On Tuesday, two asylum seekers were arrested at the Portland Immigration Court after they showed up for scheduled hearings. After attorneys from the Portland-based Innovation Law Lab filed habeas corpus petitions on the asylum seekers’ behalf, a federal judge ordered the government to not move them out of Oregon without first providing notice and to wait for at least two days. The Innovation Law Lab is also representing two other asylum seekers who were arrested under similar circumstances at the Portland Immigration Court and who are being detained at the Northwest Detention Center in Tacoma, Washington.
In recent days, U.S. Immigration and Customs Enforcement officials have ramped up arrests and deportations at workplaces and courthouses around the nation. Those tactics have sparked a wave of growing protests and clashes with law enforcement in Portland and other cities, including Los Angeles, where President Trump controversially ordered the deployment of the California National Guard and Marines to support federal immigration enforcement in the region.
Innovation Law Lab’s legal director, Jordan Cunnings, joins us to share more details about the asylum seekers arrested in Portland and the legal issues surrounding their cases.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Earlier this week, two asylum seekers were arrested at the Portland Immigration Court after they showed up for scheduled hearings. Two other asylum seekers were arrested under similar circumstances about a week ago. Attorneys from the Portland based Innovation Law Lab are representing all four of them. The lawyers argue that the Trump administration is disregarding long-standing protections for people seeking asylum in an effort to conduct mass deportations.
Jordan Cunnings is the legal director of the Innovation Law Lab, and she joins us now. It’s great to have you on the show.
Jordan Cunnings: Thanks so much for having me.
Miller: Can you tell us the story of a client that you referred to with the initials O.J.M.?
Cunnings: Yeah, so O.J.M. is a transgender woman from Mexico who suffered horrific violence from the dangerous cartel The Knights Templar on account of her transgender identity and her sexual orientation. As is her right, she sought asylum in the United States in September of 2023.
Unfortunately, on June 2nd, when appearing for a routine immigration court hearing, which was something she was obligated to do in order to seek asylum, ICE moved to terminate her case, which basically ended her pending asylum application and arrested her in order to place her in a fast-track deportation proceeding called expedited removal.
Miller: I have a lot of questions about what you just said, but she’s just one of your clients. Another is someone you refer to, also with initials, as Y.Z.L.H. What can you tell us about his case?
Cunnings: So Y.Z.L.H. is another asylum seeker who unfortunately was subject to the same unlawful policy. He was threatened with death by the dangerous Mexican cartel La Familia Michoacana and sought asylum in July of 2023. Like O.J.M., he was also arrested after appearing for a routine court hearing on June 5th, and he, like O.J.M., is now detained at the Northwest ICE Processing Center in Tacoma.
Miller: How do these cases fit into a pattern that is emerging around the country?
Cunnings: So these arrests started in Portland in the past couple of weeks and started nationally just shortly before that. This is part of ICE’s practice to spread fear and ramp up deportations. It’s a way to cut off due process and fast track removal proceedings.
Miller: What is supposed to happen, or maybe I should say what used to happen at the kinds of asylum process hearings that these people went in for?
Cunnings: They’re preliminary hearings, and they generally have been spaces in which enforcement actions do not happen.
Miller: So, a place where they say “this is why I’m seeking asylum,” and a judge asks them questions? What are they thinking or assuming is going to happen when they show up?
Cunnings: Something like that, yeah. The immigration court is where these immigrants are filing their applications for asylum. The judge is making a determination about whether or not they can proceed with that application or there’s other legal matters to resolve, and then generally people are scheduled for an individual merits hearing where their claim is heard on the merits. They present evidence, they present testimony. They have a right to be represented by counsel, a right to cross-examine witnesses the government brings against them. All sorts of the rights and procedures you would expect in an administered proceeding like this one.
Miller: In this case, am I right to think of lawyers for ICE as basically the prosecutors?
Cunnings: That’s the right analogy.
Miller: So what are they arguing in the moment there?
Cunnings: Yeah, so from what we understand, it’s sort of a bait-and-switch that’s happening between the ICE prosecutor and then the ICE enforcement and removal operations who actually do the arrests. ICE prosecutors are moving to terminate these cases, which takes away jurisdiction from the immigration court if the judge agrees, and then the ICE agents are waiting near or in the building to then effectuate the arrest immediately after the case is terminated.
Miller: Are the ICE prosecutors ‒ I’m not sure that that’s their exact word, but effectively, as you said, that’s a way to think about them ‒ are they asking the judge to deny someone’s asylum case, or are they saying “shut this whole proceeding down,” and does that distinction matter?
Cunnings: It does matter. It’s the latter. So they’re asking for termination of the proceeding, which is unusual. So ICE attorneys generally ‒ they’re called trial attorneys ‒ are arguing that someone is not entitled to asylum as part of the legal proceeding, and the asylum seeker has the right, with counsel, to say, “yes, I am,” and to present evidence on their behalf.
Here, they’re essentially foreclosing the entire process and the avenue by which people are allowed to seek asylum by saying they no longer want to pursue the case against the person. But then once that proceeding has ended, it puts these people at risk of being placed in this fast track.
Miller: What role do the judges have in this? What ability do they have to say yes or no to the administration’s request?
Cunnings: The judges have the ability to say no to this request. There are individuals who’ve appeared in the past couple weeks and who’ve requested more time to oppose the government’s attempts to close their case, and those have been granted in certain cases. The judges can deny the request and allow people to continue with their right to seek asylum before the immigration court, and that’s what we think judges should be doing.
Miller: But in general ‒ if this is happening in more than a dozen states around the country and if it seems to be ramping up now ‒ in general, how are judges responding?
Cunnings: I can’t speak to the national statistics exactly, but we just found out this week that there’s actually a directive to the judges from higher ups instructing them to basically grant these requests: to not allow more time for people to respond, to not require written filings, and to proceed and grant them as quickly as possible.
Miller: Who gives that directive from higher up?
Cunnings: Immigration judges are not judges in the traditional sense like a federal judge or someone who’s appointed by Congress.
Miller: From the independent judiciary.
Cunnings: Exactly. There have been problems for years with the lack of independence within the immigration judge corps. So this directive is basically coming from the attorney general and instructing them to act this way, which really threatens their independence as administrative adjudicators.
Miller: This is maybe a piece of our system that I was not clear about. So it’s the administration itself? They are the bosses of immigration judges?
Cunnings: It’s weird, right? Yeah, it really undermines the independence of the system and we’ve actually raised this previously under the Trump administration in a different lawsuit regarding the independence. There have been a lot of efforts for years to actually move immigration judges into an Article I court, so they’d be free from the political manipulations like the one that’s happening now.
Miller: What exactly were these two clients arrested for after the administration successfully moved to dismiss their asylum cases?
Cunnings: They were arrested and detained for the sole purpose of putting them in this fast-track removal process called expedited removal. So they’ve committed no crimes, they’ve complied with everything the government has asked of them in regards to their immigration cases, and it’s solely the government’s manipulation that is why they were arrested.
Miller: Let me see if I understand this. So they had been in the process of seeking asylum, but since the administration in these cases was successful in saying “no, that proceeding is over,” at this point, the administration can then say, “well, now you’re in the country illegally and we’re going to quickly move to remove you from the country.”
Cunnings: That’s what the government’s saying they can do. We think they can’t, but that is what they’re doing, and the process is something called expedited removal. That’s something that by statute can be applied to people who’ve been in the country for less than two years. It used to be that they could only apply it to people found within a certain distance of the border, but President Trump has attempted to expand that to apply to anyone found anywhere in the country.
Miller: Where are these two clients right now?
Cunnings: They’re both currently detained at the detention center in Tacoma.
Miller: Have you been able to communicate with them and hear about their status?
Cunnings: It’s been very difficult. So yes, we have, but after significant delays and challenges. We didn’t know where O.J.M. was, in particular, for several days after her transfer. We’re particularly worried about her. She’s a transgender woman. Because the Trump administration doesn’t believe transgender women exist, basically, she’s being held in solitary confinement for her own safety since she can’t be held with other women.
Y.Z.L.H. is also held in really crowded and uncomfortable conditions. He was forced to sleep on a concrete floor with seven other men on his way to Tacoma, and the facility is just generally overcrowded and having a lot of problems because of their attempts to ramp up detention.
Miller: So we’ve been focusing first on the first two of your clients who’ve been dealing with this, and that was about a week ago. But earlier this week, two more individuals faced the same thing. What happened with them?
Cunnings: That’s right. Two men were arrested after their court hearings on Tuesday after this tactic was again used by the government. One of them, N.E.M.B., is from Ecuador. He was kidnapped and threatened with death there by a criminal syndicate and sought asylum here in August of 2023. J.E.R.M. is Venezuelan, and he fled political persecution in Venezuela last October, and he was arrested the same day after his hearing.
We were able to file habeas petitions for them quickly enough and get an order from the court preventing their transfer out of the state of Oregon that same day. After that order went down, ICE looked at their cases again and actually released them. So they were able to go home to their families that same day.
Miller: Is it simply the speed of your response that accounts for the difference in how these two sets of cases went? I mean, two of your clients are now in immigration detention in Tacoma. Two of them are free. Is that simply because you were able to move faster the second time around?
Cunnings: I can’t speak to how ICE is choosing to react to these cases or not, but I think it goes to show the importance of federal court oversight. So when a federal court is able to intervene quickly enough and say, “keep these people here, I want to watch these proceedings. I’m concerned about what’s happening,” that prompted ICE to take another look and realize we’d already determined – they had already determined– these men were neither a flight risk nor a danger to the community. They had been at liberty in the community before, and so they were able to re-release them because of that federal court intervention.
Miller: One of the things that has emerged – it happened in the first Trump administration and maybe more so now – is trying to disentangle what are norms that we’ve all been operating under and what are laws. It seems like that should be a very clear line, but as a layperson, it’s not always clear we’re dealing with an administration that acts in ways that no other administration in our lives has ever acted in that same way.
That’s just a long preamble to say, what is in your estimation against the law about what the Trump administration is doing here and what is just very different from what previous presidents have done?
Cunnings: That’s a great question. Our immigration laws as written are exceedingly cruel and have a lot of problems. The system has been broken for years. What I think is different about this moment is the Trump administration’s attempts to operate both within those laws to the maximum degree of cruelty possible and then also outside of those laws by doing things like this bait-and-switch tactic, through use of things like the Alien Enemies Act, and other extralegal efforts to prioritize deportations and put people in fear of their ability to live here.
Miller: What explicit rights do people who are seeking asylum have that you say are being denied to them right now?
Cunnings: It violates due process to fast track their removal this way. So, once somebody applies for asylum, several rights attached to that pending application, including the right to representation by counsel of their choice, the right to present evidence and testimony in support of their claims, the right to have a judge consider their claim and a right to appeal, including to the federal courts.
When someone is placed in expedited removal, most of those rights functionally disappear. You only have a right to a brief interview in which you don’t have a full right to representation. Your appellate rights are sharply curtailed, and the whole process generally happens while you’re detained.
Miller: Have any judges so far found for the merits of your arguments or similar arguments made by other lawyers in other states? Or are you still waiting to get that kind of final review?
Cunnings: The litigation’s in the early stages because this just rolled out. There is also a lawsuit challenging the expansion of expedited removal that’s a little bit farther along in New York. But as far as I know, that’s still being litigated.
Miller: I can imagine someone who’s seeking asylum right now rethinking going to a required hearing, but then not doing that puts them in its own kind of very serious legal jeopardy. Given all this, what are you advising people? Let’s say that someone is supposed to be going next week for an asylum process hearing and they say, “should I go or should I not?” How would you help them think about that question?
Cunnings: I’m really glad you asked that because this is part of the tactic, right? They want people to be afraid to go to court because this is happening. And that’s horrible because people are giving up their legal rights and putting themselves often at greater risk of deportation by doing that.
So, what I would want to share is don’t be afraid. Know your rights and know your individualized risk profile. Not everyone is at the same risk of being subject to this tactic. It’s primarily people who’ve been in the country for less than two years, and there are other things to be considered to figure out whether you’re not at risk.
The best thing you can do is talk to a lawyer to understand your individual situation. Oregon’s really lucky to have a statewide universal representation program called Equity Corps of Oregon. If you don’t already have a lawyer and you need to access one, please contact that program and you can get individualized advice and accompaniment to your hearing.
Miller: What are you preparing for right now, going forward? I mean, as you’ve said, you’re not an ICE lawyer, you don’t work for the administration. But, you are going up against them and have for a while. I’m curious what you see as the next likely step that this administration could take as it ramps up its efforts?
Cunnings: Oh man, we’re kind of living the nightmare every day so I’m trying not to think about the next possibility, to be honest. But what we’re focusing on right now is preparing for next week in court, honestly. We’re looking at the clients we represent who have hearings and how we can best protect them. There’s also a robust legal observation strategy happening. The community has been extremely supportive and is showing up every day to help protect people’s rights. So that’s the battle that we’re continuing to fight today.
Miller: Jordan Cunnings, thanks very much.
Cunnings: Thank you for having me.
Miller: Jordan Cunnings is the legal director of the Innovation Law Lab.
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