Trump prosecutors in S.F. using new legal tactic to boost ICE arrests, attorneys say

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Lawyers with the Department of Homeland Security are deploying a novel legal maneuver in an attempt to step up removal of immigrants, immigration lawyers say, dismissing asylum-seekers’ cases and potentially fast-tracking their deportations. 

This likely happened in the case of at least two men arrested Tuesday by federal immigration agents outside of San Francisco immigration court. Mission Local and others documented the men being loaded onto minivans waiting outside the courthouse, where protesters attempted to halt the arrests.

When a person’s asylum case is dismissed and they do not have another legal way of staying in the United States, they are in legal limbo. They’re still not legally in the United States, but don’t have protection from deportation that being in the asylum process would give them. 

Now, Homeland security officials can “encounter” them again, almost as if they are back near a border crossing, and immediately arrest them and place them in expedited removal, said Robert Barchiesi, a criminal and immigration attorney. Barchiesi is based in Philadelphia, Pennsylvania, but represents clients in immigration court in San Francisco.

The tactic is unlawful, said Milli Atkinson, the Immigrant Legal Defense Program Director for the Justice and Diversity Center of the Bar Association of San Francisco. 

And the American Civil Liberties Union seems to agree. It filed a case in January challenging the government’s expanded use of a power called “expedited removal.” The ACLU asked the court Tuesday to block the Trump administration’s fast-tracked deportation policy in light of courthouse arrests across the country.

Expedited removal is a power that the Homeland Security has to fast track people in the United States without authorization out of the country, Barchiesi said.

This power has historically been used closer to the border, shortly after a person has entered the United States and encountered Customs and Border Patrol officers. If that person does not, for example, say they have a fear of returning to their home country — an early step in claiming asylum — agents can detain them and immediately deport them.

Mission Local on Tuesday reached out to DHS, which sent us this statement.

In San Francisco, DHS lawyers are moving to dismiss asylum applicants’ cases with the goal of putting them into expedited removal, Atkinson said.

Mission Local attended the court hearings for the two men arrested Tuesday. In court, both men said they had applied for asylum. Their hearings Monday were related to those applications.

In both cases, DHS attorneys moved to dismiss the asylum cases. ICE agents almost immediately took both men into custody following their hearings, and their whereabouts are currently unknown.

‘Expedited removal’ unusual in the interior of country

Historically, DHS has dismissed asylum cases when a defendant finds another way to stay legally in the United States, such as through marriage, said Hayden Rodarte, a senior staff attorney with the asylum program at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, a civil-rights organization. 

During the Biden administration, there was also a policy to deal with court backlogs by moving asylum cases out of the courts and into an administrative process with United States Citizenship and Immigration Services. The mechanism to do that was also dismissing a case, Rodarte said. 

But what is happening now is not a repeat of Biden-era policy.

Barchiesi started seeing the trend on the East Coast about a month ago, he said. He represented clients who had already seen their cases dismissed and got involved once they were in detention, Barchiesi said.

But it did not actually happen during one of his current client’s hearings until Friday, in San Francisco, Barchiesi said.

The first known case in San Francisco of a DHS attorney moving to dismiss an asylum case was on May 21, Atkinson told Mission Local.

Since then, at least 10 people have been arrested after motions to dismiss. That includes four arrests on May 27, at least two arrests on June 6, and at least four arrests on June 10, Atkinson said.

The arrests on June 10 likely include the two Mission Local saw.

San Francisco immigration judges catching on

Once a person’s asylum case is dismissed, their best option is typically to refile a case, under more difficult circumstances. In a worst-case scenario, they could be detained, immediately after their case is dismissed. They would have to repeat a credible fear interview. 

Custom and Border Patrol officers often conduct these interviews, Arwen Swink, an immigration judge in San Francisco, said in court Tuesday, in spite of the “lack of training on trauma-informed interview techniques.”

Judges seem to have caught on to this technique. In all three cases that Mission Local watched Monday in San Francisco, including two where the asylum applicants went on to be arrested, judges denied DHS’ request to dismiss the asylum cases.

This should have kept DHS from detaining those asylum-applicants, Roarte said.

Instead, the government seems to be “ignoring” the judge’s order and detaining people anyway, as if the judge had granted dismissals, Rodarte said.

DHS has broad authority to detain undocumented immigrants. But the policy has typically been that if someone is in court, ICE does not detain them, Rodarte said. 

At all three hearings Mission Local attended, DHS did not say why it was requesting dismissals beyond saying it was “no longer in the interest” of the government to continue the case or that “circumstances had changed.”

Alexandra Bachan, an Oakland-based immigration lawyer, said she is now advising clients to appear by video for their hearings, if possible, to avoid being picked up by ICE. 

She has not yet had a client where DHS has motioned to dismiss their asylum case. But she saw it happen Friday in a San Francisco court, Bachan said.

As of publication, it was not clear where the asylum applicants who were arrested Tuesday were. They all had ongoing asylum cases, so they should be able to continue their cases, Rodarte said. 

But, if they are not released, that is going to be a lot harder to do from a detention center, Rodarte said.