.  Indeed, each and every one of them fell out of favor with the President precisely because they would not work his nefarious will.   Can we rely on the public servants currently serving in the Trump Administration to stand up to and check the President?

Enter William Barr.

The new Attorney General has been widely, and rightly, criticized for press conference in advance of releasing the Mueller Report.  Even on Fox News, Sheppard Smith and Chris Wallace characterized the Attorney General’s performance as indefensible and an exercise in deception.  It was all of that and worse.  It is now clear that we cannot rely on the Attorney General to restrain the President.  Rather, Attorney General Barr views it as his job to actively facilitate the President’s schemes.

In fact, this has been clear all along.  Barr is a longstanding proponent of the unitary executive theory of presidential power.  He advanced that theory as the head of the Office of Legal Counsel in the late 1980s and in his first stint as Attorney General in the 1990s.  He specifically applied that theory to the Mueller investigation in a now infamous memo he wrote last June as a private citizen (a memo that is widely regarded as the very reason President Trump selected him to replace Jeff Sessions as Attorney General).  According to Barr, “[w]hile the President has subordinates – the Attorney General and DOJ lawyers – who exercise p[ower] on his behalf, they are merely his hand – the discretion they exercise is the President’s discretion ….”  On Barr’s view, those public servants I have described as conscientious are more accurately regarded as insubordinate.  To extend Barr’s corporeal metaphor, they are the body in revolt against itself, a kind of “cancer on the presidency.”

I testified at Attorney General Barr’s confirmation hearing.  I opposed his nomination because I was familiar with his views on presidential power and, so, could see the dangers they posed for the Mueller investigation and, more broadly, for the rule of law.  Still, I am shocked at how brazenly William Barr is willing to ignore facts and law in order to promote Donald Trump.  Joseph McCarthy had Roy Cohn, Richard Nixon had John Mitchell, now Donald Trump has his man.

*Institutional affiliation is listed for identification purposes only.

Senate Rules Change Leads to Four Judges Confirmed in Two Days

Last week, the Senate majority passed yet another change in the rules governing the judicial nominations process. The Senate shortened the debate time to just two hours for district court nominees and certain other nominations. And this week we had a glimpse of how damaging this rules change will be, as the Senate voted to confirm two district court nominees in less than three hours on Wednesday.

Over the course of two days, the Senate confirmed Daniel Domenico (D. Colo.), Patrick Wyrick (W.D. Okla.), Holly Brady (N.D. Ind.), and David Morales (S.D. Tex.).

Visit the On the Bench page for details on confirmations, pending nominees, and vacancies.

McConnell is fast-tracking President Trump’s judicial nominees

Senate Majority Leader Mitch McConnell sought the rule change to speed the confirmation of President Trump’s picks for lifetime judgeships. This, despite the fact that the Senate has already confirmed a record number of circuit court judges.

District courts play a huge role in adjudicating rights and freedoms for millions of people and have a direct effect on their daily lives. Rushing these nominees to a final confirmation vote is profoundly irresponsible. Senators need time to appropriately evaluate every judicial nominee and the 30 hours of debate time was part of that crucial vetting process.

Several of the nominees awaiting confirmation votes have extreme records: opposing reproductive freedom, attacking LGBTQ rights, undermining voting rights, and enabling torture.

As ACS President Caroline Fredrickson said last week in a statement about the rules change:

“The far right is engaged in a concerted campaign to use the courts to enact policies they have failed to pass legislatively. And finding new ways to jam radical nominees onto the bench is seemingly the main tool in their toolbox. The result? A judiciary that bears little resemblance to the diverse fabric of our country or the American ideological mainstream.”

This change to the amount of debate time the Senate has for lifetime judgeships is a power grab that is further undermining rules and norms. All done in the service of enabling President Trump and the Senate majority’s quest to fill the federal courts with judges who hold extremely conservative views.

Related Resources

Learn more about how the federal judiciary is changing under President Trump: