What makes someone desirable to live in the United States — or, failing that, what makes someone not-too-objectionable to remain in the United States, despite how he or she might have gotten here — is a formula always in flux. It depends on where you live, who's in power in Washington, D.C., the health of the economy and the current makeup of the electorate. Add in politics, particularly in an election year, and it becomes even more complicated.
Joaquin Navarro Hernandez knows this all too well. Navarro Hernandez has been facing deportation in New Orleans Immigration Court since early 2010. In that time, he's been a labor organizer, a spokesperson for immigration reform and a plaintiff in a successful lawsuit against the U.S. Customs and Border Protection Agency.
Now he's something else: a "prosecutorial discretion" candidate, the possible beneficiary of a 2011 rule change seeking to take low-priority deportation candidates off immigration courts' increasingly bloated dockets.
"I came here to be able to work to better my family," says Navarro Hernandez, his Spanish translated by Jacinta Gonzalez, lead organizer for the Congress of Day Laborers of the New Orleans Workers' Center for Racial Justice (NOWCRJ). "I'm a day laborer. I do painting. I do concrete work. ... Things like that."
Navarro Hernandez's son and mother, to whom he sends part of his earnings, are "back home," which is as specific as he'll get about his native land. Because he's still in litigation, he can't reveal his country of origin, but U.S. Border Patrol's 2010 arrest records say he's a Honduran who came into the U.S. illegally by way of Laredo, Texas.
For her part, Gonzalez seems to regard Navarro Hernandez as a friend for whom she has great affection. But to her — and to Navarro Hernandez as well — he's also a symbol of the brokenness of immigration enforcement in this country. Navarro Hernandez is a member of what NOWCRJ calls the Southern 32 — a group of Congress of Day Laborers organizers who are all in deportation proceedings. Gonzalez claims that the proceedings against Navarro Hernandez and the rest of the Southern 32 are retaliation for their activism against alleged abuses by day-laborer employers and immigration officials.
Navarro Hernandez is also tagged with a nine-digit alien registration number identifying him as one of hundreds of thousands of people in pending deportation proceedings throughout the country — more than 3,000 of whom are in New Orleans. He's had that status for two-and-a-half years, more than half the time he's lived in the city.
"I don't know what's going to happen right now," Navarro Hernandez says. "We know that August will be the next court date. We don't know what will continue in the future."
The immigration debate is confounding in part because, on a case-by-case level, it often involves difficult determinations about a person's "status." Practically speaking, that can come down to a putting a legal definition of "worth" or "value" on a human being.
The U.S. State Department's website lists more than a dozen visa categories for family-sponsored immigrants, ranging from IR-1 (spouse of a U.S. citizen) to F4 (family fourth preference for siblings of U.S. citizens) to V visas (spouses and under-21 children of green card holders — plus five categories of employee visas). There also are more than 20 types of nonimmigrant alien visas — for tourists, victims of human trafficking, temporary guest workers and free trade agreement professionals from Chile and Singapore, among many others.
It gets even more confusing from there. If you've been married for less than two years, your status is considered conditional. You won't qualify for an IR-1 and must apply for a CR-1 instead. Also, V visas have actually not been issued for several years. Applicants who would have qualified for V visas are now issued F2 visas. Finally, some countries only offer limited U.S. visa services, or are suspended from offering visa services, or do not have a United States embassy.
Attorney Larry Fabacher has practiced immigration law in New Orleans for 37 years. He says he understands how frustrating the system can be for someone like Navarro Hernandez. Fabacher defends "at least several hundred" people from removal every year. And, he says, he can't even wrap his mind around the law.
"It's so complicated, you can't believe it," he says. "It just goes on and on."
For others, like Lorenzo Torres, a 17-year-old soon-to-be-senior at the International School of New Orleans, the ever-changing rules have presented him with an opportunity — or so he hopes. An undocumented immigrant from Mexico, Torres has been in the country since he was a child, was brought in by his parents, has a clean record and is poised to graduate from high school.
Torres, who has been living in New Orleans for six years, moved here from Nashville when he was nine.
"My mom left my hometown, Chiapas, when I was like five or something," he says, adding that she moved to Nashville. She later sent for him. "But my brother stayed back in Mexico, because she couldn't afford to bring us both over. Me being the younger brother, she said, 'OK, I'm going to bring someone to bring you over, but you're going to come alone. I was like, 'Absolutely. All I want is to see my mom.'"
The boy was brought to the border by a coyote — a paid immigrant smuggler — where a car picked him up and took him to Nashville. The family moved to New Orleans in 2006. Today, Torres works as a volunteer for NOWCRJ.
"Since I have this mind for technology, I'm always helping them with all of that," he says. "I know how systems work. I can work with computers and sound systems."
Torres is the ideal candidate for a new program, announced by Department of Homeland Security (DHS) Secretary Janet Napolitano, that could possibly grant him legal, if only temporary, status — and keep him off the immigration court rolls.
Napolitano, under the direction of President Barack Obama, announced in June that young people who came into the country as children — a class of people who would have been eligible for legal residency under the proposed but never-passed DREAM Act — will be granted relief from deportation proceedings and become eligible for two-year, renewable work permits. (DREAM stands for Development, Relief, and Education for Alien Minors.)
Immigration and Customs Enforcement (ICE) officials who spoke to Gambit for this article say they have identified approximately 800 to 1,000 people in the court system who would be eligible for temporary legal status under DHS's June directive, but DHS estimates as many as 800,000 people not yet in the courts could be eligible to apply to United States Citizenship and Immigration Services (USCIS) for work permits — which, for many, would mean eligibility for financial aid for college.
Torres talks about joining the Navy and then going to college after next year, but he's not sure what to do without legal status. He's told his school counselors about his situation, but they don't know what to tell him, he says.
"They're like, 'I don't know. Have you tried public or state or private [universities]?'" he says. "Private is too much and I can't work. Public, I have to have certain things, certain requirements, and I don't meet up."
So he plans to register with USCIS — even though his parents are concerned about him giving his name and information to the federal government. "We just had this conversation with his mom," Gonzalez says. "She was worried about it."
Torres acknowledges it's something to be worried about, but he figures he should take the opportunity. He worries that the risk of deportation would be worse. (ICE declined the opportunity to comment on Torres' specific case.)
"All I know is the U.S., New Orleans," Torres says. "Basically my life is here, but since I have nothing in Mexico, I want to get my career first, my job first, but I also want to serve this country because, for the little they have given me, I want to give them twice as much, because I know what I have.
"If I lose it, I have nothing."
Immigration court backlogs nationwide have skyrocketed in the past decade — from 166,000 pending cases in 2001 to 314,000 cases as of June 2012, according to a recent report by Syracuse University's immigration data analysis program, known as TRAC. Since the review began, 111,000 new cases were added in immigration courts, says ICE spokeswoman Gillian Christensen. Locally, TRAC reports 3,373 pending cases in New Orleans Immigration Court, up from 284 in 2002 and 2,003 at the end of the 2011 fiscal year.
On June 17, 2011, ICE director John Morton sent a memo directed to all ICE field officers, special agents and chief counsels. The subject line reads "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens."
ICE asked its attorneys to exercise what is called "prosecutorial discretion" (or PD) by reviewing certain types of cases and getting as many of them off immigration court dockets as appropriate.
"The goal being that, as an agency, we have the capacity to remove 400,000 cases per year" by deportation, Christensen says. "We want to make sure we remove the correct 400,000 people."
Finding the "correct" people means giving low priority to some deportation cases — offering special consideration to people with no criminal records, the elderly, people with family legally residing in the country, crime victims and, as in Navarro Hernandez's case, "individuals engaging in a protected activity related to civil or other rights."
"The big thing that we're looking for when we're doing the review is people who have equities in the United States. They've established themselves here," says Vincent Picard, spokesman for the ICE Southern Region in Atlanta. Picard adds, "Any serious criminal activity is going to be a disqualifier."
One year after the 2011 PD guidelines went into effect, however, the system is still seriously overtaxed. An investigation by The New York Times, published in early June, found that of 300,000 nationwide cases slated for review as of the middle of last year, only about 4,400 cases were closed by prosecutorial discretion by May 29, 2012. (That went up to just under 5,700, TRAC Immigration reported on June 28.)
Locally, TRAC Immigration found that, of 2,001 cases pending in New Orleans Immigration Court as of September 31, 2011, only three were closed by PD as of the end of May.
"Immigration Court in New Orleans is a great, efficient and competent court. The judge we have [William Stogner] is just a wonderful person and very knowledgeable in the law," Fabacher says. If there's a problem, either with the backlog or the apparent lag in processing prosecutorial discretion, it's not with the operations of the court, he says.
The large local backlog reflects the national pattern. Fabacher says the problem in New Orleans is understaffing, not to mention the transfer, over the past few years, of a number of cases from the larger Oakdale Federal Detention Center's immigration court. Oakdale, which has three judges, still gets more than 10,000 new cases per year compared to about 1,800 last year at New Orleans Immigration Court, according to the Department of Justice's Executive Office of Immigration Review (EOIR)'s annual statistics. But New Orleans now handles all cases from the region involving arrested immigrants who aren't offered or aren't able to pay a bond.
New Orleans Immigration Court has only two ICE lawyers and one judge (Stogner). Those three people must now handle nearly 3,400 active cases, up from only a few hundred just a few years ago.
"I guess in Texas or in places like that, it's a lot larger," Fabacher says. "But here, 3,500 cases, where in the last five years, six years, we've had 400-500 cases and we had four or five immigration attorneys for the government — now we have two, who are very seasoned and very good lawyers — it's just, what can you do?"
As for prosecutorial discretion, Fabacher says a decision to offer or agree to that takes time, work (including a background check) and serious consideration.
"I would characterize it as not giving the store away, but having a serious look at a case," he says. "I think that they approach that for multiple agendas. Maybe they want to help the family. Maybe it looks like the alien has an opportunity to immigrate over the long run. Or they just want to get people out of the jails. I find the lawyers for the government are very professional. They're not crazy or angry."
Fabacher also points out that the TRAC statistics fail to take into account the people who refuse PD because they have a good case. When someone is granted a closure by discretion, the case doesn't disappear. It's just taken off the docket.
It's not a guarantee of anything, and many immigrants whose cases are closed this way aren't eligible for work permits. On the other hand, if someone wins a case, he or she walks out of court a legal resident of the United States.
"That happened today" for a client, Fabacher says. "They wanted to give him PD. I called him up and said, 'They want to give you this PD. Do you want this?' And he says, 'No, I have a good court case.' He says he wants to get this over with."
The circumstances of Navarro Hernandez's arrest still trouble him.
"On January 12, 2010, I was waiting for my employer on the day laborer corner. We were going to do work on the West Bank," he says. "It was almost 10 in the morning."
He says a nearby business owner came by and talked to the gas station clerks, asking they not sell beer to workers in the lot.
"About 20 minutes later Border Patrol came," he says. "They asked someone else for their papers, so I decided to leave the area and go toward my house."
He started walking away, but a civilian followed him in his car, driving the wrong way on a one-way street to cut off Navarro Hernandez. Then he got out of his car.
"He told me to stop. I continued to walk toward my house. He kicked me in the legs. He threw me to the ground. I got really bad scrapes on my knees and my elbows. Then he put his knees on my back," Navarro Hernandez says. "He was holding me above my neck and trying to put me in the vehicle. But I wouldn't allow it because I didn't know what was happening. I didn't know if he was trying to rob me or mug me [or] kill me. I didn't know what was going on."
According to Navarro Hernandez, the man called the New Orleans Police Department (NOPD), and minutes later, four cop cars arrived. The police cuffed him and summoned Border Patrol agents, who came shortly thereafter. The agents processed him at the Border Patrol New Orleans Station office in Algiers, then took him to Orleans Parish Prison. Navarro Hernandez, now a target for deportation, sought legal assistance from NOWCRJ and its legal director, J.J. Rosenbaum. (In an email to Gambit, Rosenbaum writes, "We did ask for prosecutorial discretion from the ICE office of chief counsel in New Orleans, and we haven't heard a response." If offered PD, Navarro Hernandez says, he would not turn it down.)
When he was released on bond after four days, Navarro Hernandez says, he found that the official record of his apprehension, a document called an I-213 or Record of Deportable Alien, wasn't consistent with events as he remembered them.
The I-213 narrative as written by the Border Patrol Agent, whose name is redacted, states he pulled into the gas station while on patrol — neither acting on a tip nor resulting from surveillance of the corner where the day laborers came to look for work.
It continues: "I noticed several people running away from the gas station. I suspected that they might be illegal aliens. I was able to apprehend one of these subjects after a brief foot chase." There is no mention of the civilian Navarro Hernandez alleges attacked him, nor any mention of NOPD. Rosenbaum made a Freedom of Information Act Request to Border Patrol, including all documents and call logs related to the arrest and records of other arrests at the same corner, but the agency didn't respond.
In December 2010, Navarro Hernandez sued for the documents. His complaint alleges that the arresting officer's report was "blatantly inaccurate," that Navarro Hernandez was arrested "without reasonable suspicion or probable cause and with excessive force," and that Border Patrol agents had engaged in a pattern of improper surveillance and raids of day laborer corners that had nothing to do with the agency's immigration related missions: prevention of illegal entry and human smuggling.
An April 2011 filing by Border Patrol acknowledges the involvement of an "unknown and unidentified citizen" and "unknown and unidentified officers of the New Orleans Police Department." And in a deposition filed in May of that year, Manuel Padilla, who was chief patrol agent in New Orleans at the time of the arrest, says day laborer corner raids were well outside the agency's purview.
U.S. District Court Judge Carl Barbier ruled in favor of Navarro Hernandez in February 2012, noting in his opinion that the issues of targeted immigration enforcement and local police involvement in immigration raids are of "substantial public interest in the City of New Orleans, where the plight of the large population of immigrant workers who have assisted in rebuilding efforts after Hurricane Katrina has been a matter of particular concern."
In spite of Barbier's ruling, and in spite of Navarro Hernandez's apparent eligibility for PD, his case in New Orleans Immigration Court drags on.
"I was really hopeful that those promises would give us the right to remain, but what I've seen so far is that they haven't fulfilled them, and that people are still being deported," he says.
Asked about his hopes for people like Torres, who would seem eligible for clemency under the June DHS order, Navarro Hernandez reflects on his own case and says, "I really hope the same thing doesn't happen to them."