WASHINGTON -- For about 10 minutes next week, the U.S. Supreme Court will hear from several million undocumented immigrants, all of them potential beneficiaries under President Barack Obama’s stalled executive actions on immigration.
They won't all be there, of course, and the vast majority are probably unaware that someone will even be speaking for them. But three women -- all mothers with young children who are U.S. citizens -- have chosen to take a stand in court for themselves and all the others like them.
Through their attorney, the mothers will tell the justices that more than legal lines and constitutional prerogatives are at play in United States v. Texas. There are real lives at stake.
“I felt the need to speak up,” said one of them, identified in court papers as Jane Doe #2, in an interview conducted in Spanish with The Huffington Post. “Unfortunately, there are many who are in my same situation but choose not to speak up. They stay quiet for fear of retaliation or that they’d be deported.”
The three Jane Does are what the law calls “intervenors” in a watershed case that began as a longshot challenge to the president's deportation relief programs. It now stands to redefine the contours of executive power and the executive branch’s exercise of prosecutorial discretion under the Constitution.
The bulk of the hearing next Monday will focus on these and other thorny legal issues -- and arguments will be made by lawyers for the United States, for Texas and for the U.S. House of Representatives, which last month voted to side with the states against the president.
But the women will add "the perspective of the only non-institutional, human participants in the case as parties," said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, in a press briefing on Thursday. MALDEF is representing the women, with the pro bono help of the law firms O'Melveny & Myers and DLA Piper. Saenz will present their argument before the Supreme Court.
"There is an urgency to the case of the Does that is unique in this litigation," Nina Perales, vice president of litigation at MALDEF, said in an interview. "Every month that goes by without this policy in place, without this guidance in place, is a month of suffering and fear."
Evidence of that is the fact that the Jane Does won't actually be at the court, because checkpoints in the region along the U.S.-Mexico border mean they risk revealing their undocumented status to the authorities if they try to travel outside the area. “Landlocked” is how Carlos García, Jane Doe #2’s local attorney, described the women’s living situation.
Obama announced plans in November 2014 for a broad expansion of deportation relief, but those initiatives were blocked under a nationwide injunction issued in this case in February 2015. The Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA, would allow certain certain parents who are undocumented immigrants to remain in the U.S. and work for three years. Obama also planned to expand the existing Deferred Action for Childhood Arrivals program, or DACA, to allow more undocumented immigrants who came to the U.S. as children to stay temporarily and gain work authorization. The two efforts could aid as many as 3.7 million people, according to an estimate from the Migration Policy Institute.
Texas, joined by 25 other states, sued in December 2014 to halt the implementation of the programs -- arguing, among other claims, that the programs would harm the states' interests and that the Obama administration had overstepped its executive authority. Lower courts accepted the first claim but never addressed the latter constitutional question. That is, until the Supreme Court stepped in and decided to rule anyway on whether the president’s immigration plan runs afoul of the Constitution’s requirement that he “take care” that the laws be faithfully executed.
“Every month that goes by without this policy in place, without this guidance in place, is a month of suffering and fear.”
But the women had a role in the case long before it reached the justices or became an issue of election-year politics.
Soon after the litigation began in the federal courthouse in Brownsville, Texas, Perales and her team began reaching out to contacts in the state’s Rio Grande Valley region to find undocumented immigrants who might be helped by DAPA or the expansion of DACA and who would be interested in participating in MALDEF's intervention. She ended up connecting with the three Jane Does, all of whom are originally from Mexico and would be eligible for DAPA as mothers of U.S. citizen children.
In an interview, Jane Doe #2, who lives in McAllen, Texas, said that she has two U.S.-born children: a 7-year-old son who is in second grade and a 5-year-old daughter who is in preschool. Even as she helps care for her mother, who has Alzheimer’s, she is trying to earn her GED in hopes of better work opportunities and to provide for her children.
“Sentí mucha emoción,” Jane Doe #2 said in Spanish, by which she meant she was overcome with emotion when she first learned of Obama’s executive actions. If upheld, DAPA would give her the chance to obtain a better job and a driver’s license, without worrying that immigration authorities would one day seek her deportation.
“What would happen to my children? They are very small,” she said. Asked if her children knew about her status and her court involvement, she said, “My children don’t know that I’m illegal. I haven’t told them about any of this. I don’t talk to them about any of this for fear that one day an official may ask them [about me] and they’ll tell them I’m illegal.”
MALDEF did not make the other two women available for interviews, but sworn declarations filed in federal court in January 2015, a month after the lawsuit began, shed some light on who they are. Jane Doe #1 lives in Edinburg, Texas, and moved to the U.S. from Mexico 15 years ago. She is married with four children, the youngest of whom was 8 years old at the time of the filing. She is an active volunteer at her church and her children's schools, and she works selling tamales, other food and catalog items.
Jane Doe #3 moved to the U.S. from Mexico 11 years ago and lives in Donna, Texas. She has a 2-year-old daughter. To support her family, she sells food and other items at a flea market, and previously worked as a waitress and in child care.
That these mothers are living in the shadows is implicit in their court filings, which argue that they must remain anonymous lest they “face opprobrium and possibly harassment from members of the public who support” the states’ legal challenge.
The women and their attorneys had to fight to be involved in the lawsuit at all, over the wishes of the U.S. government and the states suing it. Both opposed the intervention by MALDEF when the case was before U.S. District Judge Andrew Hanen, whose ruling blocking DAPA and the expanded DACA set in motion the case’s tortured path toward the Supreme Court.
"Nobody, no one, wanted us in" the case, Perales said. The U.S. government's position, in particular, took MALDEF by surprise.
"We were surprised because we thought that we could add something to the litigation, that it would be better to have the presence of parents who are affected by this policy, and we thought the defense would benefit from having the participation of the Does," Perales said. The U.S. Solicitor General’s Office, which will present the government’s position at the Supreme Court on Monday, declined to comment for this story.
In a tersely worded order, Hanen denied the mothers' request to intervene in the case.
Perales said he also rejected similar requests from a motley crew of interested characters, including a goat farmer, birther advocate and attorney Orly Taitz and immigration hardliner Sheriff Joe Arpaio -- whose own challenge to the president’s immigration orders was turned away in January by the Supreme Court. Perales accused Hanen of being "incapable of differentiating" between the mothers and "a very kooky group of people."
An appeals court saw things differently. In November 2015, on the same day it dealt a blow to the Obama administration by upholding Hanen’s injunction against the deportation relief programs, the U.S. Court of Appeals for the 5th Circuit issued a separate decision siding with the women.
“The Jane Does themselves will or will not be eligible for deferred action, depending on the outcome of this case,” the 5th Circuit said in a 16-page decision. The court stressed that “their interest in avoiding deportation is a concrete, personalized interest that is legally protected by” the Constitution.
Now that the women are officially part of the case, they’ve become allies of a sort with the federal government in its bid to lift the hold on the executive actions. Last week, the Supreme Court agreed to give the mothers' legal team 10 minutes of the Obama administration’s argument time to present their case.
"The issue was simply too important to pack up our bags and go home," Perales said.
A decision in United States v. Texas is expected sometime before the end of June.
Cristian Farias reported from New York. Elise Foley reported from Washington, D.C.