After a two-hour hearing in Courtroom 1905 at the Richard B. Russell Federal Building and United States Courthouse in Atlanta, Jessica Colotl found herself mobbed by friends.
Ms. Colotl, who nearly a decade ago became the face of attempts in Georgia to ban undocumented immigrants from state colleges, once again has landed in the middle of a high-stakes immigration debate. This time, it's about whether the US government can arbitrarily decide when to withdraw temporary status gained under a deferred action program.
President Trump has promised the roughly 800,000 DREAMers, who were brought to the US as children, that his administration will treat them the same as the Obama administration did. And Mr. Trump has left in place the executive order governing their treatment – including giving them work permits and granting them temporary protection from deportation. But in May, Ms. Colotl was stunned to hear that her Deferred Action for Childhood Arrivals (DACA) status had been revoked, allegedly for a felony tied to a 2011 traffic incident.
In court on Thursday, however, the government’s lawyers acknowledged that there was no felony conviction, causing US District Judge Mark Cohen to wonder whether immigration officials were acting arbitrarily against a DREAMer. Judge Cohen said he would decide the case over the weekend.
“My main hope is to be able to go back to my regular life,” Colotl, a paralegal who has not been able to work or drive since May 3, told the Monitor after the hearing. “But I’m also hoping this will set the stage for other DREAMers, to where the government can’t arbitrarily revoke work permits or do other nonsense things” to DREAMers.
The government’s lawyers argued that the US District Court doesn’t have jurisdiction over this kind of immigration case. They said it was “unlikely” that Colotl would be detained as she awaited the resolution of her separate immigration case.
In essence a due process case, Colotl’s lawyers say it’s also about a fundamental promise made by the US government to these young people. Her attorneys argue that the government needed to follow its own guidelines and procedures, which they say would allow Colotl to get an extension to her work permit and driving privileges, which in Georgia are linked.
“This is a case where the government basically says, ‘We can make the rules, we can break the rules and there’s nothing you can do about it,’ ” says Charles Kuck, Colotl’s immigration lawyer. “That should make every citizen concerned.”
The Department of Homeland Security disagrees, however, and asserts that, indeed, it has virtually unlimited discretionary power to deport anyone here illegally.
“An individual with deferred action remains removable at any time, and DHS has the discretion to revoke deferred action unilaterally,” department attorneys argued in court documents on Thursday. They also pointed out the US Citizenship and Immigration Services informs the public that “DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time.”
As the Trump administration continues to aggressively enforce the nation’s immigration laws, in some cases deporting long-time residents without criminal records, a growing number of critics contend that the Trump administration has used its wide discretionary authority in an arbitrary and perhaps unconstitutional way.
Last week, a coalition of more than 200 advocacy groups, legal representatives, and faith leaders announced that they had begun to document a rise in what they say is the administration’s “arbitrary and capricious denials of bond and parole,” especially for asylum seekers.
“ICE routinely elects to deny parole for even the most urgent, humanitarian, and exceedingly reasonable requests,” they wrote in a letter to the agency’s director.
Like Colotl’s attorneys, they question whether the Trump administration may have violated federal administrative laws that require all federal agencies to obey their own rules. And they, too, see possible due process violations.
“In terms of what we’re documenting, many people who were denied parole or refused bonds were just given a cursory review of their case,” says Christina Fialho, executive director of Community Initiatives for Visiting Immigrants in Confinement, which organized the coalition. “Many received no explanation for the reasons why they were denied, even after their attorneys tried to obtain information from ICE agents.”
After six weeks of being locked up in an immigration detention center in Milan, N.M., Fredi Carrillo Martinez was starting to feel a little desperate.
An undocumented immigrant who has a DACA application pending, Mr. Carrillo Martinez, who was brought by his father to the United States when he was 8, had been picked up at an immigration checkpoint in early April. Prior to this, he had not been in trouble with the law before in 26 years in the country.
By mid-May, the rent for his apartment in Beaumont, Texas, was due, and his US-born wife and two sons were living on the family’s $4,000 in savings – which they had hoped to eventually use to buy a house, he says. He had expected to see a judge and post bond within 10 days, but officials told him his case had been delayed.
“The one thing that hurt the most, though, was that I had to have a conversation with my son, why I couldn’t make it to his award ceremony for the honor society at school,” says Carrillo Martinez, who had been working as a satellite dish technician.
With the help of a Santa Fe Dreamers Project attorney, Carrillo Martinez was able to go before an immigration judge, who issued him a $2,000 bond as he waits for his next hearing. His case does not appear as clear-cut as Colotl’s. “In reality, it’s disconcerting that there is a real possibility that I may be deported,” he says.
Nearly 61 percent of immigrants issued a “notice to appear” summons are now being held in detention, compared with about 27 percent of those issued notices to appear under the Obama administration.
The Trump administration, too, has put an end to the Obama administration’s “catch and release” policy, in which only those convicted of a serious felony or who posed a risk to public safety or national security were kept locked up. Supporters applaud the stronger stance against illegal immigration. But more families are being broken apart as immigrants with no criminal record are kept in detention, advocates say.
But as long as the administration adheres to the letter of the law, courts have not intervened.
Last month, the U.S. Circuit Court of Appeals for the 9th Circuit denied a request by an undocumented named Andres Magana Ortiz, who had been a respected member of Hawaii’s coffee farming industry for nearly three decades.
Mr. Magana Ortiz, who is married to a US citizen and has three US-born children, entered the country illegally when he was 15, and has lived in the US for the past 28 years.
According to the 9th Circuit panel, the long-time coffee farmer was “by all accounts a pillar of his community,” even allowing the US Department of Agriculture to conduct a five-year study on his land for free. But the court, considered one of the more liberal federal circuits, agreed that it was well within the Trump administration’s discretionary powers to deport him and bar him from returning for 10 years.
No blanket protection?
The question becomes what happens when government actions are contrary to its stated rules.
In April, Attorney General Jeff Sessions made clear that even though DACA participants were not necessarily being targeted for deportation, they should not assume they had blanket protection. “Everybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported – well, they are,” he said.
But critics say, as long as the Trump administration continues to leave Obama’s DACA executive actions in place, they have to abide by its guidelines.
“It’s of course true that the administration could get rid of the DACA program, but the important fact here is that they haven’t, and nothing has changed about the program’s rules,” says Michael Tan, staff attorney for the ACLU’s Immigrants’ Rights Project, in a conference call with reporters on Wednesday.
“It’s a principle of black letter law that agencies have to follow their own policies. So as long as DACA is in place, and those rules have remained unchanged, the government has no business going out there and saying, Jessica is somehow ineligible for DACA,” he continued.
Colotl says the Trump administration’s actions have sent a chill through many DACA beneficiaries. “All of them are feeling scared right now,” she says, “and they’re worried this could be taken away at any moment.”