Andres Ortiz v. Jefferson Sessions, III, et al

Filing

Filed Order for PUBLICATION (STEPHEN REINHARDT and JACQUELINE H. NGUYEN) The emergency motion for injunctive relief pending appeal [10437520-2] is denied. The briefing schedule established in the court s May 17, 2017 scheduling order continues to apply to this appeal. (SR concurring) (SEE ORDER FOR FULL TEXT) [10438340-2]

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FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

MAY 30 2017
MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

ANDRES MAGANA ORTIZ,
Petitioner-Appellant,
v.

No.

U.S. COURT OF APPEALS

17-16014

D.C. No.
1:17-cv-00210-LEK-KJM
District of Hawaii,
Honolulu

JEFFERSON B. SESSIONS III, Attorney
General; et al.,
ORDER
Respondents-Appellees.

Before: REINHARDT and NGUYEN, Circuit Judges.
The emergency motion for injunctive relief pending appeal (Docket Entry
No. 2) is denied.
The briefing schedule established in the court’s May 17, 2017 scheduling
order continues to apply to this appeal.

REINHARDT, Circuit Judge, concurring.
We are compelled to deny Mr. Magana Ortiz’s request for a stay of removal
because we do not have the authority to grant it. We are not, however, compelled
to find the government’s action in this case fair or just.

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The government’s insistence on expelling a good man from the country in
which he has lived for the past 28 years 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. Magana Ortiz, who first
entered the United States at 15, is now 43 years old, and during his almost three
decades here has raised a family and built a successful life. All of his children, ages
12, 14, and 20, were born in this country and are American citizens, as is his wife.
His eldest daughter currently attends the University of Hawaii, and he is paying for
her education.
Since coming to the United States, Magana Ortiz has become a respected
businessman in Hawaii and well established in the coffee farming industry. He has
worked with the United States Department of Agriculture in researching the pests
afflicting Hawaii’s coffee crop, and agreed to let the government use his farm,
without charge, to conduct a five-year study. In his time in this country Magana
Ortiz has built a house, started his own company, and paid his taxes. Although he
apparently has two convictions for driving under the influence, the latest of them
occurred fourteen years ago, and he has no history of any other crimes. Indeed,

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even the government conceded during the immigration proceedings that there was
no question as to Magana Ortiz’s good moral character.1
After his immigration case concluded with a decision to remove Magana
Ortiz because of his 1989 illegal entry into the United States, he filed for a stay of
removal in September 2014. That stay was granted, allowing him to remain with
his family and pursue available routes to legal status. On November 2, 2016,
Magana Ortiz filed for an additional stay of removal. Without any explanation, the
government on March 21, 2017 reversed its position, and ordered him to report for
removal the next month. A subsequent application for a stay was similarly denied,
and on May 10, 2017, Magana Ortiz went to the district court, where he filed an
emergency request for a stay of removal for a period of nine months. That request
was denied, and on May 17, 2017, he appealed to this court to intervene.
Magana Ortiz now asks us to stay his imminent removal. Because we are
without authority to do so, he will be returned to Mexico, after having spent 28
years successfully building a life and family in this country. He will also be subject

1

The original Hawaii court records are somewhat confusing with respect to
the second DUI conviction. If it did in fact occur, it is apparent that, as with the
first violation, Magana Ortiz was at most fined, and no sentence nor term of
probation was imposed. In any event, Magana Ortiz’s driving record is not the
basis of his removal.
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to a ten-year bar against his return, likely forcing him to spend a decade deprived
of his wife, children, and community.
This was not the necessary result. Magana Ortiz is currently attempting to
obtain legal status on the basis of his wife’s and children’s citizenship, a process
that is well underway. It has been over a year since his wife, Brenda, submitted her
application to have Magana Ortiz deemed her immediate relative. This August, his
eldest daughter, Victoria, will turn 21, and will also be able to file an application
for her father. All Magana Ortiz asked for in requesting a stay was to remain in this
country, his home of almost three decades, while pursuing such routes to legal
status. It was fully within the government’s power to once more grant his
reasonable request. Instead, it has ordered him deported immediately.
In doing so, the government forces us to participate in ripping apart a family.
Three United States citizen children will now have to choose between their father
and their country. If they leave their homeland with their father, the children would
be forced to move to a nation with which they have no connection. All three
children were born in the United States; none has ever lived in Mexico or learned
Spanish. 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
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lose a parent, but might also be deprived of their home, their opportunity for
higher education, and their financial support.2 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.
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.3 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.

2

The family’s right to occupy their home will terminate upon Magana
Ortiz’s removal.
3

On January 25, 2017, the President signed a series of executive orders
dismantling the system of priorities that had previously guided Immigration and
Customs Enforcement and Border Patrol in determining whom to deport. The
orders also gave far greater authority to individual agents and officers, who are
now removing non-citizens simply because they are here illegally, regardless of
whether they have committed any offense. In light of the breadth of these orders
and the lack of any apparent limit on agents’ discretion, the undocumented must
now choose between going to work, school, hospitals, and even court, and the risk
of being seized. See James Queally, ICE Agents Make Arrests at Courthouses, L.A.
Times, March 16, 2017.
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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.

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