The following is a true story about how I obtained a temporary stay of deportation, and eventually deferred action for a student whose only immigration sin was to overstay his grant of voluntary departure. Long before he became my client, the protagonist of this story was granted voluntary departure for 120 days from an Immigration Judge in Atlanta when he was all of 14 years old. Of all of the deportation cases I have defended in my career as an immigration defense lawyer, the defense of this case might constitute the "biggest rabbit I have ever pulled out of a hat."
"BRG" was a young teenager when he came to the U.S. to join certain family members from Latin America. It is best to use my client's initials BRG rather than his real name because in U.S. District Court under Federal Rule of Civil Procedure 5.2(a)(3) you are not permitted to use the real name of the litigant when the litigant is a minor. BRG was apprehended at the border with Mexico and stopped in early 2006. A relative obtained his release from custody and BRG was sent to Atlanta. He dutifully appeared in U.S. Immigration Court in 2006 when represented by his former counsel and was granted voluntary departure until November 26, 2006. Instead of returning to his Central American country, he continued to attend a high school in Cobb County, Georgia.
Cobb County, Georgia is a county which opted into the 287(g) program which has been detecting the presence in the County of all sorts of undocumented aliens. The most notable for the story line herein is that the 287(g) program has identified a large number of the offspring of undocumented aliens, many of whom only know this country because they were brought at a very tender age. The combination of the "criminalization" of driving without a license and the round the clock presence of state police officers at the local jails, who have received minimal training in immigration law under 287(g) programs, have led to a flood of young adults who are undocumented but really have nowhere to go in life.
BRG was one of these young adults present in the U.S. who have no country who wants them.
BRG's case started with my firm when an entourage of well wishers came to my office about 10 days after he was locked up by ICE in Atlanta. Shortly after his arrest, 18 year old BRG was transported two and a half hours to Lumpkin, Georgia. His friends and family asked me what I could do for him. It turns out that BRG was the sober driver on a night in late March 2009 when he and his school friends were apprehended by Cobb County, Georgia police officers. Upon a determination by the police officers that he did not have a driver's license he was taken to the adult detention center in Marietta, Georgia.
When immigrant clients come to my office for help to defend a deportation case, I do not lose sight of the obvious fact that a "Quixotic" defense costs real time and money to launch. I am a solo practitioner, and have been for the vast majority of my legal career. I have to spend a lot of time to plan a defense which is out of the ordinary. More often than not, the deployment of what my colleague Brian Bates of Texas has artfully coined "guerilla [sic] tactics" will end in prolonging the inevitable execution of an order of deportation, especially in those cases when your client does not have lawful permanent resident status to lose. I view it as my ethical duty to advise clients that the money that they would spend on a very long shot defense is probably better spent in starting a new life in my client's home country. I have been to quite a few, but certainly not to all, of the poor countries from where my clients came. The vast majority of my clients from these countries are best understood as 'economic refugees' to this country. I do not like to take client's money to handle a case or mount a defense if I don't think that I can win, or at least make a real difference somehow in the client's life while he or she is still in the U.S. I explained this point blank to BRG's well wishers.
They wanted me to try something for him despite my warnings and advice to give up on the inevitable. This time my typically conservative advice in 'Hail Mary' cases to save money for tomorrow's life outside the U.S. was proven wrong. If anyone had predicted that this case would end up the way it did within an hour after I first met BRG's well wishers in my conference room, I most likely would have told that person that he was insane. I reluctantly agreed with BRG's well wishers to develop, or at least to look for, a creative solution to BRG's detention. I started out by asking about the basics of the stop of the vehicle which led to BRG's arrest. Having handled for six years or so a heavy court appointed criminal case load in rural Georgia on behalf of mostly Spanish speaking defendants, I am more familiar with Fourth Amendment search and seizure issues, Fifth Amendment Due Process, and Sixth Amendment issues. Thus it was easy for me to grasp that there might be a Fourth Amendment issue worth noting. It turns out that there apparently was no traffic violation which would allow the police the requisite 'reasonable suspicion' to pull over the car and ask BRG for his license and insurance coverage. The police said at the time of the stop that there was a rear tail light which was not functioning. If this were true, the police officer would be justified under Georgia law to pull over the vehicle and ask for a driver's license and proof of insurance coverage. Thus, the stop would have been lawful. However, a well wisher who was called to pick up the car after BRG was taken into custody insisted that the tail light was working properly when she got there. This was enough of a credible allegation for me to raise the specter, or "defense," of racial profiling at least in order to fashion a remedy for BRG to finish high school somehow. I explained that there was no good legal basis to reopen the grant of voluntary departure because the only relief from deportation available to BRG in essence was a further extension of voluntary departure, which won't help him very much even if I could get the Immigration Judge to do it. Once you have overstayed a grant of voluntary departure, a further extension of voluntary departure may be statutorily, if not barred by regulation, if the proper warnings are given at the Master Calendar proceedings when voluntary departure is granted. On the other hand, if the stop of the vehicle which BRG was driving was indeed the product of racial profiling, the Fourth, Fifth and Fourteenth Amendments' protections against unlawful Government searches, seizures and police action based upon suspect classifications may come into play. Perhaps I could find a lawful basis for terminating proceedings, or for somehow obtaining habeas corpus relief.
In order to get into Federal Court in an immigration case, 'exhaustion of administrative remedies' is usually a prerequisite. Otherwise, all sorts of immigration disputes, as well as other Federal agency disputes, would readily be heard in Federal Court. There are Congressional statutes which require 'exhaustion of administrative remedies. There are numerous Federal Court decisions at all levels which require exhaustion of administrative remedies as a gatekeeper provision to have a dispute with a Federal agency heard and resolved on the merits in Federal Court. I decided to make a reasonable request of ICE, the government agency which enforces the immigration laws, deports individuals, and assists other law enforcement agencies. On the Monday after the office visit on in mid April, 2010 I sent an 'exhaustion of administrative remedies letter' requesting 'a small favor' from the local ICE Field Office Director. I requested that BRG be released from Lumpkin and equipped with an ankle monitor so that he could simply finish high school before his actual deportation to Central America. The time BRG was spending in detention was quickly minimizing the possibility that BRG would get his high school diploma this year. I further informed the Government officials in that office that in the event that this request was not granted, I would seek habeas corpus relief in US District Court for the Northern District of Georgia. (This was not the first, nor the second time I have obtained habeas corpus relief against this office). I drafted the 'exhaustion letter' and dropped it off at the local FEDEX box with a G-28 representation form, and went home that night thinking that this would probably be all that I could ever do for this client.
My own son was about a month away from graduating from high school, and this irony was not lost on me. BRG, a hard working and well liked immigrant kid who had the judgment to drive a car because his companions with a driver's license were drinking and could not safely drive, was not going to graduate from high school. At the same time, my more privileged eldest son was about to graduate from high school and would soon attend California's finest public university as a reward for his hard work. Sometimes life is not fair, or maybe sometimes it is. We'll let the reader judge. This is what the Dream Act controversy is all about.,p> [sic] Getting back to the story, I informed my client's well wishers that I did not realistically believe that I would get a phone call from the local ICE Field Office Director's office offering freedom from Lumpkin, an ankle monitor in lieu thereof, and finally a chance to finish high school. I was right! Instead I got a letter on the following Friday telling me that my client would remain in detention, and then he would be deported to his home country. Period. They were the law. I was the dreamer. Well, it just didn't turn out that way, as you will see.
The next logical step was to file a writ of habeas corpus. On Thursday my client's well wishers called me again and said that they were going to hire me to file a Petition for a Writ of Habeas Corpus in Federal Court the next day, or on Friday of the same week. Usually I do not do any work on a case before I am actually hired to do so, but in this case I believed them. I got up early on Friday morning and read all of the reported cases I could find in an hour and a half about racial profiling in the Federal Courts on my legal research provider's program. My current program tends to restrict cases to the immigration law field. There are about ten cases which I could find in a relatively short time of searching and reading. I found out that Rhode Island even has a statute outlawing racial profiling, although it may not be the only one passed by a state legislature. I read enough of these cases that morning to get a feel for the nature of 'the racial profiling defense.' I did not find any grants of a temporary restraining order against a perfectly valid deportation order. At the time I believed that this was exactly what I needed.
My client's well wishers came back to my office later that Friday morning, signed a contract, and I immediately started working on a Petition for a Writ of Habeas Corpus naming all of the Defendants I could. I stated a claim under the cases I could find founded in a violation of the Fourth, Fifth and Fourteenth Amendment. As an attorney who is no stranger to filing and occasionally litigating habeas corpus petitions, this work comes easy to me as I have handled quite a few in Federal courts and many more in state courts. However, this one got much harder fast because after a half hour of working on the habeas corpus petition I was told that BRG had just been informed by an ICE detention and removal officer that he was going to be deported that very evening. It was 10:30a.m. and I immediately put together two or three affidavits from witnesses who were willing to swear that the only reason the car was stopped was because it was a car typical to Hispanic youths. I also obtained an affidavit from the person who picked up the car, and she swore under oath that the rear tail light was working perfectly when she picked it up.
BRG got his wish, which was communicated to the Clerk by yours truly. Hon. U.S. District Judge Thomas Thrash was assigned to hear the case, which he actually heard in his courtroom at 4:30p.m. I made my argument brief, and requested a temporary restraining order. The Government responded. I asked if I could rebut what the Assistant U.S. Attorney had just said, and Judge Thrash said, "No, I have heard enough. I have read your petition, and I am granting a temporary restraining order against BRG's deportation.
At about 3:15p.m that fateful Friday afternoon I finished the assembly of the 'meatball petition' and I rushed to my car and drove to downtown Atlanta as fast as I could without getting pulled over - for a 'malfunctioning tail light.' O yes, I had the filing fee in my wallet for Case No. 1:09-cv-3281-CP - a five dollar bill!
The Government wanted no part of a hearing on the merits. I don't blame them as they are lawyers with a client, just like I am a lawyer with a client. Suppose that the Court did actually set a hearing and Judge Thrash found that the stop was indeed the product of racial profiling? The entire integrity of the 287(g) programs, now three in place, in force in the U.S. District for the Northern District of Georgia might be called into question - in short, the Government had a lot to lose if we prevailed on a permanent injunction against my client's deportation. Instead, the new Assistant U.S. Attorney who took over the case from the attorney who argued the TRO that fateful Friday afternoon filed a lengthy Motion to Dismiss sometime during the following week. It exceeded the permissible length of briefs by about 7 or 8 pages. The Government had to ask for the Court's permission to file a longer than permitted brief in support of its Motion to Dismiss. I didn't object, but I later decided to ask for an extension to respond to their motion, which they really couldn't object to given my lack of objection to the Government having exceeded the scope of the local civil rules.
The issue quickly became what to do next after I received the Government's Motion to Dismiss by electronic filing and service. I certainly did not want to litigate the jurisdictional issues presented by the Government. Try to remember that the 'defense of racial profiling' as I understand it was only born after the fateful events of September 11, 2001. There is little guidance available about how 'the defense of racial profiling' interacts with the restriction of review of deportation orders to the U.S. Court of Appeals which must be filed within 30 days of the final action by the Board of Immigration Appeals. We were in uncharted legal territory but I did not feel too confident about what more Judge Thrash could do for BRG if the Government would not agree to hold a hearing.
...Government did not want to give this kid a chance to finish his education which was guaranteed for all students physically present in the U.S. by a U.S. Supreme Court ruling in 1981 or 1982.
On Monday I got a phone call from my client telling me that they were taking his file to Atlanta from Lumpkin. This statement was odd, to say the least. I was in Court the next morning in an outlying county trying to keep someone out of jail for driving without a license. On the way back to Atlanta I got a call on my cell phone from an office in Washington, D.C. The decision had been made by ICE headquarters in our nation's capital that BRG was going to be granted deferred action. He was going to be let out of jail, and he would be allowed to finish high school.