Getting to the truth about Steinle’s murder starts with asking the right questions

Posted earlier today on The Hill Congress Blog

By David Leopold2015-07-20 Lopez-Sanchez deported2

Kathryn Steinle’s tragic murder in San Francisco, allegedly by Francisco Lopez-Sanchez, a Mexican national who entered the country illegally, has understandably led to many questions. But Republican politicians—from Donald Trump to Rep. Steve King (Iowa)—are largely focusing on the wrong ones.

They are cynically seizing upon Kathryn Steinle’s murder to malign San Francisco’s so-called “Sanctuary City” policy, and all immigrants in the bargain. They are driving the narrative that Lopez-Sanchez fled to San Francisco because he wanted to avoid deportation. This is not only wrong on the facts—Lopez-Sanchez did not “flee” to San Francisco, he was brought there in handcuffs—but it fails to hold the federal Bureau of Prisons officials accountable for releasing him to the San Francisco Sheriff’s authorities, without determining whether the county prosecutor intended to follow through on the old drug warrant. And it fails to hold ICE responsible for not trying harder to deport Sanchez-Lopez the moment they had the opportunity.

San Francisco was only the last place that Lopez-Sanchez ended up, yet all the focus has been on the City. The fact is, the Federal government had Sanchez-Lopez in their clutches, with all the tools they needed to deport him, but for some reason they did not.
Of course, not everyone who has a prior deportation on his record should be an enforcement priority. I know many good, hard-working immigrants who have immigration violations from the past and still deserve a chance at the American Dream. But Lopez-Sanchez wasn’t here to build a life as an “immigrant.” He was a criminal with drug and mental health problems who was essentially living in our federal prisons on illegal reentry convictions. That should have been clear to anyone who reviewed his case, and the public has the right to know what went wrong here.

Here are the unasked and unanswered questions that members of Congress should be focused on:

Under existing Obama administration enforcement guidelines, Lopez-Sanchez should have been a top priority. Why wasn’t he treated as such?

Why did the federal Bureau of Prisons release Sanchez-Lopez to the San Francisco Sheriff’s Department in March 2015, instead of sending him to ICE, which had reportedly requested him?

Did the federal bureaucracy, including BOP and ICE, communicate with each other about Sanchez-Lopez? If not, why not?

Following his 2011 conviction for illegal re-entry, Lopez-Sanchez was ordered to be sent to a “federal medical facility as soon as possible.” Was he? Did he receive mental health support?

Why didn’t BOP or ICE take the time to consider whether the San Francisco County Prosecutor would actually follow through on the 20 year-old drug warrant before releasing him from Federal custody—knowing full well that it’s far easier to deport someone when they are in your grasp than when they are not?

Why weren’t federal law enforcement authorities all over Sanchez-Lopez as his prison release date approached in March of this year?  After all, he is the poster-villain for why American needs fair and smart enforcement of its immigration laws. Given Lopez-Sanchez’s twenty-year record of disrespecting the law, and 16 year and ½ month stint in Federal prison, you would think that deporting him as soon as possible would have been a priority.

The immigration laws passed by Congress—which are designed to be harsh on felons like Lopez-Sanchez—gave ICE the authority to get rid of him as soon as his Federal prison sentence was complete. As a felon who illegally reentered the U.S. he was likely under a final order of removal. If standard removal order reinstatement procedure was followed after his arrest on the federal illegal reentry charge there was no need to go to an immigration judge for a deportation order. It was already in place, waiting to be implemented. And the deportation of Sanchez-Lopez would have been in line with the Department of Homeland Security’s stated enforcement policies, which prioritize the deportation of people who are convicted of multiple, serious felonies.

Ironically, these are the very same deportation guidelines that Republicans in Congress have opposed. It’s no wonder they don’t want to draw attention to that fact and the truth about this case—because they actually, honestly oppose prioritizing enforcement on the worst of the worst. Instead, they want to send immigration agents out after anyone and everyone.

Republicans’ policy of “full enforcement” treats everyone—immigrant workers and convicted felons—as a priority. If they had their way, the government would have less resources to go after bad guys because they’d be spending more resources going after ordinary folks–and you’d have more people like Lopez-Sanchez falling through the cracks.

Everyone wants to live in a safe community—and yes, that includes immigrants. But some of the Republican ideas on the table today would make communities less secure. Our policies should be based on facts, not fear. There are still a lot of unanswered questions about Kathryn Steinle’s killer, but they point to a Federal breakdown and a Federal solution, not strong-arming state and local police.

Before members of Congress attempt to legislate false “solutions” that undercut community policing or treat all immigrants like dangerous felons, they should heed the words of Dayton Police Chief Richard S. Biehl who recently wrote in The Hill Congress Blog:

Having state and local law enforcement take on the work of federal immigration officials undermines community policing and is counterproductive. When state and local law enforcement are entangled in these functions, immigrant communities view them with increased suspicion.

Republicans claim to be tough on criminals, but they oppose the Obama administration’s deportation priorities and oppose comprehensive immigration reform, which would have increased enforcement while dealing smartly with immigrants who are threats to no one. They want to force local police to become immigration agents and undermine their relationships with members of the immigrant community. If some good can come from Kathryn Steinle’s murder, it has to be based on a sober review of the actual facts. To date, Republican proposals are sensational, off-target, and seriously dangerous. We can and must do better than that.

Leopold is former president of the American Immigration Lawyers Association

#SCOTUS sent a powerful message on ObamaCare—will the 5th Circuit heed it on #immigration?

Originally posted on The Hill Congress Blog

By David Leopold

The 5th Circuit recently announced the panel that will hear the full apSupreme_Court_US_2010peal of U.S. District Judge Andrew Hanen’s order blocking DACA expansion and DAPA, the president’s deferred action programs that were announced last year as part of his immigration executive actions. The three-judge panel includes Jerry E. Smith, Jennifer Walker Elrod and Carol Dineen King. Smith was appointed by Ronald Reagan. Elrod was appointed by George W. Bush. King is a Carter appointee.

While it’s now a near certainty that this panel will side with Hanen and affirm his wrongheaded decision to block President Obama’s executive actions — in late May Smith and Elrod refused to lift the preliminary injunction Hanen had placed on DACA expansion and DAPA — the three judges would be wise to take a lesson from last week’s Supreme Court’s decisions on ObamaCare and gay marriage. The court made clear in King v. Burwell that political lawsuits die when they meet law, justice and common sense. And it taught in Obergefell v. Hodges that the Constitution belongs to everyone, regardless of race, religion, gender, sexual preference or nationality.

That’s an important lesson for Smith, Elrod and King.

Like King v. Burwell, the GOP’s Texas immigration lawsuit is a naked partisan challenge brought by Republican governors and attorneys general to target mixed-immigration status American families. In the case of ObamaCare the goal was to deprive Americans of subsidies to their healthcare premiums, exposing them to life-threatening illnesses and death due to lack of access to proper medical care. In the case Obama’s immigration executive actions, the Texas lawsuit is aimed at foiling any solution — even a temporary Band–Aid like deferred action — in aid of their draconian goal of mass deportation.

As with healthcare, the nation is badly in need of an overhaul of its immigration policy — a policy whose cornerstones were laid more than a half century ago to serve the needs of America in the 1960s, not America in the 21st century.

And, as with healthcare, same-sex marriage, fair housing, voting rights and a host of other critical social and economic issues, extremists within the American conservative movement, many of whom are comfortably ensconced in the Republican Party, remain, with few exceptions, virulently opposed to comprehensive immigration reform. Not one of the GOP presidential hopefuls has offered an immigration plan that will bring the visa system in line with our global economy and offer a safe, orderly and fair pathway to citizenship for the 11 million undocumented, aspiring Americans. Nor, unfortunately, is there any hope that the GOP controlled Congress will send Obama an immigration reform bill he can sign any time soon.

Which brings me back to the Texas immigration case and the lesson the 5th Circuit appeals court panel hopefully will take from the Supreme Court’s rulings last week. King upheld a critical pillar of ObamaCare. The ruling demonstrates what the Supreme Court can (and thankfully will) do when called upon to take sides in a partisan political fight: refuse to take the bait.

Importantly, King is a harbinger of things to come in the Texas immigration litigation. At its core, the GOP lawsuit relies on a judge’s willingness to credit political diatribe over the plain language of the president’s deferred action policy. The GOP’s ability to temporarily block DACA expansion and DAPA were the result of Hanen’s enthusiastic willingness to ignore what the guidance said in favor of what the GOP governors and attorneys general say it says. As Judge Stephen Higginson recently reminded his 5th Circuit colleagues, “On this record, as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say [the Obama administration] is adhering to law, not derogating from it.”

Nor should it be lost on the 5th Circuit judges that the U.S. Supreme Court has recognized the president’s broad discretion in immigration enforcement and not been timid about quashing unjust attempts by State authorities to deprive undocumented immigrants of due process — as it demonstrated Arizona v. U.S. when it defanged the infamous S.B. 1070 “show me your papers law.”

These last days in June have been historic: the Supreme Court upheld ObamaCare and gay marriage and, after a horrific hate crime in South Carolina, the Confederate flag is finally coming down across the South. Yet noticeably absent has been progress on immigration reform — there was no historical moment for the 11 million people who work, pay taxes, raise American families and long to contribute to the country they have struggled against all odds to embrace or for American businesses seeking to compete in a global economy.

Last week the Supreme Court made clear, as The New York Times’s Linda Greenhouse aptly put it, that it will not buy into a “cynically manufactured and meritless argument” and thus come to “be perceived as a partisan tool.” In the coming weeks the 5th Circuit court of appeals has the opportunity to follow the Supreme Court’s lead, dismiss the GOP’s partisan attack on DACA expansion and DAPA and reassure America that it too will resist being used as a partisan bludgeon. If it does, it may very well save the Supreme Court the trouble of fixing another mistake.

Leopold is former president of the American Immigration Lawyers Association.

No surprise from 5th Circuit on immigration, but Judge Hanen’s reliance on “sublime intelligences” exposed

Yesterday, in a 2/1 split decision, a three judge motions panel of the 5th circuit appeals court refused to lift the injunction placed on President Obama’s immigration executive actions last February by Texas Judge Andrew Hanen. Hanen’s order temporarily blocked the implementation of DACA expansion and DAPA, which offer an estimated 5 million undocumented DREAMers and parents a chance to apply for a brief temporary reprieve from deportation.  The Obama administration had asked the 5th circuit panel to temporarily lift the injunction while the court heard the full appeal of Hanen’s ruling.

Yesterday’s refusal to lift the injunction comes as no surprise.  The 5th Circuit Appeals court is considered by many to be the most conservative federal appeals court in the county and the two Republican appointed judges who declined to lift the stay, Jerry E. Smith and Jennifer Walker Elrod, are among the most conservative judges on the court. In a very narrowly tailored opinion they reasoned that the State of Texas would be harmed as a result of increased driver’s license costs due to DAPA and that the executive actions likely violate the technical rule making requirements of the Administrative Procedures Act.

But the real news yesterday was the powerful, well-reasoned dissent of Judge Higginson, an Obama appointee, who reminded his colleagues in no uncertain terms that Texas’ complaint against President Obama’s deferred action programs should be thrown out of court.  “I would hold,” Higgenson wrote, “that Supreme Court and Fifth Circuit caselaw forecloses plaintiffs’ arguments challenging in court this internal executive enforcement guideline.”

Higgenson didn’t stop there.  Using respectful, even deferential, language, he took aim not at his colleagues, but at Judge Hanen, the Brownsville Texas judge who’d entered the injunction at the request of the Republican Governors and Attorneys General who’d filed the case in his courtroom.   With the deft use of genteel prose Higginson hammered Hanen hard, all but calling him out for playing fast and loose with the law and facts—something Professor Anil Kalhan has termed Hanen’s “Judicial Truthiness.”

In a particularly biting rebuke to Hanen’s claim that Obama’s November 20, 2014 deferred action memorandum constitutes a refusal to enforce the immigration law, Higginson wrote that Hanen’s “twofold extrapolation—focusing not on [the deferred action guidance] itself set against current law, but instead on an embellishment of it set against a perceived imperative to remove all illegal immigrants—rests on sublime intelligences.”

Wow.  That’s some strong stuff (and I had to look up the meaning of “sublime intelligences,” which is apparently a reference to a godly force). You rarely see language like that from one Judge describing the work of another Judge.

Unfortunately, Jerry Smith and Jennifer Elrod, the two judges who refused to lift the injunction, took the same confusing and circuitous route Hanen did to get to where they got.  That path required them to give short shrift to what Higginson described as “the four corners” of the deferred action guidance, coupled with inappropriate speculation and guesswork—speculation and guesswork which is necessary to success of the Texas litigation because, as Higginson observed, the executive actions on deportations have “yet to go into effect, and no evidentiary hearing was held, the record is underdeveloped and contains considerable conjecture, and conjecture is guided by feeling.”

As for the contention that the deferred action guidance does not permit case-by-case discretionary determinations by immigration agents and therefore runs afoul of the rule making requirements of the Administrative Procedures Act—a claim which is central to Hanen’s and the 5th circuit panel’s opinion—Higginson all but implored his GOP appointed colleagues to actually read the guidance—something which objective judges are supposed to do. He painstakingly summarized the language of the deferred action memorandum which repeatedly reminds immigration officers that Obama’s executive action is not an edict, but policy guidance which leaves the final enforcement decision to their discretion.  “No fewer than ten times”, Higginson wrote,

[T]he November 20, memorandum instructs immigration officers that: (1) “DHS must exercise prosecutorial discretion in the enforcement of the law”; (2) “[immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case”; (3) “[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission”; (4) “deferred action is legally available so long as it is granted on a case-by-case, and it may be terminated at any time at the agency’s discretion”, (5) “[c]ase-by-case exercises of deferred action for children and long-standing members of the American society who are not enforcement priorities are in the Nation’s security and economic interests and make common sense”; (6) “this Department’s limited enforcement resources…must continue to be focused on those who represent threats to national security”; (7) “USCIS [should] establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis”; (8) “ICE is further instructed to review pending removal cases…and to refer [certain] individuals to USCIS for case-by-case determinations”; (9) “immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgement as to whether an immigrant is granted deferred action will be determined ton a case-by-case basis”; and (10) “[i]t remains within the authority of the Executive Branch…to set forth policy for the exercise of prosecutorial discretion and deferred action…This memorandum is an exercise of that authority.”

Had Smith and Elrod focused on what the DACA expansion and DAPA guidance actually says—not what the GOP governors and attorneys general who brought the Texas lawsuit say it says—yesterday’s decision would have likely gone the other way and lifted Hanen’s injunction.  As Higginson reminded his two colleagues, seemingly out of frustration, the deferred action guidance is founded on well settled, long-standing principles of prosecutorial discretion which are firmly rooted in the law.  “On this record,” Higginson wrote, “as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say DHS is adhering to law, not derogating from it.”

When the 5th Circuit appeals court hears the full appeal on July 6 it will, of course, have to carefully consider the opinion of Judges Smith and Elrod. But the appeals court will also have to take into account Judge Higgenson’s authoritative dissent which instructs the court—and the public at large—in a clear, well-reasoned voice, that the GOP Texas lawsuit against DACA expansion and DAPA is nothing more than a partisan attack masquerading as a lawsuit. As Higginson wrote, “[t]he political nature of this dispute is clear from the names on the briefs…”

Importantly, Judge Higginson is not alone in his view that lawsuits attacking executive actions on deportations have no place in court.  In April another panel of the Fifth Circuit Court of Appeals upheld a decision from a lower court that ruled Mississippi lacked standing to challenge President Obama’s 2012 immigration executive action to protect DREAMers.  And in December of 2014, U.S. District Court Judge Beryl Howell “wasted little time dismissing a lawsuit brought by Maricopa County, Ariz., Sheriff Joe Arpaio against President Barack Obama’s November executive action.” The D.C. Court of Appeals has already heard arguments on that decision and is expected to issue a decision shortly.

No question, yesterday’s panel decision is a setback for mixed immigration status American families across the U.S. who fear losing a loved one to deportation. But it’s a delay, not the death knell for DACA expansion and DAPA.

And it’s certainly not last word on President Obama’s executive actions on deportations.

READ–>5th Circuit Appeals Ct opinion denying DOJ motion to temporarily lift hold on Obama #immigration action

–> 5th Circuit Decision Denying Request to Temporarily Lift Hold on Obama immigration executive acctions

Texas judge should heed his own advice in GOP lawsuit against #immigration executive action

Originally published on The Hill Congress Blog

U.S. District Judge Andrew Hanen of Brownsville

U.S. District Judge Andrew Hanen of Brownsville, TX

by David Leopold

On Friday, Judge Andrew Hanen, the Texas judge who was sought out by Republican governors and attorneys general to hear their immigration lawsuit against President Obama’s executive actions on deportations, filed a “Supplemental Order” to his earlier refusal to stay the injunction blocking Obama’s executive actions.

Of course federal district court judges like Hanen can pretty much issue any order they want. But, issuing a “Supplemental Order” on an already denied stay motion seems a bit unusual—particularly when the issue is already on appeal. And, it raises the question of why Hanen felt the need to issue a supplemental order; especially one that reads more like a blog in support of the GOP litigation then a serious legal document?

Hanan claims he wrote it to further address “statements made by the President to the effect that there would be consequences for any Executive Branch employee who did not follow the requirement of the November 20, 2014 DHS Directive”—a reference to comments Obama made at a Telemundo-sponsored Town Hall shortly after Hanen issued his injunction blocking DACA expansion and DAPA.
“[T]he bottom line is,” the president said, “that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it.” Obama later went on to add:

We are now implementing a new prioritization. There are going to be some jurisdictions, and there may be individual ICE officials or Border Patrol who aren’t paying attention to our new directives. But they’re going to be answerable to the head of the Department of Homeland Security, because he’s been very clear about what our priorities should be. And I’ve been very clear about what our priorities should be.

According to Hanen he penned his supplemental order “solely to acknowledge the existence of congressional testimony that confirms the President’s statements.” Hanen was referring to the appearance of ICE Director Sarah R. Saldaña who testified before the House Judiciary Committee in mid-April and took heavy fire from Republicans intent on scoring cheap political points.

As he has done before in the Texas immigration case, Hanen jumped on Obama’s “there will be consequences” remark as smoking-gun evidence that the president has abdicated his duty to enforce the immigration law. The subtext couldn’t be more plain: The president, in his zeal to discard the law and tear up the constitution, has even gone so far as to threaten dedicated, hardworking immigration enforcement agents with unspecified, grave “consequences” for simply doing their jobs.

Hanen’s reference to the “November 20, 2014 DHS Directive” is as disingenuous as it is confusing. He refers to a single “DHS Directive”—implying that the president was threatening consequences for any agent who doesn’t grant an eligible immigrant deferred action under DACA expansion or DAPA. Yet he knows—or should know—that on November 20, 2014 the administration issued a series of guidance memoranda as part of the immigration executive actions including therevised DHS’ immigration enforcement priorities. As Hanen himself pointed out in his order blocking the deferred action programs, the immigration enforcement priorities—which direct immigration agents to prioritize the removal of threats to national security, border security and public safety before DREAMers and undocumented parents—are unquestionably legal and “not subject to judicial second-guessing.”

So it’s just as likely, if not more likely, that Obama was appropriately saying there would be consequences for any enforcement agent that ignored the DHS enforcement priorities—the legality of which Hanen himself does not dispute.

But clarity blurs the narrative of the brazenly political lawsuit filed by GOP politicians against the president’s executive actions. And it certainly does not serve Hanen’s contention that the deferred action guidance requires immigration agents to ignore the law, constituting an abdication of the administration’s obligation to enforce it.

Moreover, even if Obama did say what Hanen gropes to claim he said—that there will be consequences for any agent who fails to follow the DHS deferred action guidance—that still would not support Hanen’s contention that Obama was threatening to penalize any immigration agent that enforced the law. Nowhere does the DACA expansion or DACA guidance prohibit any executive branch employee from doing his or her job, including arresting, detaining and deporting an undocumented immigrant. To the contrary, the deferred action guidance—which is central to the implementation of the administration’s effort to prioritize the removal of dangerous criminals and national security threats—unequivocally leaves final enforcement decisions to immigration officers on a case-by-case basis and reminds agents that it conveys no pathway to citizenship or lawful immigration status to anyone.

In December of 2014, U.S. District Court Judge Beryl Howell “wasted little time dismissing a lawsuit brought by Maricopa County, Ariz., Sheriff Joe Arpaio against President Barack Obama’s November executive action.” In fact, Howell issued her ruling just over a month after the case was filed. The D.C. Court of Appeals has already heard arguments on that decision. The Fifth Circuit Court of Appeals recently upheld a decision from a lower court that ruled Mississippi lacked standing to challenge President Obama’s 2012 immigration executive action to protect DREAMers.

In other words, this is not a new issue and the precedent for the president’s actions is very strong.

In an earlier ruling Hanen wrote immigration reform is a “subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.” He’d be wise to heed his own advice. Instead it feels like he’s gone in the opposite direction.

Leopold is the former president of the American Immigration Lawyers Association.

WATCH: IN NEW VIDEO, MARINE CORPS VET ELIZABETH FIGHTS TO REUNITE WITH HER DEPORTED HUSBAND

From America’s Voice

Elizabeth, an Ohio mom of two young children, bravely served her country for ten years in the U.S. Military and was honorably discharged from the U.S. Marine Corps.

But in 2010, her country thanked her by deporting her husband, Marcos.

A heart-wrenching new video about Elizabeth’s story highlights the impact of deportations, which have not only devastated the immigrant community, but have torn apart spouses and children, many of whom are U.S. citizens and permanent residents.

Elizabeth has been a fierce advocate in Ohio’s booming immigrant community for years, most recently last year when she marched alongside Ricardo, a long-time Ohio resident who was facing imminent deportation.

The march was successful, and Ricardo was able to stay in his Ohio home with his family. But, Elizabeth and her two children have still been forced to try to build their lives without Marcos, and somehow remain a united Marine family.

As a U.S. citizen herself, Elizabeth thought her husband would be safe from deportation. But, a gargantuan deportation machine, combined with Congress’s failure to fix our broken immigration system, resulted in Marcos’s 2010 deportation to Mexico.

Late last year, the Obama Administration announced that it was changing its deportation priorities so that the spouses, children, and parents from other military families might be protected from deportation.

But, that move came too late for Elizabeth’s family.

This upcoming Monday, Elizabeth will again march, but this time to highlight her own family’s story (more information on this 20 mile, May 4th march is available here).

Elizabeth will be joined by scores of other Ohio leaders and community members, many of whom she supported in the past, and now want to see her family reunited, too.

“My home is what we had before he was deported,” Elizabeth says in her video. “I’m not going to live in a home again until he’s back. It’s just going to be living in a house as I’m waiting.”

Watch Elizabeth’s heartbreaking story below, and take action by signing her petition to reunite her family here.

#Immigration Enforcement Run Amok? 24-Year-Old Pleads With @DHSgov To Let Her Fly Back To #Australia

Originally posted on Huffington Post Politics by Elise FoleySARAH JANE MCCROHAN

WASHINGTON — Sarah Jane McCrohan, a 24-year-old Australian, says she stayed in the U.S. for about 11 hours longer than she was supposed to, and it’s landed her in detention for three weeks.

She was traveling from New York to Ottawa on March 26 to go to the Australian embassy when a Canadian border officer noted that she had been in the U.S. longer than the 90 days allotted by the Visa Waiver Program, according to McCrohan and her boyfriend, Chauncey Carter, who was with her at the time. The officer suggested they go back to the American side to sort it out, they said, and they wanted to do the right thing. The point of going to the Australian embassy was for McCrohan to speak to someone there about legal avenues for her to return — she said she hadn’t even realized she had overstayed and had intended to leave the U.S. on time.

So they turned around and went back to the American side of the border crossing. Once they got there, officers detained McCrohan, and she is now set to be deported to Australia.

McCrohan, her lawyer and her supporters aren’t disputing her removal, or that she stayed longer than she was supposed to, albeit unintentionally. But they say it’s absurd that she has been detained for so long based on a mistake.

“It’s such an innocent mistake, and they tried to leave,” said her attorney, David Leopold. “The worst thing you can say about her is maybe she should have planned her trip a little better. … We’re not talking about a significant overstay, we’re talking about a matter of hours.”

Immigration and Customs Enforcement spokesman Khaalid Walls said the agency chose not to exercise prosecutorial discretion and release McCrohan because “recent violators who, in the judgment of an ICE field office director, have abused the visa or Visa Waiver Programs” are a priority for removal.

“Additionally, under the Visa Waiver Program, Ms. McCrohan is subject to mandatory detention and her case is not eligible for immigration court hearings,” Walls said in an email. “She will remain in custody while the agency finalizes her removal.”

In a phone interview from the facility, McCrohan said she wanted to go home and that the uncertainty of not knowing when her detention would end was difficult.

“They give you a mythical date [for removal]. Like they say 10 days, but it’s been 21 days,” she said. “I don’t know anything.”

Gilles Carter, Chauncey’s father, said he offered to pay for her flight back to Australia.

“Yes, she overstayed her visa waiver,” he said. “Should that translate to jail time? In my view, that’s pretty close to insane.”

There will be other repercussions for the mistake when McCrohan gets back to Australia, because she will be barred from returning to the U.S. for a decade. The couple had been planning to travel the country in a refurbished school bus, which they named the Wandering Bus. The aim of the bus project was to give a positive image of the U.S. to the world, Carter said.

Now, their website says in large text that “the wandering has been put on ICE.”

The deportation will also make their lives difficult if they decide to get married. Chauncey Carter and McCrohan have been dating for about two and a half years after meeting at a restaurant management school in Switzerland, and he said he intends to marry her even if he can’t be with her in the U.S.

“This is the woman I want to spend my life with, and if I have to, I won’t do it in this country,” he said.

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