As SB 1070 Heads to Court, a Father’s Case Reveals the Larger Problem

An Argentinian father of three faces deportation because police officers arrested him when he went into a diabetic shock. Is this what Obama meant when he said he wanted more humane deportation policies?

By Julianne Hing Apr 24, 2012

A New York father faces deportation to Argentina, likely because he went into diabetic shock and had the poor luck to be met by police officers who arrested him, instead of sought aid for him. His case is shining a new light on the Obama administration’s deportation policies and the president’s attempts at striking the difficult balance it has claimed as its enforcement strategy. Meanwhile, the Supreme Court is readying itself to hear the [Obama administration’s challenge to Arizona’s anti-immigrant SB 1070]( this week. The law was the first of its kind to authorize law enforcement officers to question and detain anyone who appeared to be undocumented, and has since spawned a series of copycats around the country. As the Obama administration has tried to rein in states who are creating their own immigration laws, it’s also been fighting a separate political battle to get a hold on its own deportation agenda. It’s not working out so well, experts and activists argue, and Claudio Molina’s case is an apt example of its challenges. On a March afternoon after taking medication for diabetes, Molina dropped off his wife and son at a Wal-Mart. The Brentwood resident, who is undocumented, was going to wait while they did some clothes shopping. Instead, he left the store without telling his wife. According to his daughter Ludmila, Molina has no memory of what happened next. A witness at a nearby novelty store would later call an ambulance three times to report that a man parked in a car outside a store appeared unwell. Molina had gone inside the store, according to his attorney Lev Lewin, spoken to some people, and went back outside to his car, where a witness found him shivering and struggling with his breath. The witness tried to check on Molina, and made several calls for an ambulance. An ambulance never arrived, however. Instead, Suffolk County police officers responded to the call, and would later arrest Molina on suspicion of driving while intoxicated. After his arrest, Molina was referred to immigration authorities, who began processing his deportation. According to Molina’s attorney, he has no recollection of having been offered a breathalyzer, and no labs were run to confirm whether he was intoxicated. He had been taking Metformin, a medication to treat his diabetes, and likely suffered an incident of lactic acidosis, his attorney said. Despite being clearly unwell, he was sent to prison rather than a hospital. He was transferred to immigration detention in April, and faces imminent deportation as early as this week, his attorney said. The Suffolk County police department and district attorney’s office did not respond to requests for confirmation of details. The Obama administration has firmly established its immigration enforcement bona fides; President Obama has deported record numbers of immigrants, numbering close to 400,000 people every year he’s been in office. In an attempt to temper growing anger among Latinos and immigrant rights advocates, the Obama administration announced nearly a year ago that it would move to formally adopt a 2010 memo to prioritize enforcement in a humane way. What did that mean? In June of last year, Immigration and Customs Enforcement Director John Morton explained that he’d be instructing field offices to best focus the agency’s "limited resources" on high priority cases. The administration argued that people convicted of murder were a higher priority for removal than, say, people who had been arrested for loitering, and that enforcement actions [would reflect]( those priorities. But as Molina’s case illustrates, who constitutes a high priority for removal is a constantly shifting and ever expanding category. As immigration agents continue to face ever-present pressure to reach the administration’s [deportation quotas](, the deportation dragnet has continued to encompass people who have been convicted of petty crimes or who have no arrest history at all, who merely come into contact with law enforcement in some way. The federal government has closed fewer than 1 percent of the nearly 300,000 deportation cases in its docket since kicking off [a program]( last August to evaluate and remove people from the deportation queue who were not a high priority for deportation, researchers from Syracuse University’s [Transactional Records Access Clearinghouse]( found. The initiative was announced as a means to further prioritize enforcement resources and loosen up the heavy backlog of cases in immigration courts. Yet in the last year, the backlog has actually increased, to 305,556 cases. "Even ICE’s stated goals of its review process, they’re not meeting those basics of what they claim their goals are," said Shiu-ming Cheer, a Los Angeles-based immigration attorney with the National Immigration Law Center. Immigration attorneys around the country interviewed for this article said that in the last year, they had received notices that prosecutorial discretion, or "PD" as its referred to in attorneys’ parlance, had been granted generally for clients who had been in the country for longer than a decade; had family members who were green-card-holders or citizens; and had a spotless criminal record aside from their immigration arrest. Yet, attorneys also said that even within one local ICE office, prosecutorial discretion guidelines were being inconsistently interpreted. "There’s an overall lack of transparency around the process," said Cheer. She said that when ICE denied clients’ requests for prosecutorial discretion even for people who seemed like ideal candidates for relief, ICE cited no reason or would give no option for allowing people to provide paperwork that would make prosecutorial discretion available to them. It’s still too early to tell how and if the process is working for clients, said Maurice Goldman, a Tucson-based private immigration attorney. "The verdict is still out," he said. "I’m hearing mixed reviews from people and it’s more of a struggle with different branches of ICE than with others." "The hope was that the federal guidelines would decrease the need for the kind of public campaigns that we’ve launched, but we haven’t seen those changes," said Conrado Santos, a campaign consultant with the Massachusetts-based Student Immigrant Movement, which helped organize to successfully stop the deportation of Noelia Ramos last week. Ramos was arrested in 2007 during a workplace raid in New Bedford, Mass., and has been fighting her deportation ever since. But last week the 27-year-old mother was told to report to ICE with a plane ticket back to her native Honduras in hand, Santos said. As the days counted down, activists launched a public campaign to pressure ICE into giving her case a closer look. Ramos, who has no criminal convictions and two U.S.-citizen children, and who was swept up in the immigration system after a [harrowing factory raid](, was an ideal candidate for prosecutorial discretion, advocates argued. After Sen. John Kerry and Reps. Barney Frank and Luis Gutierrez stepped in and lobbied to keep her in the country, ICE granted Ramos a one-year stay on her deportation. "What has been helpful as far as the guidelines go is that we can use them as an extra tool now, because we can point to the memo and say: You’re not doing it. You should be doing it. Please do it," Santos said. Yet even these sorts of victories are only a temporary fix that do not offer the few immigrants who benefit the kind of long-term solution they need, said Cheer. Immigrants who are granted prosecutorial discretion under the Morton memo only have their deportation cases administratively closed. They are not granted a work permit or legal residency, and the federal government may reopen their deportation case at any time. Lewin said that at this point, Molina is fighting just to stay in the country long enough so that he can deal with his separate criminal case. "Right now it’s in the discretion of ICE officers if he will be able to stay in the U.S. and somehow get to stay in the country with his family to fight these charges," Lewin said. The immigrant youth organizing group has set up a an action alert at []( to help stop Molina’s deportation. Ludmila Molina has been going to her father’s hearings when she can, yearning for even a glimpse of her father’s face or a chance to give him a hug. Instead, she’s only been able to see the back of her father’s head as he sits facing a judge. "You can’t talk to the person at all, and it’s so agonizing," she said. "All I get to see is the back of my father, sitting with handcuffs on. I just wish I could go up there and hug him and tell him that I love him." Her family still hasn’t the heart to tell her younger brother Matthew where his father is. They’ve told him Claudio is working on a job far away from family. "What hurts me is knowing that my dad is not by our side, and that my four-year-old brother is going through the possibility of growing up without a dad," Ludmila Molina said. "I know Obama has said that he’s going to stop the separation of families but what happened? We’re a family, real humans. It hurts to be pulled apart just because of not having documents. We’re still humans. We are still a family. We have the same values as any other family."