With the Obama administration's new approach to deportations creating confusion for immigrants and authorities alike, two Illinois congressmen are actively seeking sympathetic cases to test which illegal immigrants will be allowed to stay in the country.
Democratic Reps. Luis Gutierrez of Chicago and Jan Schakowsky of Evanston believe they've had success: About six people in the Chicago area recently had deportations halted or delayed after the congressmen intervened, including a Pakistani family who overstayed visas and whose case Schakowsky personally presented to Homeland Security Secretary Janet Napolitano.
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Since Immigration and Customs Enforcement announced in June that deportations would focus on immigrants who had committed crimes, the congressmen have aggressively sought cases of others with no criminal backgrounds on the verge of deportation -- people who are sick, have U.S. citizen family members and who were brought to the U.S. at a young age -- and taken them to ICE instead of waiting for a promised review of 300,000 cases pending in federal immigration courts. Napolitano, who announced the review in August, said it started last week.
"We want to help navigate what remains right now a fairly unclear system," said Schakowsky.
Federal officials announced the change after sustained outcry from immigration reform advocates that the Obama administration was deporting a record number each year -- around 400,000 -- including many who weren't hardened criminals.
Other congressmen and advocates, particularly in California, have lobbied citing the memos, and federal officials say they'll start pilot programs in Baltimore and Denver immigration courts next month to look at incoming cases. But the representatives from Illinois -- which has some of the nation's most immigrant-friendly laws -- appear to be the only ones taking a systematic approach to see how the policy actually works.
"We're not going to wait for the administration to go to Baltimore and Denver and practice," Gutierrez said. "People don't have time for practice. This isn't a benefit program. It's a tool."
Their work is being watched by attorneys and advocates who claim the policy hasn't been uniformly applied and has raised questions including: Is there a surefire case? What happens after a person without legal status is allowed to stay?
It's difficult to draw conclusions from the Chicago cases; there've only been a handful and experts say the policy is playing out differently nationwide. But those with strong U.S. ties, like citizen children, or those facing illness appear to be among the best candidates.
Under the policy outlined in a memo from ICE Director John Morton, the agency said it would focus efforts on deporting criminals, better use resources and alleviate the backlog of cases, something celebrated by immigration judges and attorneys but criticized by Republicans who called it "backdoor amnesty." A union representing ICE agents blasted the change saying it was aimed at "stopping the enforcement" of U.S. immigration laws, was done without input from agents and would be a "law enforcement nightmare."
The memo said undocumented immigrants posing no security risk and who fell under any of a dozen or so categories could stay and seek work permits, among them veterans. The memo encouraged "prosecutorial discretion" at every level, meaning an ICE agent could choose not to pursue a case or a judge could suggest staying a deportation.
But since then immigration attorneys, judges and advocates have said there's little consistency to how the policy is applied, if it's applied at all.
"We have seen a very mixed response from ICE offices," said Gregory Chen, a director at the American Immigration Lawyers Association. "Attorneys are not going to know exactly how their cases are going to be handled."
The group surveyed attorneys nationwide and found that most regional ICE offices hadn't implemented the policy and in some cases attorneys were told ICE had no plans to comply.
"There's randomness to the situation," said Angelica Salas, director of the Coalition for Humane Immigrant Rights of Los Angeles.
Her group submitted a list of potentials to ICE, but was rejected, saying prosecutorial discretion would only be applied on a case-by-case basis. At least two people who appeared to meet criteria in the memo were recently deported.
There's no way to track how many people have had their deportations halted because of the new directives. For one, it's not always easy to tell if prosecutorial discretion was the reason. Also, federal officials can use prosecutorial discretion at any level of enforcement: ICE could cancel a notice to appear in court or decide not to stop someone for questioning.
ICE and DHS declined interview requests, saying ICE officers were receiving more training about prosecutorial discretion.
Gutierrez, who has been a national figure in the fight for immigration reform, said his office collected 55 cases after holding a packed public meeting. Those were whittled down to nine and taken to ICE officials who said three cases -- all who had either U.S. citizen children or spouses -- would have their deportations stopped or delayed due to the change.
Four cases needed further discussion with ICE. One case -- a man who had no U.S. ties -- was under review and another wasn't considered eligible because he didn't have an active immigration case before ICE. Gutierrez is working on gathering more cases in Illinois and South Carolina.
Schakowsky started with one family of four, and delivered a letter citing the memo and the Khafeez family to Napolitano.
The Pakistani immigrants came to the U.S. in 2005 to temporarily escape a dangerous section of Karachi and poor education prospects. They thought they had a five-year visitor visa, but didn't realize until the eldest son went to apply for a driver's license and didn't have proper documents that they had no legal status; their visas had only been for a few months. The family then received a house visit by ICE agents.
Without other avenues for them to stay, all four -- including parents facing major health problems -- were put into deportation proceedings.
"I had no hope, I thought I had no choice," said Khawar Hafeez, 19, who's enrolled in college.
ICE officials reached out to Schakowsky after receiving the letter and said the family's deportations would be stopped. At their next court hearings, their cases were "administratively closed." Schakowsky said two other cases from her office are pending and the office is gathering more to take to ICE.
It's not clear what's next for the family, whose halted deportations don't mean they have legal status to stay in the U.S. In Pakistan they don't have family to help them and the father's family business was burned down years ago. They hope to be approved for work visas in the U.S., though neither parent is able to work because of poor health and both the teenagers hope to finish school.
"There's always going to be fear until we're sure of something," said Mahek, 16, who dreams of medical school. "It's like hope and fear at the same time."