A federal judge who blocked a Maryland resident's deportation while he was on a flight to his native China is weighing whether to allow the man to stay in the U.S. with his family while he seeks to legalize his immigration status.
U.S. District Judge George Hazel said he will issue a written ruling "relatively soon" after hearing arguments Friday on Wanrong Lin's request for a preliminary injunction. One of Lin's attorneys said a ruling in his favor could set a helpful precedent for other immigrants fighting deportation orders.
U.S. Immigration and Customs Enforcement agents detained Lin in August after he showed up for an interview as part of his application for a "stateside waiver," which allows noncitizens facing deportation to remain in the U.S. while seeking legal status. On Nov. 19, they put him on a commercial flight leaving New Jersey for Shanghai. The American Civil Liberties Union of Maryland sued on Lin's behalf only minutes before the plane took off.
Before the flight arrived in China, Hazel ordered Lin to be returned to the U.S. The judge said in his ruling last year that ICE agents can't use the waiver program "as a honeypot to trap undocumented immigrants who seek to take advantage of its protections."
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When Lin returned in December, he was taken into ICE custody after he got off the plane but released several hours later.
Lin, whose wife and three children are U.S. citizens, is asking for more time to stay in the country while he seeks permanent residence. Removing him now will keep him separated from his family for years, his lawyers said.
U.S. Justice Department lawyers argue the judge doesn't have the jurisdiction to halt Lin's deportation. They also claim Lin and his wife failed to seek an immigrant visa "diligently" and in a timely manner.
Lin's wife, Hui Fang Dong, became a naturalized U.S. citizen in 2004, the same year they married. Lin did not, but sought asylum in 2008, a request that was denied and resulted in an order for his deportation. He did not actually leave the country, however, until he was deported in November.
In 2016, Lin and Dong began applying for the stateside waiver. As part of the process they went for an interview at a federal immigration office in Baltimore in August to confirm the "bona fides" of their marriage, the ACLU lawyers said. The interviewer told Dong that the validity of their marriage would be confirmed but escorted Lin to a separate room for more questioning. That's when ICE agents arrested him.
ACLU attorneys claim federal authorities are misusing the waiver process to "lure and entrap" people seeking the program's legal benefits. Hazel ruled in November that Lin's lawyers made a "strong showing" that Department of Homeland Security has had a policy of "generally allowing" applicants for provisional waivers to remain in the U.S.
"To allow ICE — a federal agency under the jurisdiction of DHS — to arrest and deport those who seek this legal protection would be to allow DHS to nullify its own rule without explanation," the judge wrote.
ACLU of Maryland attorney Nick Steiner told Hazel on Friday that ICE has arrested other applicants at these interviews. The judge asked if ICE agents have a duty to carry out deportation orders.
"There are times when the government will forgo removing people," Steiner said. "It's not this blanket duty that applies in all circumstances."
Justice Department attorney Julian Kurz said ICE agents have the discretion to make arrests and enforce deportation orders "in a resource-efficient way." He said Lin's attorneys are asking the court to block an "indisputably valid removal order."
"Removing Lin would not be inconsistent with any statute, regulation or the Constitution," Kurz said.
Steiner said the ACLU has heard from others who fear getting arrested if they go to their interviews for the waiver program.
"If we are able to get a good ruling here, I think it will help other people," Steiner said before the hearing.
Lin and his family live in California, Maryland, and own and operate a restaurant in the St. Mary's County town. He doesn't have a criminal history, according to his lawyers.
Lin and his wife grew up in the same village in China's Fujian province, but they didn't become a couple until after his uncle arranged for them to meet in 2002, when he was living in Maryland and she was in North Carolina. Lin, 38, was 14 years old when he came to the U.S. alone in 1994.
Lin's lawyers say his U.S.-born children — 9, 12 and 14 years old — have been traumatized by their father's sudden absence and ongoing legal troubles. "The couple had no opportunity to plan for childcare or financial support, nor to prepare their children for a prolonged separation or say goodbye," they wrote in a court filing.
Steiner said Lin didn't attend Friday's hearing because he needed to tend to the family's restaurant, but his wife and children were in the courtroom.