Immigrant Rights Advocates Grapple With Senate Parliamentarian’s Past as INS Prosecutor

Nov 1, 2021
7:22 PM

Senate Parliamentarian Elizabeth MacDonough delivering a commencement address at Vermont Law School in 2018 (Vermont Law School/YouTube)

WASHINGTON, D.C. — In 2012, when Elizabeth MacDonough became the first woman to be named Senate Parliamentarian, a POLITICO profile noted that MacDonough “was a Justice Department trial attorney, handling immigration cases from a gritty jail office in Elizabeth, N.J,” before joining the Office of the Parliamentarian in 1999.

It is a fact being questioned by many in the immigrant rights community, now that MacDonough is expected to determine as early as this week whether a third immigrant relief proposal is aligned with the Senate rules for budget reconciliation.

“As someone who has worked to deport people, [MacDonough] cannot be trusted to rule objectively on immigration issues,” the Refugee and Immigrant Center for Education and Legal Services (RAICES) said last Thursday in a statement.

“I am concerned that Ms. MacDonough let her personal or political views on immigration improperly affect her assessment of the budget impact of these proposals,” said Amy Maldonado, a veteran immigration attorney in Michigan with decades of experience in pro-bono deportation defense. (Maldonado is also a Latino Rebels contributor.)

“Something’s going on there,” said Rep. Alexandria Ocasio-Cortez (D-NY) of the Parliamentarian’s past work as an immigration attorney to a crowd of supporters gathered outside the Capitol on September 30.

It’s unclear how long MacDonough worked at the detention center before returning to Capitol Hill in 1999. A July posting from the anti-immigration group Center for Immigration Studies wrote that MacDonough worked in “a law enforcement capacity” during her brief time at the United States Immigration and Naturalization Service (INS).

Last month, Maldonado submitted a Freedom of Information Act (FOIA) request about MacDonough’s INS trial attorney experience. As of the time of this publication, Maldonado has not received any specific information from the request, but she told Latino Rebels that she intends to pursue possible legal action against the government if the request is not expedited.

“INS trial attorneys were tasked with deportation cases, arguing against bond, and ultimately separating mixed-status families,” Maldonado said.

Immigration law professor Michael Kagan at the University of Nevada, Las Vegas, spoke to Latino Rebels about what INS trial attorneys did back in the 1990s.

“Generally speaking, INS trial attorneys were similar to the ICE [Immigration and Customs Enforcement] trial attorneys of today,” Kagan said. “If [MacDonough] was an INS trial attorney at the Elizabeth detention facility, it’s hard to imagine what role she would have performed besides arguing for the detention of immigrants or the deportation of immigrants.”

Before U.S. Immigration and Customs Enforcement (ICE) was created by the Homeland Security Act of 2002, the agency that handled deportations was INS, then a division of the Department of Justice.

“INS trial attorney was a pretty standardized title for the prosecutor in deportation cases, especially if her office was attached to a detention facility,” said one of Maldonado’s non-profit colleagues in the pro-bono legal defense of immigrants in deportation proceedings. Maldonado’s colleague did not want to reveal his identity to Latino Rebels.

MacDonough did not reply to an email request from Latino Rebels to comment on this story, but in 2018, she did recall her first week on the job as an immigration prosecutor during a commencement address she delivered to Vermont Law School, where she graduated from in 1998.

“My first week of work as a trial attorney at the Department of Justice, I was given the choice of heading straight into court or shadowing my colleagues for a day or two. I chose to shadow,” MacDonough said in her speech. “I was able to go over case files and see how they handled evidence, observe how different judges ran their courtrooms, and get a feel for the day’s work in that new environment. That was an incredibly helpful experience and it actually gave me a boost of confidence on day four when I actually went to court. I must have seemed pretty confident because the opposing counsel didn’t seem to know it was my first day and he tried to intimidate me by saying he had never lost a case.”

“Well, it was my first day,” MacDonough continued, “so I’d never lost a case, either… And he lost that one to me.”

Senate Majority Whip Dick Durbin (D-IL) now leads a third proposal to the Senate Parliamentarian for including immigrant relief in the Build Back Better Act. On Monday, Durbin told reporters that he expects to proceed with the proposal to MacDonough as early as Tuesday.

MacDonough has rejected the previous two pitches for immigration reform in the Democrats’ sprawling social spending plan, which has been negotiated between the two chambers since Budget Committee senators reached an agreement on a framework last summer.

The White House published an updated framework for the budget bill last Thursday morning that included a $100 billion dollar immigration investment “consistent with the Senate’s reconciliation rules.”

House Speaker Nancy Pelosi (D-CA) told Latino Rebels on Thursday that the investment was “over and above” the $1.75 trillion cost of the policy framework for the bill, meaning it could easily be dropped from the legislation if the Parliamentarian nixes Durbin’s third immigration proposal.

Sens. Tim Kaine (D-VA) and Mazie Hirono (D-HI) told Bloomberg that they intend to find ways to spend the $100 billion on immigration reform, regardless of the Parliamentarian’s guidance on the matter.


Pablo Manríquez is the Washington correspondent for Latino Rebels. Twitter: @PabloReports