Mario Rodriguez says a surge of relief came over him the day President Joe Biden was inaugurated.
No longer does the Pacific County 53-year-old worry that people are following him, as he did for years after getting picked up by Immigration and Customs Enforcement officers in 2017, shocking locals like the police chief who knew him as a crime tipster and bilingual educator. Agents were following immigrants suspected of living in the U.S. without legal permission as the Trump administration ramped up ICE enforcement, ensnaring well-regarded residents and workers who in previous years were not considered a deportation priority.
From day one, Biden launched a complete turnaround in immigration policy. His administration announced new priorities — expanded upon last week — that dramatically scale back ICE enforcement by focusing on public safety threats, as in the tail end of the Obama administration. Biden sent a sweeping bill to Congress, introduced last week also, that would allow most immigrants living in the U.S. without legal permission to apply for citizenship in eight years and just three for Deferred Action for Childhood Arrivals (DACA) recipients who came to the U.S. as children.
“I know there is a path for us,” said Rodriguez, who has been practicing online citizenship tests since coming to the U.S. from Mexico 17 years ago on a visa that later expired.
Yet, Rodriguez, who is appealing an asylum denial with the federal 9th Circuit Court of Appeals, is not unpacking his suitcases. Since his ICE detention, he has kept several filled with his belongings, taking out a rotating selection to air them out.
He views his future, even with Biden in office, as unsettled. And he’s absolutely right.
Biden’s immigration bill, known as the Citizenship Act of 2021, faces a tough fight from Republicans, some of whom say it would benefit immigrants unlawfully here at the expense of American workers devastated by the pandemic.
Others point out many such immigrants are front-line and essential workers, and polls show most Americans support creating a path to legalization.
Still, the last immigration bill to achieve such a path was signed by President Ronald Reagan in 1986, and even bipartisan legislation since then has failed, causing Democrats to debate whether they would have better success enacting provisions of the bill piecemeal.
Indicative of the challenge to Biden’s agenda, a Texas court Tuesday indefinitely blocked his order for a 100-day moratorium on deportations.
What all this means for immigrants whose lives in the U.S. hang in the balance is confusing — to them, their lawyers, even immigration court judges housed under the Department of Justice. “There’s going to be uncertainty for quite a while,” said Dana Leigh Marks, executive vice president of the National Association of Immigration Judges.
Many are waiting to see what happens next, hopeful yet cautious, parsing every new policy announcement and recent interaction with immigration officials to try to understand what is changing and what is not.
When it comes to labyrinth-like immigration law, many cases are complicated, but a Kitsap County couple’s is especially so. Landscaper Israel Mateo Mateo, a 32-year-old who unlawfully crossed the border as a teen, is from Guatemala. His wife, 26-year-old Mayvellin Rivera Marcial, a DACA recipient and housekeeper for a senior rehab facility, is from Mexico. They have two sons born in the U.S., ages 7 and 2.
“I don’t know how it would work if both of us were sent back,” Rivera Marcial said, noting that one couldn’t necessarily move to the other’s home country.
When Trump tried to end DACA, which offers renewable work permits and quasi-legal status that can be revoked, a double deportation seemed possible. It’s still not inconceivable; a Texas court case is challenging the program. But the couple is buoyed by Biden’s bill that would let DACA recipients immediately apply for a green card and citizenship in three years.
“That would be bringing us a little closer to being part of the USA,” said Rivera Marcial, who has lived in this country since she was 4.
Citizenship not only would ensure that his wife could stay here with their children, Mateo Mateo said, it would allow her to visit him with the boys should he get deported. DACA recipients have had a limited ability, particularly in the Trump era, to travel outside the country and be allowed to return.
“That’s the main point I get excited about,” the landscaper said.
He is less confident about what will happen to him. He was picked up and charged with driving under the influence a couple of times in his early 20s — it was a stressful period when his parents in Guatemala were being threatened by gang members, he said — and ICE learned he was in jail. He was taken to the Northwest detention center in Tacoma and placed in removal proceedings.
Released on bond, he’s been fighting deportation ever since. He has a hearing in backlogged immigration court scheduled for 2022 on a request for something called “cancellation of removal” that would allow him a green card.
“But the cancellation standard is super hard,” said his attorney, Adam Boyd. One must prove “exceptional and extremely unusual hardship” to family members in the U.S. Merely having such family members, as Mateo Mateo does, is not enough.
In Boyd’s view, the shift in administration could help. For one thing, Mateo Mateo could get legal status under the Citizenship Act if it passes. Short of that, he could get his case stalled indefinitely if — and these are million dollar questions among immigration attorneys — Biden continues to extend ICE’s prosecutorial discretion, the agency exercises its discretion in good faith, and the president reverses a Trump-administration policy tying judges’ hands.
As it stands now, according to a Feb. 18 memo from ICE acting Director Tae Johnson, agency officers should mainly target immigrants living here without legal permission who are suspected of terrorism, those convicted of crimes involving gangs or termed “aggravated felonies” in immigration law (which are not necessarily felonies in criminal court), or people who entered the U.S. unlawfully after Nov. 1, 2020.
Going even further than the Obama administration, the memo says officers who deviate from these priorities must explain why in writing and request preapproval.
“The preapproval is really important,” said Jorge Baron, executive director of the Northwest Immigrant Rights Project (NWIRP), because ICE officers under Obama didn’t always follow guidelines. What’s more, Baron noted at a recent webinar for immigrant advocates, “it’s the same people who were working under Trump who are going to be on the ground implementing these policies.”
Many ICE officers had celebrated Trump’s lifting of Obama-era restrictions, which they viewed as shackles preventing them from doing their job.
Tanya Roman, a spokesperson for ICE’s Northwest region, said the agency had nothing further to add beyond official pronouncements, and officials were not made available for interviews.
Mateo Mateo doesn’t fall under any of the priority categories. Yet, it’s unclear whether he will benefit from the new guidelines, expected to be updated in about 90 days by the new Homeland Security secretary. As Baron noted, the memo refers only to decisions about apprehensions, not about people already in detention or those like the Kitsap County landscaper in ongoing court proceedings.
But ICE Chief of Staff Tim Terry, in a briefing with reporters the day the memo was released, said it “applies to all manner of enforcement action and that includes the terms of custody.” He also said ICE’s Office of the Principal Legal adviser, which oversees lawyers who act like prosecuting attorneys in immigration court, will review files of people with pending cases.
A lot will depend on the attitude of ICE staffers, said Marks, the vice president of the immigration judges association, because the memo doesn’t give judges new direction or authority. “We have to apply the law as it currently stands,” she said, which could well mean issuing deportation orders for people not considered priorities.
ICE, which is responsible for physically removing people, could still decide not to carry out such an order. Or, conceivably, its attorneys could put a deportation court case on the back burner.
The Trump administration, however, ended a long-standing practice called “administrative closure,” which allows judges, usually at the request of ICE or immigrants’ attorneys, to put a case on hold. So the new administration would need to reverse that policy.
Merely holding off deportation doesn’t solve all problems. Yakima attorney Stephen Robbins said his client Baltazar “Rosas” Aburto Gutierrez would likely be a good candidate for administrative closure. The 39-year-old father of two U.S. citizens has no criminal record, and has lived in the U.S. for almost 20 years, working in Pacific County’s thriving shellfish industry.
Detained by ICE in 2017 as the agency scoured Pacific County, he was released on bond and has a court hearing scheduled for May. The problem with asking for an indefinite court postponement, Robbins said, is that Aburto Gutierrez would still have no legal status and be unable to visit his longtime girlfriend and children’s mother in Mexico — deported earlier in 2017 after ICE agents pretended to be interested in pinatas she was selling.
He would need to get a green card for that, either by meeting the “exceptional hardship” standard in court or following the path laid out by Biden’s bill, if it passes.
“We’re in this weird interim period,” noted Boyd, the immigration attorney. Deciphering how the new policies are playing out is tough at the moment, in part because ICE scaled back operations over the past year because of COVID-19.
A few weeks ago, though, Mill Creek lawyer Elaine Fordyce said she was pleasantly surprised when she asked an ICE officer to hold off deporting a client who has an application pending for a U Visa, available to some crime victims. The officer said he would read the packet Fordyce submitted, which included the new priority guidelines, and asked her and her client to come back in six months. That’s already granting a six-month stay, Fordyce noted.
The officer also reached out to the Office of the Principal Legal adviser to see if it would request a quick determination from U.S. Citizenship and Immigration Services on the U Visa, according to Fordyce. The message she said came back from the office, however, seemed a legacy of the Trump era: “We’re not doing that anymore.”
Even in his final days in office, Trump issued a series of sometimes overlooked changes to immigration policies, Fordyce and others noted, and Biden’s attempted overhaul will take time.