The Supreme Court protects a Mexican immigrant from deportation

By S.M. | NEW YORK

“WE HAVE some bad hombres here”, Donald Trump said in his third debate with Hillary Clinton, “and we’re going to get them out”. Ridding America of undocumented immigrants with criminal records is, rhetoric aside, not terribly far from Barack Obama’s position; he prioritised the deportation of people found guilty of violent and drug-related crimes. In practice, though, Mr Trump’s recent crackdown has ushered in a new era where none of the 11m unauthorised immigrants living in America feels especially secure. Mr Trump’s get-tough policy received two quite different messages from federal courts on May 30th. One, from the Supreme Court, limited executive discretion in the realm of deportation without ever naming Mr Trump. The other, from the Ninth Circuit Court of Appeals, upheld the deportation of a longtime Hawaii businessman and father of three while at the same time condemning the 45th president’s stance on immigration as “contrary to the values of this nation and its legal system”.

The unanimous decision from the Supreme Court in Esquivel-Quintana v Sessions gives Juan Esquivel-Quintana—now back in his native Mexico—a chance to return to America. When he was 12, Mr Esquivel-Quintana came legally with his parents to California and became a lawful permanent resident. Nearly a decade later, in 2009, he pled no contest to a charge of statutory rape for having consensual sex, at the age of 20, with his 16-year-old girlfriend. He served 90 days in jail and five years on probation. Thinking his debt to society had been paid, Mr Esquivel-Quintana moved to Michigan only to become the target of a Department of Homeland Security investigation. He was brought up on removal proceedings and ordered out of the country.

The reason for Mr Esquivel-Quintana’s departure? His relationship with the teen had constituted “sexual abuse of a minor” which is a deportable “aggravated felony” under the Immigration and Nationality Act (INA). Three rounds of litigation—before an immigration judge, a panel of the Board of Immigration Appeals and the Sixth Circuit Court of Appeals—confirmed this. During the oral argument in February, many justices seemed deeply unhappy with the way Mr Esquivel-Quintana had been treated. Justice Elena Kagan likened his crime to “a freshman in college going out with a junior in college”. In a dry, efficient 12-page opinion by Justice Clarence Thomas, the Supreme Court rejected the idea that Mr Esquivel-Quintana’s behaviour qualifies as an aggravated felony. California is one of only a handful of states that peg the age of consent as high as 18, Justice Thomas noted, while “[t]hirty-one states and the District of Columbia set the age of consent at 16 for statutory rape offences”. The more lenient standard is both widely shared and more reasonable, the court held, “absent some special relationship of trust” between the sexual partners. California’s statutory rape law would even punish “consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21”, Justice Thomas noted.

Mr Trump’s promise to deport law-breakers did not figure into the text or reasoning of the court’s decision in Esquivel-Quintana—the ruling was decided by ordinary methods of statutory interpretation and the government’s hardline position against Mr Esquivel-Quintana was set when Mr Obama was in office. But between the lines of the 8-0 decision lies an implicit message for the new administration: the courts will not bow down to executive determinations that long-time residents can be deported for the flimsiest of causes. The Board of Immigration Appeals will not receive a rubber stamp from the Supreme Court when its decisions seem inconsistent with a sensible understanding of the law. In the words of Jeffrey Fisher, the lawyer who argued Mr Esquivel-Quintana's case, "this decision shows that even when confronted with more workaday immigration matters than the travel ban, the Supreme Court will carefully scrutinise governmental positions for their legality and won't just roll over when faced with assertions of executive prerogative".

But judges do not always have the authority to correct clear violations of decency and justice by immigration officials. In fact, they seldom do. And when it comes to people who reside in the country illegally, courts typically are powerless to intervene. Such is the case with Andres Magana Ortiz, a man who has lived in Hawaii for nearly three decades and whose wife and three children are American citizens. Mr Magana Ortiz arrived in America illegally at the age of 15, but, with the exception of two convictions for driving under the influence (the most recent 14 years ago), has lived a law-abiding and productive life. “Since coming to the United States”, Judge Stephen Reinhardt wrote in an emotionally charged opinion, “Magana Ortiz has become a respected businessman in Hawaii and well established in the coffee farming industry. He has worked with the United States Department of Agriculture in researching the pests afflicting Hawaii’s coffee crop, and agreed to let the government use his farm, without charge, to conduct a five-year study”.

Until Mr Trump took office, Mr Magana Ortiz was on his way to achieving legal status in America. He was living under a stay of his removal from 2014, and reapplied for the stay last November. But on March 21, 2017, the government, “[w]ithout any explanation...reversed its position, and ordered him to report for removal the next month”. After several unsuccessful attempts for relief in court, Mr Magana Ortiz turned to the Ninth Circuit Court of Appeals for one more try. It was denied. “[W]e are without authority” to grant Mr Magana Ortiz’s request, Judge Reinhardt wrote. But the ruling came with a sharp critique of the government and a cry of regret. Mr Magana Ortiz “will be returned to Mexico, after having spent 28 years successfully building a life and family in this country”. He will also face “a ten-year bar against his return, likely forcing him to spend a decade deprived of his wife, children, and community”.

Judge Reinhardt did not hide his anger. The government, he wrote, “forces us to participate in ripping apart a family”, causing not only undocumented people but judges to “suffer a loss of dignity and humanity” by compelling them to participate in “inhumane acts”. Mr Magana Ortiz’s children “will now have to choose between their father and their country”. This “is not how this nation should treat its citizens”. The judge then called out the person he held responsible: “President Trump has claimed that his immigration policies would target the ‘bad hombres’. The government’s decision to remove Mr Magana Ortiz shows that even the ‘good hombres’ are not safe”.