Case of Two-Year-Old Citizen Who Was ‘Deported’ Dismissed

The media was all atwitter a few weeks back when a Trump-appointed federal district court judge in Louisiana expressed a “strong suspicion that the Government just deported a [two-year-old] U.S. citizen with no meaningful process”. That case has now been dismissed, which is good because the court based its “suspicion” on a fundamental misunderstanding of basic U.S. immigration law.

The Facts

On April 24, “Trish Mack”, who identified herself as the “custodian” of a two-year-old U.S. citizen identified as “V.M.L.”, filed a habeas petition on behalf of V.M.L. in the U.S. District Court for the Western District of Louisiana against Mellissa Harper, the ICE New Orleans field office director, and other government officials in a case denominated Mack v. Harper.

That petition alleged V.M.L. was “being held incommunicado” in DHS custody somewhere in Louisiana with her mother and without “legal authority”, given that the toddler was a U.S. citizen.

The mother and daughter — along with another daughter — were taken into ICE custody, the petition alleged, when the mother appeared at an ICE call-in appointment in New Orleans.

A simultaneously filed motion for a temporary restraining order (TRO) asked for V.M.L.’s release.

The next day, DOJ filed its opposition to that motion for a TRO, in which the department explained that V.M.L. was “in the lawful custody of her mother, Jenny Carolina Lopez Villela” who was scheduled to be removed that day “along with her two children, including V.M.L.”

As that opposition described the situation, Lopez Villela had told ICE she had “wanted to retain custody of V.M.L. and for V.M.L. to go with Ms. Lopez Villela to Honduras”, a fact supported by a handwritten letter from the mother to that effect that was attached to the government’s opposition.

DOJ described Mack as “an associate of a man who claims to be V.M.L.’s father” (identified in a declaration submitted by Harper as “Adiel Mendez Lopez”), but despite repeated requests by the agency for Mack and the purported father to present themselves, the pair never showed.

It was against this background that the judge assigned to the case — Terry A. Doughty — issued an order noting a discrepancy between the petitioner’s claim that the father wanted V.M.L. to remain with him and the government’s claim (and evidence) that Lopez Villela wanted the child to return with her to Honduras.

The judge explained that he had attempted — through the government — to speak to Lopez Villela to determine whether she wanted V.M.L. to be “deported with her”, but that by the time the government responded 47 minutes later, both mother and child were in Honduras. Accordingly, he expressed the suspicion stated at the outset and set the matter for hearing on May 16.

A subsequent order from the court on April 29 fills in some but not all of the details. Apparently, Mack is Lopez Villela’s sister-in-law, and the father was “implied to be an illegal immigrant as well” who was concerned that if he came forward, he would be deported, too.

The petitioners alleged Lopez Villela and the father agreed that the child would remain here with him, and that an “ICE agent allegedly agreed that VML would not be deported” — facts contradicted, respectively, by the letter submitted by the government and the fact that V.M.L. departed with her mother.

The Law

The departure of a U.S. citizen child in the custody of a deported parent is hardly novel under our immigration laws, and in fact there are reams of decisions stretching back decades that discuss the legal implications of such departures.

As the Ninth Circuit held in its 1986 decision in Ramirez-Durazo v. INS, “An alien illegally present in the United States cannot gain a favored status by the birth of a citizen child”.

To address situations in which such children would suffer inordinately when their parents were deported, however, Congress crafted a form of immigration relief known as “suspension of deportation”.

To be granted suspension, aliens facing deportation had to establish at least seven years of continuous presence in the United States, “good moral character” during that period, and that deportation would result in “extreme hardship” to either themselves or a spouse or child who is either a U.S. citizen or lawful permanent resident (“green card” holder).

To satisfy that “extreme hardship” requirement, suspension applicants began alleging they’d leave their U.S. citizen children behind if they were deported, resulting in “family separation”.

In 1994, the Board of Immigration Appeals (BIA) established a process for considering such claims and nipping the frivolous ones in the bud.

In its precedent decision Matter of Ige, the BIA held that suspension claims that U.S. citizen children would remain here when their parents were deported, and thereby suffer extreme hardship, would not be given “significant weight” absent “an affidavit from the parent or parents stating that it is their intention that the child remain in this country, accompanied by evidence demonstrating that reasonable provisions will be made for the child’s care and support”.

In other words, the law presumes U.S. citizen children of aliens will accompany their parents when they are removed, a fact underscored by the BIA in Matter of Ige when it noted: “The claim that the child will remain in the United States can easily be made for purposes of litigation, but most parents would not carry out such an alleged plan in reality.”

In 1996, Congress replaced “suspension of deportation” with an even more rigid form of immigration relief, cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA), also known as “42B cancellation”.

To be granted 42B cancellation, an alien must show (inter alia) 10 years of continuous presence here and that removal “would result in exceptional and extremely unusual hardship to the alien’s” U.S. citizen or green-card holding “spouse, parent, or child”, but that amendment did not change the rule in Ramirez-Durazo or the standard in Matter of Ige.

Simply put, if V.M.L.’s father wanted that U.S.-citizen child to remain here with him, he should have presented himself to ICE — as the agency asked him to — and presented a plan for how he would have cared for the child here. That didn’t happen.

The law is clear: Aliens don’t gain any “favored status” when they have children in this country, and the law presumes U.S.-born children of removable aliens will accompany their alien parents when they are removed.