Stop Watch

Upstanding undocumented immigrants test an overburdened system and tenuous reform efforts

There's no need to dig up old Twilight Zone episodes to glimpse a parallel universe. You can find one right here in Tucson, with a short visit to folks like Sandra Moreno. The warm, well-regarded single mom has three kids to look after—and the federal government is breathing down her neck.

In a crowd, Sandra would blend in with the rest of us. But like thousands of other undocumented Tucsonans, she dwells in a universe of shadows and suspicion, always waiting for the other shoe to drop. And on Feb. 5, 2010, it did.

That's the day she was stopped for a minor traffic violation and, along with her kids and estranged husband, spent the night behind bars courtesy of the U.S. Border Patrol. Every day since, she and her family have lived in legal limbo, awaiting the next move by U.S. Immigration and Customs Enforcement, the Border Patrol's sister agency within the Department of Homeland Security. Better known as ICE, its mission includes removing undocumented immigrants from this country.

Since it was formed in 2003, ICE has been feared and loathed among the immigrant community for its high-profile raids and aggressive deportation tactics, which have appeared to target criminal aliens and run-of-the-mill undocumented folks equally.

Or so it appeared until last fall, when Homeland Security Secretary Janet Napolitano announced a policy shift that included reviewing the cases of some 300,000 undocumented aliens in the throes of deportation proceedings. The goal, Napolitano said, was deciding which of those could be referred to low-priority status and possibly have their cases closed. This new approach, called "prosecutorial discretion," was aimed at freeing clogged immigration courts, making room for the speedier removal of criminal aliens stuck in our prisons on the taxpayers' dime.

The details were outlined in a June 2011 memo from ICE Director John Morton to his field directors, supervisors and lawyers. "Because the agency is confronted with more administrative violations than its resources can address," Morton wrote, "the agency must regularly exercise 'prosecutorial discretion' if it is to prioritize its efforts."

He went on to describe such discretion as "the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against any particular individual."

At least initially, people who had come to the United States illegally but were otherwise upstanding community members—those who had been here for many years; those with family here or an American-born child; or those with a good shot at gaining legal status—started seeing their cases "administratively closed," meaning that ICE wasn't actively seeking their deportation.

Meanwhile, a local group that included longtime immigration attorney Margo Cowan created information packets for immigrants, providing them with guidelines based on the Morton memo. In December, the team filed 65 requests for favorable prosecutorial discretion. "It seemed that in the beginning, we were getting fair responses," Cowan says. "Most of them were being approved, and we got some of those cases closed."

But by February, Cowan says, that progress "had come to a screeching halt. And people who were in the exact same position as the cases that had already been administratively closed started receiving denials. It just didn't make any sense to us."

Among those denied prosecutorial discretion were Sandra Moreno and two of her children—despite the fact that her third and youngest daughter was born in the United States, and that she presented dozens of letters vouching for her fine character and volunteerism.

Cowan says she plans to highlight the cases of Moreno and others who have been shunted aside, even though they precisely fit the discretionary guidelines laid out by Morton. "These people are workers; they pay taxes; they don't have criminal histories; they all have kids who are U.S. citizens. One is a marriage counselor in his church; another is a music director in his church. These are all stand-up people."

What's happening to them "is really not consistent with the Morton memo," Cowan says, blaming recalcitrant ICE prosecutors for the logjam. "The career folks in the Department of Homeland Security are really committed to ridding our country of the 'brown plague' like Sandra and her kids. That's the culture, and I'm thinking this directive from the president is just too tough for them to swallow. So they're exercising discretion in a very narrow way."

At the same time, ICE is being pigeonholed by get-tough conservatives in Congress, such as Rep. Robert Aderholt, an Alabama Republican who chairs the House Subcommittee on Homeland Security. In March, Aderholt excoriated the notion of prosecutorial discretion as a money-saving device, noting that his subcommittee has supported every ICE funding request since the agency was created, including allocations last year for 34,000 additional detention beds.

"Hiding behind the excuse of limited resources," Aderholt told the subcommittee, "the current administration has sought to diminish and degrade ICE's immigration-enforcement mission through the use of prosecutorial discretion."

An ICE official was not made available for comment before press time. However, the agency did provide the Weekly with statistics showing, for instance, that of the nearly 220,000 deportation cases reviewed, 16,554, or 7.5 percent, have been flagged as appropriate for prosecutorial discretion. Of those, 2,722 cases have been administratively closed. ICE says it has also granted more than 1,300 stays and deferred actions so far this year, exceeding similar actions for all of 2011.

In a statement, the agency claims to have "dramatically changed the way it conducts immigration enforcement. ICE implemented clear priorities, and enhanced the use of prosecutorial discretion, eliminating the ad hoc approach of the past."

But that doesn't explain the plight of Sandra Moreno and others like her—people with no criminal background who have overwhelming community support and deep roots in this country.

To Moreno, it's heartbreaking. She says that in Mexico, it's nearly impossible for a single mother to support a family. During nine years in the United States, she has provided day care for children, cooked chorizo to sell, and otherwise worked to keep her kids fed. Now she's starting a massage-therapy business.

And still, in her parallel universe, she must always be checking her rearview mirror and closing the blinds.

"For me, the United States is my home," Moreno says. "We are a good family. And I'm sure if the United States gives us an opportunity to stay here, we can help society. It is our fault that we stayed here without proper permits. But if we went back to Mexico, I don't know how I'd feed my kids."

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