In a trial of a politically divisive program, U.S. prosecutors in Denver and Baltimore are reviewing thousands of deportation cases to determine which illegal immigrants might stay in the country — perhaps indefinitely — so officials can reduce an overwhelming backlog by focusing mainly on detainees with criminal backgrounds or who are deemed threats to national security.
Federal deportation hearings for non-criminal defendants released from custody were suspended Dec. 5 for the review and resume this week. Similar reviews are planned across the country to allow U.S. Immigration and Customs Enforcement to target deportations of illegal immigrants with criminal records or those who have been deported previously.
While the immigration courtrooms in Denver have fallen silent, prosecutors had time to examine case files, check residency history — such as whether someone was brought to the country as a child — as well as criminal history.
In Denver, 25 ICE prosecutors and three managers spent their work days during most of December and early this month poring over as many files in their case load as possible, ICE spokeswoman Barbara Gonzalez said.
“They come in on weekends,” Gonzalez said. “They’re looking at every case.”
Officials have not released information on how many cases will be placed on low priority based on the review. When they’re finished, cases of those here illegally but deemed not a threat to public safety or national security will be placed on administrative hold and the numbers will be released.
Citing tight budgets, Homeland Security Secretary Janet Napolitano announced this summer that nearly 300,000 deportation cases would be reviewed to determine which could be closed through “prosecutorial discretion.” Republicans have decried the policy as a back-door way of granting amnesty to people who are living in the U.S. illegally.
“We simply cannot adjudicate all these cases that are pending,” said spokeswoman Gonzalez. Some cases in Denver date to 1996, she said.
“It’s a holiday for anybody in the country illegally,” said Ira Mehlman, spokesman for the Washington-based Federation for American Immigration Reform, which opposes the initiative. “They’re doing this with the intention of dismissing as many of them as they possibly can.”
Several attempts at immigration reform have failed in recent years, including the so-called DREAM Act, which would have allowed some young illegal immigrants brought to the U.S. as children to earn legal status if they went to college or joined the military.
In June, ICE director John Morton announced that prosecutors and immigration agents would consider a defendant’s length of time in the country, ties to the community, lack of criminal history and opportunity to qualify for some form of legal status in deciding whether to press for deportation.
Denver has about 7,800 deportation cases pending, while Baltimore has about 5,000. Hearings and deportations involving criminal immigrants continued in both Baltimore and Denver. The suspended hearings dealt only with non-criminal defendants.
Before expanding the program, officials will examine the effect of the review on caseloads. They are also seeking to balance hearing high priority cases with those in which a person might have a strong case but has waited years for a hearing because of the backlog, said former Immigration and Naturalization Service commissioner Dorris Meissner.
Those who offered prosecutorial discretion don’t have to accept, and can insist on having their case heard by a judge.
“Everybody thinks that people just want to have their case dismissed,” said Meissner. “If they accept prosecutorial discretion, it’s true they don’t go before a judge and they don’t get deported, but their case is in limbo.”
For some, word that their cases have been postponed brings relief — but not closure. They’re still in the country illegally.
Jesus Gerardo Noriega, 21, of Aurora, Colo., said he learned in December his case was being closed.
“I’m happy that I don’t have to show up in court every six months so they don’t deport me,” Noriega said. But, he added: “I’m in limbo. I can’t do anything.”
Noriega’s family brought him to the United States from Mexico when he was 9. His parents and three brothers live here legally, and he graduated from high school — but only applied for a work visa last year. He faced deportation after being arrested in April 2010 for driving with no license plate light.
Deportation cases have risen sharply since 2007, when Homeland Security began using fingerprints collected from those held in local jails to identify and deport criminals and repeat immigration violators. Those cases increased from about 174,000 in 2007 to about 298,000 in 2011, according to figures compiled by the Transactional Records Access Clearinghouse, a research group affiliated with Syracuse University.
Immigrant advocates have blasted the fingerprint program, called Secure Communities, for subjecting people to deportation after minor traffic infractions or misdemeanors. Some state laws require police to notify ICE of suspected illegal immigrants.
But advocates say they welcome the federal review as a way to deal with a sluggish immigration court system where cases can linger for years.
“The courts are a mess,” said Susan Barciela, Miami-based policy director for Americans for Immigration Justice. “The volume keeps getting bigger and people’s rights are being violated.”
During the pilot program, Denver and Baltimore immigration judges were assigned to hear detainee cases elsewhere.
“The immigration courts are empty,” said Denver immigration attorney Hans Meyer of the scene in December and early this month. “It’s a pretty busy place, so it’s kind of strange.”