ICE to allow some undocumented immigrants to stay (Miami Herald)

ICE to allow some undocumented immigrants to stay

BY ALFONSO CHARDY
Posted on Saturday, 07.02.11

Karen Sánchez, a Honduran undocumented immigrant, lives under the constant fear of deportation — especially after immigration authorities recently attached an electronic bracelet to her ankle. Her Peruvian husband, Adolfo Tueros, is now in deportation proceedings at the immigration court in downtown Miami and could be ordered deported.

Until recently, the couple had few alternatives to fix their immigration problems despite having three U.S. citizen children, including one with a serious heart condition. But a recent shift in enforcement policies by U.S. Immigration and Customs Enforcement (ICE) has given the couple hope.

A memo issued June 17 by John Morton, the ICE director, laid down new guidelines that could enable immigrants like Sánchez and Tueros to remain in the country.

The Morton memo, for the first time, gives ICE trial attorneys – the “prosecutors” who try cases in immigration court – discretionary power to dismiss charges against foreign nationals facing deportation such as Sánchez and Tueros. The document, some immigration experts say, amounts to a more lenient attitude by ICE toward certain undocumented immigrants.

Nicolás Olano, the couple’s Miami immigration attorney, said he plans to use the Morton memo to help Sánchez and Tueros remain in the United States.

“It would be a disaster for our family if we are deported, me to Honduras and my husband to Peru,” Sánchez said in a telephone interview this past week “The family would be destroyed and I don’t know what would happen to our three children.”

The memo focuses more sharply than before on what constitutes the agency’s enforcement priorities: detention and deportation of dangerous foreign criminals and foreigners deemed threats to national security.

It suggests that undocumented immigrants with no criminal record or who are caring for a sick child, who have been victims of domestic violence or crime, or who arrived in the country as children would not be a priority and thus could be offered a way to stay.

Morton said at a recent press briefing that ICE was going to rewrite the so-called detainers the agency issues to undocumented immigrants arrested by local police so they are not released on bail before the agency picks them up. Morton said the rewritten detainer would be issued when those arrested are convicted, not when they are charged.

The change would have benefited undocumented immigrants like Jorge Ortiz, an 18-year-old Salvadoran recently arrested in Miami and charged with driving without a license. Then Ortiz was detained by immigration agents and locked up at Krome.

Ortiz’s mother, Deysi, said she paid a bail bonds firm $600 to free her son from police custody, but Jorge was not released because of an immigration detainer. Deysi said the bail bonds firm refused to return the $600.

Jorge was released from Krome last week, a little more than a week after the Morton memo was issued.

Tens of thousands of undocumented foreign nationals, including young students in high school or college, could qualify for more lenient treatment under the Morton memo.

Immigrant rights activists are split over whether the memo is a significant shift or contains only cosmetic changes. But immigration law experts deemed the memo significant.

“It is a change,” said Eleanor Pelta, president of the American Immigration Lawyers Association (AILA). “But the proof will be in the pudding. Let’s see how they implement it. Nonetheless, this represents a strong effort to empower the field to make good choices.”

Ira Kurzban a Miami immigration attorney considered a national authority on immigration law, said clauses in the memo could give ICE trial attorneys more freedom to make decisions on cases.

“It’s a positive development that will have significant consequences in many immigration cases,” said Kurzban. “It certainly has the potential to assist persons who might otherwise face certain deportation.”

The ICE agents union, however, denounced the Morton memo as a “backdoor amnesty” for undocumented immigrants in a June 23 statement issued by Chris Crane, president of the National ICE Council, which represents about 7,000 ICE agents.

“Any American concerned about immigration needs to brace themselves for what’s coming,” Crane said in the statement. “This is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the administration is now implementing it through agency policy.”
Though critics have attacked the June memo, a previous Morton memo in March detailed the reasons for the change.

“ICE,” Morton wrote in the March 2 memo, “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal population in the United States.”

As a result, Morton added, ICE must be selective and is focusing its efforts on foreign nationals who pose a risk to national security, public safety and border security.

Sanchez and Tueros fit the profile of immigrants who could qualify for more lenient treatment.

Guidelines outlined in the Morton memo that could benefit the couple include the fact that they are the parents of U.S. citizen children and that one of them, four-year-old Enrique Tueros, suffers from congenital heart disease.

Specific factors listed in the memo, which officials can weigh now to dismiss or modify cases include whether the immigrant has a “U.S. citizen or permanent resident spouse, child, or parent” and whether he or she “is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relatives.”

Olano, the couple’s attorney, said he will try to convince ICE officials to agree to reopen Sanchez’s case so that the original charges can be dismissed. As for her husband, Olano said he would seek cancellation of removal.

“This memo actually gives an opportunity to people like Karen and the family to remain together,” Olano said.