Monday Musings #50: My Hero: U.S. District Court Judge Fred Biery

After 37 years living and working in San Antonio as a journalist, I’ve met just about every newsmaker who has made a difference in this city. The people who have had the most profound and positive impact on me, and I would argue, the community and beyond, are not celebrities or household names. 

My heroes, a construct and word I generally avoid, are the servant leaders of the world. Last week, one of them made national headlines for doing what he has always done, though seldom attracting the attention of national policymakers and the media. 

U.S. District Judge Fred Biery has served on the federal bench since his lifetime appointment in 1993 by President Bill Clinton. The McAllen native and U.S. Army veteran, 78, has senior status now, meaning he could earn as much money in retirement as he does coming to the federal courthouse each workday. He has spent all 33 years of his federal judgeship here in the Western District of Texas, including his tenure as Chief Judge of the Western District from 2010-2015. 

No matter. The federal docket is crowded. Fred Biery still comes to work every morning. Anyone in Texas legal circles, especially lawyers who have come before the judge, is aware of his unconventional approach to garlanding and fortifying his legal decisions and opinions with literary references that can send attorneys and the media scrambling to catch up.

Biery’s commentary can range on any given judgment day from excerpts drawn from a Mark Twain tale to Deuteronomy in the Old Testament to the Magna Carta. These artfully crafted,  erudite views do not come thundering down from on high. Judge Biery employs healthy doses of humor, including puns and double entendre, to soften how his decisions land.

In my many conversations over the years with prosecutors and defense attorneys, I can say all sides are drawn to his findings the same way an insect cannot resist a Venus flytrap. I’ve seen lawyers on the losing end of his orders smile as the logic and conviction of Biery’s conclusions were slowly sinking in. Sometimes it takes a while. Waiting for a judicial verdict is one thing. Listening to someone whose mind travels down a millennium or more of Western civilization in search of context requires close attention.

Here is what Judge Biery had to say about his own legal writing in an interview last year.

What put Judge Biery in the headline last week? The short answer: His unwavering humanity, unshakable moral compass, and deep sense of decency and caring for the most vulnerable people who come before his court. (Have you been inside a federal or county courthouse of late? It can be a Dantesque parade of humanity: the lawyers in their tailored suits and briefcases; the defendants, a disproportionate number of them people of color, some in handcuffs or chains, others free on bond, dressed to punch in to work later; and clusters of family members, adults and children, anxiously awaiting an outcome.)

Last week, Judge Biery granted a motion of habeas corpus that allowed Ecuadoran citizen and asylum-seeker Adrian Conejo Arias and his 5-year-old son Liam Conejo Ramos to be released from an ICE detention center in Dilley, 73 miles south of San Antonio, and returned to Minneapolis where they were detained under questionable circumstances by ICE agents, brought to South Texas and incarcerated in a facility with the Orwellian name of the South Texas Family Residential Center to await their fate.

“One of the many unsettling images to emerge from the recent ICE surge in Minneapolis was that of 5-year-old Liam Conejo Ramos, in his blue bunny hat, standing in the January cold with the hand of a federal officer gripping his Spider-Man backpack,” A.O. Scott, a New York Times critic at large, wrote last week.

Biery is unsparing in his opinion, ordering the father and son’s release, stating, as many of us believe, that an untethered president, his worst instincts actively encouraged by a snug coterie of anti-democratic sycophants, is undermining the U.S. Constitution, this nation’s long adherence to the rule of law and the sanctity of every person’s civil rights.

No, I am not turning a blind eye to the history of undocumented immigrants coming into our country by the millions, but I know many of them are fleeing political persecution and many more are fleeing abject poverty. Who wouldn’t become an undocumented immigrant facing such threats and misery?

That doesn’t mean we should open our borders or look the other way, but the least we can do is hammer out new immigration laws that recognize the important role immigrants play in the U.S. economy. The Bracero Program from 1942 to 1964 had its faults, but it allowed millions of immigrants, mostly from Mexico, to come and go with the cycles of seasonal employment. The system in place today has been broken for decades, and neither political party in Washington has shown the vision or backbone to fix it.

So we lure immigrants here with the implicit promise of safety and employment, and then we criminalize them and accord them subhuman treatment. Minneapolis, a politically blue city, is ground zero for the Trump administration’s militaristic sweeps that could spread to many other blue cities, including San Antonio. Right now, we are only seeing skirmishes. Heavily armed masked men are seizing people, at times with unchecked violence, with little or no regard to their civil rights. The color of their skin, rather than their legal status, seems to be the only identifying quality shared by the detained.

Why did we grant legal asylum status to so many people fleeing chaos, violence and corruption, only to reverse course without cause to send out storm troopers to snatch them off the streets, around schools and churches, and from their lawful workplaces?

This is a moment to speak out, no matter how it might offend friends, neighbors and co-workers. The tactics I am witnessing today remind me of the scenes I witnessed in Central America in the 1980s when the cowardly security forces of El Salvador, Guatemala and Nicaragua were turned on their own people rather than some foreign enemy.   

Even conservatives who want to see immigrants detained and deported must be unsettled by what they are seeing on television screens and social media platforms. If not, friends, turning a blind eye will not make this moment in time go away or render it in history with an ounce of forgiveness.

The NYT article cites various examples of Judge Biery’s most widely read and often-quoted judgments rendered over the years. You can get on the internet to read more. I will leave you with his opinion and order in the case of one little boy and his father. No matter how pissed off you might be after reading what I’ve had to say this Monday, I hope you’ll read Judge Biery with an open mind. Click on the online version to access his citations and footnotes.

Here you go:

OPINION AND ORDER OF THE COURT

Before the Court is the petition of asylum seeker Adrian Conejo Arias and his five-year-old son for protection of the Great Writ of habeas corpus. They seek nothing more than some modicum of due process and the rule of law. The government has responded.

The case has its genesis in the ill-conceived and incompetently implemented government pursuit of daily deportation quotas, apparently, even if it requires traumatizing children. This Court and others regularly send undocumented people to prison and order them deported, but do so by proper legal procedures. Apparent also is the government’s ignorance of an American historical document called the Declaration of Independence. Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation. Among others were:

1. “He has sent hither Swarms of Officers to harass our People.”

2. “He has excited domestic Insurrection among us.”

3. “For quartering large Bodies of Armed Troops among us.”

4. “He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures.”“We the people” are hearing echoes of that history.

And then there is that pesky inconvenience called the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.

U.S. CONST. amend. IV.

That is called the fox guarding the henhouse. The Constitution requires an independent judicial officer.

Accordingly, the Court finds that the Constitution of these United States trumps this administration’s detention of petitioner Adrian Conejo Arias and his minor son, L.C.R. The Great Writ and release from detention are GRANTED pursuant to the attached Judgment.

Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned.

Ultimately, Petitioners may, because of the arcane United States immigration system, return to their home country, involuntarily or by self-deportation. But that result should occur through a more orderly and humane policy than currently in place.

It is so ORDERED.