11.19.11

Immigration Lawyers Say Enforcement of Deportation Memo Falls Short

When Obama’s immigration enforcement director told agents to deport only serious criminals, immigrants hoped the president’s record deportations might slow. Now their lawyers tell Terry Greene Sterling they face an even greater risk.

Gabriel Valdez had high “high hopes” for his undocumented immigrant clients in June, when John Morton, the director of U.S. Immigration and Customs Enforcement, issued a memo directing agents and prosecutors to use their “discretion” to focus resources on deporting the bad guys—immigrant terrorists, criminals, and other undocumented ne’er-do-wells—instead of booting out otherwise law-abiding unauthorized immigrants ensnared in the nation’s troubled immigration system.

After the Morton memo was released, Valdez, a Phoenix attorney who defends unauthorized immigrants in state and federal court, anticipated fewer deportations of his undocumented clients who’d been caught in workplace raids and convicted of state felonies associated with carrying fake work papers. Instead, he discovered, these clients faced a greater risk of deportation in the wake of the memo.

The reason: In Arizona, county prosecutors used the Morton memo to their advantage by offering his clients “only plea bargains that would result in [swift] deportation.”

Although immigrants tend to commit fewer crimes than the native-born, the feds have long deported hard-core criminals after they serve their time in state or federal prisons. But in Arizona, Valdez’s unauthorized immigrant clients are not typical hard-core criminals; they have been charged with state felonies tied to working with bogus papers. Immigrant advocates call such felony charges the "criminalization of work."

Now immigration attorneys are questioning whether their clients will be helped or harmed by the Obama administration’s latest directives, which are based on the Morton memo and followed Thursday’s announcement that authorities have launched an ongoing review of about 300,000 incoming and pending deportation cases. Federal officials also will train agents and prosecutors on “prosecutorial discretion” and launch two “pilot programs” in early December to test how well the Morton memo is working. In a statement, ICE spokeswoman Gillian Christensen called it “smart and effective immigration enforcement” that targets “criminal aliens and those who put public safety at risk, as well as those who threaten border security or the integrity of the immigration system.”

“There has been no hope and change in immigration under this administration,” Kolken said. “This is George W. Bush on steroids.”

The new directives have garnered mixed reviews. The American Immigration Council, a pro-immigrant nonprofit based in Washington, lauded it for empowering “ICE attorneys to take into account the individual circumstances of each case when deciding whether it is appropriate to pursue removal.”

But the council cautioned that the Department of Homeland Security needs to “refine its overly broad definitions of criminality.”

Those “overly broad definitions of criminality” have many immigration attorneys on high alert, as they grapple with the possible consequences of the administration’s new immigration plans.

What’s more, skeptical immigration attorneys have long complained that ICE applied the guidelines of the Morton memo unevenly across the nation. Some lawyers fail to obtain favorable prosecutorial discretion for their clients, while others are highly successful.

Nancy A. Oretskin, an El Paso immigration attorney, said the Morton memo provides a sort of laundry list of extenuating circumstances that allow the appropriate immigration official to release immigrants from detention or close their immigration proceeding if it is already before an immigration judge. While not a perfect document, in the absence of immigration reform the Morton memo and the subsequent ICE directives “are better than nothing,” Oretskin said. She used the Morton memo to secure the release of two clients with felony convictions from detention centers.

In Cleveland, David Leopold, a prominent immigration attorney and a former president of the American Immigration Lawyers Association, said in a telephone interview that prioritizing immigration cases to prosecute is “really smart.”

The problem centers on the most recent directives, he said. Those directives don’t “differentiate between violent felonies and nonviolent felonies,” thus lumping immigrants who have “done something stupid” with terrorists and sex offenders.

Also, he said, a low-level bureaucrat might hasten deportation by making a baseless determination that an immigrant committed fraud—but the baseless determination might not be reviewable by a higher legal authority under the new directives.

Many Latino voters have expressed disenchantment with President Obama for failing to push through immigration reform while deporting about a million immigrants.

The administration’s “prosecutorial discretion” actions at first signaled to many Latinos that the president was extending an olive branch as he sought to implement immigration reform administratively.

But Matthew Kolken, a social-media-savvy immigration attorney based in Buffalo, told The Daily Beast he can count “less than a handful” of cases in which “favorable prosecutorial discretion was exercised” since the memo was issued.

To Kolken, the Obama administration plays “both sides of the fence”—trying to please immigration hardliners with record deportations with one hand while issuing press releases about prosecutorial discretion “to placate the Hispanic electorate” with the other.

“There has been no hope and change in immigration under this administration,” Kolken said. “This is George W. Bush on steroids.”

Ezequiel Hernandez, who practices immigration law in Arizona and Colorado, says the new thrust of immigration enforcement could mean that some immigrants with work-related offenses who normally would have to wait for years for their cases to reach immigration court might now face rapid deportation and “lose out on the possibility of true immigration reform.”

In Phoenix, where Maricopa County Sheriff Joe Arpaio regularly rounds up immigrants in workplace raids and charges them with felonies, attorney Gabriel Valdez worries about what will happen to his clients if they are rapidly deported and released into drug-ravaged Mexican border towns. He wonders aloud whether immigrants’ attorneys should meet with “policymakers” to explain the consequences of post-Morton memo plea bargains in Maricopa County.

“We’re in a tough situation here,” he said. “We don’t have much to fight back with ... Our options are limited.”