April 12, 2016 Leave a comment
Read a the Obama Administration’s Reply to Texas –> HERE
Immigration reform advocate, Past President, American Immigration Lawyers Assoc., Blogger, Speaker, Activist, Photographer, Traveler. All opinions are my own.
April 8, 2016 Leave a comment
Image via Flickr (islespunkfan)
En español aquí
David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, has published his latest in a series of must-read assessments of the key questions, considerations, and implications of the U.S. v Texas immigration executive action case, to be heard before the U.S. Supreme Court on April 18.
After predicting that the Republican plaintiffs’ case will be dismissed on standing, Leopold’s new analysis on Medium, “Preventing Supreme Chaos: It’s Up To The Chief,” explores the potential consequences and chaos that would result from a 4-4 split in the Supreme Court.
“Given that the Republican plaintiffs fail to demonstrate standing, the U.S. Supreme Court should dismiss the overtly political lawsuit brought by Republican leaders from Texas and 25 other states when it hears the United States v Texas immigration executive action case on April 18. While remaining confident that the Republican challengers will fail on standing (and would fail on the merits of the case, as well), it is worth exploring the potential consequences and chaos that would result from an alternate scenario.
A 4–4 split in U.S. v Texas, for example, would result in three levels of profound chaos ensuing. A 4–4 split on the Supreme Court would: provide a green light to Republican-controlled states — not the federal government — to determine the nation’s immigration enforcement policy — contradicting the Court’s major precedent in the process; open the door to a myriad of politically-charged lawsuits that states would be newly empowered to bring against sitting presidents; and raise questions about whether the injunction placed on the deportation deferral guidance, known as DAPA and DACA+, should continue to apply across country, ultimately leading to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S.
Since the death of the late Justice Antonin Scalia — and the refusal of Senate Republicans to even consider hearings for his replacement — there’s been a lot of discussion about what the vacancy holds for key cases before the Court. Thus far, the Court has evenly split among the justices 4–4 on two cases, leaving the decision of the lower court intact in Freidrichs v. California Teachers Association, by simply stating, “The judgment is affirmed by an equally divided Court.”
Justice Elena Kagan spoke recently at the New York University Law School about the situation of the Supreme Court in the aftermath of Justice Scalia’s sudden death. According to a report in the New York Times, Kagan said she and her colleagues “were committed to issuing decisions in as many of those cases as possible.” The justice spoke highly of the efforts of Chief Justice Roberts, saying, “I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” Kagan said. “He’s conveyed that in both his words and his deeds.”
On April 18, the Supreme Court will provide another test for Chief Justice Roberts and the associate justices when they hear arguments in United States v. Texas. If Chief Justice Roberts stands by his long-held rigorous views on standing, the case should be dismissed, because it asks the Court to weigh in on a political dispute, not a legal claim.
Frankly, if there ever was a political question before the Court, it’s this case, as numerous legal analysts and law professors have pointed out. But, if the Court evenly divides 4–4 among the eight sitting justices, the decision of the lower courts will remain in place — as it did in the Friedrichs case — with a profound impact on the nation.
One can imagine three levels of chaos ensuing:
First, by affirming the hold on DAPA and DACA+ through indecision, the Supreme Court will have permitted Republican controlled states — not the federal government — to determine the nation’s immigration enforcement policy. This would flatly contradict the Court’s major precedent decisions, including U.S. v. Arizona. In Arizona, the Court, speaking through Justice Anthony Kennedy, made clear that the federal government, not the states, are constitutionally vested with the authority to set immigration policy:
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
Stephen Legomsky, Professor Emeritus at Washington University School of Law and former Chief Counsel of U.S. Citizenship and Immigration Service, wrote in a post titled, Supreme Court Immigration Case Will Have Profound Impact that:
It is that combination — a lax threshold for state standing to sue the federal government and the states’ freedom to choose a friendly judicial forum for deciding both standing and the merits of the case — that makes Texas’s theory so dangerous.
Second, a split decision by the Court would have adverse ramifications well beyond immigration enforcement policy. One can only imagine the myriad of politically charged lawsuits states will be newly empowered to bring against the political decisions of a sitting president — Republican or Democrat — including challenges to his or her tax, environmental and foreign policies.
As former Solicitor General Walter Dellinger explained to the Supreme Court in an amicus brief filed in opposition to the Texas Republican challenge to DAPA and DACA+:
The dispute accordingly presents only “questions and issues” (Winn, 563 U.S. at 132) that must be left to the political process.
To [fail to dismiss the case on standing] would not only inject the Court into this political maelstrom, but also the next one, and the next. For the theory of standing advanced by respondents here would not be good for this case only. If adopted, it would open wide a back door to federal court for States seeking resolution of a host of politically charged disputes where the front door to individual plaintiffs has been barred by this Court’s precedents. Respondents’ novel theory of APA review would likewise place the courts in a supervisory status over a wide range of discretionary executive decisions, without any meaningful standards for evaluating them.
Respondents’ theory of standing would not only provide a basis for States to challenge myriad federal immigration decisions, see Pet. Br. 31, but it would also provide a ready work-around in many other cases where courts have found that individual plaintiffs lacked standing. By following the path laid out by respondents here, States could effectively step into those individual plaintiffs’ shoes and litigate policy disputes with the federal government. That would turn standing doctrine on its head.
Allowing U.S. v Texas to remain in the federal courts would allow Republican Governors and Attorneys General of 26 states to undermine the federal government’s “significant power to regulate immigration” of which Kennedy wrote. Political questions would become fodder for the courts, not the legislatures where they belong.
All this transcends immigration. Every time the IRS interprets the tax code in a way that favors the taxpayer, any state that chooses to base its own income tax on federal taxable income loses revenue. The state could avoid that result by changing its law, but under Texas’s theory that doesn’t matter… Accepting Texas’s radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily. And that is why the consequences of the Court’s final disposition will be so profound.
At The New Republic, Spencer Amdur made a similar point:
To contest a government policy in court, plaintiffs must show an “injury in fact,” which means that they are personally harmed by the policy; it is not enough to simply disapprove from a distance. This requirement is known as “standing.” In the DAPA lawsuit, both lower courts ruled that Texas had standing, but they relied on a curious theory: Because Texas subsidizes driver’s licenses for immigrants with deferred action, it will now have more licenses to subsidize. The problem with that logic is that it would allow any state to create standing, simply by tying its laws to federal policy.
The standing question is crucial for a few reasons. It’s one that is likely to appeal to the Court’s conservatives, who generally favor tighter standing requirements. It would also save the Court from having to sort through some knotty issues of administrative and constitutional law. More broadly, a generous ruling in favor of state standing could exacerbate the dysfunction that has plagued the immigration system in recent years. If Texas has standing in this case, then states might have standing to challenge almost any policy that loosens enforcement, or gives someone lawful status. (See, for example, Texas’s lawsuit to block Syrian refugees.)
At SCOTUSblog, Kevin Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at U.C. Davis School of Law, offered a similar analysis:
If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce myriad laws — from the Internal Revenue Code to the environmental laws — passed by Congress.
And, that would, of course, result in countless lawsuits that would never have been filed or considered otherwise.
Finally, indecision by the Supreme Court would raise legitimate questions about whether the injunction placed on DAPA and DACA+ by Judge Hanen should continue to apply across country. No doubt there would be challenges by states such as California and Washington, which have refused to join the Republican lawsuit against Mr. Obama’s immigration executive action and persuasively argued that they’ve been harmed by the hold placed on DAPA and DACA+; no doubt federal courts outside the 5th circuit would be prevailed upon to lift Hanen’s injunction so the president’s temporary deportation deferral could move forward in other jurisdictions; and no doubt a 4–4 split by the Supreme Court would lead to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S. — a situation the Supreme Court wisely prevented through its Arizona decision.
Noah Feldman, professor of constitutional and international law at Harvard University, outlined the legal questions which would arise in the aftermath an evenly divided Supreme Court in the Republicans’ Texas lawsuit:
The 5th Circuit opinion won’t be binding precedent on other courts or future presidents. The long-term effect on executive action relating to immigration won’t be significant.
In practice, Obama’s plan might not be implemented. But even that’s not absolutely certain, at least outside Texas. It was very unusual for the 5th Circuit to issue an injunction binding the Obama administration nationally.
There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.
That “legitimate technical question” would immediately be the subject of numerous lawsuits in states outside of the Fifth Circuit. In fact, many governors and attorneys general, have tried repeatedly to allow implementation of DAPA in their states, citing the economic value. At SCOTUSblog, Anne Egeler, Deputy Solicitor General for the State of Washington, wrote,
The nationwide injunction is preventing the states and their residents from receiving the substantial economic, public safety, and humanitarian benefits that will flow from the president’s immigration actions.
In its amicus brief, the State of California made a powerful case about the harm done to the state by blocking DAPA:
As a result, California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker. Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher: the proportion of California farm workers who are undocumented, for instance, may be closer to 60%. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.
That alone would likely compel California to seek redress if the injunction is limited to the Fifth Circuit because of an evenly split Supreme Court.
At Think Progress, Justice Editor Ian Millhiser surmised what could follow:
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4–4 in the Texas case, the Fifth Circuit’s order will stand.
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
Needless to say, things could get complicated. No doubt the legitimacy of Hanen’s “national injunction” would be challenged by governors and attorneys general, along with immigrant advocates, who will head to federal courts to allow implementation of DAPA. In Writing at Across the Bar, a publication of the San Joaquin County (CA) Bar Association, attorney Fernanda Pereira summed up the confusion that would unfold in the aftermath of a 4–4 split decision by the Supreme Court:
Critically, any opinion issued by the Supreme Court would not be precedent-setting; rather, the Fifth Circuit’s order will stand, but only be binding precedent in the Fifth Circuit — Louisiana, Mississippi, and Texas. If that happens, the Justice Department may obtain an order from a different circuit upholding the President’s authority to implement DAPA and DACA. The Fifth Circuit is among the most conservative courts in the country and it is unlikely that every circuit will follow its lead. There will be competing court orders holding DAPA and DACA both legal and illegal, and no immediate possibility of Supreme Court review. It is not immediately clear what happens in such a case.
Pereira also explained the potential human cost:
If the Court’s decision is split 4–4, that would have tremendous consequences for people facing deportation. Immigrants would be treated differently under the law because of where they reside, meaning that established families (which include U.S. citizen spouses and children) will be forced to choose to relocate to jurisdictions that will grant them access to the DAPA and expanded DACA deferred action programs, or fracture.
If Texas is granted standing, that’s the immediate future. It will upend the lives of immigrants across the country and cause a rush to the courts — by states who want to challenge federal actions beyond immigration and by advocates, states and cities who want DAPA implemented in their jurisdictions.
From all indications, chaos is anathema to Chief Justice Roberts. As USA Today’s Richard Wolf noted,
Over the years, the chief justice has consistently voted to close the courthouse doors on claims and claimants he judged to be dubious.
The dubious lawsuit brought by the 26 Republican governors and attorneys general is perhaps the most important test for Roberts in this term.
A 4–4 tie in U.S. v. Texas, a blatantly political lawsuit, guarantees at least three levels of judicial chaos. Whether or not that happens rests with Chief Justice and the rest of the Supreme Court.”
February 23, 2016 Leave a comment
Posted on The Hill Congress Blog by David Leopold
Earlier this month Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust—the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.
Robert’s concern is well founded. The political pressure on the justices—particularly from the right—is perhaps more intense than at any time in the nation’s history.
Republican reaction to the sudden death of Justice Antonin Scalia last week has only fed this perception. Senate Republican Leader Mitch McConnell (R-Ky.)didn’t even have the decency to wait until Scalia’s body was flown back to Washington before he declared—despite the clear language of the Constitution–that President Obama should not be permitted to appoint Scalia’s replacement. McConnell’s intent to obstruct the confirmation process disrespects the legacy of Scalia himself who would have unquestionably upheld the president’sconstitutional authority to name his successor—an irony obviously lost upon McConnell and the other GOP senators who dutifully fell in line behind their leader.
Yet despite the politically charged atmosphere left in the wake of Scalia’s passing, the eight justices of the Supreme Court—and Chief Justice Roberts in particular—are presented with a critical opportunity to dispel the impression the Court has been corrupted by politics—something Linda Greenhouse noted Roberts had a hand in creating; that it is indeed the dispassionate umpire of “balls and strikes” Roberts described in his 2005 confirmation hearing. And, as the Court moves on to tackle a docket laden with cases ranging from abortion to worker’s rights to affirmative action, no case presents the justices with a greater opening to eschew the intrusion of politics into the courtroom as U.S. v. Texas, the challenge to Obama’s executive actions on deportations.
The lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 deportation deferral known as DAPA and DACA expansion. Before the ink was even dry on the deferred action guidance, Republicans in Congress tried repeatedly to block the President’s actions – and they failed repeatedly. Taking another route, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch a legal assault. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country.
The Supreme Court agreed to hear the case in January and until Scalia’s death many court observers speculated that the key to upholding the president’s executive actions was Justice Anthony Kennedy, who has been a key swing vote in several immigration cases and wrote the majority opinion in Arizona vs. U.S. which recognized the president’s broad discretion over deportation matters, including deferred action.
Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states – to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid.
Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court—or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.
Leopold, an immigration attorney, serves as counsel to immigration reform groups and is the former president of the American Immigration Lawyers Association
December 14, 2015 Leave a comment
As the 9 justices of the U.S. Supreme Court ponder whether to review the Republican lawsuit attacking President Obama’s immigration executive actions, back in Brownsville, Texas U.S. District Judge Andrew Hanen—whom Republican politicians, led by the state of Texas, sought out late last year to block the actions known as DAPA and DACA expansion—appears to be making an already brazenly political lawsuit more political.
In a little noticed order issued earlier this month Hanen commanded the parties to appear in his courtroom on Tuesday December 15 to explain the effect of a procedural decision of the 5th Circuit Appeals Court “on the rights of individuals to intervene in the case.” (The intervenors are people who have expressed an interest in becoming parties to the Texas immigration case).
When I read Hanen’s order the first question that came to my mind was: Why have a hearing now? Hanen’s temporary injunction blocking the immigration executive actions is currently on appeal to the Supreme Court. If the Court agrees to hear the case this term the lawsuit will not likely return to Hanen’s court room for months, if ever. Most legal scholars and observers believe that Hanen was wrong to block the president’s executive actions last February. If the Supreme Court hears the case this term there’s a pretty good chance they’ll toss out the entire case, rendering a hearing on the intervenors pointless.
Wouldn’t it make more sense for Hanen to put the whole case on hold until after the Supreme Court reviews it? Why waste precious tax payer dollars and limited judicial resources on a procedural hearing about the role of the intervenors if there is a chance the case won’t survive Supreme Court review? On that point even the GOP politicians who brought the case seem to agree. They’ve joined the Obama administration in a motion asking Judge Hanen to shelve the case until after the Supreme Court makes a decision.
What’s driving Hanen to go forward with a hearing at this point? Doesn’t he have other cases on his docket that need his immediate attention?
Maybe Hanen’s sense of urgency has more to do with who the intervenors are? Among those seeking to impose themselves on the litigation are Orly Taitz, queen of the disgraced and discredited birther movement, which challenged President Obama’s U.S. citizenship and legitimacy as President (Taitz specifically sought out Hanen to file several anti-immigrant lawsuits) and the infamous Maricopa County Sheriff Joe Arpaio, who’s built his brand by terrorizing Latino neighborhoods, surreptitiously investigating the wife of a federal judge and violating folks’ civil rights. Arpaio lost a case on this same issue in the D.C. District and on appeal at the D.C. Circuit Court of Appeals. It’s difficult to imagine that either Taitz or Arpaio have a “concrete, personalized, and legally protectable” interest in the case as required for intervention. Yet Hanen has set the hearing for Tuesday, December 15 and that presumably means the interests of Taitz and Arpaio will be heard.
All this underscores the real nature of the Texas GOP attack on DAPA and DACA which, as a panel of the 5th Circuit appeals court observed in its order affirming Hanen’s hold on DAPA and DACA expansion, involves “policy disagreements masquerading as legal claims”. Taking the court’s apt description a step further, the Republican challenge to the deportation deferrals is more about the party’s rabid disdain for “anything Obama” than the sanctity of the law. DAPA and DACA wouldn’t have even been necessary if the GOP House leadership had allowed an up or down vote on comprehensive immigration reform in 2013. Everyone knows that immigration reform would have passed Congress and the President would have signed it into law obviating the need for a deportation deferral. In the aftermath of the House GOP’s intransigence Obama set forth immigration enforcement priorities which target felons, national security threats and recent border crossers rather than DREAMers and undocumented parents. While he was able to slap a temporary hold on DAPA and DACA expansion, Hanen—who has not shied away from launching gratuitous attacks on the Obama administration’s immigration enforcement policies—knows that the President’s enforcement priorities are unassailably legal.
Is that why Hanen appears so eager to open his courtroom to a discussion of the role of the intervenors, including the infamous Sheriff Joe Arpaio and birther queen Orly Taitz, as the Supreme Court decides whether it will hear the Texas immigration case this term?
It seems that the participation of Apraio and Taitz will do little more than inject more nasty politics into the GOP’s shamelessly political lawsuit.
April 13, 2015 Leave a comment
This morning the 5th Circuit announced the three judge panel that will hear the Obama Administration’s motion to stay (lift) Judge Hanen’s order temporarily blocking DACA expansion and DAPA; and, as expected, it’s a very conservative panel. Ian Millhiser of thinkprogress.com described the panel—which includes, Judges Jerry E. Smith (Reagan appointee), Jennifer Walker Elrod (G.W. Bush appointee) and Stephen A. Higginson (Obama appointee)—this way:
Two members of the three-judge panel that will decide whether to reinstate these programs are extraordinarily conservative judges. One of them once described himself, admittedly somewhat jokingly, as a former ‘right-wing activist.’
But here’s the good news. These judges are not likely to decide the Obama Administration’s full appeal. Their job is to rule on the Administration’s motion to temporarily lift Judge Hanen’s order so DACA expansion and DAPA can begin to go forward while the 5th circuit appeals court decides the full appeal of the preliminary injunction.
Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction. It is a hearing on the Obama Administration’s motion to stay (lift) the injunction while the court of appeals considers the appeal. In effect, the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire appeal. If this panel does not postpone the injunction it will be disappointing for sure, but it doesn’t mean the Obama Administration will have lost the appeal. It will just mean the panel will have decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while the 5th circuit considers the full appeal of Judge Hanen’s order temporarily blocking the President’s actions on deportation.
It’s confusing. But the upshot is that while today’s announcement may be a Monday morning bummer, it’s hardly a death knell to the Obama Administration’s appeal or the underlying case .
The appeals court has not yet scheduled oral argument on the full appeal of the preliminary injunction itself. Nor has it released the names of the three judge panel that will hear it. That should happen near the end of May or beginning of June once the parties are finished briefing the case.
Given the fast track briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s full appeal of the preliminary injunction sometime in June or July. That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after Friday’s hearing, if the Obama Administration wins the full appeal, DACA expansion and DAPA could be back on track this summer.
Finally, regardless of the makeup of this or the panel that hears the full appeal, the law and facts are solidly on the side of the President’s immigration executive actions. As a panel of the 5th circuit recently emphasized in Crane vs Napolitano the law of standing–which is the major issue in this appeal–is designed to keep politics out of the courtroom. And a court should be especially careful, the 5th appeals court cautioned, when it’s being asked to decide that an executive policy is unconstitutional.
March 23, 2015 Leave a comment
On Thursday during a House Oversight and Government Reform Committee hearing, Rep. Mick Mulvaney (R-S.C.) asked Saldaña whether she thought Congress should “clarify the law” to require state and local law enforcement to lock up immigrants at the request of ICE. She responded with an enthusiastic “Amen.” Saldaña begrudgingly walked back her shocking answer the next day because it flatly contradicted Secretary Johnson’s observation that an increasing number of federal court decisions hold that detention based on ICE requests to state and local law enforcement agencies violates the Fourth Amendment.
On Friday, Saldaña made things worse. She refused to stop the patently unjust deportation of Pastor Max Villatoro, a Mennonite preacher from Iowa City. Pastor Max’s deportation case had sparked an unprecedented outcry of support from Iowa and around the country—including 40,000 petition signatures, dozens of compelling video pleas, rallies in the streets of Iowa City and a letter from 400 faith leaders. Americans pleaded with Director Saldaña to open her heart, use her common sense and grant Max a reprieve so that he could stay with his wife Gloria and their 4 U.S. citizen children.
ICE of course trumpeted the fact that 17 years ago (when Max was in his 20s), he was convicted of tampering with records to get a driver’s license and DUI—both misdemeanors. According to ICE, regardless of how long ago these offenses occurred, Max remained a “Removal Priority.” Never mind that in the nearly 20 years since, Max became a husband, father, religious leader and pillar of his community.
The immigration enforcement guidance plainly gave ICE the authority to stop Pastor Max’s deportation because, as the DHS memo says, there were “factors indicating [he] was not a threat to national security, border security, or public safety, and should not therefore” have been considered an enforcement priority.
For the immigrants across the nation, Pastor Max’s removal was a test case. Would Director Saldaña take a rigid, unforgiving view of the new deportation guidelines? Or would she understand that the guidelines leave plenty of room for common sense?
In the end it was clear Saldaña viewed the DHS enforcement guidelines as little more than a detention and deportation checklist to be robotically followed regardless of individual circumstances and regardless of the heavy toll Max’s deportation was taking on his family and community. Saldaña refused to recognize that far from requiring Max’s deportation, the DHS removal priorities unquestionably empowered ICE to grant Max a reprieve. Clearly no one —not even ICE— could seriously suggest Max posed any threat to national security, border security or public safety.
And so early Friday morning, Pastor Max was put on a plane and deported to Honduras.
Yet just the day before, when she appeared before Congress, Director Saldaña gave lip service to the very prosecutorial discretion she failed to recognize when it came to Pastor Max. In response to questions from Rep. Eleanor Holms Norton Director Saldana proudly claimed that ICE always takes into account the severity of the person’s crime, his or her work history, family ties and length of time in the U.S.
In the aftermath of the devastation of yet another American family, immigration advocates are left with more questions than answers. Under ICE Director Saldana’s leadership, are we to expect more chaotic, senseless immigration enforcement, with little regard for border security and the safety of American communities? Or will ICE Director Saldaña take a second look at Secretary Jeh Johnson’s enforcement priorities memorandum which, as President Obama promised, targets “felons, not families. Criminals, not children. Gang members, not a Mom [or Dad] who’s working hard to provide for her kids.”
For now, ICE Director Saldaña has refused to follow the guidelines that compel her and her agents to look at the whole person. Pastor Max, needless to say, was not a security threat to anyone. Quite to the contrary, he was a pillar of his community.
And if Director Saldaña continues to refuse to properly implement DHS policy will there be consequences, as President Obama promised earlier this month?
David Leopold, a former president of the American Immigration Lawyers Association, is Max Villatoro’s attorney.
March 21, 2015 Leave a comment
Gloria Villatoro is an incredible woman.
Yesterday, after 20 years in the U.S., her husband, Pastor Max Villatoro, was deported to Honduras and away from Gloria and their 4 U.S. citizen children Anthony, Edna, Angela, and Aileen. Max’s banishment from the U.S. was unjust. The life he built in his Iowa City community as a father, husband, religious leader, hard worker and friend cried out for compassion, and for smart, not senseless, enforcement of the immigration law.
Speaking with Gloria yesterday as the horrible events unfolded I wondered how I would react if I were in her shoes. What would be the first words out of my mouth if my family, like Gloria’s, had just been ripped apart by a flagrant injustice?
I honestly don’t know. I can only hope that I would have responded like Gloria–with strength, resilience and, most importantly, love and gratitude. In the afternoon of what had to have been the worst day of her life Gloria sat down and quietly said “Thank You.”
Without a doubt we are sad because of Max’s deportation. But I want to thank each of you for all the hard work you have done on our behalf. Thank you for supporting my family. So many of you, without knowing us, have done everything within your power to avoid Max’s deportation.
Thank you for all your efforts– for the calls, the letters, the signatures, the prayers, the songs, the caring thoughts lifted on our behalf.
Even though they’ve deported Max, we’ve come to know a community that is united, that can raise a great voice when we witness injustice. We must keep moving forward and see what God has next for us.
I am so grateful for all of your support.
Trusting in God,
for the children, too- Anthony, Edna, Angela, and Aileen
Gloria Villatoro is an inspiration to us all.