Undocumented Life: A year in, only a handful of immigrants benefit from 'prosecutorial discretion'

Sebastian Pineda sits quietly on the wooden bench, staring at the dingy white wall and at times glancing at the mother of his two boys. He’s patiently waiting, even hopeful.

His wife sits inches away, sobbing uncontrollably. She too is waiting. It’s clear she’s less hopeful.

The couple is in the administrative court in Chicago praying for the judge to call Pineda’s name. They’ve been here before, seven times in fact, all in the hope to find out whether Pineda would stay in the U.S. with his family or be deported to Mexico.

Pineda, 31, is among the hundreds of thousands of undocumented immigrants living in limbo, waiting sometimes for years for their deportation case to be adjudicated.

During Barack Obama’s presidency, a record number of undocumented immigrants have been deported. Then last August he announced his administration would use its “prosecutorial discretion” to close deportation cases of some immigrants who have no serious criminal background and have U.S.-born children and other ties to the community. Under this initiative, the undocumented immigrants won’t qualify for a legal status, but they would, in some cases, qualify for a temporary work authorization.

Immigrant advocates called the prosecutorial discretion announcement a victory, and it gave immigrants like Pineda hope.

But, one year later, only 132 deportations cases in Chicago immigration court have been closed, according to the database maintained by Syracuse University’s Transactional Records Access Clearinghouse, which monitors immigration courts. Elsewhere across the country, an additional 4,231 cases have been closed.

In all, they account for only less than 2 percent of all reviewed deportation cases.

A Hearing for Hope

Finally, a booming voice in the courtroom bellows: “Sebastian Pineda.”

He takes the stand and nervously tells the judge his story. Pineda was 17 years old and looking for work when he left his small town in Guerrero, Mexico, for Chicago. A grueling 18-hour bus ride took the teenager to Piedras Negras--a border town about two hours south of San Antonio, Texas.

It was after midnight when he and other passengers jumped over the border fence and walked to a house. Two days later, a van drove him to Chicago.

Once he got here, he found a job and something he wasn’t looking for: Love. At a South Side factory, there was a woman whom he only saw during work breaks. He knew he had to talk to her. They dated and quickly fell in love. They later moved in together and after a couple years had their first son.

Pineda had been in the U.S. for more than a decade and his three run-ins with the law were traffic violations for driving without a license. It was the third violation that got him into trouble.

He was going to visit friends on the North Side when police pulled him over. He was arrested after failing to provide a driver’s license and was eventually turned over to immigration officials. He’s been fighting his deportation ever since.

In the quiet courtroom, Pineda stands in front of the judge. His wife sits with their pastor, the Rev. Jose Landaverde, and prays for what she calls a “miracle.”

Pineda tells the judge he needs to stay in the U.S. because he is the breadwinner of the family. He explains that the reason he left Mexico is the same reason why his children can’t go with him: There aren’t any opportunities.

But the judge isn’t buying that his family won’t follow him to Mexico. “If you’ve always cared for your children and your partner is illegally in the United States, one has to ask oneself why they would stay behind, or by what right would they stay behind by themselves if you had to leave the country?” the judge said. “And the children, who are citizens, are completely dependent on their parents. They can’t simply exist by themselves. So isn’t your proposal [for them to stay in this country] completely unrealistic?”

Pineda’s heart sinks. Why didn’t the judge understand? His family needs to stay in the U.S.

Then the judge announces his decision, rejecting Pineda’s argument for staying. Since he doesn’t qualify for prosecutorial discretion, his deportation is ordered.

Pineda’s heart breaks. It breaks for his wife, his sons and himself. Walking toward his wife and the priest, they seem hopeful and all three pledge to keep fighting.

Implementing Prosecutorial Discretion

“It’s our policy to review cases that are pending before the immigration courts to determine if they meet the criteria for prosecutorial discretion,” Gail Montenegro, spokeswoman for the U.S. Immigration and Customs Enforcement said in a statement on Pineda’s case. “While [the agency] may opt to exercise prosecutorial discretion in certain cases, the agency may also choose to pursue enforcement action against individual as resources permit.”

Immigrant advocates view prosecutorial discretion as the last resource for immigrants with no serious criminal background to have their deportation order canceled. As of May 29, the immigration agency reviewed 232,181 deportation cases and identified 20,648 as qualified for the relief. So far, 4,363 of them have been closed or dismissed.

In one small Little Village church, eight families wait for a loved one’s deportation case to be canceled.

“They are separating families,” said the Rev. Landaverde, whose congregation at Our Lady of Guadalupe Mission is largely undocumented. “How is that just?”

He sees the problems it creates. Mothers work more to make up for lost wages, and the community has to support the families since many don’t qualify for welfare.

The American Immigration Lawyers Association’s Chicago chapter tracks cases that it believes qualify for prosecutorial discretion but the immigration agencies refused to close them. So far, 14 attorneys in the Chicago chapter say they have at least one client who has been denied prosecutorial discretion, not including Pineda.

Pineda’s attorney is challenging the judge’s denial by filling an appeal with the Board of Immigration Appeals--the highest administrative body interpreting immigration laws. It is also the last step before resorting to the federal court system. And he’s made trips to Washington, D.C., to meet with Obama’s staff, U.S. Reps. Luis Gutierrez and Joe Walsh to lobby for his case and others.

A Family In Limbo

On a recent afternoon, Pineda and his wife walk their children home from school. She reveals how hard it’s been.

“The youngest would cry almost every night,” she said. “My children are aware of the situation. They know. Sometimes they ask, ‘Daddy, what’s going to happen if you leave?’ This situation has impacted them so much.”

The family arrives home to their modest two-bedroom apartment. The living room has large windows, letting in plenty rays of light. When asked about his father’s deportation order, the 9-year-old mumbles, “I don’t want to leave and I don’t want him to leave.”

Pineda hugs him, holding back tears. Soon, they spill down his cheeks.

“There is nothing for them [in Guerrero]. When I was young my family couldn’t afford anything for me. No clothes, education or toys,” he said. “Why would I take them? To suffer? And now with all the drug violence, what am I going to do to protect them? I want them to be safe. I want the best for them.”

And for him that is staying here.

© Community Renewal Society 2012

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