When it comes to immigration, the government is all about not getting a black eye by deporting the wrong person. —Richard Huber, lawyer
It was sunny out and, despite the van's robust air conditioning, the sweat from a half day of heavy landscaping work was forging a creek down Manuel Guerra's neck. The 28-year-old was slouched down in the passenger seat en route to the next job, thumbing through his Twitter feed while the suburbs of Florida zipped by outside his window. A tweet caught his eye: "Big news from the White House on immigration." But he didn't have time to investigate further before his phone started ringing.
He picked up. "Hello?" he said. He stood frozen in place, eyes wide with shock. His coworkers stopped unloading the lawn mowers and stared.
After more than a year in court, Immigration and Customs Enforcement had closed Guerra's case. Though he was living illegally in Indiantown, Fla., he was no longer in danger of being deported to Mexico.
He turned his eyes heavenward and threw up his free arm. "Thank you," he said. "Thank you. Thank you. Thank you."
Guerra last summer was one of the first to benefit from an Obama administration policy that requires officials to focus on removing illegal immigrants who have committed serious crimes and forgo deporting those with clean records and strong ties to the community. In the months since, many illegal immigrants like Guerra have benefited from the policy, dubbed prosecutorial discretion. Hoping to leverage the opportunity, an increasing number of young, tech-savvy illegal immigrants are taking matters into their own hands. Using Change.org, a rapidly growing online platform that supports social campaigns, they are pushing their deportation cases into the spotlight, gathering public support and flooding officials' email inboxes with pleas for prosecutorial discretion. With the help of social media, some Change.org immigration petitions have gathered as many as 40,000 signatures.
There's no way to know how the petitions and the resulting public pressure play into the government's decision to grant — or not grant — reprieve. Despite a lengthy list of guidelines, applying prosecutorial discretion to immigration proceedings is an imprecise art influenced heavily by officials' own backgrounds and biases. But some petitioners have celebrated victory. Encouraged, some immigration attorneys have even begun recommending Change.org to their clients. Examining their stories and how grassroots activism plays out in the courtroom shines light on the gray areas in immigration law enforcement.
"Maybe it helped, maybe it didn't," Guerra said of his decision to publicize his legal woes on the Internet. "At least I did something to try to help myself."
Guerra, who has kind eyes and neatly parted black hair, fled Mexico shortly after he was forced to join a gang that adhered to the motto "kill or be killed," he said. Sixteen years old, he walked to the United States through the mountains of Laredo, Texas, eating corn and grass to survive. After a priest took him in and helped him to learn English and graduate high school, Guerra decided he wanted to become a military chaplain or a priest. But, despite earning a full-ride scholarship, Guerra couldn't enroll in divinity school because he was living in the country illegally. In his quest to fix his status, Guerra inadvertently turned himself into ICE and was thrown into deportation proceedings.
For many years, Guerra kept quiet about his immigration status, but staring deportation down the throat in 2011, he decided he had nothing to lose. He filed a Change.org petition, promoted it on Facebook and within a week he'd gathered 600 signatures. His supporters left encouraging notes for him online and shot emails of support to key government officials.
"I was frustrated that I couldn't go to college and I didn't want to go back to Mexico," Guerra said. "I couldn't just sit back and wait."
At the time, immigration-related campaigns were rare on Change.org, where people file petitions protesting everything from a $5 bank fee to torture in Ecuadoran prisons. Since ICE was ordered to practice prosecutorial discretion, though, the site has processed about 10 times as many immigration-related campaigns each month, said Jackie Mahendra, director of organizing for the Web site.
"Things have really exploded," Mahendra said.
Change.org, a B-corporation founded in 2007, is rapidly becoming the Web's go-to resource for effecting social change. About 10,000 petitions are filed every month, with victories rolling in about once a week. Using the site, 22,000 petitioners recently convinced Secretary of State Hillary Clinton to support Saudi Arabian women's right to drive. The petition of a fourth grade class influenced Universal Studios to redesign "The Lorax" Web site.
On immigration issues, petitioners have achieved success, too. Each week, about one petitioner has his or her case closed, is released from detention or gets a green card, Mahendra said. Are the victories really a result of Change.org, or merely a reflection of Obama's immigration policies? Mahendra can't say for sure, but, she said, "community support can be a powerful thing."
Deyvid Morales, a 20-year-old illegal immigrant who was arrested on his way to Bible college last year, counts himself a Change.org success story. A friend started a petition for the aspiring Christian pastor. More than 13,000 people signed. Then, last week, Morales "Tebowed" outside a West Valley City, Utah, courthouse after learning his case would be closed.
"I have a lot of people to thank for this victory," said Morales, who lives in Salt Lake City.
But even though they avoided deportation, neither Morales' or Guerra's battles are won. Illegal immigrants whose cases are dismissed because of prosecutorial discretion do not get a status change. They can stay in the country but they remain in limbo, unable to work. As a result of their struggles, both men said they plans to devote their energy to full-time activism.
In addition to speaking engagements and marching on Washington, Guerra files and promotes petitions on Change.org. Thus far, he believes his online activism has contributed to busting a college student out of detention and landing a father of five a work permit. After Guerra gathered 38,983 signatures on behalf of a 21-year-old Florida woman who is responsible for caring for her two special-needs siblings, an immigration judge dismissed the woman's deportation order.
Morales and Guerra were both, their lawyers said, "textbook examples" of the type of person who should benefit from prosecutorial discretion. According to a June 17 memo issued by ICE Director John Morton, immigration officials should consider abandoning deportation proceedings if a person came to the country as a young child, graduated from a U.S. high school or is pursing a college degree. Those immigrants who have U.S. citizen family are viewed favorably as well as those who have clean criminal records. The petitions requesting prosecutorial discretion on Change.org seek to sway officials by emphasizing similar factors.
In the courtroom, though, immigration decisions aren't made using a checklist. In an analysis of prosecutorial discretion requests in seven cities last year, the American Immigration Lawyers Association noted immigrants with no negative strikes against them were frequently deported. At the same time, some immigrants with criminal histories were allowed to stay.
"Trial attorneys and judges are going to look at all the circumstances in a person's case," said Greg Chen, director of advocacy for the American Immigration Lawyers Association. "Because prosecutorial discretion is fundamentally an exercise of discretion, a lot of authority rests on the trial attorney's opinion."
Among immigration enforcement officials, Obama's push for prosecutorial discretion has been met with resistance. The National ICE Council, which represents ICE's more than 6,000 officers, has refused to allow its members to enroll in a mandatory training program. Standing before the House Judiciary subcommittee, National ICE Council President Chris Crane testified the policy was a sign "law enforcement and public safety have taken a back seat to attempts to satisfy immigrant advocacy groups."
On the ground, many ICE officers have been exercising prosecutorial discretion narrowly, according to an American Immigration Lawyers Association survey published in November. For example, while policy dictates that only "serious" crimes should result in deportation, many immigrants have found themselves in the hot seat for minor traffic violations or misdemeanors that were committed decades ago.
"I've had a couple cases closed, but they are very rare," said Aaron Tarin, an immigration attorney who operates out of West Valley City. "The vast majority of my requests for prosecutorial discretion have been denied."
In response to AILA's survey, some ICE officers said discretion would only be granted if the situation was life threatening or the immigrant was eligible for a green card. Others indicated they "have no intention of complying" because it is their job to arrest and deport people.
"There are a lot of ICE agents who are, quite frankly, really ticked and they want to do their job," said Janice Kephart, national security policy director at the Center for Immigration Studies, a pro-immigrant, low-immigration think tank based in Washington D.C. "They are annoyed that they were hired to be prosecutors and now they are being asked to do the defense's job."
Tipping the scales
The way Kephart sees it, immigrants don't need to lobby for their cause.
"I think the federal government has already done that for them," she said. "That may have been helpful during the Bush era when the government was actually enforcing immigration laws, but there's no need for an immigrant to do anything right now. I mean, there is a full-out program in the Department of Homeland Security devoted to dismissing their cases."
ICE maintains the prosecutorial discretion policy was designed not to discourage enforcement of immigration laws but to focus the agency's limited resources on high-priority cases. Still, an ICE official said, petitions that flood ICE email inboxes with emails may be counterproductive because they slow attorneys down.
Sean Young, the Salt Lake immigration attorney who represented Morales, said his client's victory in court had nothing to do with Change.org. He believes fighting a case "in the court of public opinion" merely strains relations with prosecutors who are just trying to do their jobs.
"They took that petition to senators — they took it everywhere," he said. "But until Obama signed that memo, Deyvid was leaving the country."
Because of the petition, though, Morales' story caught the attention of more than 20 media outlets across the country. Immigration activists from a half dozen states came to Utah to watch Morales' December deportation hearing. With the petition in hand, the judge peered out over the crowded courtroom and told the attorneys to tread carefully because "a lot of people are watching."
Richard Huber, Guerra's lawyer, said prosecutors have confided in him that they'd closed a case because of the "insane amount of public support." Initially reluctant to believe a website could make a difference in court, for certain clients, Huber now recommends launching an online publicity campaign. He's seen several avoid deportation.
"When it comes to immigration, the government is all about not getting a black eye by deporting the wrong person," he said. "With the right case, Change.org can absolutely be a valuable tool."
As for Guerra, he plans to utilize every tool he can get his hands on.
"I think this is my life calling," he said. "I'll fight this one case at a time if I have to."
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