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My Sleepy Saturday Night that Wasn’t (Sleepy)!

late night justice - ACLU helps with midnight case

Guest post shared by Vic Walczak, Legal Director of the American Civil Liberties Union (ACLU) Pennsylvania. The ACLU often provides pro bono support to clients represented by the JFCS Immigration Legal Services. The opinions expressed do not represent the opinions of JFCS.

From Vic Walczak, ACLU Pennsylvania

Two months into the lockdown, after another week of crazy hours on fast-moving COVID-related litigation, I was looking forward to an uneventful Saturday night of a nice dinner with the missus and my two home-bound daughters, and then doing pretty much nothing. Perfect. I needed some quiet time to do, well, nothing. And everything was working perfectly, until about 9:00, which began a night for the ages that involved an emergency court hearing that produced a 1:42 a.m. federal court order that in relevant part said as follows:

not so sleepy saturday

“all officers, agents, servants, employees, or attorneys of any of them, along with all other officers of the United States involved or to be involved in any manner with the actual or potential relocation of the Petitioner from this District, along with all other persons and entities who are or may be in active concert with any of them are hereby strictly restrained and enjoined from taking any action, or permitting any action to be taken, that would cause the physical location of the Petitioner to be at any place other than the Holy Family Institute located in this judicial district.”

“Petitioner,” if you’re wondering, is a lonely 17-year-old Guatemalan boy without family in Pittsburgh. Here’s his story, and how my highly anticipated snoozy night went awry.

The trajectory of my snoozy, perfect Saturday evening changed with a 9:00 p.m. call from an immigration lawyer at Jewish Family and Community Services (JFCS). She asked if I had a moment for an urgent matter. Curious, I said, of course. The gist was that a 17-year-old boy in the middle of immigration proceedings was being picked up at 3:00 in the morning to be flown to “the border” and then out of the country. 3:00 on this morning, like in six hours, I asked? Yup, she said, and again asked if I could help. Oh boy. It was already after 9:00 and colleagues will tell you that my functioning brain shuts down after about 10, since I’m an early morning person. But how could I say no. Let’s do it, I said, with some trepidation!

JFCS’s client is known as an unaccompanied minor, a legal term for a child under age 18 who has no lawful immigration status in the United States and has no parent or legal guardian here. I’ll call him Andre (referred to A.C.A. above), to protect his identity, but that’s not his real name. Andre crossed into this country in December 2018 with his father. He was sixteen. After being briefly detained, the pair were released in Houston to await immigration hearings.

Andre’s dad sent him to live with friends in Indianapolis, but soon thereafter the dad returned to Guatemala, leaving Andre to fend for himself. The dad took all the court paperwork with him. Young Andre worked construction jobs until January 2020, when a police officer questioned him and turned him over to immigration agents.

Special rules protect unaccompanied minors, which spared him a detention center. The Office of Refugee Resettlement (ORR), which has custody of immigrant minors, sent him to the Holy Family Institute, a nun-run home in the small town of Emsworth — near Pittsburgh — that by all accounts provides decent quarters and schooling. It’s not a jail. I have never visited, but have spoken to the director and have received good reports from lawyers who have been there. Andre had been there since February 1.

It was not until late April that Andre’s lawyers at JFCS learned that last summer an immigration judge held a hearing in Houston and ordered Andre deported because he wasn’t there. But no one told Andre there was a hearing. And no one told him the judge ordered him removed. Upon learning about the order, Andre’s JFCS lawyers immediately filed a motion to re-open the proceedings, which happens regularly. Immigration courts tend not to be either efficient or fair, so they often hold proceedings without telling the affected person, which is a problem, including under the constitution. JFCS lawyers had heard nothing from the court about a decision.

On Saturday afternoon (May 9), the JFCS lawyers received a call from a staffer at the Holy Family Institute to tell them that immigration officials had just advised them they would be picking Andre up at 3:00 a.m. to ship him to “the border” and then to Guatemala. The lawyers made some calls, confirmed the early-morning pickup, and learned that the stay at the border would only last until the government had “enough people” to fill the plane to Guatemala. Wait, the government is doing this to more kids!

By now it’s 10:00 p.m. on a Saturday night! I had no idea how I could possibly get a federal judge to issue an order to block the impending removal in just a few hours. The courthouse was closed. No one would be checking for newly-filed cases. So I emailed the chief federal judge in Pittsburgh, a good man whom I’ve known for nearly thirty years. He put me in touch with the two top deputies in the U.S. Attorney’s office, suggesting I try to work things out with them, and that if I couldn’t he would conduct a hearing. Game on!

For the next two hours I went between phone calls and emails with the assistant U.S. attorneys, talking to the JFCS lawyers to gather facts, prodding my ACLU Immigrants’ Rights Project colleagues for some legal help, and trying to write up an emergency habeas corpus petition and motion for emergency order to keep Andre here. The U.S. attorneys had told me they made a recommendation to their clients. These are good people, and I have a strong suspicion they advised immigration officials in Washington to hold off; what’s the rush, and why 3:00 a.m? At midnight, however, the government lawyers called to say that “higher ups” at immigration had decided that they could not postpone Andre’s 3:00 a.m. pickup. Wow. It was that important! The lawyers did say, by the way, pick-up time was actually 3:30. Whew!

I promptly notified the judge that we needed a hearing. If you knew Chief Judge Mark Hornak, you wouldn’t be surprised to hear that he was completely nonplussed about holding a midnight hearing, and shared instructions on how to file the legal papers and set up a conference line for the hearing. With some help from a west coast ACLU immigrants’ rights lawyer, I filed hastily cobbled emergency legal papers at 12:42 a.m. That’s the time on the court notification.

Judge Hornak convened the telephonic emergency hearing at about 12:50. All three of his law clerks were on the line, along with the two government attorneys and the JFCS lawyers. 1:00 a.m. on a Sunday morning. I kept looking at my computer clock thinking, this isn’t really happening. And, man, am I tired.

The three JFCS lawyers – Jamie, Joyce and Orlando — were my witnesses. They were sworn in and presented testimony, largely to verify that what we filed in writing was true and accurate. The judge had many questions. Most prominent being, why were U.S. immigration officials taking this kid away at 3:00 in the morning on a Sunday? He noted that the feds do that when serving a warrant for a dangerous felon they feared might abscond or destroy evidence. But by all accounts Andre was a 17-year-old kid, with no criminal record, sleeping safely in the custody of a bunch of nuns. It’s very “curious,” he said several times. The assistant U.S. attorneys didn’t have an answer. I’m pretty sure they were as puzzled as the rest of us.

At 1:42 a.m., the Judge verbally issued what’s known as a temporary restraining order, which is the most emergency court action available. He recognized that the young man had constitutional rights to due process, and the harm to him of being deported was clear. He also stated that the “Court is unable to identify any harm to the [government] if the status quo is preserved in this case. Allowing for a methodical and meaningful determination of the Petitioner’s ability to remain in the United States would be in the best interest of all.” Boom. We had done it.

I asked the judge to raise with the U.S. attorneys the importance of conveying the order to their clients so that there would not be any “misunderstandings.” It’s not that I didn’t trust the two U.S. attorneys, but at that ungodly hour it was easy to envision even important information falling through the cracks. The judge amplified my concern and the U.S. attorneys gave their assurances.

Oh, but there was one more matter. Under the federal rules of civil procedure, an injunction requires “security” from the party getting the order. I raised the fact that it’s often waived for indigent people, but the judge insisted he did not want there to be any excuse for the government to say the injunction was infirm. He asked if I had $50. I looked in my wallet and I had $65. I thought of making a joke about being a poor ACLU lawyer, but thought better of it. Yes, your Honor, I have the money.

He directed me to drive to his house to deliver the cash. We live in the same town, so it was only 10 minutes.

At 2:10 a.m., I stood on the judge’s front porch, handing him an envelope of cash. I thought, man, I hope no one is filming this. This can’t look good. He took the money, commented that he trusted me, but still counted the money. We stood on his porch under a clear moonlit sky, chatting for a few minutes about how crazy life had become. At 2:45 a.m., after returning home, I cracked open a Helltown (dank local brewery!) IPA, trying to decompress and absorb what had just happened.

The sleepy evening I longingly sought had turned into a wild thrill ride. Beyond the excitement of it all, the outcome was great. My client, whom I had never met, now had a good chance of winning his immigration case to be allowed to stay here. If we had lost, that dream would have ended in spectacular and tragic fashion.

But then my thoughts turned to who does this? Who whisks children out of deep slumber in the early morning hours to jet them across the country and then out of the country when they still have court proceedings? Oh right, the people who think it’s okay to put children in cages. The moral callousness of this administration is horrifying. How low can they go!

Perishing those dark thoughts, I reflected on the JFCS lawyers, who tried everything they could, starting Saturday afternoon, to save their client. Heroes for sure. And Judge Hornak. We’ve both practiced law a long time – including against each other a few times back in the day – but we discussed how neither of us have ever done a middle-of-the-night emergency hearing like this. And I thought of Andre, a child fleeing tragic circumstances who now had a shot at a better life in this country. I hope to meet Andre soon. In my vision of America, he is welcome here, and will make us a better, richer nation.

So how was your Saturday night?