Discretion program a mixed bag for immigrants

AP News
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Posted: Apr 28, 2012 11:53 AM
Discretion program a mixed bag for immigrants

Miguel Rojano might have been elated when the federal government offered to put his deportation case on hold under a new initiative to focus resources on ridding the country of hardened criminals.

But the Mexican newspaper delivery supervisor _ who was raising his five American-born sons in Chicago after living in the country for more than two decades _actually turned down the government's offer to try his chances at getting a green card in immigration court instead.

"Seeing how sure my lawyer was about my case, I said, let's fight it," said Rojano, who won his case earlier this year. "I'm glad, because if they had closed my case, they wouldn't have given me my residency."

While the U.S. government is offering to shelve some deportation cases, some immigrants are rejecting the deal, preferring to take a shot at winning asylum or a green card in immigration court. That's because the government's offer wouldn't end the specter of deportation and doesn't promise a work permit or green card.

Immigrant advocates say another problem is the government is only offering the deal _ likened by some to a plea bargain _ to immigrants with the most compelling cases, who tend to be long-time residents and well-known community members with a decent shot at winning their cases in court.

"It's been a mixed bag," said Daniel McCreary, an immigration attorney in Illinois, who has turned down at least five offers to have his clients' cases shelved for precisely this reason. "Typically the cases we've been contacted on we've declined to accept it."

The federal government last year vowed to review the country's 300,000 pending immigration court cases and exercise so-called prosecutorial discretion to shift its focus to those cases involving convicted criminals wreaking havoc on local neighborhoods. As of mid-April, Immigration and Customs Enforcement had reviewed more than 70 percent of the files and decided to offer to temporarily suspend roughly 7.5 percent of deportation cases, agency officials said.

The agency declined to state how many of the 16,500 immigrants had accepted the deal.

So far, only 2,700 cases actually have been put on hold. In many instances, the process is pending paperwork and background checks, immigration officials said.

In December, ICE attorneys began reviewing their caseloads to see which immigrants should qualify for the program, which mainly consists of administrative closure _ an indefinite suspension of their cases but one that can be lifted at any time. Once the offers have been approved by a supervisor, attorneys have been reaching out to immigration attorneys or raising the issue directly with immigrants who lack lawyers in immigration court.

The government hopes to whittle down its caseload since the agency only has the manpower and resources to deport a finite number of immigrants. In the last fiscal year, ICE deported nearly 400,000 people, an all-time high for the agency.

"We need to get a handle on this exploded docket and figure out a way where ICE can prosecute the cases that really do warrant our resources and skills _ the bad guys," said Jim Stolley, ICE's director of Field Legal Operations.

For some immigrants, prosecutorial discretion is a lifeline. Immigrants waiting in line for a green card after being sponsored by relatives could use the extra time. Others, who may have lived here for years and have clean records but don't qualify for legal residency because they don't have American relatives, may have no other way to stay.

Concepcion Velazquez was sponsored for a green card by her American sister but must wait roughly two more years to get one. The 43-year-old from Fairfield in Northern California also has applied for a visa for crime victims who collaborate with law enforcement after a neighbor fired a gun into their living room.

Those are good prospects for being allowed to stay here, said Kevin Crabtree, her attorney. But Velazquez and her husband have no legal status today, which is why getting their case shelved by the government was such a relief.

"We're less anxious, not having to wait to go to court since we were always appearing in court," said Velazquez, who came here from Mexico more than two decades ago and wound up in deportation proceedings after an unscrupulous immigration attorney offered to get the couple legal papers and failed. "We're a little bit more relaxed in that sense, but we're still in the fight."

For other immigrants, however, getting an offer of prosecutorial discretion can be a double-edged sword. Some attorneys say they'd rather not even be approached by ICE because they'll be forced to choose between accepting a one-time offer to stave off deportation and seeking a more lasting solution in court such as asylum or a green card, both of which let an immigrant work here legally.

But turning down an offer of prosecutorial discretion also carries risks. Some immigration attorneys say they fear ICE attorneys might fight a case more vigorously if their client shuns an offer, or that immigration judges might apply more scrutiny to their clients' cases.

"A strong bird in the hand is worth two in the bush," said Angela Bean, an immigration attorney in Oakland, who has urged her clients to snap up the government's offer. "There is the issue of playing with fire."

It's still too soon to see whether the program will yield a significant improvement in the country's backlogged immigration courts, where it can take up to two years to get a hearing date.

On a recent morning in immigration court in downtown Los Angeles, several judges asked whether immigrants might be interested in seeking prosecutorial discretion. Some said they were eager for the opportunity, but not all _ such as a Mexican woman raising three American children on her own, two of them autistic, who opted to try her chances.

Government attorneys are still reviewing cases in most regions of the country.

Once immigrants are offered discretion, they must undergo background and national security checks before final approval.

Crystal Williams, executive director of the American Immigration Lawyers Association, said she is surprised the government has not offered work permits to immigrants who take the deal. She wishes authorities would grant immigrants relief in cases where they qualify for it to prevent protracted court battles now and also down the road, when attorneys may seek to bring their clients' cases back before an immigration judge for a permanent solution, she said.

"The whole program may not end up being as effective as it should be because they're not truly clearing out the easy cases _ they're just putting them on a shelf," she said.