On Tuesday, the 9th U.S. Circuit Court of Appeals rejected Andres Magana Ortiz’s emergency motion to stay his deportation, allowing the government to deport him to Mexico. Although Magana Ortiz entered the country illegally, he has lived in the United States for 28 years. His wife and children are American citizens, and he is a businessman in Hawaii who has worked closely with the U.S. government to help fight pests that destroy coffee crops. Under the Obama administration, Magana Ortiz was permitted to remain in the U.S. and pursue a path to legal residency. But shortly after President Donald Trump took office and ramped up deportations, Magana Ortiz was ordered to report for removal.
Magana Ortiz sued, but because he is undocumented the 9th Circuit had little choice but to permit his deportation. One member of the three-judge panel, however, refused to let the case go quietly. In a remarkable concurrence, Judge Stephen Reinhardt pilloried the government for “expelling a good man from the country in which he has lived for the past 28 years.” Magana Ortiz’s deportation, Reinhardt wrote, “deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community.”
“The government forces us to participate in ripping apart a family,” Reinhardt continued:
Three United States citizen children will now have to choose between their father and their country. … Moving with their father would uproot their lives, interrupt their educations, and deprive them of the opportunities afforded by growing up in this country. If they remain in the United States, however, the children would not only lose a parent, but might also be deprived of their home, their opportunity for higher education, and their financial support. Subjecting vulnerable children to a choice between expulsion to a foreign land or losing the care and support of their father is not how this nation should treat its citizens.
Reinhardt then took direct aim at Trump:
President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe. Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government’s decision to expel him is consistent with the President’s promise of an immigration system with “a lot of heart.” I find no such compassion in the government’s choice to deport Magana Ortiz.
Then, in the most striking passage of his opinion, Reinhardt lambastes the administration for forcing judges to become complicit in the deportation of law-abiding individuals, an act he clearly views as a moral abomination:
We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.
Reinhardt’s concurrence is an impassioned defense of human dignity, but it also provides a gloomy reminder of the judiciary’s limits. Federal judges can force the executive to comply with the law, but they cannot save the country from lawful, if inhuman, overreach. Congress gave the president dangerously broad power to deport undocumented immigration. Until it curbs that authority, individuals like Magana Ortiz will receive little help from the courts.