Judge: ICE agents can't use immigration interview as 'trap'

A federal judge has ruled that U.S. Immigration and Customs Enforcement agents impermissibly arrested a Maryland resident after he showed up for an interview with immigration officials

ICE agents put Lin on a commercial flight from New Jersey to Shanghai last November, but Hazel ordered Lin to be returned to the U.S. before the flight arrived in China. The American Civil Liberties Union of Maryland sued on Lin's behalf only minutes before the plane took off.

ICE agents had detained Lin last August after his interview for his application for a "stateside waiver," which allows noncitizens facing deportation to remain in the U.S. while seeking legal status.

Hazel said the government can't use that process "as a trap for unsuspecting applicants." The judge said agents effectively used the interview to lure Lin to his arrest, preventing him from completing the provisional waiver process.

"Defendants have thus taken a rule that was promulgated for one purpose and used it for the opposite purpose," Hazel wrote.

ACLU of Maryland attorney Nick Steiner said he has shared the decision with other immigrant advocates in case they have clients in a similar predicament.

"Nothing in the decision directly applies beyond Mr. Lin," Steiner said.

But the ruling sends a "pretty strong signal to ICE" that it can't abuse the provisional waiver process in this fashion, the ACLU attorney added.

Justice Department attorneys assigned to the case didn't immediately respond to an email seeking comment.

In statements released by the ACLU of Maryland, Lin and his wife, Hui Fang Dong, said they are happy and relieved that he can stay with his family at their home in California, Maryland, where they own and operate a restaurant.

"I don't know what we would have done if he had to go back to China," Dong said.

Dong became a naturalized U.S. citizen in 2004, the same year they married. Lin did not, but sought asylum in 2008, a request that was denied and resulted in an order for his deportation. He did not actually leave the country, however, until he was deported in November.

Lin, 38, was 14 years old when he came to the U.S. alone in 1994. Removing him now will keep him separated from his family for years, his lawyers have said.

The judge wrote, "Mr. Lin would be asked to fend for himself in a country he has not lived in since 2002. He has no family in Shanghai, and it is unclear how he will care for himself."

The preliminary injunction granted by Hazel gives Lin more time to stay in the country while he seeks permanent residence, but it's not the final word in the case.

During a hearing in March, Justice Department attorney Julian Kurz said ICE agents have the discretion to make arrests and enforce deportation orders "in a resource-efficient way." He said Lin's attorneys were asking the court to block an "indisputably valid removal order."

"Removing Lin would not be inconsistent with any statute, regulation or the Constitution," Kurz said.

In 2016, Lin and Dong began applying for the stateside waiver. As part of the process, they went for an interview at a federal immigration office in Baltimore in August to confirm the "bona fides" of their marriage, the ACLU lawyers said. The interviewer told Dong that the validity of their marriage would be confirmed but escorted Lin to a separate room for more questioning. That's when ICE agents arrested him.

Arresting Lin immediately after his interview prevented him from completing the second step of the waiver process, Hazel noted.

"To allow removal under these circumstances would permit the government to erect an impenetrable barrier to completion of the provisional waiver process and, indeed, to use it as a trap for unsuspecting applicants," the judge wrote.