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Only 7 percent of deportation cases win reprieve

Published: Tuesday, June 12 2012 9:33 p.m. MDT

FLORENCE, AZ - JULY 30: Folders for illegal immigrants flown back to Guatemala on a repatriation flight await to be filed at the U.S. Immigration and Customs Enforcement (ICE) detention facility for illegal immigrants on July 30, 2010 in Florence, Arizona.

John Moore, Getty Images

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SALT LAKE CITY — Salt Lake immigration attorney Sean Young has attempted to halt pending deportation orders for some 35 clients in recent months. He has prevailed just once.

In that case, 19-year-old David Morales of West Valley City was en route to a Bible college in Louisiana in January 2011 when immigration officials boarded the Greyhound bus he was riding to conduct a routine check whether passengers were U.S. citizens.

Morales was arrested and spent 17 days in a Louisiana jail before his family posted a $4,000 bond. He ultimately gained administrative closure of his removal proceedings, largely due to the prosecutorial discretion memo issued by Immigration and Customs Enforcement director John Morton in August 2011.

The memo told ICE attorneys to focus on deporting dangerous criminals and, when appropriate, close cases of people who have no criminal records, have jobs or are attending school and don’t pose a threat to society.

But a new report by the Immigration Policy Center shows less than 7 percent of ICE's ongoing case-by-case reviews have been found eligible for administrative closure.

"Moreover, as the review process has expanded, the number of immigrants found being eligible for administrative closure has steadily decreased," the report states.

Salt Lake immigration attorney Aaron Tarin said the report is consistent with his experiences. Out of the 40 to 50 cases attorneys in his law firm worked seeking administrative closure for clients, only six received it.

"These were cases that clearly met the guidelines and they're not doing it, for whatever reason," Tarin said.

When a removal proceeding is administratively closed, it is indefinitely removed from the docket of an immigration judge or Board of Immigration Appeals until one or both parties ask for it to be placed back on their respective calendars.

Immigrants whose cases are administratively closed do not receive lawful immigration status. The Department of Homeland Security generally does not grant employment authorization documents to such immigrants unless they were otherwise eligible to work in the United States.

As Tarin explains, "It's like hitting the pause button on a deportation."

The Morton memo gave advocates hope that a greater number of undocumented immigrants would fare better in immigration proceedings.

"There was hopeful optimism that unfortunately turned out to be misplaced," Tarin said. 

Some immigration attorneys said the Morton memo was a sea change for many ICE officials, some of whom have been slow to adapt to a culture that encourages prosecutorial discretion.

Young represents the Avelar sisters, who last week received deferred action on a pending order of deportation. The one-year reprieve will give him more time to determine the best means to reopen their case.

The three women, who came to the United States as children on tourist visas along with their parents, were facing a June 15 deadline to leave the United States on a previous deportation order. The women's parents were deported in December two days after they and their now grown daughters were picked up by ICE agents on the active deportation order.

Their case underwent "review at multiple levels of our nation's legal system and the courts have uniformly held they have no legal basis to remain in the United States. In 1997, the Board of Immigration Appeals dismissed the sisters' legal appeals and the women became subject to a final order of deportation," regional ICE spokeswoman Virginia Kice said prior to the one-year delay.

Young said the case, last handled by a Board of Immigration Appeals in Virginia, should have been appealed to the 9th Circuit Court of Appeals. Although the Avelar family had resided in Utah for more than 20 years, the parents had sought legal and administrative relief in California.

At the time, unscrupulous immigration attorneys in California attempted to resolve pending orders of deportation for clients with Hispanic names representing that they were eligible for asylum because they were from Central America.

Young said he is attempting to reopen the case, which conceivably could be resolved under prosecutorial discretion. The Avelar sisters have clean records, are employed and are high school graduates. The three sisters have six children among them. They were minors when their visas expired. 

However, their case differs from Morales' because a final order for the Avelar family's deportation was ordered in 1997.

Young remains optimistic that the women will be given the benefit of the doubt because they were brought to the United States as children and had no control over their circumstances. Local ICE officials "have been nothing but nice, respectful and courteous" as he has worked on the sisters' case, he said.

The women's case was helped by Utah Attorney General Mark Shurtleff contacting Morton by email and public attention.

"Ultimately it worked, and very few of these work," Young said of the deferment.

E-mail: marjorie@desnews.com

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