As attorneys, we make written arguments in briefs, citing facts and precedent, adding our own flair of rhetorical persuasion. If the argument has merit, and it's based on confirmable facts, we tend to win, even if the judge we're addressing isn’t “on our side.” On the other hand, if your argument lacks proper citations, and you make claims that aren’t supportable, you tend to lose, and unfortunately sour the judge on trusting you as an attorney.
This past Labor Day weekend, the administration attempted to remove alien Guatemalan children and return them to their parents. It was done in the middle of the night, with many of the children roused from their beds. And the administration said that the parents had asked for their return. Like most, I wondered why there was a dispute.
A TRO (temporary restraining order) was granted, and the children, some of whom were already sitting in airplane seats at one a.m. on Sunday, were returned to DHHS custody.
On Thursday, I read the Memorandum of Judge Timothy Kelly, and as a reminder, Kelly was appointed to the bench by Donald Trump and has ruled in the administration's favor in the past. Kelly isn’t predisposed to rule against the administration. In this case, he did and he didn’t hold back on what seems to be sloppy legal work by DHS and its attorneys.
On page one, Kelly was pointed in his condemnation when recounting what he was told by DHS, that being that said children in the class were being reunited with their parents, and the parents had asked for their return. Apparently, that was untrue. Kelly wrote:
But that explanation crumbled like a house of cards about a week later. There is no evidence before the Court that the parents of these children sought their return.
In fact, an investigation by Guatemala's DOJ found no such support. I found that to be the least of the administration’s problems with this class action. A fair number of parents who sent their children to the U.S. would lie about wanting them back. They didn’t send their children north only to have them sent back. The problem is obvious. Why did DHS lie about having the support of parents? Again, that is a minor failing of the DHS's argument. Most of the memorandum deals with procedural mistakes, with DHS compounding those mistakes with nonsense.
For instance, there are several legal steps that DHS didn’t follow - statutes that it didn't follow. 8 U.S.C. § 1232(a)(5), 8 U.S.C. § 1229a, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), and a half dozen other statutes and criteria for repatriation of alien minors. DHS (Defendants) didn’t follow statutory procedures.
Beginning on page 25, Kelly deals with DHS’s tortured explanation of what “removal” means. Kelly defines "removal" in its common use and in the statutory language. DHS claimed that removal isn’t really removal to a country; that a child who is awaiting repatriation has been "removed" if the child is awaiting “removal.”
DHS also claimed that what it had done had a “longstanding statutory authority to reunify unaccompanied alien children.” Three pages later, Kelly states that DHS used three cases of reunification to justify a "longstanding statutory authority." One was a Mexican child, and one was from Canada. Mexico and Canada are exempt from the statutory authority at play. The third was a British child reunited with a grandparent at the UK embassy. Kelly wrote:
If their statutory authority is so “unambiguous,” ECF No. 35 at 4, why exercise it in the middle of the night on a holiday weekend with nothing but a late-night (or early-morning) notice to the children’s caretakers and advocates?
In the end, Defendants tried—and still want—to remove unaccompanied Guatemalan children from the United States. But because “calling a thing by a name does not make it so,” City of Madison, Joint Sch. Dist. No. 8 v. Wisc. Emp. Rels. Comm’n, 429 U.S. 167, 174 (1976), Defendants cannot dodge their statutory obligations under the TVPRA by asserting that these children are being reunified or repatriated without being removed. The statute does not free Defendants from the requirements that Congress imposed under § 1232(a)(5)(D) or permit them to rely on “an alternative extra-statutory system for removing” unaccompanied children just because the children may wind up with their parents.
...
Finally, the Court notes that even if Defendants possessed the “reunification” authority that they say nullifies the TVPRA’s provisions, the record shows that they likely have not lawfully exercised it as to most class members. The statute they invoke makes ORR responsible for reuniting unaccompanied children “with a parent abroad in appropriate cases.” 6 U.S.C. § 279(b)(1)(H) (emphasis added). Tracking this language, Defendants’ counsel represented to Judge Sooknanan his “understanding”: “for these children, a request has been made by either their parent or legal guardian.”
Kelly further explains:
Second, the record and Defendants’ conduct suggest that they are not applying their criteria accurately, consistently, or in ways that reflect good faith. Consider the criterion that excludes from eligibility any child whose “attorney of record” has “affirmatively protested the child’s reunification with their parent.” Salazar Decl. ¶ 10. How would any such attorney have had a reasonable opportunity to protest Defendants’ “reunification” plan when it was set in motion in the middle of the night on a holiday weekend?
I was honestly shocked while reading Kelly's Order. It seems to me that DHS managed to do nothing right. Kelly didn’t use language like “you lied to the court,” but what I read into this Order was pretty close. Like it or not, there are procedures to follow, and DHS appears to have failed to follow any of them in this case.
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