For Bay Area immigrants facing imminent deportation, new Obama policy offers no reprieve (Contra Costa Times)

*****UPDATE BELOW******

For Bay Area immigrants facing imminent deportation, new Obama policy offers no reprieve
By Matt O'Brien
Contra Costa Times
Posted: 08/29/2011 04:30:41 PM PDT

CONCORD -- Less than two weeks ago, the Obama administration announced it would stop deporting many illegal immigrants who are not public safety threats. But Monday, Arturo Rengifo Jr., a college student and Peruvian citizen who is no one's idea of a threat, paced the floor in his Concord living room as he prepared to be shipped back to Lima on Tuesday.

Rengifo, 24, who has lived in the United States since he was 6, is one of a number of immigrants in the Bay Area and around the country caught in a bureaucratic tangle: While the administration has announced its intent to change immigration policy, it hasn't yet implemented a new system, so planned deportations are proceeding.

"The new policy is to not break families apart, but they're not budging on this," said Rengifo, who must leave the country along with his father, while his mother and brother will stay in the Bay Area. "For us to leave everything here would just be a big, big tragedy."

The college student waited for hopeful news on his cell phone as his father, who suffers from depression, sat nervously on a sofa. His mother's voice shook as she contemplated what would happen to the family if she lost her son and husband of more than 30 years.

"We've never depended on the government, we pay our taxes, we've never had problems with anybody," Emperatriz Rengifo said. "I don't know what I will do without them."

The Department of Homeland Security announced more than a week ago that it will review 300,000 pending cases to prioritize deporting felons, but the agency clarified Monday that it has not begun the case-by-case reviews and will continue to enforce immigration law as it did before the announcement.

"Because the working group is in the midst of designing the process for reviewing cases, no individual cases have been administratively closed or otherwise affected by the policy," the agency said.

Eventually, a committee of federal lawyers and other officials from Homeland Security and the Department of Justice will review each pending case and focus "on the removal of criminal aliens, other aliens who pose a threat to public safety or national security, repeat immigration law violators, recent illegal border crossers, and immigration fugitives."

Rengifo does not fall under any of those high-priority categories. The graduate of Ygnacio Valley High School has a clean record, studies at Diablo Valley College, works in customer relations at an AT&T store and helps his family run a day care service at their home. However, an immigration agent told him last week that he does not qualify for a reprieve because his father's long-standing plea for political asylum had already been litigated, and lost.

Agents plan to escort the 69-year-old father and his son to San Francisco International Airport on Tuesday night, where the two men -- both named Arturo Rengifo -- will board a flight to Lima, splitting the family of four as Emperatriz Rengifo and the couple's older son remain in Concord.

"My family is all I have," Arturo Rengifo Jr. said. "Without them, it's like we're falling apart. Imagining my mom by herself is really depressing."

His mother's deportation is on hold because judges found her asylum testimony more credible than her husband's. Meanwhile, his older brother has a path to legal residency because he married a U.S. citizen.

The imminent deportation of half the Rengifo family reflects ongoing confusion over the new Obama administration policy, which was made public Aug. 18 and celebrated by many immigration advocates because of the promise to drop thousands of low-priority cases. The administration also released new guidelines in June that instruct agents to reconsider deporting some immigrants, including high school graduates such as Rengifo who have lived in the U.S. since childhood, but immigration lawyers say those guidelines are not always followed.

"According to (immigration agents), the Dream Act was denied and the kid is good to go," said Rhoda Wilkinson Domingo, the Rengifo family's lawyer. "He's had his bite of the apple is what they keep telling me."

The Rengifos were not the only Bay Area family who cited the new Obama administration policy in pleading for a last-minute reprieve this week. Immigration and Customs Enforcement on Monday detained Victor Rosales, of East Palo Alto, and planned to deport him to Guatemala. U.S. Sen. Dianne Feinstein, D-San Francisco, and Rep. Anna Eshoo, D-Palo Alto, asked federal officials to put his deportation on hold. The Board of Immigration Appeals denied the appeal on Monday afternoon but then, late in the day, the immigration agency granted him a 30-day stay.

After fingerprinting him and getting ready to place him in detention, Rosales said immigration agents appeared annoyed at getting the late-afternoon call to release him, but his wife and 2-year-old son were overjoyed when he came out of custody.

"I feel at peace, so relieved," said his wife, Idania Rosales-Picen.

The Guatemalan man's wife had applied for political asylum because she had been abused by a former husband in Guatemala, but the family -- like the Rengifos -- recently lost their case at the Ninth Circuit Court of Appeals. The family's lawyer said that Rosales and his wife have a 1996 shoplifting conviction, making it less likely that their case would be reconsidered.

San Francisco attorney Mark Silverman of the Immigrant Legal Resource Center said these cases might not be a good gauge of the new policy, since judges already had issued a final order of deportation for both Rosales and the Rengifos.

"It's vague," Silverman said of the new policy. "It's hard to say how it is going to be implemented."

He hoped that of the 300,000 cases being reviewed, at least a third of them would be administratively closed, but he said it might depend on the discretion of immigration agents, some of whom are likely to personally oppose the new mandate.

Immigration control groups think the case-by-case review violates the will of Congress.

"This goes way beyond just some regulatory changes," said Ira Mehlman of the Federation for American Immigration Reform. "Essentially, the administration has scrapped the existing immigration policies and made its own."

Mehlman said immigration agents should be able to use discretion in "extenuating, unusual circumstances," but he argued that the new policy gives a blanket reprieve to entire categories of people who violated immigration laws.

********UPDATE*********

Handful of Deportations Halted as New Removal Criteria Worked Out
August 31, 2011, 3:06 pm • Posted by Jon Brooks

Arturo Rengifo and his son, Arturo Rengifo, Jr., are two undocumented Concord residents who were ordered to leave the country by Aug 30. Yesterday, however, Immigration and Customs Enforcement granted them a 30-day reprieve so it could review their case. But it took an intervention by a U.S. Senator -- Dick Durbin from Illinois -- to stall the process.

According to the Rengifos' lawyer, Rhoda Wilkinson Domingo, Mr. Rengifo’s wife is not subject to an order of removal, and another son is a permanent resident. Wilkinson Domingo also sent out the following background information yesterday:

Mr. Rengifo and his family fled from Peru in 1993 after they were attacked and threatened by the Shining Path, a terrorist guerilla movement that now engages in highly dangerous narcotics trafficking. The Rengifo children were 15 and 6 years old, respectively, at the time. They have not left the United States since then.

"My father and I never even packed," Rengifo, Jr. told KQED's Mina Kim yesterday. "It's been the greatest miracle ever, that's ever happened to me. Even these 30 days gives us another chance of hope to live and just do what we need to do here, and that's live the American dream, and live as a family."

"We've never been split apart, ever. For me and my dad to leave and to leave my mom here, it's taking part of my mom's heart. It's really devastating. I'm still in this state of mind where I am going to stay here. I'm putting everything in the hands of God, whatever's going to happen is going to happen. But I know that good things will happen to us, hopefully, since we are good people."

Here's audio [link] of Rengifo's reaction, which starts with his recounting of his appeal to ICE to reassess his case under the new federal guidelines that prioritize deportation of undocumented immigrants who pose a public safety risk, as opposed to those who meet certain mitigating criteria -- outlined in a Jun 17 memo (pdf). Rengifo says an immigration officer told him the policy shift was "not new news," and that deportations were continuing.

In that Jun 17 memo, under a header called "Factors to Consider When Exercising Prosecutorial Discretion," ICE officials are directed to weigh some 20 considerations in deciding whether to apprehend, detain, or remove any of the 300,000 immigrants who currently face deportation. Such factors include education, age, health status, ties and contributions to the community, and family ties to legal residents.

However, as reported in this Contra Costa Times article about the Rengifos, the case-by-case reviews under the new policy have not yet begun, as the process for assessment is still being worked out. However:

Bay Area immigration lawyers have heard of a few anecdotal cases of immigration agents or judges halting a deportation since the June memo, and all of those involved illegal immigrants who are students or same-sex married spouses.

Last week, a San Francisco judge closed a deportation case against a member of a same-sex couple from southern California. The judge’s decision came at the request of ICE. Two other same-sex couples, including one from Oakland, have also had their deportation orders rescinded. All the cases involve men who married legal residents in states allowing same-sex marriage. Previously, this was not enough to shield an undocumented spouse from deportation, as it would in an opposite-sex marriage, because the Defense of Marriage Act prohibits federal recognition of same-sex unions.