A Summary of Magana Ortiz v. Sessions by Law Student Niki Moshiri
In Magana Ortiz v. Sessions, the U.S. Court of Appeals for the Ninth Circuit (Judges Stephen Reinhardt and Jacqueline Nyuyen) denied an emergency stay of removal pending appeal. Judge Reinhardt concurred in an opinion that has previously been discussed on this blog and which received a fair amount of press attention. Below is a summary of the case drawn from the concurrence.
Magana Ortiz v. Sessions (9th Cir. May 30, 2017)
During prior immigration proceedings, Petitioner Andres Magana Ortiz was deemed to be of good moral character, despite two prior DUIs. Regardless, the government ordered removal on the basis of his unlawful entry into the United States in 1989. Following this decision, Magana Ortiz filed for a stay of removal in September 2014. The stay was granted and he was allowed to remain with his family and explore options to attain legal status.
On November 2, 2016, Magana Ortiz filed for an additional stay of removal. The government rejected the request without explanation, and he was ordered to report for removal the following month. An additional application for a stay was rejected. On May 10, 2017, Magana Ortiz filed an emergency request in the district court for a stay of removal for a nine-month period. When the emergency request was denied, he appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for injunctive relief against the U.S. government. The question before the court was whether the district court should have granted Magana Ortiz’s request for a stay for removal. the court held that it lacked legal authority to grant the stay.
As recited by Judge Reinhardt, the facts are compelling. Magana Ortiz arrived in the United States at age 15. He is now 43. In those 28 years, he built his home here, paid taxes, and became a father to his three U.S.-born (and thus U.S. citizen) children with his wife Brenda, an American citizen. His children are ages 12, 14, and 20. Magana Ortiz is paying for the education of the oldest child as she attends university in Hawaii.
By all appearances, Magana Ortiz is a productive and responsible member of his community. He has started a company, and in Hawaii he has a well-established reputation as a respectable businessman in the coffee farming industry, even lending his farm free of charge to the U.S. Department of Agriculture for a five-year study on pests affecting Hawaii’s coffee crop.
While he has two convictions for driving under the influence in his record — the latest of which took place fourteen years ago — the government had conceded during immigration proceedings that he maintained good moral character.
After the government ordered his removal in March of 2017, Magana Ortiz requested a stay in order to remain in the U.S. to pursue a means of attaining legal status. This is in the works, as his wife submitted an application to have him deemed an immediate relative over a year ago. His oldest daughter turns 21 in August 2017, at which point she will also able to file an application for her father.
Until then, the government’s decision splits this family and subjects Magana Ortiz to a ten-year ban on his return. His children have spent the entirety of their lives in this country, and now have two options. They can remain here as their father is deported. If they stay in the United States, they lose not only a parent, but potentially also their physical home, their chances to attain higher education, and financial support. The other option is to join their father and interrupt their lives to start anew in a country they have never known, among people who speak a language they have never learned. To choose the latter would also mean an interruption of their education and a deprivation of the opportunities they could have in the United States.
The government’s decision was based on the current administration’s immigration policies intended to target those the President has characterized as “bad hombres.” On January 25, 2017, the President signed executive orders that eliminated the system of priorities that Immigration and Customs Enforcement and Border Patrol used to make deportation decisions. These executive orders also had expanded individual officers’ authority to deport noncitizens, broadening the scope of immigrants at risk from those who have committed an offense to those who are merely here illegally, regardless of whether they committed any offenses. Consequently, authorities now have vastly greater power to deport the undocumented, with far less discretion in such undertakings. Undocumented persons in the U.S. thus face greater risks of removal which could affect their abilities in daily endeavors like school and work, or seeking medical care in hospitals and legal matters in courts.
Although the court concurs in its holding to remove Magana Ortiz, it acknowledges that it has no power to do otherwise, and takes the opportunity to strongly object to the Trump administration’s decision to deport Magana Ortiz. Judge Reinhardt writes that this removal is contrary to the values of the United States and its legal system. The judges who must uphold such decisions for lack of authority to reject them are victims of this system as well, as they suffer a loss of dignity and humanity, unable to pursue justice. Under this current policy, a man like Magana Ortiz — who had built a life with roots here, who was deemed to have good moral character, and who was in the process of seeking legal status via proper channels — was regardless deported, in what Judge Reinhardt views as an unnecessary move.
Niki Moshiri is a rising second year student at UC Davis School of Law.
KJ