Thomas MacMillan File Photo
Washington Colala (right) and law student Mark Pedulla.
It’s a bad idea for the U.S. government to deport Washington Colala before he can testify about alleged illegal activity by immigration agents, but I can’t stop it from happening, a federal judge said.
Judge Stefan Underhill made those statements during an unusual evening hearing in U.S. District court in Bridgeport on Thursday.
Law students representing Colala, a New Havener originally from Ecuador, were asking that the judge “stay” an order to deport their client. They argued that he’s needed as a plaintiff in an ongoing civil rights suit charging that federal Immigration and Customs Enforcement (ICE) agents violated the constitution during their June 2007 raids on New Haven homes. He’s one of 11 plaintiffs who say ICE agents entered their homes illegally and violated their 4th, 5th, and 10th Amendment rights.
Yale Law School students representing Colala have argued that ICE is pushing to deport Colala expeditiously in order to prevent him from testifying.
Christopher Dempsey, the attorney representing the U.S. government in the case, said ICE is simply following standard procedure. The government arrested Colala in the raids in 2007 and ordered him deported by an immigration court because he came to the U.S. without permission. Colala appealed that order and lost.
The 44-year-old Colala was initially given a deadline of last Monday to board a flight to Ecuador. His lawyers obtained a temporary order to forestall that date for a week, giving both sides time to argue the cases for and against the delay of his deportation.
After hearing those arguments on Thursday, Judge Underhill ruled that he has no authority to forestall the deportation any further. He proclaimed himself “very sympathetic” to Colala’s arguments but unable under the law to rule otherwise.
His ruling leaves Colala in limbo. A new deportation deadline has yet to be set by ICE. He could be ordered out of the country at any time.
However, Colala may be able to testify before he is deported. Dempsey said the government will not likely deport him for several weeks, and the government will consider deposing him next week.
As of Thursday evening, Colala had yet to decide if he wishes to appeal the matter further.
“Let me try to cut to the heart of the motion,” began Judge Underhill as court convened just before 5 p.m. on Thursday. He asked Colala’s legal representatives to explain what authority he has to stay a deportation order from ICE.
The order was given by an immigration court and upheld by an appeals court, Underhill said. He can’t now reach into another courtroom and reverse a decision that’s been made, he said.
“Can you cite any case where a stay or injunction was issued where the underlying issue was not before the court?” he asked the Yale law students.
Muneer Ahmad, a Yale law professor, said he could not.
“While we’re unable to produce a specific case where this has occurred,” Ahmad said, “what we’re presenting is squarely within the chamber’s case.”
Ahmad said he understands the court’s “hesitation.” But just because it hasn’t been done doesn’t mean it can’t be done, he argued.
Rebecca Schultz, a student working on the case, later said that the lack of precedent is due to the fact that ICE usually deports immigrants in Colala’s situation before they can make the argument he is making. It’s a Catch 22, she said: Without precedent, a judge won’t rule for immigrants like Colala. Without such a ruling, a precedent can’t be set.
Turning to the defense, Judge Underhill asked attorney Dempsey about the plaintiff’s claim that Colala will be unable to meaningfully participate in the case or speak with his legal representatives while isolated in his remote home province of Ecuador.
“Where there’s a will for plaintiff to communicate privately with his attorneys, there’s a way,” he said. The “logistical inconvenience” does not outweigh the need to deport Colala, Dempsey said.
Dempsey said that the government would send its lawyers to Ecuador, if necessary, to depose Colala on videotape. “I’ve done depositions all over the world. Pakistan, most recently.”
Does the government intend to pay for Colala’s lawyers to fly down as well and represent him during the deposition? Underhill asked.
Dempsey promised to negotiate with Colala’s attorneys about that. Maybe they could have a video teleconference, he said.
“But he’s here now. You have the opportunity now,” Underhill said. It’s the government that’s sending Colala to Ecuador, he said. Why shouldn’t the government pay for his lawyers to go represent him?
“I’m raising this because I don’t want questions later on who’s going to pay for what,” Underhill said.
Underhill then laid into the government for forcing Colala’s deportation in the midst of a civil rights suit, assuming it’s a tactical decision.
“If it’s a tactical decision, I think it’s a foolish one, but it’s not one I can overturn,” he said. If the case goes to a jury, it won’t sit well with jurors to see Colala testify by video from Ecuador because the government deported him, Underhill said.
“This is emphatically not a tactical decision,” Dempsey replied. If deportations were delayed in all cases like this, the immigration system would come to a “screeching halt,” he said.
Ahmad suggested that the parties agree to depose Colala within the next several weeks before deporting him.
Does the removal order have a deadline? Underhill asked.
No, but the procedure is to remove him as soon as his appeals are exhausted, Dempsey said. “We’re talking three years of litigation here.”
ICE has not set another date of deportation, Dempsey said. Given the circumstances, ICE will likely give Colala “a little bigger window,” Dempsey said. “A matter of weeks certainly.” The government will consider whether to depose him in the next week, he said.
“I would encourage the government to set a date of removal that is at least one month away,” Underhill said.
“I’m going to orally rule at this time,” Underhill said. “I’m going to deny the emergency motion that has been filed. … I’m very sympathetic to the concerns raised in this motion and I frankly wish I had the authority to do what has been requested of me.”
Underhill reiterated that he can’t overturn a valid order of removal that has been upheld by an appeals court: “I simply don’t have jurisdiction.”
After the ruling, Underhill shook hands with legal representatives on both sides. As Dempsey left the courtroom, he said that he couldn’t comment on the case. Colala’s team huddled around him. He, too, declined to comment.
“He’s disappointed,” said Mark Pedulla (at left in photo below), a Yale law student on the case. “He’s quite disappointed.”
Schultz (at right in photo below) said Colala now needs to decide if he will appeal Underhill’s ruling and seek another stay of deportation in a higher court. In the meantime, his lawyers will be talking with the government about when it now plans to deport him.
Thomas MacMillan Photo