On the most recent episode of Amicus, Dahlia Lithwick spoke with Luis Cortes-Romero, an attorney who was part of the team that prevailed in last week’s ruling on the Deferred Action for Childhood Arrivals program. The decision had particular resonance for Cortes-Romero, who is also a DACA recipient himself. Cortes-Romero shared what it was like becoming a lawyer under DACA, how he got involved in the case, and what it means to him. You can read a portion of their conversation, which has been edited and condensed for clarity, below.
Dahlia Lithwick: I know you’ve told it a thousand times, but can you start with your own story?
Luis Cortes-Romero: I was born in Mexico, and I was brought to the United States when I was about 1. I knew from a really early age that I was not born here, but I never really understood what that meant. My whole life has been a series of events of trying to figure out what it means by its limitations and complications, from not being able to get a driver’s license in California until, eventually, when I went to college. As someone without legal status, [I] can’t get financial aid. So we had to pay all of it out of pocket. It was in my first year of law school when I read an article in the L.A. Times about another undocumented law student who was unable to take the bar because of his status. And I had not thought about it before then. My first year of law school was very difficult. It’s a lot of work to then not get to practice law.
I called my mom, and I said, “I think, come Thanksgiving break, I’m going to pack up my stuff. I’m going to head back to California, and then I don’t think I’m coming back. And I’ll figure out something else to do.” And she gave me the most stern talking-to I think I’ve ever had. And she ultimately said, “It’s hard for people like us to make it in those spaces. And regardless of whether you get to practice law, they can’t unteach you what they’ve taught you. … You go in there, and you study, and you’ll finish, and then we’ll figure the rest of it out later.”
I was sobbing in my car because I really wanted to go home. I toughed it out, and my law school career was really me trying to make the most out of trying to be a lawyer. It was in the summer of 2012, right when I was going to go into my third year of law school, that DACA was announced. And it seemed the timing could not have been better. I was very cautiously optimistic about what it was, because the ask was, “Give us all your information, all of your background, come into the ICE office. And if you give us all that information, we promise that we’ll let you stay and give you this temporary permit.”
It seemed a bit too good to be true. I was like, “I’ll wait and see what happens.” I started to see other people starting to get their DACA protections and a work permit, and some of the basic building blocks that we need to participate in our society. So I applied. I went into the office, very nervously, gave them all my information. And a few months later I was approved. And I know that DACA itself is a temporary protection, but I think it’s oftentimes overlooked the profound, permanent change that it does to the soul. I didn’t know how heavy that sword of Damocles was of the threat of deportation until I didn’t have it anymore. And it changed me forever.
I think there’s a story we like to tell where we say this all starts with Donald Trump. But you grew up in the shadow of deportation threats. Your dad was deported.
Oh, absolutely. And DACA was really a response to that fear. One of the things that President Obama ran on in 2008 was this protection of immigrants. But what we saw by 2012 is that he was on pace to deport more people than any other president in history—he reached those numbers. In the immigrants’ rights movement, the direction kind of veered off a little bit from let’s try to get legal permanent residency and citizenship for as many people as we can to let’s stop deportations of young people, because young people are being deported en masse. DACA was not a gift from Obama; it was a political concession during an election year, 2012. And so it was very, very important to protect DACA, because it provided us the safeguard that we had lived under for so, so long.
It sounds to me as though throughout law school you were thinking about doing immigration. And then one of the first things you did led you to DACA. Can you talk about that path?
This is my favorite story. It was February 2017, President Trump had just been inaugurated, and we were all nervous about what that was going to mean on all fronts, but particularly the immigrant front. And so there was a young man, Daniel Ramirez, who got picked up by Immigration and Customs Enforcement. And we get a call from his brother, very panicked, on a Friday afternoon. He said, “ICE picked up my brother. He has DACA. He told them he has DACA, and they still took him.” He was detained at the Northwest Detention Center in Tacoma, [Washington,] one of the largest for-profit detention centers in the U.S.
I went to go see him because I immediately imagined what Daniel must have felt like as a DACA recipient, knowing that you thought you were protected and then you weren’t. His story didn’t make any sense: They were there for somebody else, and they saw Daniel, and they just picked him up. Later they tried to accuse them of being a gang member. Daniel would be the worst gang member in the world. He’s such a sensitive soul. I started asking around to see if maybe this was the new normal.
This is on Friday. I then got contacted by Mark Rosenbaum, who was with the ACLU for 40 years. He says, “I heard about your client Daniel’s case, and I want to help if it’s possible.” Sunday, he calls me and he goes, “I am here in Seattle. I flew up here. And would you mind if we meet with Daniel?” I pick them up at the airport. We head down to the detention center. We meet with Daniel. We’re leaving the detention center, and Mark says, “Let’s go to your office and let’s meet for a little bit.” We get to my office, and it’s there where I meet Ethan Dettmer, a partner at Gibson Dunn. So us three, we start meeting in my conference room about: What is DACA, really? What are its legal contours? What are its jurisdictional provisions? And we start getting into the real nitty-gritty of what DACA is and it isn’t.
We can’t wrap our brains around it. Mark says, “I know who we can call,” and he puts his phone on speaker phone, he calls somebody, and he starts asking about constitutional provisions, and I hear the voice. And I recognize it immediately, almost from like a post-traumatic stress disorder from the bar prep, because it was [UC Berkeley School of Law] dean Erwin Chemerinsky on the phone. And I was star-struck. Then Mark called professor Leah Litman. And then he had called professor Laurence Tribe. We were trying to all figure this out together, and this Sunday is moving now a lot faster than I thought it would.
Later that night, Mark calls me, and he says, “I think we figured it out. Let’s jump on a phone call all together. And we have to draft this right away and file it by tomorrow, Monday.” And I laughed, because I thought he might have been kidding [about] drafting all night. But no, we had got a team together, and together, overnight, we drafted a complaint about the protections of DACA.
So when DACA was terminated, we saw that the state of California filed a lawsuit, but we wanted to make sure that we filed a lawsuit that told the stories of the DACA recipients. We already had a great team to begin with. So we decided, “OK, let’s stick together. We were doing it with Daniel’s case. Now we’re going to take this on a more national scale.” And that’s how it all started.
You said something that becomes in a weird way the spine of John Roberts’ opinion, which is there’s this reliance interest, that a lot of people changed their lives in reliance on DACA.
I think that’s exactly right. And one of the things that was important to us was that it wasn’t just the DACA recipients that relied on it. It was the entire community that relied on it—the teachers and their students, the doctors and their patients, the lawyers and their clients. We’re talking about millions of people here who relied on the government’s promise. And in order to shift sharply that policy, there needs to be much more consideration than just an overnight change of heart. That’s why it was so important to tell the stories of what DACA recipients are contributing to our community, because it becomes a fabric of what makes America work. I’m so glad that Chief Justice Roberts saw that, because that was really the message that we were trying to get across.
This is not just telling your story. This is making yourself visible as also subject to deportation yourself. This is not what ordinary lawyers subject themselves to.
I would be lying if I said that I wasn’t scared. What it came down to is doing it anyway. I know that there’s a lot of people before me who risked themselves to get DACA protections. There’s a lot of people who were deported over it. And I knew that I was in a position of immense privilege of not just having DACA but being a lawyer. When I was going through law school, I didn’t know any other DACA recipients. I didn’t know any other undocumented lawyers. And I feel so lucky to get to do this. I knew that I couldn’t let that go to waste. I had talked about it with the rest of our legal team, our colleagues, about what this would mean. And we knew that this was important.
To hear the rest of their conversation as well as a discussion with Pam Karlan about the LGBTQ employment rights case also decided last week, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.