Who Decides Which Undocumented Students Can Stay, Who Must Go?

MIAMI (2011-8-17) -

When a local immigration field office in northern Florida tried to deport an 18-year-old girl near Jacksonville, a powerful South Florida advocate intervened.

Advocates on both sides of the immigration debate say that a lack of clear federal law on how to treat undocumented students leaves the process open to influence peddling.

President Obama gave local immigration offices authority to choose which undocumented students can stay and who must go when Congress failed to pass the DREAM Act—a law that would allow some undocumented school-aged kids to stay in the country.

“My Goals And Dreams Are From Here”

Melissa fled gang violence in El Progresso, Honduras with the help of smugglers. She was just 7-years-old when she arrived in north Florida to live with her mom and two younger sisters.

She is the only person in her family without legal status. And when she was 12-years-old, Melissa was caught in an immigration raid while visiting her aunt in Tallahassee.

“You hear the door just closing and 10 officers come in with their things that say ICE and their guns to the side saying, 'We are from the Department of Homeland Security. We've come to see whose illegal and not.'

Melissa has been fighting a political asylum case since the day of the raid.

Melissa is not her real name. Her identity is being protected because it could affect her case.

Earlier this year, after a six year battle, Melissa lost her final immigration court appeal.

“Deportation is like depression. It’s like they tell you you're going to die tomorrow,” Melissa said.

The deportation letter said she could take 40 pounds of luggage back to Honduras.

Officials call it a “Bag and Baggage” letter.

Melissa calls it a death sentence.

“I don’t have no type of life in Honduras. What could Honduras offer me? Nothing but just violence,” she said. “My goals and dreams are from here.”

Melissa had one final option.

Undocumented Students Apply To Stay

Because she had attended a U.S. high school and had no criminal record, the Obama administration said she could apply to put off her deportation.

But the local immigration office wouldn’t approve the request. A supervisor in Orlando told Melissa’s attorney, Wendi Adelson, that she needed to file an amendment to the request with a compelling reason to keep Melissa in the country short term.

Adelson was out of options.

So she decided to circumvent the process.

Adelson called Cheryl Little, the influential head of the Florida Immigrant Advocacy Center in Miami. And Little began to pull strings in Washington D.C.

“You know when you’re desperately trying to help someone and you’re getting “No” from the local officials, I don't think it hurts to try to take it further up,” said Little.

A few days later, the same officer whose name was on the initial deportation letter called Adelson to say Melissa could stay in the country for another year.

Adelson and Little say they are happy to have bought Melissa more time in the country. But they say the process seems flawed.

“The idea that, instead of following the rules and crossing your Ts and dotting your Is, you have to go above the decision makers and have them talk to the next level of people and have them decide for your client, I mean it’s not justice,” said Adelson.

Bob Dane is with the Federation for American Immigration Reform. He says, “This is the chaos that happens when the administration begins re-write immigration rules for political expediency.”

Dane sits on the opposite side of the immigration debate as advocates like Adelson and Little.

Local Immigration Agents Decide

Immigration and Customs Enforcement (ICE) has issued guidelines for local agents to follow. But the decision to grant deferred action or prosecutorial discretion to a student facing deportation is discretionary.

Illinois Congressman Luis Gutierrez is leading an effort in Congress to change that.

“You can imagine that different ICE officers will use different discretion given the same set of facts. Do I think that’s happening? Yes. Should it be happening? No.”

Gutierrez wants to take the discretion away from local immigration agents. He says students without access to an attorney or the right advocates are slipping through the cracks.

“Why aren't we having as a general policy, simply stating, “there’s a million of you, if your story is similar or identical to the story of the 12 we already deferred action on, we’re not going to deport you.”

Melissa says this confusing process, the back and forth, the last-minute deferrals, the constant threat of deportation, are hard emotionally.

“The only thing that I thought is why do they keep denying this? Why do I have to go? But now I just see it as a process I have to go through and just hang in there,” she said.

Melissa can choose to go to college or join the military. But with her future so uncertain, she says it's hard to decide.

A year from now, she'll find out if her deportation will be deferred another year.

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