Immigration order muddle leads to wrongful detention
ICE’s inconsistent adherence to Obama’s new guidelines puts some families in jeopardy
Lawyers across the country and throughout Texas say immigration authorities are wrongly detaining or even deporting immigrants who should no longer be removed under new guidelines the Obama administration issued last year.
The president upended the nation’s immigration system in November, promising to grant work permits to nearly 5 million people and focus on deporting serious criminals. In February, a Brownsville federal judge temporarily halted the work permit program, and the government is appealing the injunction.
But lawyers and advocates say the lack of legal clarity and overall confusion means federal authorities are inconsistently adhering to the new deportation rules that remain in effect and are intended to protect immigrants with deep roots here, who have no serious criminal record and are parents to American children.
“We are very concerned about it. This is a top priority,” said Greg Chen, director of advocacy for the American Immigration Lawyers Association, which is based in
Washington, D.C. “In the case of people who have been deported, that is a travesty. As quickly as possible the federal government needs to be getting clear instructions to its offices and trial attorneys to review those cases the right way.”
In a statement, U.S. Immigration and Customs Enforcement said the new deportation guidelines “remain in full force and effect” and that the federal judge’s order clearly stated that the injunction didn’t affect them. The agency said it has conducted a series of mandatory training for all ICE personnel as well as “repeatedly” discussed the injunction’s scope with all its field office directors.
But Chen said when the agency has instituted revised deportation guidelines in the past the implementation has been “inconsistent at best” because “unless clear guidance is given to officers they are very unlikely to grant discretion because there’s an institutional predisposition against that.”
Falling through cracks
There’s been a flood of calls in the past few weeks from worried lawyers and advocates, said Marielena Hincapié, executive director of the National Immigration Law Center, an advocacy group based in Los Angeles.
“Some (Immigration and Customs Enforcement) offices are known to be historically problematic and with others it’s probably just confusion,” she said. “The administration needs to hone in on these offices.”
In the meantime some immigrants are falling through the cracks.
In St. Louis, for instance, a 32-year-old father of four American children who’s been here illegally for more than a decade and has no criminal record was detained in February after police stopped the car he was in. They turned him over to immigration authorities, who reinstated a deportation order from 2012 and scheduled his removal to Mexico even though he isn’t a priority under President Barack Obama’s new guidelines. Under those rules, only immigrants who are serious criminals or have crossed the border recently or been ordered deported since 2014 are considered enforcement targets.
His lawyer, Meggie Biesenthal, said an ICE officer told her they were no longer following those priorities. An ICE spokesman declined to comment on the case, citing the agency’s privacy policy, but said the man was released and granted a stay of his removal.
In New Orleans, a 39-year-old mother of two American girls, who has been under ICE supervision for four years because she isn’t a priority for deportation, was suddenly put on an ankle monitor, typically the first step in someone’s removal. This happened a week after she appeared on national television denouncing the halt of Obama’s work permit program. It sparked an outcry among advocates and two days later ICE removed her ankle monitor. An agency spokesman said he couldn’t discuss her case due to privacy regulations.
In Texas, a 28-year-old father living in Houston with his three American children had been in immigration detention since October after a police officer outside Corpus Christi stopped the truck his wife was driving and discovered the construction worker was here illegally.
Under the old enforcement guidelines in place at the time, Henry Alvarado was considered a repeat offender and a priority for deportation because he was caught near Laredo in 2005 when he first tried to come to the United States.
But now, under Obama’s executive action, Alvarado not only likely qualifies for a work permit but is no longer an enforcement priority. He has no criminal record other than two traffic tickets and has lived here since 2006.
Evidence in support
In December, his Brownsville attorney, Norma Sepulveda, requested ICE release him. She sent evidence to prove he is eligible, including check stubs and an apartment lease showing he had been living in Houston since at least 2009. She mailed medical documents and school records, proving he is the sole legal guardian for two of his children, whose mother abandoned them when they were small.
Initially, Sepulveda said, ICE agents at the Port Isabel detention center, where Alvarado was being held, said they needed time to process her request as it came just before Christmas. In January, she said, they told her he was likely eligible for the work permit program and would be released in a few days. When she checked back, they asked for more information proving his eligibility. By February, she was getting frustrated and hand-delivered a written request for his release to the Port Isabel office and also mailed a copy to the supervising field office in San Antonio.
Sent back to Honduras
On Feb. 24, Sepulveda said, she told an assistant field office director that despite the injunction on the work permit program the other deportation memorandum remained in effect. On Feb. 25, federal agents flew Alvarado back to Honduras. The next day, an ICE officer sent Sepulveda a letter saying he had “carefully reviewed” her request. But he said his inquiry determined Alvarado had already been deported.
“They knew from the get-go he was not an enforcement priority for removal but they still deported him anyway,” Sepulveda said. “They totally disregarded the memo that’s still in force.”
An ICE spokeswoman said the agency had conducted a “thorough review,” determining Alvarado was indeed an enforcement priority but declined further comment.
At a town hall in Miami last month, Obama said immigrants like Alvarado who would have qualified for work permits remain protected despite the ongoing legal wrangling because they’re no longer considered priorities for deportation.
“We are going to be focusing on criminals. We’re going to be focusing on potential felons ... we are not prioritizing families,” Obama said. “Even with (the) legal uncertainty, they should be in a good place.”
He said there would be “consequences” for agents with ICE and Border Patrol who aren’t following the new deportation directives.
“There are going to be some jurisdictions and there may be individual ICE officials or Border Patrol who aren’t paying attention to our new directives,” he said. “If somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it.”
So far, Alvarado’s wife in Houston has relied on loans from relatives but she’s watching her bills stack up. While he worked long hours at construction jobs, the 25-year-old stayed home with the children because they couldn’t afford childcare. Without the family’s sole breadwinner, she doesn’t know what she’ll do.
In Honduras, Alvarado is staying with relatives while he waits to see if his lawyer can come up with a solution. Even if she doesn’t, he said he’ll return soon, “because who else will take care of my kids?