No. 1:17-cv-00210-LEK-KJM District of Hawaii, Honolulu
Before: REINHARDT and NGUYEN, Circuit Judges.
emergency motion for injunctive relief pending appeal (Docket
Entry No. 2) is denied.
briefing schedule established in the court's May 17, 2017
scheduling order continues to apply to this appeal.
REINHARDT, Circuit Judge, concurring.
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.
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.
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, even the
government conceded during the immigration proceedings that
there was no question as to Magana Ortiz's good moral
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.
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 to a
ten-year bar against his return, likely forcing him to spend
a decade deprived of his wife, children, and community.
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.
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 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
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
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 ...