Benito [member of Make the Road New York] rarely emerges from the sushi bar where he works preparing fish and meat, and making deliveries on a small white motorbike, before the middle of the night. He considers ten, eleven or even twelve hours of work to be a successful evening, yielding good money to send back to his parents and his three-year-old daughter in Mexico.
“The more we work the more they pay us,” Benito said. “Most of it goes back to Mexico so that my family can eat.”
But Benito, who asked us not use his last name, has a problem. He crossed the border illegally in 2009, and one morning this March Immigration and Customs Enforcement agents arrived at his apartment holding a copy of false work papers he had used at a previous job. ICE opened a deportation case against him.
Benito is now seeking what is known as prosecutorial discretion — asking ICE to close his case because he says he’s here to work to support his family and doesn’t pose any threat. If the agency grants the request, he wouldn’t get a green card or work papers, but the government would stop its efforts to deport him.
Benito’s future depends in large part on a highly touted initiative by the Obama administration to increase the exercise of prosecutorial discretion. Last summer, ICE announced that it would shift its resources to deporting top targets like criminals and frequent border crossers, and close some of its cases against people who didn’t pose a safety threat. The agency said last November that it would review all pending deportation cases to try to shut down the ones that no longer fit its priorities.
The changes were meant to make the system more compassionate and more efficient: sparing otherwise law-abiding undocumented immigrants the hardship of deportation, and reducing the lengthy backlogs in immigration courts.
But so far in New York City, the drive to apply prosecutorial discretion to the docket of deportation cases has yielded strikingly few results. Out of a backlog of 42,875 cases, only 583 have been closed due to prosecutorial discretion, according to immigration court statistics compiled by Syracuse University’s TRAC database. That’s a rate of about 1.4 percent, less than half the rate of cases that have been closed nationally.
In addition, the backlog and delays in New York City’s immigration courts have actually increased substantially. The backlog before a case gets heard now averages more than a year and a half, an increase of 44 days from the 2011 fiscal year to 2012. Once the case starts it now averages more than two years to complete, an increase of 100 days from 2011 to 2012.
ICE spokesman Ross Feinstein would not address why such a comparatively low rate of cases had been closed, but disputed the notion that prosecutorial discretion is not making a difference on the ground in New York City.
Feinstein said that discretion is often exercised in deciding whether to open a deportation case in the first place, a decision that would not reflected in closures of existing cases. Statistics confirm that new cases opened in New York City are down 12 percent over the last fiscal year. Under another widely publicized recent initiative, many undocumented youth who were brought to the US as children have also been allowed to apply for temporary work permits.
“The goal here is to target immigration law enforcement in a sensible way,” Feinstein said. “It doesn’t mean we’re throwing out every case before any immigration court.”
But signs of greater discretion in opening new deportation cases offer little comfort to people whose cases are already underway – like Benito.
Benito’s request for ICE to close his deportation case is being prepared by his lawyer Alexia Schapira, a senior staff attorney at the community group Make the Road New York.
“Our first argument is that he’s not a high priority case for removal,” Schapira said. “He doesn’t have a criminal record, he doesn’t have a prior order of removal, he’s not a threat to national security.”
In many ways, Benito seems like the typical case of someone who prosecutorial discretion might benefit: he’s here to work, six days a week, up to twelve hours a day. Much of New York City’s economy, from the construction trades to the care of children and the elderly to the food on our plates, relies heavily on workers in situations like Benito’s.
“If their goal is to get rid of everyone who’s working with false papers, I think they will need to demolish all of the restaurants,” Benito said.
But not being a high priority target isn’t enough to get prosecutorial discretion. ICE’s guidelines are known as the Morton memos, and they also list positive factors like having a child who is a citizen, or being under 18 years old, that the agency takes into account. Many immigrants facing deportation fall into the substantial gray area of being neither clearly suitable nor clearly ineligible to have their cases closed.
“Benito is a really good example of somebody who’s a really sympathetic person,” Schapira said. “But he doesn’t really fit under the guidelines of the Morton memo.”
Benito is skeptical that the recent efforts to increase the use of prosecutorial discretion will make a difference for him. His future will be at the mercy of an ICE official who will decide whether the agency will join him in a motion to close his deportation case.
“The case is complicated because the law, its purpose is to remove immigrants,” Benito said. “And I think yes, they are going to deport me.”
Benito and Schapira will soon make their request to ICE to exercise discretion and close out his case. If the agency refuses, Schapira said, Benito will probably head back to Mexico.
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