Declining Deportations and Increasing Criminal Alien Releases

Posted on May 20, 2016May 20, 2016 by Denise Simon

Declining Deportations and Increasing Criminal Alien Releases –

The Lawless Immigration Policies of the Obama Administration

Subcommittee on Immigration and the National Interest

May 19, 2016

Statement of Mark Krikorian

Executive Director, Center for Immigration Studies

Hearing May 19, 2016

Deportation is crucial. Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.

– Barbara Jordan

CIS: The Obama administration has embraced a radical new approach to immigration law. It has, without the consent of Congress, transformed violation of immigration law into a “secondary offense.” That is to say, the goal is to ensure that an alien faces consequences for breaking immigration law only if he also breaks some other, “real,” law involving, say, violence or drug dealing. And even then, the primary violation has to be quite severe to warrant deportation for the (secondary) immigration offense.

This is comparable to the seat belt laws in many states; in places where failing to wear a seat belt is a secondary offense, a police officer cannot pull you over just for that, but if he pulls you over for speeding or some other primary offense, he can then also write a seat belt citation.

The administration’s November 2014 deportation priorities memo pretends this is not so; it includes ordinary violations of immigration law, but only as the lowest priority for deportation. And the collapse in interior removals of immigration violators shows that this third priority category is just for show.

John Sandweg, former acting director of ICE, stated the Obama administration position succinctly: “If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero.”

This extra-legal shift in the conception of the immigration statute has been misleadingly packaged as “prosecutorial discretion.” True prosecutorial discretion is exercised by individual law enforcement officers in ways that do not undermine the agency’s mission. For instance, if a state trooper stops you for speeding and your documents are in order, you’ve interacted with him in a respectful manner, and your toddler in the back seat is crying because she needs her diaper changed — and he lets you off with a warning rather than a fine, that is prosecutorial discretion.

What the Obama administration has done is use discretion as a pretext for simply exempting the vast majority of immigration violators from any possibility of legal consequences.

The results of this transformation of immigration law are clear in the data. ICE statistics show that deportations from the interior (aliens arrested by ICE deportation officers and special agents, as opposed to the Border Patrol) have collapsed, from 236,000 in President Obama’s first year in office to 72,000 last year, a decline of 70 percent over the course of this administration:

Not only have total interior deportations collapsed, but even the removal of criminals has declined by more than half, from about 150,000 in 2010 and 2011 to about 63,000 last year — this despite the Obama administration’s claim of prioritizing such removals:

This decline has occurred despite increases in the number of criminal aliens identified by ICE, largely from the nationwide implementation of the Secure Communities program, which screened the fingerprints of aliens arrested by local law enforcement agencies. This successful program, which was tremendously popular with local law enforcement agencies, was dismantled by the president’s November 2014 executive actions, and replaced by the Priority Enforcement Program (PEP). ICE removal officers are still alerted to the arrest of criminal aliens by local police, but are prohibited by the White House and subservient ICE political leadership from acting on that information.

This collapse in deportations is not because we’ve run out of illegal aliens. After declining in 2007-2009 because of new enforcement efforts at the end of the Bush administration, followed by the recession, the number of illegal aliens has remained essentially constant at between 11 and 12 million. Many of these are new illegal arrivals — we estimate that some 2.5 million new illegal immigrants settled here during the first six years of the Obama administration, offset mainly by departures and legalizations.

Nor is the steep drop in deportations due to a lack of resources. Last year the Obama administration re-programmed $113 million that Congress had provided to ICE/ERO for enforcement and gave it to other agencies within DHS. The White House 2017 budget request actually seeks a decrease in funding for immigration enforcement, most notably a decrease of $100 million in funding for detention beds — from 34,000 beds to 30,900 — and a 15 percent decrease in funding for fugitive operations (i.e., the effort to locate the roughly 900,000 people ordered deported who simply ran off).

Rather, the collapse in enforcement is a policy choice of the Obama administration. Its strategic vision is, as I described above, to downgrade the immigration law to a secondary status. Among the tactics that serve this strategy, especially with regard to criminals, is the termination of the successful Secure Communities program and its replacement with the Priority Enforcement Program (PEP). There are three ways PEP suppresses enforcement:

The new, more restrictive PEP prioritization scheme exempts a larger number of criminal aliens from deportation. Essentially, under PEP the only aliens ICE officers can target for deportation are people convicted of felonies, multiple “serious” misdemeanors, certain gang members, terrorists, and recent deportees. This exempts large numbers of criminal aliens from deportation.
PEP imposes new logistical hurdles for ICE, most notably the requirement that an alien be convicted before ICE takes custody — which can enable a criminal alien to abscond from facing charges, or in some cases walk out of a courthouse or jail before ICE is aware that the offender is being released; and
PEP explicitly allows local governments to impose non-cooperation or sanctuary policies on local law enforcement agencies. In 2014, local sanctuary jurisdictions released more than 10,000 aliens that local ICE field officers were seeking to deport.

As a result of these policies, fewer deportable aliens (and criminal aliens) are being removed from the country and criminal aliens who formerly would have been removed are now being released back to our communities only to commit new crimes.

There is an enormous public safety cost to these enforcement suppression policies. Since 2013 ICE has released approximately 85,000 criminal aliens from its custody. Many of these aliens have gone on to commit additional crimes. More than 125 have since been charged with homicide.

Here are some of the most egregious examples of crimes committed by illegal aliens released from ICE custody because of the president’s prioritization rules:

Sarah Root. In Omaha, Nebraska, on January 31, 2016, an illegal alien named Eswin Mejia, age 19, who had entered illegally as an “unaccompanied minor” but was allowed to stay with his brother, was drag racing while drunk and crashed his pick-up truck into the back of a car driven by Sarah Root, age 21. She died in the hospital soon after, just a day after her graduation from college. Mejia was arrested several days later for felony motor vehicle homicide. He had prior infractions as well. Bail was set at $50,000. Knowing Mejia was an illegal alien, local police contacted ICE five times to urgently request a detainer, fearing he would flee after making bail. ICE refused, saying that Mejia “did not meet ICE’s enforcement priorities.” As the local police feared, Mejia disappeared after posting bail.

Grant Ronnebeck. A 21-year-old man who was murdered while working at a convenience store in Mesa, Arizona. Ronnebeck’s killer was an illegal alien who was released by ICE in 2013 after conviction for a burglary and kidnapping involving drug dealing, to await an immigration hearing years in the future.

Katerin Gomez. This 35-year-old mother of three children under age 13 was killed in Chelsea, Massachusetts, on October 18, 2014, by a stray bullet through her window. The gun was fired during a street brawl allegedly by Hector Ramires, a 21-year old illegal alien member of the notoriously violent MS-13 gang, who was at large awaiting trial for two prior arrests for armed robbery (one with a gun, one with a knife), in which his illegal status and gang membership were noted. The police report also includes mention of prior criminal involvement in his home country of Honduras. ICE did not issue a detainer or initiate deportation proceedings after either prior arrest, nor did it make an effort to charge Ramires as an illegal alien in possession of a firearm, which is a felony punishable by up to 10 years in prison.

Greg Morton. This Frederick County (Maryland) sheriff’s deputy was attacked last November while sitting in his vehicle by Jose Misael Reyes-Reyes, an 18-year-old illegal alien who had entered as an unaccompanied minor. The attacker was a member of the notoriously violent MS-13 gang and had prior arrests, including one for carrying a dangerous weapon. ICE declined to take him into custody after the prior arrests because he was already awaiting an immigration court hearing.

* * *Prioritizing enforcement resources is not, in itself, the problem we face in immigration. Applying any body of law requires trade-offs and choices. The Treasury Department, for instance, devotes significant resources to the detection of money-laundering by organized crime or funding for terrorists. But it also has parallel initiatives of routine enforcement, to serve as a deterrent for ordinary taxpayers who might be tempted to cheat. Likewise in traffic enforcement; a driver doing 100 miles per hour through a school zone, firing a gun out the window, will obviously be top priority — but at the same time, there are parallel, routine enforcement efforts — speed traps and the like — to deter ordinary people from endangering others with unsafe driving.

If the IRS were to issue memos exempting anyone who’s not a mobster or terrorist from paying taxes, Congress would be aghast. Yet that is precisely what ICE has been ordered to do in the immigration context.

Some might object that the anticipated “raids” to take Central American illegal aliens into custody prove that the administration has not relegated immigration law to secondary status. Unfortunately, the opposite is true. The first round of “raids,” in January, netted a whopping 121 people — out of thousands of recent Central American illegal aliens — and only 70 of them were actually deported. Even if this next round of apprehensions is several times larger, it still amounts to nothing more than “enforcement theater.” It’s not even good enforcement theater. These Kabuki raids are too small — microscopic would be more accurate — to change the perception in Central America that if you get into the United States it’s unlikely you’ll ever be required to leave.

Despite staged disagreements with the administration over immigration enforcement, Congresswoman Pelosi concisely articulated the view she shares with the White House when she said in 2013 that “Our view of the law is that … if somebody is here without sufficient documentation, that is not reason for deportation.”

This is very different from an earlier Democratic congresswoman, Barbara Jordan, a civil rights pioneer and champion of the rule of law. As head of the bipartisan U.S. Commission on Immigration Reform, Jordan testified before Congress that “Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.”

The Potty President: Obama’s Legacy Policy

Posted on May 13, 2016May 13, 2016 by Denise Simon

So, no other crisis, issue, topic or war is on his plate….the focus for the Obama regime is the potty. Sheesh…this is extortion and defining yet a third gender…being genderless.

Remember, this is a president that alleges he is concerned about personal internet activity privacy…physical privacy? Not so much.

Jared Fox, the city Department of Education’s LGBT Community Liaison, also released a statement backing the directive, adding, “We have guidelines in place to ensure every school building provides a safe and supportive learning environment that allows students to use the bathroom of their gender identity.”

Safe? Really? Define safe and then define who determines the gender identity. What ever happened to the 10th Amendment anyway?

What about the locker rooms?

Even the top government lawyer, Loretta Lynch is fretting over a rebirth of Jim Crowe using genderless bathrooms as the 2016 example.

NYT’s WASHINGTON — The Obama administration is planning to issue a sweeping directive telling every public school district in the country to allow transgender students to use the bathrooms that match their gender identity.

A letter to school districts will go out Friday, adding to a highly charged debate over transgender rights in the middle of the administration’s legal fight with North Carolina over the issue. The declaration — signed by Justice and Education department officials — will describe what schools should do to ensure that none of their students are discriminated against.

It does not have the force of law, but it contains an implicit threat: Schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid.

The move is certain to draw fresh criticism, particularly from Republicans, that the federal government is wading into local matters and imposing its own values on communities across the country that may not agree. It represents the latest example of the Obama administration using a combination of policies, lawsuits and public statements to change the civil rights landscape for gays, lesbians, bisexual and transgender people.

After supporting the rights of gay people to marry, allowing them to serve openly in the military and prohibiting federal contractors from discriminating against them, the administration is wading into the battle over bathrooms and siding with transgender people.

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” John B. King Jr., the secretary of the Department of Education, said in a statement. “We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”

Courts have not settled the question of whether the nation’s sex discrimination laws apply in matters of gender identity. But administration officials, emboldened by a federal appeals court ruling in Virginia last month, think they have the upper hand. This week, the Justice Department and North Carolina sued each other over a state law that restricts access to bathrooms, locker rooms and changing rooms. The letter to school districts had been in the works for months, Justice Department officials said.
“A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so,” according to the letter, a copy of which was provided to The New York Times.
A school’s obligation under federal law “to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns,” the letter states. “As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

As soon as a child’s parent or legal guardian asserts a gender identity for the student that “differs from previous representations or records,” the letter says, the child is to be treated accordingly — without any requirement for a medical diagnosis or birth certificate to be produced. It says that schools may — but are not required to — provide other restroom and locker room options to students who seek “additional privacy” for whatever reason.

Attached to the letter, the Obama administration will include a 25-page document describing “emerging practices” that are in place in many schools around the country. Those included installing privacy curtains or allowing students to change in bathroom stalls.

In a blog post accompanying the letter, senior officials at the Justice and Education Departments said they issued it in response to a growing chorus of inquiries from educators, parents and students across the country, including from the National Association of Secondary School Principals, to clarify their obligations and “best practices” for the treatment of transgender students.

“Schools want to do right by all of their students and have looked to us to provide clarity on steps they can take to ensure that every student is comfortable at their school, is in an environment free of discrimination, and has an opportunity to thrive,” wrote Catherine E. Lhamon, the assistant secretary of education for civil rights, and Vanita Gupta, the head of the Justice Department’s Civil Rights Division.

Thomas Aberli, a high school principal in Louisville, Ky., said the new guidance would help administrators across the country who are trying to determine the best way to establish safe and inclusive schools. He said his school had little to work with when it drafted a policy that was put in place last year. More here from the NYT’s.

Illegal Border Crossings v. Visa Overstays

Posted on May 6, 2016May 6, 2016 by Denise Simon

No one can get the image of the train carrying illegals out of their memory and with good reason. When anyone does a search on the internet to determine the actual and factual numbers of immigrants coming across the southern border by year, you will be disappointed, the charts and records are not there. Countless outlets and agencies report but with caveats and obscure labels. Still we are told the border is as secure as it has ever been.

What is more chilling, are the reports that once again we are in a spike season of illegal entry due in part to threats of presidential candidates. Further, those already here are filing at an accelerated rate for citizenship for the exact same reason.

There is a clash however in the facts over which is worse, those coming across the border versus those coming in by air or other means possessing a v The Visa Waiver Program (VWP) enables most citizens or nationals of participating countries* to travel to the United States for tourism or business for stays of 90 days or less without first obtaining a visa, when they meet all requirements explained below. Travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. If you prefer to have a visa in your passport, you may still apply for a visitor (B) visa.isa that has an expiration date. Take note that any international airport across the United States is a port of entry. Once a visa is issued by State Department contractors, it becomes the burden of the Department of Homeland Security to ensure compliance to dates. This is where the problem, yet another lays with fault.

One cannot overlook the Visa Waiver Program concocted by the U.S. State Department of which several in Congress are calling for a suspension.

Citizens or nationals of the following countries* are currently eligible to travel to the United States under the VWP, unless citizens of one of these countries are also a national of Iraq, Iran, Syria, or Sudan.

Andorra Hungary Norway

Australia Iceland Portugal

Austria Ireland San Marino

Belgium Italy Singapore

Brunei Japan Slovakia

Chile Latvia Slovenia

Czech Republic Liechtenstein South Korea

Denmark Lithuania Spain

Estonia Luxembourg Sweden

Finland Malta Switzerland

France Monaco Taiwan*

Germany Netherlands United Kingdom**

Greece New Zealand

There are an estimated 35 unique types of visa classifications under the management of the U.S. State Department.

Obama Admin Deported Less Than One Percent of Visa Overstays

Nearly half a million individuals overstayed visas in 2015, fewer than 2,500 deported

Kredo/FreeBeacon: The Obama administration deported less than one percent of the nearly half a million foreign nationals who illegally overstayed their visas in 2015, according to new statistics published by the Department of Homeland Security.

Of the 482,781 aliens who were recorded to have overstayed temporary U.S. visas in fiscal year 2015, just 2,456 were successfully deported from the United States during the same period, according to DHS’s figures, which amounts to a deportation rate of around 0.5 percent.

The sinking rate of deportations by the Obama administration is drawing criticism from Capitol Hill, where lawmakers are warning that the administration is ignoring illegal overstays and potentially opening the United States to terrorist threats.

The 482,781 figure accounts for aliens who entered the United States on a nonimmigrant visitor visa or through the Visa Waiver Program, which streamlines travel between the United States and certain other countries. The figure encompasses foreign nationals who were found to have remained in the United States after their visas expired or after the 90-day window allowed by the Visa Waiver Program.

The actual number of overstays could be higher. The latest figures published by DHS do not include overstays from other visa categories or overstays by individuals who entered the United States through land ports, such as those along the Mexican border.

Deportations by the Obama administration have decreased steadily since 2009, according to figures codified by the Senate’s Subcommittee on Immigration and the National Interest and provided to the Washington Free Beacon.

Since 2009, U.S. Immigration and Customs Enforcement has expelled 51,704 individuals who overstayed their visas. The total number of those expelled has decreased every fiscal year.

At least 12,538 illegal overstays were deported in fiscal 2009, while 11,259 were removed in 2010, 10,426 in 2011, 6,856 in 2012, 4,240 in 2013, 3,564 in 2014, and 2,456 in 2015, according to the committee.

The drop is being attributed by sources to an Obama administration policy directing DHS and ICE not to pursue visa overstays unless the offender has been convicted of major crimes or terrorism.

“The decision by the Obama administration not to enforce immigration laws by allowing those who have overstayed their visas to remain in the country has not gone unnoticed by the American people,” sources on the Senate subcommittee told the Free Beacon. “A Rasmussen Reports poll released earlier this year indicates that approximately 3 out of 4 Americans not only want the Obama administration to find these aliens who overstay their visas, but also to deport them.”

“The same poll indicates that 68 percent of Americans consider visa overstays a ‘serious national security risk,’ and 31 percent consider visa overstays a ‘very serious’ national security risk,” according to the sources.

Congress has long mandated the implementation of a biometric entry-exit system to track individuals who overstay their visas and ensure they leave the United States.

Sen. Jeff Sessions (R., Ala.), chair of the Senate’s immigration subcommittee, recently proposed an amendment aimed at speeding up implementation of this system. Senate Democrats blocked the amendment.

Immigration and Customs Enforcement has received substantially more taxpayer money in recent years despite the plummeting rate of deportations. At least 43 percent fewer aliens were removed from the United States from 2012 to 2015, according to DHS statistics.

$600 Billion, Failing Classrooms

Posted on May 2, 2016May 2, 2016 by Denise Simon

US Spends $600 Billion/Year on Education, But Large Majority of H.S. Seniors Not College-Ready

Hollingsworth/(CNSNews.com) – Despite the fact that the U.S. spends more than $600 billion per year on public education, a large majority of high school seniors are not ready for college-level work in math and reading, according to the latest results of the 2015 National Assessment of Educational Progress (NAEP), also known as “the nation’s report card”.

Demonstrating proficiency in a core subject like math or reading is considered proof of being academically prepared for college-level courses.

However, just 25 percent of 12th graders tested “Proficient” or above in math on the 2015 NAEP, down slightly from the 26 percent reported in 2013.

That means that three-quarters of the nation’s soon-to-be-graduating high school seniors are not prepared to succeed in college math courses.

Although more 12th graders (37 percent) tested “Proficient” or above in reading, that figure was also down one percent from the 2013 results.

According to NAEP, nearly two-thirds of high seniors do not have the written language skills they will need in college.

The average score of the 31,900 12^th graders who took the 2015 NAEP math test was 152, which was down in all four content areas and one point lower than the average score (153) in 2013, Peggy Carr, acting commissioner of the National Center for Education Statistics (NCES), told reporters during a webinar on Wednesday announcing the latest NAEP results.

Only three percent of those taking the math assessment tested “Advanced.” Another 22 percent tested “Proficient”, with 37 percent of test-takers demonstrating a “Basic” mastery of mathematics.

However, the largest contingent – 38 percent – tested at the lowest “Below Basic” level. “There is a larger proportion of students at the bottom of the distribution” than in 2013, Carr acknowledged.

English Language Learners, who posted a six-point gain, were the only student sub-group to significantly increase their math scores over 2013 levels, she pointed out.

The average score in reading (287) was not significantly different from the average score reported in 2013 (288), Carr said.

Six percent of high school seniors scored in the “Advanced” reading category, with 31 percent testing “Proficient”, and 35 percent scoring in the “Basic” range.

However, 28 percent failed to demonstrate even basic mastery of the written word – three percent more than in 2013.

Carr noted that the 2015 NAEP results remained virtually unchanged for various racial and ethnic sub-groups compared to 2013. In general, white and Hispanic males tended to do better on the math tests, while females overall did better on the reading assessments, she pointed out.

Education experts also noted that average math scores were higher for students who took more challenging pre-calculus and calculus classes, and average reading scores were the highest for students who reported reading more than 20 pages of text a day in school or while doing their homework assignments.

When CNSNews.com asked how the latest reading and math NAEP scores compared to student test scores worldwide, Carr replied that “we will wait to see” when the next international results are released in November and December.

According to the latest available figures from NCES, “the 50 states and D.C. reported $603.7 billion in funding collected for public elementary and secondary education in 2013.”

State and local governments provided 91 percent of all education funding, while the federal government paid the remaining 9 percent.

*****

Don’t go away yet, there is more and it is worse.

Obama budgets $17,613 for every new illegal minor, more than Social Security retirees get

Paul Bedard, the Washington Examiner: President Obama has budgeted $17,613 for each of the estimated 75,000 Central American teens expected to illegally cross into the United States this year, $2,841 more than the average annual Social Security retirement benefit, according to a new report.

The total bill to taxpayers: $1.3 billion in benefits to “unaccompanied children,” more than double what the federal government spent in 2010, according to an analysis of the administration’s programs for illegal minors from the Center for Immigration Studies. The average Social Security retirement benefit is $14,772.

The report notes that the president’s budget, facing congressional approval, includes another $2.1 billion for refugees, which can include the illegals from Central America, mostly Honduras, Guatemala and El Salvador.

What’s more, the administration is also spending heavily on a program with the United Nations to help the illegal minors avoid the dangerous trip by declaring them refugees and handing them a plane ticket to the U.S. where, once here, they get special legal status.

The report, titled “Welcoming Unaccompanied Alien Children to the United States,” is a deep dive into the administration’s evolving efforts to let hundreds of thousands of mostly 16- and 17-year-old males settle in the country.

It said that most of the undocumented minors do not qualify for refugee status or are even in any danger in their native countries. Instead, they are seeking to unify with their family members, commonly parents in the United States illegally.

The report cited Department of Health and Human Services data showing the trend. “New data,” said CIS, “shows that 80 percent of the 71,000 Central American children placed between February 2014 and September 2015 were released to sponsors who are in the United States illegally.”

Go here for charts and full report.

Author Nayla Rush suggested that the administration’s Central American Refugee/Parole Program with the United Nations that declares minors refugees could have the effect of giving legal status to their illegal parents once in the U.S.

“Children will be able to qualify for refugee status and then be flown to the United States. As a reminder, refugees receive automatic legal status and are required to apply for a green card within their first year following arrival. They can apply for citizenship five years from the date of entry.

“Since parents from Central America illegally present in the United States could not benefit from the CAM program and sponsor their children, perhaps the reverse can take place with children admitted under this new version of the refugee program. Children, acquiring legal status followed by naturalization by the time they reach adulthood, could indeed sponsor their parents,” wrote Rush.

A Judge Issued a Gag Order, Preventing Speech

Posted on April 27, 2016April 27, 2016 by Denise Simon

Oregon Bakers Continue Legal Fight, Challenging ‘Gag Order’

Harkness/DailySignal

The Oregon bakers who were ordered to pay $135,000 for refusing to bake a cake for a same-sex wedding filed a brief with the Oregon Court of Appeals on Monday, arguing the ruling against them was biased and violates both the Oregon and U.S. constitutions.

“In America, you’re innocent until proven guilty,” said Kelly Shackelford, president and CEO of First Liberty Institute, the group representing Aaron and Melissa Klein in their legal fight. “Commissioner Brad Avakian decided the Kleins were guilty before he even heard their case. This is an egregious violation of the Kleins’ rights to due process. We hope the Oregon Court of Appeals will remedy this by dismissing the government’s case against the Kleins.”

Brad Avakian, commissioner of the Oregon Bureau of Labor and Industries, was responsible for issuing the final ruling on the case. On July 2, 2015, he ruled that in declining to bake a cake for a same-sex wedding due to their religious beliefs, the Kleins violated an Oregon law that prohibits discrimination in places of public accommodation against people based on their sexual orientation.

Avakian ordered the Kleins to pay $135,000 in mental, physical, and emotional damages to the couple whom they denied service.

Rachel and Laurel Bowman-Cryer (who have since married) filed a complaint against Sweet Cakes by Melissa in Gresham, Ore., in February 2013, a month after the Kleins refused to make a cake for the same-sex couple’s wedding.

The Bureau of Labor and Industries opened its investigation into Sweet Cakes by Melissa in August 2013, six months after the agency received the initial complaint from Rachel and Laurel Bowman-Cryer alleging the bakery owners discriminated against them.

Yet, in the appeal brief filed Monday, lawyers for the Kleins argued that Avakian had publicly declared the Kleins guilty before even waiting for an investigation to take place, citing a Feb. 5, 2013, Facebook post.

In that post, Avakian writes, “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place. Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.”

In August 2013, after the Oregon Bureau of Labor and Industries announced it was opening an investigation to determine whether the Kleins had discriminated against the same-sex couple, Avakian also commented about the case, suggesting he had already decided that the Kleins were guilty. “Everybody is entitled to their own beliefs,” he said in an interview with The Oregonian, “but that doesn’t mean that folks have the right to discriminate.”

“The goal is never to shut down a business. The goal is to rehabilitate,” Avakian added.

Ken Klukowski, an attorney at First Liberty, told The Daily Signal that “it’s clear” Avakian demonstrated bias “that rises to the level of violating due process.”

In addition to ruling the Kleins must pay $135,000, Avakian also ordered the former bakery owners to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.

“The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication … to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation,” Avakian wrote in the final order.

The justification for this part of his final order originates from an interview Aaron and Melissa Klein participated in with Family Research Council’s Tony Perkins in 2014. During the interview, Aaron said that they, “don’t do same-sex weddings,” and “This fight is not over. We will continue to stand strong.”

Avakian wrote those statements demonstrate a “prospective intent to discriminate.”

“This gag order that they’re under right now, where they have been ordered by the government that they can’t even discuss these things with the media,” Klukowski said, “is shockingly overbroad.”

“There are aspects of their beliefs and of this case, including aspects of their religious beliefs about marriage, that if they were to share these things publicly, that the government could punish them, saying that it amounts to the equivalent of advertising their intention to continue engaging in illegal discrimination,” Klukowski said.

“That censors so much protected speech.”

The punishment for violating the order is “notoriously unspecific,” Klukowski added. Because of that, lawyers for the Kleins are treading carefully on what they allow their clients to do and say in public.

“This is a couple with young children and where the law does not specify what the most severe penalty could be where as far as we know, the sky could be the limit, that’s where we owe it to our clients to err on the side of caution and try to shield them from additional exposure that could have consequences of unspecified severity,” he said.

In reviewing the appeal, the Oregon Appeal Court will determine whether or not the Oregon Bureau of Labor and Industries violated the Kleins’ constitutional rights to religious freedom, free speech, and due process.

The Kleins maintain that they did not decline the same-sex couple due to their sexual orientation—stating in the brief that they have served one of the women who filed the complaint against them in the past. Instead, they maintain they were only declining to participate in an event that they disagree with because of their Christian beliefs about marriage.

Avakian ruled there is “no distinction” between the two situations.

Klukowski said he expects oral arguments to take place later this year. If the Oregon Court of Appeals rules against the Kleins, the next step would be appealing to the Oregon Supreme Court.