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The Case of Oscar Millan and ICE's Renewed Focus on Strict Immigration Enforcement

Under the Obama administration, agents had discretion in cases of immigrants with gravely sick children. Under Trump, officers are told to enforce the law "to the greatest extent practicable."

Early last Monday morning, Oscar Millan's longtime partner called him from a Boston hospital, weepy with relief.

Their son, Oscar Matias, had been born two weeks earlier with a serious condition that prevented food from traveling from his stomach to his small intestine. But that morning, he'd undergone a successful surgery to repair it, and a second was scheduled for early June. Millan told his partner, Evanice Escudero, that he'd be by to pick them up in a couple of hours, after checking in on a landscaping job he had to do that day.

But Millan, a 37-year-old undocumented Mexican immigrant, never made it to the hospital.

As he drove to the job site, he was picked up by United States Immigration and Customs Enforcement agents, who were looking for him near his home in Framingham, Massachusetts, about 20 miles outside of Boston. In 2008, an immigration judge had ordered Millan deported after a failed asylum claim, but Millan had stayed in the country with his family until he recently pleaded guilty to driving under the influence (DUI). An ICE spokesman said Millan's arrest was prompted by both the deportation order and the conviction.

At the hospital, Escudero began to panic. "I was calling him over and over again but he wasn't picking up and I didn't know why," Escudero said in an interview in Spanish. "I didn't know what was going on until Oscar's mother came to pick me up at around 11 or noon."

After the arrest, ICE agents had gone to Millan and Escudero's house and explained to his mother what had happened.

The move to detain Millan is a sign that the Trump administration is delivering on its promise to strictly follow longstanding immigration laws to maximize its ability to deport people living unlawfully in the U.S.

After years of aggressive enforcement, the Obama administration had instructed immigration officials in 2014 to exercise more discretion in who they targeted. ICE agents were told to consider the length of time immigrants had lived in the country, their family or community ties, and whether they had a young child or a seriously ill relative before seeking their deportation. The Trump administration explicitly rescinded those guidelines in February. Instead, it told immigration officers to enforce the law "to the greatest extent practicable."

"He has to be with his family right now," said Matthew Cameron, a Boston lawyer who's representing Millan. "But you need to understand that there is no legal path, there never has been a legal path for that. It's a fairly typical story now in Trump's deportation system."

"The government's decision to remove Magana Ortiz shows that even the 'good hombres' are not safe."

An ICE spokesman said Millan would "remain in ICE custody pending his removal from the United States."

It's hard to say whether Millan's case is a direct result of Trump's aggressive immigration policies. Even without the DUI, a February memo from the Department of Homeland Security said immigration agents should prioritize the deportation of those who had outstanding orders to be removed.

During the first 100 days of the administration, ICE officers arrested 38 percent more immigrants than during the same period in 2016, about 410 individuals a day. The administration touted the numbers as a victory, but the narrow comparison obscures the evolution of the Obama administration on immigration enforcement. In fact, during the majority of his administration, President Barack Obama deported far more people each day than Trump has so far.

In the press release announcing the increase in arrests, ICE's acting director Thomas Homan said the agency would no longer sit on deportation orders—like the one Millan had for years—before enforcing them.

"We are a nation of laws, and ignoring orders issued by federal judges undermines our constitutional government," Homan said.

Millan was arrested in January of 2016 by a Framingham police officer for driving under the influence. At the time, a breathalyzer test said he had a blood-alcohol concentration almost twice the Massachusetts legal limit. The police report made no mention of his immigration status, other than mentioning that Millan had no valid driver's license, and had instead showed a Mexican one.

"After his conviction, he would have gone up the pecking order even under Obama," said Dan Kesselbrenner, executive director of the National Immigration Project, an advocacy organization based in Boston. "And there is no real pecking order under the Trump administration. Everyone is a priority."

Steven Carl, who led the Framingham Police Department until 2013, said that, during his time there the presence of ICE agents was rare, perhaps one or two days every six months. The town is 13 percent Hispanic, according to the 2010 census, and has a particularly large Brazilian population.

"It seems odd just because he has a DUI that they would pick him up," Carl said. "I'd think ICE would have higher priorities than that."

The Framingham Police Department, which has a policy of not actively cooperating with ICE, did not respond to requests for comment.

After his arrest on May 22nd, Millan was held in a Boston detention center but was recently sent to a larger facility in Louisiana. Cameron, his lawyer, has filed an emergency requestto stay his deportation—a last recourse—asking ICE to "allow him to remain with his family during this critical time in his newborn son's life." He said he has yet to receive a response, but the requirements of the administrative appeal are notoriously hard to decipher.

Millan's case echoes that of Andres Magana Ortiz, 43, a Mexican immigrant who lived in the U.S. for 28 years and was recently denied an emergency stay by ICE. The U.S. Court of Appeals for the 9th Circuit said on Tuesday that it had no authority to prevent his deportation.

ICE had granted Magana Ortiz multiple emergency stays over the years but denied his latest two petitions, filed in March and April of this year. During the time he was allowed to stay in the country, Magana Ortiz had begun the process to become a U.S. citizen after marrying an American in 2015. He is also the father of three American children and while he had two old DUI convictions, they had not prevented him from receiving the emergency stays in the past.

Two 9th Circuit judges said on Tuesday that they had no authority to grant Magana Ortiz an emergency stay. But one, Judge Stephen Reinhardt, a liberal appointee, used his concurring opinion to chastise the Trump administration.

"The government forces us to participate in ripping apart a family," Reinhardt wrote. "The government's decision to remove Magana Ortiz shows that even the 'good hombres' are not safe."

Since arriving in Louisiana this week, Escudero said she had spoken with Millan once.

"He's desperate," Escudero said. "Since he arrived, they've already sent one group to Honduras. They are sending people back so quickly."

This post originally appeared on ProPublica as "He Was About to Pick Up His Newborn Son After Surgery When He Was Arrested by ICE" and is republished here under a Creative Commons license.