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A single mistake made over a decade ago can get you deported – even after Obama’s action

10 Dec

Javier Licón has lived in the United States since 1997. He entered legally on a visa to work as a horse groomer in Arizona. In 2003, the visa was canceled after regulations changed. So Licón did what a lot of his fellow temporary workers did. He took his valid Social Security card and his driver’s license and got a higher-paying job in construction. In 2008, he met Sherrie Soria, a widow, born and raised in Buffalo. Romance ensued. A year later, they married and now have three children.

Licón’s family seems to be exactly what President Obama had in mind when he announced that he would extend temporary protection from deportation for undocumented parents of children who are U.S. citizens.

But there’s this: Eleven years ago, Licón was stopped for driving under the influence. The officer cited him and let him go. Licón went to court, paid his fine, took his DUI classes and did his three nights in jail. Still, that offense may keep him and his family from qualifying for the president’s executive action.

In announcing his executive action on immigration, Obama said his administration would focus on deporting “felons, not families,” and on those who are “actual threats to our security.” The reality is that the new enforcement policy is neither as generous nor as clear cut as the president implies. Like much of our immigration policy, it relies on the judgment of individual immigration officials, from agents on up, and that has proved to be a recipe for inconsistency.

The new enforcement guidelines, which will take effect in January, still include the old, broad categories and priorities of deportable offenses – some of them calling for mandatory detention and deportation. Under the new policy, a person can still be deported for things such as simple assault or a shoplifting charge that carried a one-year suspended sentence – offenses immigration law considers aggravated felonies, but many states classify as misdemeanors. The policy also continues to include a highly contentious category called a “significant misdemeanor,” which is not defined by immigration law, but was created by the Department of Homeland Security. Such misdemeanors include DUI and domestic violence.

What does all that mean? That Licón and others in similar situations are unlikely to be among the estimated 4 million illegal immigrants covered under Obama’s executive action and will remain at risk of deportation.

“Do I condone drunk driving?” says his wife, Soria, distraught. “I do not and I feel for those families who have suffered a death at the hands of a drunk driver. But I look at my situation and what really bothers me as a U.S. citizen is that if I was caught 20 years ago or one year ago or last week, it doesn’t matter. If I paid my fines, did my time, did everything to pay my debt, it doesn’t matter. . . . My government would rather see my family of five ripped apart and me become a single mother of three children than pardon my husband for a mistake he made over a decade ago.”

The president directed the Department of Homeland Security to continue to exercise its prosecutorial discretion in deciding whom to arrest, detain and deport as a cost-saving measure. Immigration and border patrol officials are to weigh the threat of potential national and border security and public safety against its enforcement priorities. With the most serious crimes, the agency is to consider “compelling and exceptional factors” for why an immigrant is not a threat.

“And it’s with enforcement priorities that the rubber hits the road” with the president’s action, says Keren Zwick, managing lawyer for the National Immigrant Justice Center in Chicago. “I just finished a two-hour meeting with an 18-year-old who came here when he was 2. But he went to a party and he got a DUI and now he won’t be eligible. Whether an offense happened 30 years, 10 years, one day ago, there is no difference in the system.”

How the new enforcement policies will be implemented “really will depend upon the local field office,” says Paromita Shah, associate director of the National Lawyers Guild’s National Immigration Project.

“People have a hard time looking beyond what they see as a crime,” she said. “I hope they look at the entire person and not just a checklist of offenses. A person may have kids and has paid taxes and goes to church, but will be removed because he has a significant misdemeanor. Those are the kind of outcomes that just don’t make sense.”

Immigration and Customs Enforcement did not respond to questions about its screening process or how it will reconcile a case like Licón’s – someone who has an offense that could lead to deportation, but who otherwise qualifies for the new and expanded temporary protection from deportation – called Deferred Action for Parental Accountability (DAPA) and Deferred Action for Childhood Arrivals (DACA).

After Obama announced his executive action, ICE immediately began screening and releasing those in its custody who might qualify for DAPA or DACA. From Nov. 20, when the announcement was made, to Nov. 29, 183 people nationwide were released, either on bond or personal recognizance to await application for the new protections sometime in the  spring, said ICE press secretary Gillian Christensen. She could not provide details about who was released or from which states.

Immigration advocates nationwide have been going into detention centers to screen parents and young people who might be eligible for DACA or DAPA. The Capital Area Immigrants’ Rights Coalition in Washington, D.C., has been providing information to those in detention in Virginia and Maryland.

“Unfortunately, most won’t qualify,” Heidi Altman, the organization’s legal director, said. “That includes unaccompanied children, those who have just arrived fleeing violence and are seeking asylum, and longtime green card holders with minor convictions and families. So, much of what of what we’re doing is helping those in detention understand that despite their overwhelming ties to the United States and years of rehabilitation, they don’t benefit. They don’t get a second chance.”

The National Immigrant Justice Center is finding the same in detention centers in the Chicago area, as well as those it serves in Kentucky and Wisconsin. Said Zwick, “We are deporting generally good people and we will continue to deport generally good people under the Obama order.”

Back in 2003, when Licón was arrested for DUI, his visa had just expired. He was here illegally and immigration officials gave him a choice: We can deport you or you can leave voluntarily. He went back to Chihuahua, Mexico. And then he returned illegally two months later.

That action alone is enough to keep Licón from ever gaining legal residency – U.S. citizen wife or not.  His best – and possibly only — chance for any kind of protection against deportation or work authorization lies, therefore, with the president’s executive action for parents and the hope that immigration officials consider the life he has built since his DUI.

“But imagine if I apply and they say, ‘No, you have to go back to Mexico,’ ” Licón says. “I try not to talk about it so much, but I know Sherrie gets worried and sometimes I talk with her in a positive way to say, ‘Hey, Sherrie, don’t worry. Nothing will happen. No one will separate us or break our family. We have to keep the faith.’

“Sometimes I think, ‘Why did I drive after drinking?’ At that time, I didn’t think I would get married and that I would have kids. I thought I would work and make money and go back to my home in Mexico and stay with my family. And sometimes I think, ‘Why did I get married with this girl?’ My poor wife. She is so nice and she deserves so much more. Sometimes I think if I get deported, they will be better off without me.”

Soria, hearing much of this for the first time, catches her breath and says that if it were to come to that, she would follow with the kids because “he is a wonderful husband and father” and they cannot be without him.

Soria has a series of recurring nightmares, all variations on a theme. She, Licón and their three children are on the road. Perhaps they are in their home state of Arizona. The surroundings change, but always they are on the road and exposed. In the dream she recalls most vividly, they are in the middle of a four-way intersection, a border patrol checkpoint in each direction.