Posted: 01/13/2012 03:14:50 PM PST
Updated: 01/14/2012 03:19:38 AM PST
In a policy change that Republicans call "backdoor amnesty," federal immigration authorities in the Bay Area and across the nation are quietly dropping deportation cases against illegal immigrants whose only offense is being here.
Between now and the middle of the summer, U.S. Immigration and Customs Enforcement, known as ICE, says it will review some 300,000 pending deportation cases nationwide.
It will focus on deporting immigrants with criminal histories and closing the cases of students, veterans and other upstanding people unlawfully here but with close family and community ties. In the first evidence of how the change is playing out, immigration officials are dropping an estimated 10 to 15 percent of the deportation cases on the dockets in Denver, as part of a pilot project to see how the new policy would work. Authorities are also beginning to administratively close some Bay Area cases, usually after the immigrant's lawyer makes a request.
"It's happening every day, in all places around the country," said ICE spokeswoman Barbara Gonzalez.
The change comes as the immigration debate is likely to play a role in the presidential race. While Latinos have expressed frustration at President Barack Obama's record number of deportations, Republicans say the administration is not doing enough and that the new policy undermines congressional authority.
ICE Director John Morton visited his agency's San Francisco branch office Oct. 31
to explain the new enforcement guidelines to the agents and federal lawyers of the Northern California region.
The Obama administration has argued that its new approach, announced in a June memo, is a smarter way of enforcing immigration laws.
The government has the funding to deport 400,000 people a year, and nearly reached that record last year, but trying to arrest and expel the country's estimated 11 million illegal immigrants would be costly and nearly impossible.
Before detaining or deporting an illegal immigrant, federal agents are now supposed to more carefully evaluate if the person is a priority, such as a criminal or someone who repeatedly violates civil immigration laws or who tried to game the system.
Federal immigration lawyers are supposed to begin culling low-priority deportations from the thousands of backlogged cases and asking judges to close them.
The underlying message, according to lawyers briefed in November: Significant changes are afoot.
"They don't want to be on the record saying they are massively reviewing cases," said Camiel Becker, a San Francisco lawyer who attended the briefing by the region's top ICE lawyer and field director.
Administrative closure of a deportation case is not a path to citizenship, but some whose cases are closed will be able to get work permits.
Immigration officers always had discretionary power to grant reprieves based on special circumstances, Becker said.
"They took the position that nothing's changed, this power has already existed."
In truth, Becker said, a major shift is under way. Never before has ICE been instructed to use its discretion so broadly.
"We're just starting to see how this is going to play out," said another Bay Area lawyer, Zachary Nightingale. Immigration authorities are considering only "the cleanest of cases," he said.
A two-month pilot program that began late last year in Denver and Baltimore ended Friday.
The government essentially halted immigration court schedules and had judges in those cities review every pending case to dismiss the low-priority ones. Based on anecdotal evidence, judges are closing about 10 to 15 percent of Denver's 7,800 cases, according to Denver lawyer Laura Lichter, president-elect of the American Immigration Lawyers Association.
Until recently, deportation reprieves would typically arrive at the last minute and only after political intervention or a public outcry.
Daly City resident Jose Librojo was granted a last-minute reprieve after packing his bags in November. A Bay Area resident since he was 15, the 31-year-old Filipino dental assistant and a few dozen friends arrived for his scheduled Nov. 12 deportation flight.
Only after he reached the airport did he learn that his deportation to the Philippines was delayed for two weeks. The delay later was extended indefinitely.
Librojo said he fits the prosecutorial discretion criteria: He has a clean record, his family brought him here before he was old enough to make a choice, and he has a U.S. education, a legal resident wife, and good work and community credentials.
Still, he thinks his reprieve was an exception and had more to do with U.S. Sen. Dick Durbin, D-Ill., calling his deportation an example of "broken immigration laws" because Librojo has been a stellar employee and has lived in the U.S. for most of his life without any trouble.
"They keep on detaining a lot of students like me that probably didn't commit a crime," Librojo said. "I don't think they're enforcing the prosecutorial discretion."
Highly charged immigration politics have slowed the changeover.
Republicans proposed a bill to stop it, the HALT Act, or "Hinder the Administration's Legalization Temptation," but it has gained little ground since August.
Also criticizing the policy is the immigration agents' labor union, the National ICE Union, which argued in a written statement Tuesday that "some of the worst criminals encountered by ICE will go free due to loopholes in the policy."
The statement does not say how that would happen, and the union has not responded to numerous requests for comment.