Who gets to stay? Who has to leave? Deportation under Obama and Trump
In 2009, before Colorado repealed its controversial “show me your papers” law, Jeanette Vizguerra was pulled over on her way to work for driving with an expired license plate. The police officer’s first question to Vizguerra, she says, was, “Are you legal or illegal?” Her answer set off a lengthy legal battle to remain in the U.S. that she is still fighting today.
Vizguerra, a 46-year-old mother of three U.S.-born children, is undocumented. During that traffic stop eight years ago, she was caught using a false Social Security number to work, a misdemeanor. Four years ago, she returned home to Mexico to visit her dying mother. Upon re-entry to the U.S., she was detained at the border and given a deportation order.
Immigration and Customs Enforcement (ICE) has since granted Vizguerra at least five stays of removal — ICE says six — allowing her to remain with her family in Denver, where she has lived, worked and volunteered for nearly 20 years. But on Wednesday, to the dismay of a large crowd of supporters and immigration activists, Vizguerra’s most recent stay of deportation was denied.
She is now living in sanctuary in a downtown Denver church. She has a pending application for a U Visa, a special visa reserved for victims of violent crime. While her attorney, Hans Meyer of the Meyer Law Office, works to determine the next steps, Vizguerra spends her days in the church basement, hoping ICE will uphold its informal policy of leaving churches and schools alone. She will see her children only on weekends; during the week, they will stay with her husband.
In short: A woman who was repeatedly given permission to remain in the country under President Barack Obama, whom immigration advocates repeatedly criticized as the Deporter-in-Chief because of his aggressive deportation policies, has now been told she needs to leave under President Donald Trump.
Trump’s recent executive order on immigration has stoked fear among immigrants across the U.S., including legal permanent residents — green card holders — and those who were granted Deferred Action for Childhood Arrivals, or DACA. The recent arrest of DACA recipient Daniel Ramirez in Seattle has increased uncertainty in the immigrant community.
The Colorado Independent spoke with three local immigration attorneys — Meyer, who has represented Vizguerra for years; Camila Palmer, of the firm Elkind Alterman Harston, and James Lamb, of the Chan Law Firm — about how the two presidents prioritized who should be deported and who should be allowed to remain in this country.
What does President Trump’s executive order on immigration say about who should be deported?
Trump’s executive order, which can be found here, lists seven types of people who are now prioritized for removal. These include people who: “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”
Attorney Hans Meyer: It’s a blanket deportation dragnet, plain and simple. The policy is designed to accomplish a very simple goal, which is to deport as many human beings as possible, no matter the cost. It includes people who have been charged with any offense, regardless of whether they’re guilty or not. It also includes people that immigration suspects may be guilty. It includes, by definition, every person that is undocumented, every person who unlawfully entered the country and, I believe, everyone who overstayed their visa.
Now, if you have your legal permanent residency, you’ve earned your green card from the government — you’ve obtained your status. The only way for the government to take that away is if you’ve done something that would allow them to legally take your green card.
But Trump is trying to push the limits of an executive order in order to try to deport residents, including legal permanent residents, based on minor or very old crimes. That’s something that under the law ICE has always been able to do, so he hasn’t changed the law; he’s just turned up the volume. He’s saying, ‘If there’s anything we can get you for — that marijuana conviction from 16 years ago — we’re going to do it.’
Attorney James Lamb: The enforcement regime is going to look a lot like it did during the Bush years, and the early Obama administration, except there’s going to be more of an edge to it. With Obama, there were so many concerns about use of force that he appointed a non-border patrol guy to lead the Department of Homeland Security. Trump says, ‘We’re not going to continue to demonize our brave law enforcement officers,’ and ‘We’re going to free their hands.’ So there’s not so much concern that any of this is done ethically.
Attorney Camila Palmer: It seems to me that the executive order was so broad that pretty much anyone could fall under it, or certainly most people. It is going to be 11 million immigrants who are now going to be priorities.
Meyer: It’s a monolithic deportation plan — by design. It’s not meant to be nuanced.
How do Trump’s priorities differ from those of President Obama?
Palmer: The main thing is that [Trump’s orders] are much more expansive in terms of who becomes a priority. I also thought Obama’s executive orders were much clearer than Trump’s are now. Now, it’s any crime, and you don’t even have to be convicted of that crime. If you’re letting your dog run at large, that’s a crime — so does that mean you’re now a priority?
Lamb: Before Obama, there was a program called Secure Communities, which tried to leverage local law officers to assist in federal immigration enforcement. Deputies or officers in a municipality would get training and be deputized as ICE agents.
Colorado counties don’t participate in that program anymore. The ones who did ultimately withdrew from it, because they realized that one, ICE wasn’t going to pay them back for expenses they incurred, and two, ICE wasn’t going to indemnify them in any resulting lawsuits — and there were lawsuits.
Obama ended Secure Communities in 2013, and he kept a sort of vague policy in place for a while before then announcing the Priority Enforcement Program (PEP). It set up five enforcement priorities, with recent arrivals, felons convicted of serious crimes and so forth at the top, all the way down to the bottom with people who have lived in the U.S. for a long time, people who have been convicted of nothing.
PEP resulted in noticeable changes in immigration enforcement: You just didn’t see as many people in removal proceedings without a criminal record. Under PEP, if you were just minding your business, you weren’t likely to face immigration proceedings.
Now, we’re back in this world where things have not been articulated very clearly. When the order says ICE will prioritize ‘An illegal alien that has been arrested or charged,’ what they’re say is that they’re ending PEP and returning to Secure Communities.
Palmer: In addition, under Obama, the Department of Homeland Security would occasionally entertain administrative closure requests, and it seems that that has stopped. Previously, somebody who was in removal proceedings who was maybe stopped in 2010 when police were still asking about status during stops, those people might have their cases closed. Now, it appears that they’re no longer entertaining these motions.
Meyer: Trump’s immigration enforcement order shows his complete lack of respect for due process. The Obama administration, after years of attention and advocacy and pressure, realized that the deportation machinery [Obama] had inherited was destructive. What it was designed to do was deport people en masse, and that’s exactly what it did, including students, Dreamers, longtime residents and people with no criminal history. So in the later years, the Obama administration pulled back from that enforcement paradigm and tried to put together a compromise: Let’s try to take our enforcement resources and use them toward people who present a tangible risk to the community.
Now, many of us in the immigration community didn’t agree with that policy, but now, the Trump administration has inherited the rusted-out pieces of that machine, and they’re oiling them back up to use again. They’re going to try to make it more efficient and more brutal with new policies building on old ones.
What does this mean going forward, both for Jeanette Vizguerra and for Colorado’s immigrant community?
Palmer: It’s a new era. We have no idea what they’re going to do, which makes it really hard to advise clients. I try to share information, try to spread the word about knowing your rights, but it’s just having such a chilling effect on everybody. Everybody is freaking out.
I personally think there was something intentional about that DACA kid in Seattle who was arrested — it was an intentional move, to make people afraid. Nobody knows what’s going on, and everybody is afraid.
Meyer: A lot of [Trump’s policy] is old wine in new bottles. Trump is oiling up the Obama administration’s old deportation machinery, the primary tool of which is to use the local criminal justice system as a force multiplier, allowing ICE to use local sheriff’s offices, probation officers and courts to pick up people en masse, move them into immigration detention and remove them from the country. The difference is that this time, the person updating it is part of an administration that wants to see everyone in the immigrant community deported.
Palmer: We’re getting calls from people who are really scared, who don’t want to leave the house, don’t want to go to their kids’ schools. There is so much anxiety right now. From my legal permanent resident Australian client to people who may already have a removal order, it’s pretty unsettling to a lot of people.
And the courts are already so backlogged [with immigration cases from the Obama administration]. Combine that with [the federal hiring freeze Trump announced in January], and how are we ever going to process this number of cases? I saw that the hiring freeze won’t apply to ICE, but what about the rest of the Department of Justice? What does this mean for the cases that are already pending?
Lamb: It’s kind of easy to guess where enforcement is going to come when it comes. There will be major workplace raids. If history is prelude, it’s going to be the employers that ICE thinks hire a lot of undocumented people.
As to why we haven’t had crackdowns in Colorado yet? I have no clue. It could happen any day. It may be that [ICE] just calculated that they don’t get as much bang for their buck here. But ultimately, there are going to be a lot of people in the same boat. As an attorney, it’s my job to advise people not to break the law, but people aren’t stupid; they can see the writing on the wall. What’s going to happen to a lot of them is that they’re going to have to drop off the radar, and then they become fugitives.
Meyer: Let’s put aside Jeanette Vizguerra’s case for a moment, because there really is a bigger question: What do we believe as a country? Do we believe in separating mothers from their children? Do we believe in bullying immigrants who have lived here for years? Jeanette’s case is ultimately the looking glass through which we are going to judge what we believe.
What we see now is the human cost, the human face, of the cheap political rhetoric of the Trump campaign.
Lamb: Jeanette is currently in sanctuary in a church. Churches have historically been places where ICE won’t go, but we’re also concerned — at what point is ICE going to say “screw this, we’re going in”? The policy of respecting sanctuary is not a law; it’s a PR practice. And the Trump administration is not as likely to be as susceptible to PR concerns, because their constituents would love this.
Meyer: Jeanette’s case presents an opportunity to bring the humanity back to this discussion. We’re going to have to have to huddle and figure out what the next steps might look like, but we are going to be asking that ICE, locally and nationally, take another look at her request to stay, and proceed on the adjudication process for her U Visa.
But just as things have now become dark, there’s always a dawn. We are not going to rest.
Photo by U.S. Immigration and Customs Enforcement (Department of Homeland Security) via Wikimedia Commons
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