New immigration order may not cover Tucson sanctuary cases
While Francisco Perez Cordova appears to fit within the guidelines set forth by President Obama's executive order last week, a recent response from immigration officials casts a long shadow over the future of sanctuary cases across the nation.
In September, Cordova, whose five children are all U.S. citizens, went into sanctuary at St. Francis of the Foothills church after not complying with a deportation order for nearly a year. Nearly two months later, the president's Nov. 20 address gave him some hope that officials would grant him a stay and allow him to stay in the country.
However, Immigration and Customs Enforcement officials continue to deny his request.
Rev. Alison Harrington, the pastor of Southside Presbyterian Church, said that local ICE officials claim they have received a directive from the Department of Homeland Security in Washington, D.C., to not grant stays of removal for anyone presently facing deportation.
According to Harrington, she spoke with Jon Gurule, acting director of Enforcement and Removal Operations for Arizona, who would make the decision to grant a stay to Cordova. Gurule, she said, told her about the directive.
Margo Cowan has also been in touch with Gurule, and said that Gurule argued that Cordova didn't need a stay, but could carry copies of the president's order and birth certificates from his children to indicate he was a candidate for prosecutorial discretion.
“The president’s actions last week signaled a desire to overhaul the enforcement priorities of ICE, yet we are once again witnessing a gulf between the stated vision of President Obama and his administration’s practices on the ground," Cowan said.
However, Lori K. Haley, a spokeswoman with ICE, said that there is no such directive.
"As always, decisions are made on a case-by case basis—based on the merits of an individual’s case and a comprehensive review of specific facts," Haley said.
Repeated calls to officials at the Phoenix office of Enforcement and Removal Operations went answered Wednesday.
This discrepancy between the stated orders from Washington and the actual response from officials in Phoenix creates serious doubt about the new immigration rules.
Until Tuesday, the family was making plans for Thanksgiving at home, as Cordova appeared eligible for deferment because his five children are all U.S. citizens. Cordova fits the criteria drawn up by the president's executive action and does not fit within the categories for enforcement priority. However, immigration officials have leeway to make their decision based on prosecutorial discretion.
In the directive sent out by Homeland Security Secretary Jeh Johnson is this wrinkle: immigration officials may use discretion on a case-by-case basis, provided that individuals "present no other factors that, in the excise of discretion, makes the grant of deferred action inappropriate."
The wide discretion given to immigration officials is also reaffirmed by another memo, where Johnson notes that "nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein."
Professor Andy Silverman, who teaches immigration law at the University of Arizona, criticized the decision.
“The appropriate legal mechanism for ICE at this moment is to grant a stay of removal until the time that Perez Cordova is able to apply for the new deferred action program for parents," said Silverman. "Allowing Perez Cordova's order of removal to stand at this time would not only be contrary to the spirit of the program but would be unfair and mean-spirited.”
"We wanted to get hear that Francisco would be leaving sanctuary, but he can't," said Cowan.
It's not uncommon for ICE to grant stays.
Nationally, around 90,000 people ICE sought to remove were allowed to stay in the United States, according to data from the Transactional Records Access Clearinghouse, a nonpartisan research project supported by Syracuse University.
Cordova is one of two sanctuary cases in Tucson and one of three in Arizona. Additionally, churches elsewhere have offered sanctuary to five other immigrants in the last few months, including in Chicago and Denver.
Faith groups have become the heart of a revived sanctuary movement since May, when Tucson's Southside Presbyterian Church offered sanctuary a Mexican man who was facing a deportation order.
In August, Rosa Imelda Robles Loreto went into sanctuary and immigration officials have refused to grant her a stay, instead they have repeated that the agency "has decided to exercise prosecutorial discretion by not taking immediate action on Ms. Robles Loreto’s removal order" and that officials had no plans to take her into custody.
While an immigrant in Chicago was able to earn her stay since she was the victim of domestic violence, the rest remained in sanctuary.
The changes announced by Obama last Thursday affect around 136,000 people in Arizona, according to estimates by the Migration Policy Institute, including 97,000 parents of legal residents and another 39,000 covered by the expansion of DACA.
While millions nationwide are included in the program, at least 5.8 million people in the United States without authorization will not be covered, according to the Pew Research Center.
"Everyday my children ask when I am going to be home and I don't know how to answer," Cordova said. "I tell them, I hope it will soon."
"Francisco is staying here in sanctuary, but there are thousands of people like Francisco who could be picked up," Cowan said. "That's the gravity of this moment and that Arizona district refuses to follow the order is unacceptable."
Once someone is deported from the United States, a paroled returned is exceedingly rare. As Cowan noted, after practicing immigration law since 1976, she's seen only three cases where someone was allowed back into the United States after their deportation.
Data from TRAC notes that there were around 79,000 orders of removal signed by immigration judges this year. In Arizona, there were 278 orders of removal granted by judges this year.