Unsustainable Forrest-ry

by Ed Whelan

Having previously encountered the wackiness of federal district judge (and Obama appointee) Katherine B. Forrest, I suppose that I shouldn’t be too surprised by her latest. But I am.

Two days ago, in Ragbir v. Sessions, Forrest ordered that the federal government release from its custody an alien, Ravidath Ragbir, who had forfeited his status as a lawful permanent resident and had been ordered deported from this country in 2006 because of his conviction in 2001 on charges of wire fraud and conspiracy to commit wire fraud. Forrest explicitly “agrees [with the government] that the statutory scheme governing [Ragbir’s] status is properly read to allow for his removal without further right of contest”—that it “allows [the government] to do what was done here,” i.e., to have Ragbir “suddenly taken into custody” earlier this month. But without citing any precedent, Forrest, trying to wax poetic, declares:             

There is, and ought to be in this great country, the freedom to say goodbye …, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time.

Forrest condemns as “unnecessarily cruel” (and even cites the Eighth Amendment as though it has some bearing on the matter) the fact that “a man we have allowed to live among us for years, to build a family and participate in the life of the community, was detained, handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell.”

“[I]f due process means anything at all,” she tells us, it must require that Ragbir be released so that he can “know and understand that the time has come [for his removal], that he must organize his affairs, and that he do so by a date certain.”

One might well lament that bureaucratic practices often aren’t as sensitive to real-life considerations as they might be. But Forrest’s notion that the Constitution forbids (or “may be so interpreted” to forbid) whatever she regards as unfair is simply lawless. And it seems perverse that, rather than giving the federal government any credit for the four stays of removal that it granted Ragbir since 2011, she invokes those stays only as evidence of the supposed cruelty of the government’s recent detention of him.

Worse, Forrest’s opinion is disingenuous nearly to the point of unintelligibility. Forrest asserts that Ragbir has “lived without incident in this country for years.” Only the very attentive reader will learn, in her eleventh and final footnote in the last paragraph of the body of her opinion, of the reason for Ragbir’s deportation order, his conviction in 2001. Until then, that reader might well have been puzzled over how a lawful permanent resident who had “lived without incident in this country for years” would find himself detained. As a matter of elementary judicial craftsmanship, his conviction should have been part of the basic narrative of the opinion.


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