Jurisprudence

No Mercy for a Dreamer

The case of Daniela Vargas embodies the casual cruelty of Trump’s war on lawful immigrants.

Daniela Vargas speaks at news conference on March 1 about her deportation fears.

ABC News

Last week, officers from Immigration and Customs Enforcement arrested 22-year-old Dreamer Daniela Vargas, a Mississippi resident who has been living in the United States since she was 7. But for a temporary lapse in her status under the Deferred Action for Childhood Arrivals immigration policy, Vargas has been everything America says it wants in an immigrant: well-educated, ambitious, law-abiding, and patriotic. It should surprise nobody that she is about to be deported.

Vargas was taken into ICE custody just moments after she publicly criticized the Trump  administration’s immigration raids, a move that makes it appear as if she was swept up by the immigration agency on account of what she said to the press. ICE agents have confirmed that Vargas was taken into custody “during a targeted immigration enforcement action.” One may well wonder what was being “targeted” in that action, if not her speech. In part because her arrest seemed so deliberately linked to her decision to speak out, her lawyers, the Southern Poverty Law Center, and other civil rights groups filed a petition in the U.S. District Court for the Western District of Louisiana on Monday to stop her deportation. Her attorneys are claiming that Vargas’ arrest amounts to retaliation against someone exercising her First Amendment rights.

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The petition explains that Vargas graduated high school in 2013 with honors and that she has attended East Central Community College and the University of Southern Mississippi, where she has studied to be a math teacher. In addition to her pending DACA renewal, she also has a petition pending for a “U” nonimmigrant visa, which is “set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.”

Vargas was at home in February when her brother and father were taken into ICE custody. Having lost her DACA status last November—her attorneys say she could not afford the $495 renewal fee at the time—Vargas had reapplied last month. When ICE agents raided Vargas’ home on Feb. 15, they led her father and brother away in handcuffs. According to her petition, Vargas told the agents she had been granted DACA status. She then went into her house, locked the door, and hid in a closet. The ICE agents returned with a search warrant. The petition alleges they broke down the front door and that an agent pointed a gun at Vargas when she emerged from the closet. Before they left the house, Vargas was allegedly told “that they knew her DACA had lapsed, but that they were giving her a ‘hall pass.’ ” Vargas then left the house and spoke to local media , which had gathered outside during the raid.

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Vargas’ hall pass apparently expired a few weeks later. On March 1, she spoke at a press conference, describing the raid on her home and the need for a pathway to citizenship. Moments later, she was pulled out of her friend’s car by ICE agents and arrested. According to her petition, one of the ICE agents who had been at the raid at her home said, “Remember me? You know who we are; you know why we’re here,” and “you’re under arrest for being an illegal immigrant.” Vargas has been in an ICE detention facility ever since. Her petition concludes that she is now “at imminent risk of deportation to Argentina—a country she left in 2001 at age seven, that she scarcely knows, and to which she fears returning.”

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ICE originally stated that Vargas’ case would be heard before an immigration judge. The Department of Homeland Security has apparently gone back on its word; it is now taking the position that Vargas is not entitled to contest her deportation as she entered this country in 2001 through the Visa Waiver Program. The statute establishing the VWP requires any noncitizen entering the U.S. to waive his or her right “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” Her lawyers argue that detaining and deporting Vargas without a hearing violates her Fifth Amendment due process rights, because at age 7 she could not have knowingly and voluntarily waived her right to seek a hearing to contest deportation.

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Vargas’ speech claims have broad implications not just for DACA recipients but for whistleblowers and immigration activists around the country. Her petition cites cases from the Fourth and Ninth Circuits, holding that everyone in the United States, including noncitizens, enjoys the “right to peaceful expression of views through public demonstration.” Vargas’ lawyers argue that the First Amendment prevents law enforcement officials from retaliating against speakers by “targeting, detaining, arresting, and/or seeking to deport an individual engaging in protected speech” where the officials’ actions “caused [the speaker] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity” and when those officials were “substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct.”

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There can be no dispute that Vargas’ remarks about the ICE raid on her family home represent the kind of core political speech the First Amendment is designed to protect. It’s also beyond dispute that Vargas had been permitted to stay in the country only days before and that the speech seems to have triggered a change in ICE policy. The Trump immigration effort, we were told, was supposed to consist of stepped-up deportations of criminals—not lawful political speakers. Vargas did nothing to warrant deportation without due process.

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The other problem, as her lawyers contend, is that nobody knows whether DACA is at risk under the new regime. DACA has afforded protections to 750,000 immigrants since the Obama administration launched it in 2012. In the weeks since his inauguration, Trump has given wildly conflicting messages about whether it will continue to be in effect. If Vargas is now at risk because of a brief technicality around her Dreamer status, it’s hardly clear that DACA still has real force. And if Dreamers can be removed for little more than giving a political speech, they are now as much at risk as other noncriminals in Trump’s America.

The casual cruelty of Trump’s war on lawful immigrants depends on the complicity of citizens, and the chilling of both protest and media watchdogging. In addition to our collective vigilance, the solution for the cruelty around the action against Daniela Vargas will be the same as the solution to Trump’s original, vicious travel ban: lawyers. Lots of them. The Southern Poverty Law Center announced Tuesday that it’s launching a new project to ensure that detained immigrants will have access to free lawyers. We are going to need them.

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