Department of Homeland Security to Deport Longtime U.S. Residents
(Washington, D.C.) – The Department of Homeland Security (DHS) intends to deport two longtime U.S. residents, despite the fact that all three judges on a panel of the U.S. Court of Appeals for the Ninth Circuit have criticized the decision, with one judge calling it “the new title holder for the most senseless result possible.”
Mexican nationals by birth, husband and wife Ulises F. M-S. and Saturnina M. have been living in the United States for most of their lives: Ulises arrived at age 12, Saturnina as a six-month-old infant. The couple have worked, paid their taxes, served as model contributors to their community, and raised two U.S.-born children, ages 12 and 7. They have no criminal history. In addition to supporting their dependent U.S. citizen children, the couple provides support to Ulises’ parents, who are legal U.S. residents.
Victims of immigration scam artist Sergio Suner, Ulises and Saturnina brought themselves to the attention of DHS in 2001 when they tried to file for asylum (a task that was obviously impossible, given that neither Ulises nor Saturnina had set foot in Mexico in over a decade). DHS subsequently began removal proceedings. In August 2002 the couple applied for cancellation of their removal from the United States on the grounds that it would impose severe hardship on their two dependent parents and two children. In December 2004, after multiple hearings, an immigration judge denied cancellation of removal – despite the strong evidence of hardship to their family members residing in the U.S., including their U.S. citizen children. In February 2006 his decision was summarily affirmed by the Bureau of Immigration Appeals (BIA). After Ulises and Saturnina appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, the court appointed Akin Gump as pro bono counsel for the case.
Argument was heard on June 5, 2009. At that argument, each of the three judges on the Ninth Circuit panel made clear his disagreement with the government’s decision to deport Ulises and Saturnina. Judge Richard Clifton declared that in his seven years on the bench, the government’s decision was “the new title holder for the most senseless result possible.” Judge Clifton went on to decry the deceitful manner in which Ulises and Saturnina had been brought to the attention of the DHS, and then concluded by noting that he “sincerely believe[d]” that “the best interest of the country [is] not being served by proceeding with this matter.” Judge Milan Smith was no kinder to the government; he lamented the court’s inability to exercise “equitable jurisdiction” over the case, and likened the government’s undiscerning persecution of Ulises and Saturnina to that of the monomaniacal Inspector Javert in Les Miserables. And Judge William Fletcher cited the numerous ways in which Ulises and Saturnina are productive members of American society, admonishing the government to “go after the bad guys” rather than continue to engage in “an extraordinarily bad use of United States Government resources.”
All three judges implored the government to reconsider removing Ulises and Saturnina, and even offered the government a chance to mediate the dispute rather than pursue the deportation. On July 1, the government agreed to mediation on the condition that Akin Gump send to the Bureau of Immigration and Customs Enforcement a draft brief in support of a joint motion to reopen its clients’ immigration case. Although Akin Gump complied, on July 13 the government reneged on its offer, and officially declined the Court’s invitation to mediate on July 14. Three days later, the Ninth Circuit issued an opinion stating that it could not legally reach the merits of the appeal because it had no jurisdiction over the appeal under Title 8, Section 1252 of the U.S. Code.
Ulises and Saturnina’s family is now in an untenable position: Ulises and Saturnina must leave their U.S. citizen children and family members to begin a new life in a strange country in which they have no roots, no family members, no means of support (Ulises’ trade of woodwork carpentry is not a viable career path in Mexico) and no apparent prospects. In addition, only Ulises is fluent in Spanish. Meanwhile, Ulises’ parents and the couple’s minor children must find a way to survive in the United States without the emotional and financial support of Ulises and Saturnina. The government will have cast out two tax-paying residents, and will have thereby potentially turned those residents’ four dependents into public charges.
Akin Gump Strauss Hauer & Feld’s Steven Schulman, leader of the firm’s pro bono practice, stated, “It is not too late for the government to stop this tragedy from occurring. While immigration judges have so far allowed the government to deport our clients, that does not make the government’s decision sensible or humane policy. We hope that the government will do exactly as the Ninth Circuit itself requested, and exercise its discretion to abandon removal proceedings against our clients.”
Founded in 1945, Akin Gump Strauss Hauer & Feld LLP, a leading international law firm, numbers more than 800 lawyers in the United States, Europe, Asia and the Middle East.
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