ICE Apprehension of US Citizens Derided as ‘Kavanaugh Stops’

Leonardo Garcia Venegas was working at a construction site in Alabama in May when immigration agents tackled him to the ground as he said, “I’m a citizen.”

Lawyers for Garcia Venegas said he was handcuffed and held for over an hour after agents dismissed the driver’s license in his pocket issued only to legal residents as a fake. A few weeks later, he was detained again for about 30 minutes at another construction site 20 miles away.

There’s a shorthand circulating on the left for this kind of encounter: “Kavanaugh Stops.” It’s a reference to conservative Supreme Court Justice Brett Kavanaugh, who wrote in a case last month that encounters with immigration agents for legal residents are “typically brief” and affected individuals “promptly go free.”

Kavanaugh’s assessment is at odds with Garcia Venegas’ experience, as documented in his lawsuit against the US government. He’s among numerous lawful residents allegedly caught up in enforcement sweeps, according to media accounts and court filings, and administration critics see the moniker as a way to highlight the fallout from policies the Supreme Court allowed to continue.

“The Supreme Court effectively rubber stamped the executive branch’s practice of engaging in racial profiling, without any meaningful consideration of the harms that result from wrongful stops, arrests, detentions, and deportations,” said Elora Mukherjee, the director of Columbia Law School’s Immigrants’ Rights Clinic.

“The term ‘Kavanaugh stops,’” she said, “offers a useful colloquial shorthand for the devastating and predictable harms that individuals and communities are facing.”

The Homeland Security Department has challenged allegations by people including Garcia Venegas, claiming he was apprehended for interfering with law enforcement.

“There are no ‘indiscriminate stops’ being made,” DHS spokeswoman Tricia McLaughlin said in a statement. “The Supreme Court recently vindicated us on this question.”

Kavanaugh, a 2018 appointee of President Donald Trump, didn’t respond to a request for comment. But in public remarks the justice has said he stays in tune to the “ocean of critiques and criticism” as part of his job.

Los Angeles Fight

Kavanaugh’s comments on “brief” stops came as the justices paused lower court rulings temporarily barring immigration agents from targeting people in Los Angeles based solely on apparent race, language, occupation, or presence at a location such as a car wash or bus stop.

The Sept. 8 emergency order included no majority rationale, but prompted dissents from the court’s three liberals as well as Kavanaugh’s solo concurrence.

High court precedent, Kavanaugh said, likely barred the broad, “forward-looking” restriction being sought. Furthermore, Los Angeles’ undocumented population—and the fact that apparent ethnicity can be “relevant” for authorities “when considered along with other salient factors"— weighed in favor of the Trump position, he said.

As for immigration stops allegedly turning violent, he said, “the Fourth Amendment prohibits such action, and remedies should be available in federal court.”

The temporary order isn’t the end of the matter, and a fight over the constitutionality of the Trump administration’s immigration tactics could return to the court.

That litigation began when lawyers filed a suit on behalf LA residents such as Jason Brian Gavidia, whom immigration agents allegedly pushed against a metal fence and twisted his arm even though he said he’s a citizen.

In Washington, another plaintiff, who has had Temporary Protected Status for El Salvador since 2001, said agents detained him overnight. The Chicago Sun-Times reported Oct. 1 that agents entered nearly every apartment in a five-story Chicago building in a raid that led to citizens being among those held for hours.

‘Attached His Name’

Kavanaugh’s concurring opinion on its face is the stance of just one justice and shouldn’t carry precedential value, said Jared McClain, a lawyer who began representing Garcia Venegas after video surfaced of his first detainment.

At several points, the concurrence also share views on aspects of immigration enforcement, including stops for questioning, that would “constrain the government,” Harvard Law School professor Richard Re said in a blog post.

But “until anyone else on the court weighs in, Kavanaugh is the person who has attached his name to the policies that are allowed to continue,” said McClain.

McClain’s group, Institute for Justice, is pushing for a court order blocking the administration from conducting warantless searches at private construction sites in Alabama, which it alleges number more than 15 since January and impacted other legal residents.

ProPublica reported Oct. 16 that it had identified more than 170 US citizens who have been held by immigration agents. But the government doesn’t appear to be maintaining statistics on such encounters, said David Bier, the director of immigration studies at the Cato Institute.

“It’s easy to portray this as a rare occurrence, a one-off, when the government is not tracking something systematically,” Bier said. “The data gaps are leading to legal consequences.”

‘Palmer Raids’

The “Kavanaugh Stops” tag isn’t the first instance of an immigration crackdown being closely associated with a government official.

A century ago, the “Palmer Raids” became the name for enforcement sweeps led by then-Attorney General A. Mitchell Palmer that ensnared thousands of suspected foreign communists and anarchists.

“At least in 1920, they deported about 800 of them, but the rest were released,” said Chris Finan, a historian who wrote a book detailing the episode. “That’s a lot of people who suffered under this policy, as we, I think, again see a lot of people suffering.”

The raids came at the apex of the Red Scare, and the American public “loved it,” Finan said, a sharp distinction from the protests seen today.

Kavanaugh has signaled he closely tracks public criticism. At the Eighth Circuit judicial conference in July, he said he does it because “most people are not reading our opinions, they are reading someone else’s description of our opinions.”

“It’s important for maintaining public confidence in the judiciary, in the Supreme Court, to know how the opinions are being conveyed and conceived and understood by the American people,” Kavanaugh said. “And so, yes, I do pay attention to it.”