A test case on deportation shift (Omaha World-Herald)

A test case on deportation shift

Published Sunday August 28, 2011
By Cindy Gonzalez
WORLD-HERALD STAFF WRITER

Luis Cervantes was pushing a shopping cart and collecting recyclables from curbside trash cans when two Omaha beat patrol officers stopped him.

The 30-year-old "kept ignoring" them, the officers said in a report. Though he eventually gave his name to a Spanish-speaking officer, Cervantes offered conflicting birth dates and had no ID on him. He was taken to jail, where he spent two days and was booked on suspicion of stealing a grocery cart.

Only later would officials realize that Cervantes — who has been diagnosed as autistic and moderately mentally retarded — can't communicate much. He pleaded guilty, was fined $25, and the misdemeanor case was closed.

But by that time, the U.S. Homeland Security Department had been contacted, and the Mexico-born Cervantes last October joined the crowded court docket of illegal immigrants the government wants to deport.

Today Cervantes is poised to be a test case under a new and controversial Obama administration directive to suspend deportation proceedings against illegal immigrants determined to pose no threat to public safety.

The policy shift could include work permits for select cases.

Homeland Security Secretary Janet Napolitano said Aug. 18 that a working group formed this month would be looking, one by one, at nearly 300,000 pending deportation cases across the nation with an eye toward sidelining low-priority cases.

Napolitano said the president has said repeatedly that "it makes no sense to expend our enforcement resources on low-priority cases" such as students brought to this country as kids by their parents.

She referred to a June 17 memo by U.S. Immigration and Customs Enforcement Director John Morton that urged federal ICE officials to tap already existing "prosecutorial discretion." He listed factors to be weighed positively, including significant time spent in the United States, whether the illegal immigrant has been a victim of domestic violence or has an immediate relative who has served in the U.S. military. Negative factors would include being a gang member or a "serious felon," having an immigration fraud conviction or having repeatedly violated immigration laws.

The case reviews are intended to ease a court backlog. But how many of the 300,000 ultimately will be considered low-priority cases is unknown, and the number could depend on how prosecutors weigh an immigrant's use of false identification to work.

Rep. Steve King, R-Iowa, already has called for congressional hearings to stop implementation. He is among critics who contend it amounts to "back-door amnesty," bypassing Congress and giving a pass to people who have broken immigration laws.

"We have a president who thinks he can run the country by executive order," King said.

Meanwhile, immigrant advocates are holding meetings to try to answer myriad questions and warn against con artists with big fees. Lawyers are waiting for clarity on how work permits would be granted. And many are wondering how long it might take to review the 300,000 deportation cases.

In the Omaha Immigration Court alone, which covers Nebraska and Iowa, deportation cases are so backed up that local attorneys say some clients are getting trial dates five years from now. The average wait in the Omaha court is 525 days — higher than the national average of 482 and the fourth-highest of all the nation's 30 immigration courts, according to TRAC's Immigration Project. Its sponsors include the Ford Foundation and Syracuse University.

As of Aug. 1, the Omaha Immigration Court had 4,827 pending proceedings, according to the national body that oversees the courts. TRAC said the two states were on pace to set local deportation records this year.

The uncertainty of just how or when Obama's directive will trickle down became evident when Cervantes appeared last week in the Omaha Immigration Court.

He has a mental disability — a positive factor that "should prompt particular care and consideration," according to the Morton memo, which also points out that prosecutorial discretion may be exercised at any step of a removal proceeding.

But Cervantes — who earlier had been released from federal custody on his own recognizance — was ordered to appear in May 2012 for further deportation court proceedings.

His attorney, Kristin Fearnow, plans to formally request to close Cervantes' case, based on medical evaluations that federal officials haven't yet analyzed and on support letters.

The Cervantes family is five in all. Another son, Rolando, 29, shares Luis' autistic condition.

Dad Francisco left their homeland of Sinaloa, Mexico, in the mid-1990s in search of better pay. His wife and their youngest son followed in 1998. Their other teenage boys came six months later. All entered the U.S. illegally.

None of the Cervantes brothers attended school in the United States, his parents said.

Though Luis Cervantes was a candidate for prosecutorial discretion even before the presidential directive, Fearnow said his case now is stronger. "He is no danger. He fits the criteria."

An interagency working group from Homeland Security and the U.S. Justice Department already has started meeting to review cases. The group also is to issue guidance to prevent other low-priority cases from entering the system.

Some see the directive as a move by Obama to curry favor with Latino voters, but Susan Smith of the anti-illegal immigration Nebraskans Advisory Group believes it will create a voter backlash.

"Just look at the economy. How can they tell people this with a straight face?" she said.

State Sen. Charlie Janssen of Fremont, a frequent critic of illegal immigration, predicts the move will prompt more action by state and local governments.

"In fact, laws like those passed in Arizona and sponsored by me in Nebraska will become even more necessary as the federal government continually refuses to act," he said.

Amy Peck, an attorney who sits on national immigration law boards, said the directive so far sounds positive for clients but lacks specifics, including who might be eligible for work permits during the time their cases are put on hold.

Sergio Sosa, executive director of the Heartland Workers Center, suspects the president was reacting to mounting dissatisfaction with the administration's Secure Communities enforcement program, which has come under fire for snaring low-risk illegal immigrants and propelling deportations to record numbers. Sosa said his hope is that ICE now will focus on hardened criminals rather than working immigrants.

The line in some cases might be a fine one under guidelines set out by the Morton memo.

Take Feliciano Montejo, a Guatemalan who entered the U.S. illegally more than a decade ago.

His case is among those to be reviewed. The length of time he has been in this country and the fact he has two U.S.-born children are supposed to play in his favor when it comes to being eligible for a suspension of deportation.

Montejo, however, faces charges of using fraudulent identification to work. And the Morton memo specifies that fraud conviction is a negative factor.

Montejo's attorney, Dazmi Castrejon, said her client purchased false ID for his two restaurant jobs but didn't know whether the information belonged to a U.S. citizen.

It's a purchase many illegal immigrants have made to get a paycheck.

"They came to have a better life," Castrejon said. "The way they get that is by working. It's a pretty common scenario."

Had it not been for his immigration status, she said, the documents would not have been bought and the charge would be a nonissue.

While the Morton memo says that no one factor is determinative in prosecutorial discretion, such ambiguity has many immigrants questioning which cases will be suspended.

That's one reason why immigrant advocates continue to press for overhauling immigration laws and providing a path to U.S. citizenship. "All of this does not get rid of the need for federal reform through Congress," said Darcy Tromanhauser of the Nebraska Appleseed Center for Law in the Public Interest.

Since Montejo's arrest in mid-July, his wife, Rosa, has had to find a baby sitter for her daughter, 3, and son, 1, and go to work as a hotel maid, turning to social agencies for help with food and rent. "It's been very hard," said Rosa, 23. "My husband is a good, hardworking man."

The recent policy shift eventually could affect many more of the estimated 11 million immigrants living illegally in the United States.

"One of the objectives here is to keep low-priority enforcement folks out of the caseload in the first place," a senior administration official who spoke on the condition of anonymity said in a briefing with reporters.

That provides some comfort to Luis Cervantes' parents, who would like to remain in Nebraska. The couple purchased a modest South Omaha house years ago when it was easier to land jobs without proper authorization.

Since they lost their production line jobs the family has turned to collecting recyclable materials. They earn about $150 a week and get clothing and food at pantries, where they also volunteer.

It was during his weekly stroll to gather cans and plastics that Luis Cervantes roamed from his father and was arrested near 13th and Vinton Streets.

When he didn't return home, his parents called 911 and were told that a man matching Luis' description was in custody. Maria Cervantes sought help at a local charity, and Fearnow agreed to provide her services for free.

Since the handcuffing, Luis won't go to the grocery store or collect cans, Maria said.

Though Luis smiled and said "si" during a recent interview, he mostly fidgeted as his parents spoke.

A medical report to be submitted in immigration court says Luis gets anxious and agitated if he changes routine or does not know his mom's whereabouts. He doesn't use telephones. Mom must prompt him to do the smallest of tasks, including tooth-brushing and shampooing.

Maria said she is afraid her son won't be able to adjust if sent back to Mexico.

"He can't read, write or tell time, but he knows he has an immigration court date," she said. "He keeps saying, 'I have court. I have court.' "