Immigration policy shift aims at unclogging courts by halting "low-priority" deportations
cleveland.com
By Regina Garcia Cano
The Plain Dealer
Published: Saturday, September 24, 2011, 6:05 PM

Enrique Vazquez-Tovar works for a Greater Cleveland landscaping business. He files his income taxes and is the primary provider for three American children.

But Vazquez-Tovar, who has lived in Lorain since 2007, is an illegal immigrant. He sneaked into the country by walking across the desert into Arizona.

Until recently, Vazquez-Tovar was being targeted by immigration officials for deportation with the same vigor as someone with an egregious criminal record. That was to change with an Aug. 18 directive from the secretary of the Department of Homeland Security, Janet Napolitano, that aims to unclog immigration courts by halting deportations of undocumented immigrants with no criminal records and to concentrate resources on prosecuting those who pose a threat to public safety.

Still, Vazquez-Tovar's future is murky. And it does not help that he lives in a region of the country considered to be among the harshest in dealing with undocumented immigrants.

Vazquez-Tovar has unwittingly become a test case on whether the new directive will be followed, and if it is, whether the change in strategy leads to something as radical as amnesty for illegal immigrants, as some critics fear.

Napolitano explained the new focus in a letter to 22 U.S. senators. She wrote that a joint committee created by the Department of Justice and her agency will review all deportation cases, about 300,000 that are pending in federal immigration courts -- effectively deciding the fate of illegal immigrants before judges do. Click here to view Napolitano's letter (pdf)

Yet there is confusion over what the impact of the directive will be. How hard will Napolitano push to get her way? Will regional immigration officials ignore her? No one knows how it will play out.

As for Vazquez-Tovar, he may be caught in the middle. He has a hearing before an immigration judge Nov. 1 and could be back in his hometown in the southern tip of Mexico before the interagency group gets off the ground. He would also miss the birth of his second child.

Immigration dockets are bloated

The estimated cost of each deportation proceeding is $23,000. And caseloads in immigration courtrooms are enormous. At the end of August, 3,729 deportation matters were pending in Cleveland Immigration Court, according to the Department of Justice's Office for Immigration Review, which administers the nation's 59 immigration courts and more than 260 judges.

Some hearings in the Cleveland court -- the only one in Ohio -- are scheduled as far in the future as July 2013.

The wait for hearings annoys people on both sides of the issue. Those who believe that responsible undocumented immigrants should be allowed to stay in this country say the uncertainty of it all is unfair. Those who favor deportation say that illegal immigrants hold jobs that Americans should have and that their presence saps already burdened health care and welfare resources.

Napolitano's directive reinforced a June 17 memo from John Morton, director of U.S. Immigration and Customs Enforcement, which provided guidance for the exercise of prosecutorial discretion -- the authority of an agency to decide to what degree to enforce the law against a particular person.

Morton said authorities should weigh multiple factors when deciding what to do with illegal immigrants. They include:

•Are they longtime residents of the United States?

•Are they the primary caregivers of a minor?

•Are they veterans or members of the armed forces?

•Do they have a pregnant or nursing spouse?

•Are their parents or spouses U.S. citizens?

Vazquez-Tovar, 23, lives with his American-born fianc e, Ruth Delgado, 30, and her three children in a one-floor, two-bedroom home. He did not father the two older children but has taken responsibility for them because Delgado does not receive child support. The couple's daughter, Valeria, was born two years ago.

"I'm trying to stay here because of my family," Vazquez-Tovar said. "I don't want to leave my daughter. I want to meet my baby. I want to give them what I never had. I want to pay for the four children to go to college."

Vazquez-Tovar has no criminal record. He has had one traffic infraction. His immigration status came to the attention of authorities in July when he was arrested for making a wrong left turn and found to be driving without a license. Once police notified immigration officials, the process to deport him began.

While media outlets have reported that deportations in Florida, Georgia and Colorado have been suspended because of the new federal directive, a Homeland Security official said last week that "no individual cases have been administratively closed or affected by the policy."

The official said the group that will evaluate cases individually is designing a review process. Members "will rely on significant contributions from field offices in reviewing cases," said the official, who did not want his name used.

Local immigration lawyers and advocates wonder whether any illegal immigrant with a pending case in Ohio will get the benefit of discretion.

They said the Immigration and Customs Enforcement Field Office in Detroit, in charge of overseeing deportations in Michigan and Ohio, often deports immigrants even if the people involved seem to have compelling reasons to stay, such as an ill U.S.-born child.

In some instances, however, officials in Detroit reverse their decisions and allow the immigrants to stay. That sometimes happens after advocates pressure immigration authorities and politicians in Washington, D.C.

The most recent local example happened last week. An undocumented immigrant mother of four U.S. citizens was given a one-year reprieve from deportation. She has lived in the United States for 16 years and has a child-endangering misdemeanor on her record from 2002.

"I know the people, I know the players, the way they lean. I know they would be opposed to giving deferred action [suspending deportation] to anyone," said Cleveland attorney Michael Rendon, who represents Vazquez-Tovar and is a retired immigration special agent. "Perhaps this time they'll make an attempt to make decisions consistent with this memo."

A senior immigration official in Detroit said last week that the office is waiting for further guidance before it follows the directive.

Some critics of the immigration system say judges and immigration officers in the Cleveland area are in a frenzy to deport illegal immigrants. They claim judges here rule against defendants by far greater percentages than in most other courts in the country. Recent data from the Executive Office for Immigration Review seems to back up their claims.

Between October 2010 and March 2011, 14.3 percent of all proceedings decided in immigration courts around the United States saw "relief" granted. That means the judges ruled that the charges were sustained, but found provisions in the law to allow the immigrants to stay in the country. In the Cleveland court, that outcome happened less than 7 percent of the time, according to numbers produced by the Transactional Records Access Clearinghouse, based at Syracuse University.

Requests to speak with the three judges in the Cleveland Immigration Court were declined by bailiffs and the court administrator. The Department of Justice appoints immigration judges.

Union calls policy a nightmare

The union representing immigration department workers has joined groups that demand stricter immigration policies in blasting the new approach advocated by Napolitano and Morton.

Six days after Morton's memo, the National Immigration and Customs Enforcement Council said its members will not follow the new guidelines.

The union -- which represents about 7,600 officers, agents and employees -- called the policy a "law enforcement nightmare." In a written statement, union officials charged that field office directors who raised questions about the directive were asked "to turn in their badges and file for retirement."

The Federation for American Immigration Reform, an organization that advocates for reductions in immigration, said Napolitano's letter demonstrates the Obama administration's defiance of the will of the majority of Americans.

"What this is telling everybody is 'If you break into the U.S., you won't be prosecuted, provided that you don't commit a violent felony,' " said spokesman Bob Dane. "We're only going to detain and prosecute the worst of the worst."

The federation has filed a records request with Homeland Security to learn how the policy changes were formulated and how they will be executed.

"This is amnesty by memo," Dane said. "This administration has gone completely rogue by attempting to do administratively what it can't do politically."

The Department of Homeland Security insists illegal immigrants will not get citizenship, permanent residency or immediate work authorization if deportations are halted.

"It doesn't create a benefit that wasn't there," said attorney David Leopold, former president of the American Immigration Lawyers Association. "All this is, it's smart enforcement."

After the interagency review, cases deemed low priority will be administratively closed, according to Homeland Security. Those allowed to remain in the United States will fall into a kind of immigration limbo -- not subject to deportation, but not given permanent lawful status.

Limbo would be good enough for Vazquez-Tovar. He has learned to speak English. He has worked his way up to supervisor at the landscaping company and has taught other workers trade skills.

"There are a lot of people here like me who have not or will not hurt anybody," Vazquez-Tovar said. "We came here only in search of a better future. I want to stay here for my family."

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