District Court Judge Discovers the 'Freedom to Say Goodbye'

An example of how we got into this mess

By Andrew R. Arthur on January 31, 2018

On January 29, 2018, Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York issued an opinion in Ragbir v. Sessions. In that opinion, she ordered the release from custody of Ravidath Lawrence Ragbir, a native and citizen of Trinidad and Tobago and an alien under a final order of removal. That decision is notable for two reasons.

First, in that decision, Judge Forrest identified a heretofore unrecognized right now available to an alien facing removal from the United States: "the freedom to say goodbye". Specifically, she stated:

There is, and ought to be in this great country, the freedom to say goodbye. That is, the freedom to hug one's spouse and children, the freedom to organize the myriad of human affairs that collect over time. It ought not to be — and it has never been — that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust, regimes where those who have long lived in a country may be taken without notice from streets, home, and work. And sent away. We are not that country; and woe be the day that we become that country under a fiction that laws allow it.

According to the judge, and contrary to decades of case law, it isn't what U.S. Immigration and Customs Enforcement (ICE) did, but how they did it, which violated that elusive "freedom". I will not even comment on the rhetoric she uses, except to say that I have seen it before.

Taken to its logical conclusion, however, this new "freedom" would require ICE to give any alien that it seeks to remove sufficient time to "organize the myriad of human affairs that collect over time" before taking that alien into custody for removal. Needless to say, many if not most would use this time to abscond.

Second, and more importantly, that decision explains how we got to a point where 11 million aliens are illegally present in the United States, more than 950,000 of whom are under final orders of removal.

At issue in this case was the fact that on January 11, 2018, Mr. Ragbir met with and was taken into custody by ICE, to be deported from the United States, ostensibly to Trinidad and Tobago. From Judge Forrest's decision, it appears that the precipitating event leading to his arrest and detention was the fact that ICE had obtained a travel document for Mr. Ragbir, which was set to expire on January 14, 2018.

In footnote nine in her decision, Judge Forrest admits:

In his first order of release, petitioner was placed under supervision. At that time, the order of release informed him "Once a travel document has been obtained, you will be required to surrender to ICE for removal. You will, at that time, be given an opportunity to prepare for an orderly departure."

She also "agrees with the Government that the statutory scheme ... allows them to do what was done here." The issue appears to be, however, that the departure as planned by ICE was not as "orderly" as the judge believed was appropriate, leading her to concludes that "the Government ha[d] acted wrongly."

The background in the petitioner's case is somewhat difficult to glean from the judge's order, which only briefly touches on the circumstances that brought Mr. Ragbir to this predicament.

She does state, in footnote three, that he "is an immigrant who came to the United States from Trinidad and became a Legal Permanent Resident in 1994." In her final footnote, Judge Forrest further explains: "The order of deportation is based upon a felony conviction for wire fraud that petitioner sustained in 2001." She continues, however: "It is uncontested that since his release from custody, petitioner has lived a life of a redeemed man."

The Washington Times provides more background into why, exactly, Mr. Ragbir is facing removal in the first place:

The citizen of Trinidad and Tobago, a legal U.S. resident since 1994, fought deportation after his Sept. 12, 2001, conspiracy and wire fraud conviction for accepting fraudulent loan applications while working at a now-defunct loan company. Placed into removal proceedings, he was detained nearly two years before his 2008 release. The U.S. Supreme Court refused legal relief in October 2011. Subsequent court efforts failed.

Assuming that this is correct, the following is, to the best of my estimation and using the open records available to me, the path that has brought the case to this point.

Federal court filings disclose that Ragbir was the defendant in a criminal case in the United States District Court for the District of New Jersey, which entered a decision (as the Times reports) on September 12, 2001. As the Third Circuit stated in its opinion on appeal in that matter:

Following a jury trial, appellant Ravidath Ragbir was convicted of one count of conspiracy to commit wire fraud in violation of 18 U.S.C. 371 and six counts of wire fraud in violation of 18 U.S.C. 1343 and 2. After an unsuccessful post-trial motion for a judgment of acquittal or for a new trial, Ragbir was sentenced to thirty months of imprisonment and three years of supervised release and ordered to pay $350,001 in restitution.

In a decision authored by the (future) president's sister, Maryanne Trump Barry, the Third Circuit affirmed that conviction.

According to a separate federal court filing (by the Department of Justice (DOJ)), Ragbir was placed into removal proceedings in May 2006, and charged with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) as an alien convicted of an aggravated felony under sections 101(a)(43)(M) and (U) of the INA, as a result of that conviction.

The first filing identified above reveals that on August 4, 2006, an immigration judge found Ragbir removable as charged, and ordered him removed. He appealed that decision to the Board of Immigration Appeals (BIA), and on March 14, 2007, the BIA affirmed the immigration judge's decision.

Section 101(a)(43)(M) of the INA defines the term "aggravated felony", in pertinent part, to include: "an offense that—(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." Section 101(a)(43)(U) includes within the definition of "aggravated felony" any "attempt or conspiracy to commit an offense described" as an aggravated felony therein.

Ragbir filed a petition for review of that decision with the Court of Appeals for the Second Circuit. The circuit court held:

In finding by clear and convincing evidence that Ragbir was convicted of a fraud causing losses exceeding $10,000, the agency relied on (1) the superseding indictment, which charged Ragbir with fraudulent wire communications involving amounts totaling more than $480,000; and (2) a judgment of conviction requiring Ragbir to pay $350,001 in restitution, described as "the total amount due to the victim for this loss." ... Ragbir argues that these documents were insufficient as a matter of law to prove the requisite loss amount because restitution orders can, and here likely did, include losses arising from uncharged, related conduct. We disagree.

The Second Circuit consequently dismissed that petition on August 12, 2010. Ragbir filed a petition for rehearing from that decision, which was denied on November 22, 2010. On April 2, 2011, he filed a petition for a writ of certiorari with the Supreme Court, seeking review of the BIA's decision. DOJ opposed that petition, which was denied on October 3, 2011.

Mr. Ragbir subsequently filed a motion to reopen and reconsider with the BIA, which denied that motion on May 15, 2012. He filed a petition for review of that denial that the Second Circuit, which denied that petition on March 4, 2016.

In footnote six in her opinion, Judge Forrest states that Ragbir received a stay of removal from U.S. Immigration and Customs Enforcement (ICE) in December 2011, and received subsequent stays in February 2013, March 2014, and January 2016. He filed yet another request for a stay on November 16, 2017, which was apparently pending of the time that he was arrested by ICE.

Those stays were consistent with the ongoing litigation in that case, as the BIA, and later the Second Circuit, considered his motion to reconsider and reopen. As noted, the Second Circuit did not deny his petition for review until after the last stay granted by ICE in January 2016. Despite this fact, Judge Forrest asserts: "Mr. Ragbir, his family, and his counsel had every reason to expect that his most recent stay would be granted." Inasmuch as it does not appear that Ragbir had any pending appeals of his removal order at the time he made his most recent request for a stay (on November 16, 2017), it is not clear why he would have had any reason at all to expect that stay to be granted, or to expect that he would not be taken into custody.

Judge Forrest also "notes with grave concern the argument that petitioner has been targeted as a result of his speech and political advocacy on behalf of immigrants' rights and social justice." The record in this matter, however, as presented by Judge Forrest suggests that Ragbir was taken into custody for removal because he was under a final order of removal and ICE had obtained a travel document to execute that order, and not for any other reason. That said, neither an alien's political nor social advocacy is a recognized basis for a stay under the INA, or any interpretation thereof with which I am familiar (before now).

Almost 10 years passed between the date Ragbir was placed into proceedings and the date his second petition for review was denied. Three separate circuit court decisions, two separate BIA decisions, and one Supreme Court order preceded ICE's attempt to remove him. Despite these facts, Ragbir remains in the United States, apparently on the streets Judge Forrest referenced, and ICE must again go through the process to get yet another travel document to ensure his removal. In the interim, expect more appeals. Regrettably, this case is indicative of the difficulties that are inherent in many removals.

One final note. Judge Forrest criticizes ICE for failing to show that Ragbir "would not have left on his own if simply told to do so." Aliens (like petitioner) who are deportable because they have been convicted of aggravated felonies are not eligible, however, for the privilege of voluntary departure under section 240B of the INA. That is the law, but not a point that the judge bothered to make.