[The below is what I care about, not things like this, which is not even really worth mentioning on a fiscal level, even if it was totally useless. Which as the first comment notes it probably was not. But, seriously, it is not what matters.]
There is an interesting article in today's NYT on some controversy in an Utah newspaper over immigration issues, which also discusses the complexities of the Church of Latter Day Saints' attempts to appeal to Hispanics:
“We, of all people, should be sensitive to the desire of others to provide more opportunities for themselves and their families,” Mr. Willes wrote, making a direct appeal to Mormons’ sense of their history. Like Mormons, who fled the Midwest in the mid-19th century after failing to assimilate into society, undocumented immigrants know what it is like to be outcasts, Mr. Willes said.
A post is forthcoming that in part touches upon Justice Breyer's new book, which includes a focus on the principle behind constitutional provisions. Another good "sidebar" piece by Adam Liptak suggests how principle sometimes is lost when applying the law. Justice Holmes' dry focus on only "law" aside, the Preamble's counsel to "establish justice" includes doing better for the mother and child than has occurred here. One hopes that the "fall between the cracks" nature of what happened to these two American citizens is not typical, but the mentality shown leads to some doubt. To cite the caption:
Monica Castro has asked the Supreme Court to hear an appeal in her suit against the government for deporting her daughter, an American citizen, with the girl’s undocumented immigrant father.
The article has to be read to be believed (well, not really, sadly enough). The mother of a baby is given "until [the] afternoon to get a court order if she wanted to keep her daughter," that is, not to have her deported with her undocumented non-citizen father. She was able to get her back three years later. Castro is left to seek out monetary damages to get a modicum of relief and put into practice remedies in place in part to influence future Border Patrol decisions of this sort:
Holding Mr. Gallardo and the girl overnight, long enough for an American court to sort things out, would have involved “a tremendous amount of money,” Gregory L. Kurupas, the agent in charge of the Lubbock and Amarillo stations at the time, testified in a 2006 deposition.
Asked to quantify the daunting sum, Agent Kurupas replied, “Well over $200 plus.”
Thus far, she has to deal with judges who let her know that it all is unfortunate and all, but we don't want to restrict their discretion or anything. A look at a recent en banc ruling linked by the article, shows that even one of the dissenting judges joins in (partially) with the "missing the forest for the trees" judgment. The fact that the panel is split underlines that the question is not clear-cut either way. This sort of sophistry is not compelled:
Again, Gallardo had his daughter, R.M.G., with him when he was arrested. By permitting Gallardo to keep R.M.G. with him, the Border Patrol agents did not improperly make a custody determination; rather, they left the status quo in place and refrained from making a custody determination, in that they declined to take R.M.G. away from Gallardo against his will. The Border Patrol agents cannot be meaningfully said to have “detained” or “deported” R.M.G., because it was Gallardo, and not the Border Patrol, who decided that the baby should go with him to Mexico.
Though I might be missing something, this sounds ridiculous. The agents let the father retain control of the child and take her out of the country. The mother's claim was known, including (at least for the sake of this lawsuit, see Judge Stewart's dissent) the American citizenship of the child. But, no no, they didn't "make a custody determination" at all; they just "left the status quo in place" (the status quo was that the father had custody -- legal control -- over the child!*). As to who "deported" her, it is not like the father wanted to leave the country and was allowed to take the child along. He was deported!
And, since the mother surely had a claim over the child (what court would not give her custody in this situation?!), by "allowing" him to take the child, and not giving her even a day to get a court order, what did they do if not "detain" the child, except in a merely sophistry type sense?! But, the mentality of certain judicial ideologies leads to this sort of thing. Government agents get discretion and attempts to limit it to some reasonable degree, or penalize the government for abuse of said discretion, leads to this sort of refusal to obtain judicial relief. Legal technicalities (and family values) are sometimes important, sometimes not.
To cite one of the headlines in the first story: "Terror en familias hispanas."
---
* Some might argue I'm using "custody" in a somewhat colloquial sense here, but that is something of the point -- legal principle at times resists ultra-technical application of legal terms, which in practice rarely turn out to be as clear-cut in practice. And, some family law expert probably can use "custody" quite technically and apply it in this situation.