Obama memo • Attorneys worry it would be ignored, ICE suggests it is not needed.
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Utah immigration attorney Aaron Tarin hoped that a new directive from the administration of President Barack Obama to avoid detaining or deporting undocumented parents if they are caring for young children might help release a client being held by Immigration and Customs Enforcement (ICE).
"But I just got a denial," he said. The client has "a wife and child. He's actually got a pending victim's visa available to him [as a witness to crime]. So they won't deport him, but they won't release him either while his victim's visa is being adjudicated. We argue he doesn't pose a threat to the community or a flight risk. They still denied him even after the [new administration] memo."
Why? Tarin and other immigration attorneys say ICE officers often push back against such directives, contending they violate law, and work around them by deeming almost anyone detained as a criminal. That's easy since using a false or invented Social Security number to work "is something committed by the vast majority of immigrants," said attorney Mark Alvarez.
In short, attorneys don't think the directive will help many of the estimated 70,000 to 120,000 undocumented immigrants in Utah.
ICE officials also suggest it may not help many families but for a far different reason: that they already have been left alone because of administration directives to focus on more dangerous aliens.
'Criminal aliens' • "ICE's Enforcement and Removal Operation Salt Lake City field office removed 4,868 convicted criminal aliens in fiscal year 2012, representing 81 percent of the field office's overall removals," said ICE spokesman Andrew Muñoz. He added that through Aug. 3, the Salt Lake regional office "removed 3,127 convicted criminal aliens, accounting for 90 percent" of this year's removals.
As he announced similar national statistics, ICE Director John Morton said recently, "We continue to make progress in focusing resources on criminal and priority aliens, with more convicted criminals being removed from the country than ever before."
Similarly, Homeland Security Secretary Janet Napolitano has said her department is funded to remove about 400,000 immigrants a year out of an estimated population of 11 million, so it makes sense to focus on criminals or repeat immigration violators.
The administration last year announced a policy to allow young undocumented immigrants brought to the country as children, who call themselves Dreamers, to apply for temporary legal status. In Utah, 4,756 had been approved through the end of June, and more than 400,000 have been approved nationally.
But several ICE agents sued to block that policy. In July, a federal judge in Dallas tossed out their case. He said agents likely were correct that such directives violate immigration laws, but said that his court didn't have jurisdiction and that it was a matter for collective bargaining for their union and ICE.
"The [ICE] unions have ignored many of these memos," Tarin said, "so we don't have high hopes that we are going to get them to pay attention to this one."
Directive • The new nine-page directive from the Obama administration issued last week instructs ICE to use "prosecutorial direction" to ensure enforcement actions "do not unnecessarily disrupt the parental rights" of parents or guardians who are primary caretakers of any child; who have minor children who are citizens or are here legally; or who are involved in family court proceedings over custody.
A variety of groups give that different meanings, both political and legal.
Republicans view it as a back-door maneuver to push immigration reform. House Judiciary Chairman Bob Goodlatte, R-Va., said it shows Obama "has once again abused his authority and unilaterally refused to enforce our current immigration laws." The action, he said, "poisons the debate surrounding immigration reform."
Some immigrant groups see it as offering hope to undocumented immigrants, while others say it may be a false hope.
"This new directive is a necessary step toward protecting family unity," said Marielena Hincapié, executive director of the National Immigration Law Center.
But attorney Alvarez warns, "The danger is that some undocumented parents may think it opens a route for them to have some type of work permit or paper. That's clearly not the case."
Regional ICE spokesman Muñoz said the directive "clarifies that ICE officers and agents may, on a case-by-case basis, utilize alternatives to detention for these individuals particularly when the detention of a non-criminal alien would result in a child being left without an appropriate parental caregiver."
End run • Several immigration attorneys say ICE is deeming almost anyone as a criminal to work around such directives so they say ICE's figure of 80 or 90 percent of people removed by the Salt Lake office being criminal aliens may be a bit deceptive.
"They say they are only detaining criminal aliens, but the devil is in the details. Who are these criminal aliens? A lot of people with minor offenses are being lumped in with violent offenders," Tarin said.
Alyssa Williams, an immigration attorney with Catholic Community Services, cites a case she has involving a single mother with three young children.
"The only thing they had against her was some unpaid traffic tickets, such as driving without a license and a speeding ticket," Williams said. "I've received no letter from them that they want to administratively close that case."
She said ICE did help the woman receive a low bond for release "because they knew she was a single mom and needed to get home."
Immigration attorney Leonor Perretta said, "'Criminal' is defined extremely broadly. So people with a minor shoplifting charge, even if they have been here 20 years and have U.S. citizen kids, they are considered criminal aliens.... They consider just about everybody a criminal."
That is easy, Alvarez said, because most have used false or invented Social Security numbers to work, actions prosecutable as Class A misdemeanors or even felonies. Alvarez said, however, it usually isn't traditional identity theft because people do not steal from owners, but work and pay taxes using the numbers.
Little change •There are other concerns about the directive.
"It is supposed to keep them from detaining parents," Perretta said. "It doesn't necessarily mean they won't detain one of the parents."
The attorney said she had high hopes for an earlier directive to ICE to use prosecutorial discretion to avoid people who are not serious criminals and had a possible path to citizenship. "But in the end, it helped maybe only five of my cases out of hundreds."
Williams said she isn't expecting much from the new directive.
"Not only do we see them continuing to proceed on cases of parents of children, but they're continuing to proceed on cases against children." She said that includes one she knows about against an 11-year-old caught entering illegally trying to join his parents and family here.
Tarin said whatever impact the flurry of directives is having will be seen only gradually.
"The Obama administration is trying to push on the brakes to slow down the deportation freight train a bit and focus resources on more critical people."
While he said "there has been a tremendous amount of push back" by ICE, attorneys always hope that continuing such policies will help over time. "It takes a long time to turn a freight train around."
New Obama immigration directive
The policy says immigration officials should use "prosecutorial discretion" to ensure "enforcement activities do not unnecessarily disrupt the parental rights" of "parents or legal guardians who are primary caretakers" of minors; parents "who have a direct interest in family court or child welfare proceedings"; and parents or guardians "whose minor children are physically present in the United States and are U.S. citizens or lawful permanent residents."