The Ninth Circuit Tees Off on ICE Enforcement

By Andrew R. Arthur on June 2, 2017

There were two items in the past week that reflected the state of political discourse in this country.

The first was a gruesome photograph of comedian Kathy Griffin "holding aloft a bloodied imitation of President Trump's decapitated head", which was apparently published on Tuesday, May 30. The second was a decision from the Ninth Circuit Court of Appeals, issued the same day, in which, as the Washington Post reported, Judge Stephen Reinhardt "wrote that a Trump administration order to deport a Mexican man was 'inhumane' and 'contrary to the values of the country and its legal system.'"

Given the timing, both the photograph and the order were issued in isolation. Both reflect a larger issue that is poisoning political discourse in our society. And, of the two, the Ninth Circuit order is probably worse in the long run.

The subject of the order is Andres Magana Ortiz, a Mexican national who entered the United States illegally in 1989. According to the court, he "apparently has two convictions for driving under the influence", is married to a United States citizen, and has three U.S. citizen children, ages 12, 14, and 20. At some point prior to September 2014, he was placed into removal proceedings and was ordered removed. I say "[a]t some point" because the order leaves out the full timeline of the case. That month, Magana Ortiz:

[F]iled for a stay of removal [which] was granted, allowing him to remain with his family and pursue available routes to legal status. On November 2, 2016, Magana Ortiz filed for an additional stay of removal. Without any explanation, the government on March 21, 2017, reversed its position, and ordered him to report for removal the next month. A subsequent application for a stay was similarly denied.

On May 10, 2017, Magana Ortiz requested a stay of removal for nine months in the U.S. District Court for the District of Hawaii, which was denied, and on May 17, 2017, he appealed to the Ninth Circuit "to intervene".

The court admitted that it lacked the authority to grant Magana Ortiz' emergency motion for injunctive relief, and accordingly denied that motion.

Magana Ortiz has equities in the United States. His wife filed an immediate relative petition "over a year ago", and his daughter, who turns 21 in August, will, according to the order, also be filing an application. It does not appear, however, that he would be eligible for adjustment of status because of his illegal entry. He logically applied for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA), but for some reason (not clear from the order), if he did, that application was denied. No other form of relief is apparent from the order notwithstanding these equities, however, and the government sought his removal.

The Ninth Circuit was not satisfied with simply denying the motion however. The circuit court then complains that the government is "forc[ing it] to participate in ripping apart a family," contending:

Three United States citizen children will now have to choose between their father and their country. If they leave their homeland with their father, the children would be forced to move to a nation with which they have no connection. All three children were born in the United States; none has ever lived in Mexico or learned Spanish. Moving with their father would uproot their lives, interrupt their educations, and deprive them of the opportunities afforded by growing up in this country. If they remain in the United States, however, the children would not only lose a parent, but might also be deprived of their home, their opportunity for higher education, and their financial support. Subjecting vulnerable children to a choice between expulsion to a foreign land or losing the care and support of their father is not how this nation should treat its citizens.

The court then vents its spleen on the president directly, stating:

President Trump has claimed that his immigration policies would target the "bad hombres." The government's decision to remove Magana Ortiz shows that even the "good hombres" are not safe. Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government's decision to expel him is consistent with the President's promise of an immigration system with "a lot of heart." I find no such compassion in the government's choice to deport Magana Ortiz.

Having not fully expressed its disgust with the government's decision to deny an additional stay of removal to an alien ordered removed more than two years ago, the court concludes:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

There is a lot to criticize in this decision, but my main criticism has to do with the effect that it has on the court itself. In my recent post on the Fourth Circuit's decision in International Refugee Assistance Project v. Trump, examining section 2(c) of Executive Order 13,780, I quoted then-Judge (now Justice) Neil Gorsuch, who delineated the fundamental duties of any judge in stating:

As my daughters remind me, donning a robe doesn't make me any smarter. But the robe does mean something — and not just that I can hide coffee stains on my shirt. It serves as a reminder of what's expected of us—what Burke called the "cold neutrality of an impartial judge." It serves, too, as a reminder of the relatively modest station we're meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we're told to buy our own plain black robes — and I can attest the standard choir outfit at the local uniform supply store is a good deal. Ours is a judiciary of honest black polyester.

The Ninth Circuit's order in Mr. Maga Ortiz' case violates two of Justice Gorsuch's rules.

First, as I noted in reviewing the Fourth Circuit's majority opinion, there is no "cold neutrality" in the Ninth Circuit's ruling. It is personal, visceral, and vindictive. Not only does the Ninth Circuit attack the government for the decision that it has made, but it attacks the government for forcing the court to be complicit in that decision, despite the fact that the Justice Department could not, did not, and would not have filed with the District Court and did not and would not have filed with the circuit.

The law is the law, and the government here is simply applying the law. While there is discretion in deciding when to execute orders, the question becomes at what point to draw the line. Someone with three children, but not two? Someone with 26 years in the United States, but not 25? Congress has already provided cancellation of removal for aliens who have been in the United States for not less than 10 years after entering illegally and who can show "exceptional and extremely unusual hardship" to a citizen or lawful permanent resident spouse, parent, or child if they are removed. As noted, Magana Ortiz either didn't apply for it, or it was denied. That is reasonably where Congress believed the line should be drawn.

More importantly, however, this order strips away any pretense of neutrality on the part of the court. Judges make easy decisions and hard decisions, and that is part of being a judge. Every lawyer who would be a judge knows that, and any judge who cannot accept that part of the job should quit — there are plenty of applicants who would take the lifetime tenure of a circuit-court judgeship. A judge cannot let those emotions get in the way of applying the law, or the law becomes arbitrary in the eyes of the party and every future party. This is the sentiment behind John Adams' statement about "a government of laws and not of men".

On this point, the Ninth Circuit's order is, in some way, worse than Griffin's picture. It is beyond cavil that the picture is tasteless, and disturbing, and poorly thought out, appealing to the basest instinct of the bitterest partisan. Unless it inspires some aspiring assassin, however, it leaves no mark.

The Ninth Circuit's order, on the other hand, calls into question every other opinion by either of the circuit judges that went against the government. The Justice Department can only obtain certiorari from the Supreme Court so many times; did those judges, knowing this, issue a questionable opinion in the past because of the way they feel about the government, President Trump, or the immigration system? Who now knows?

The order also violates the last part of Justice Gorsuch's statement as well, that of the reminder that a black robe serves of "the relatively modest station [judges are] meant to occupy in a democratic society." Federal judges are appointed, not elected, and therefore are a poor substitute for the people's representatives when it comes to making laws. Three times in my life, I have seen a party lose its majority in the "people's" House of Representatives because the voters did not like the laws they made. Judge Reinhardt has sat on the Ninth Circuit since 1980, and will never face the voters.