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OpinionColumnistsMark Chiusano

Re-read this judge’s ruling

The opinion is an appeal to common sense and America’s founding philosophy.

The opinion is an appeal to common sense

The opinion is an appeal to common sense and America's founding philosophy. Photo Credit: AP / Julio Cortez

Last week, the Hon. Paul A. Crotty wrote a full-throated opinion decrying some practices of U.S. Immigration and Customs Enforcement. Crotty is a federal judge who sits on the bench in Manhattan, and late last month he mandated the immediate release of Pablo Villavicencio, the Ecuadorian immigrant who unlawfully entered the country in 2008 and was arrested by ICE after delivering Italian food to a Bay Ridge military base.

It’s worth revisiting Crotty’s written opinion to see someone try to inject some sanity and compassion into what has become a hyper-partisan, irrational, and cruel immigration debate. The document’s 19 pages had the immediate function of sending Villavicencio back to his home on Long Island and his American citizen wife and daughters, but the opinion is also an appeal to common sense and America’s founding philosophy.

Villavicencio went through immigration proceedings in 2010 and agreed to voluntarily leave, but didn’t. He “has otherwise been a model citizen,” Crotty wrote in a pointed summary.

“He has no criminal history. He has paid his taxes. And he has worked diligently to provide for his family.”

Crotty notes that Villavicencio went through the right channels to apply for immigration relief, a hopeful process given his wife’s citizenship. Soon after, he was arrested by ICE.

This is where the opinion gets heated.

“It should not be difficult to discern that families should be kept together rather than be separated by the thoughtless and cruel application of a so called ‘zero tolerance’ policy,” Crotty writes.

Villavicencio was in the process of regularizing his immigration status. Yet he was taken away from home, held a state away in New Jersey and threatened with deportation. The fact that the government was trying to remove him mid-process was a “mercurial exercise of executive power.”

Crotty goes on to cite further examples of questionable government behavior that are not directly related to the case, such as children being separated from their parents at the Mexican border and then “transported to New York where they are held. The Court does not believe that this is accidental or random.”

Rather, Crotty says it may be an attempt by ICE to “frustrate detainees’ connections to their support system of families and friends; retention of competent immigration counsel; and effective participation in the proceedings.”

In a footnote, Crotty compares ICE’s behavior on that front to one of the 27 grievances that colonials had with the British monarch, as listed by Thomas Jefferson in the Declaration of Independence: “For transporting us beyond Seas to be tried for pretended offences.”

It’s an elemental comparison. British attempts to remove some suspected criminals from American courts in the colonial period was a cause of concern, explains NYU professor of law Daniel Hulsebosch. One high-profile example was colonials arrested for commercial violations like smuggling or tax evasion, that old American tradition. Locals were angered by a British attempt to crack down. There was a fear that the British were going to “set up a separate legal system, parallel, outside of their control with different people running it,” says Hulsebosch.

Ultimately, the dispute scratched at some higher principles: the importance of local control over legal systems. And the importance of a fair and unbiased legal system more generally.

In Villavicencio’s case, the legal system proved key in bringing some sanity back into play regarding ICE actions. The court ordered him to be released while he pursues immigration relief.

Villavicencio is now back home in Hempstead where his wife says he is spending time playing with his daughters, ages 4 and 2, filling up the plastic pool in their backyard and taking them to the park to play hide and seek. One dark note is that they tend to panic every time he leaves the room for too long, even to wash the car. They’re struck with the fear that he might again be removed from their presence, thanks to the capricious whims of unseen authorities.

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