Originally published by The NY Times
The details of their immigration cases in widely shared news stories have elicited public sympathy — a 10-year-old stopped on her way to surgery; a mother hiding in a church — but they also raise questions about how the nation’s complicated immigration policies are enforced.
Take the cases of Syed Ahmed Jamal and Jesus Berrones, which have received a great deal of national attention in recent weeks. Both men have sympathetic stories, faced deportation and received temporary reprieves.
The treatment of people often seems arbitrary and inconsistent. Mr. Jamal, who was detained and separated from his wife and three children in Kansas, received temporary relief despite the efforts of federal authorities to deport him (which continue), while Mr. Berrones, whose 5-year-old son has cancer, was allowed a temporary reprieve on Monday.
The contrast underscores the discretion given to Immigration and Customs Enforcement officials. It also raises questions about the extent of their powers and the rights of detainees. Here are answers to some of those questions.
Are deportation arrests more common than before?
So far, yes, they are. Between the start of the Trump administration and the end of the 2017 fiscal year, the agency arrested 110,568 people, a 42 percent increase over the same period the year before, according to an ICE report.
What happens after someone is arrested?
If someone in custody already faces an order of deportation, the options may be limited.
Mr. Jamal and nearly one million others fall into this category. In Mr. Jamal’s case, an immigration judge gave him until Oct. 26, 2011, to leave the country voluntarily, according to ICE. When he failed to do so, his departure order became a deportation order.
A lawyer may be able to argue, as Mr. Jamal’s successfully did, that the judge should temporarily stay the removal. A lawyer may also be able to persuade a judge to reopen a case if a person’s circumstances have changed.
But without such a stay, ICE can conclude that the legal process is over and begin deportation as soon as possible, depending on the logistics of sending the individuals to their native country.
That happened to Mr. Jamal on Monday. When his first stay was dissolved, he was placed on a flight. His lawyers said they were able to secure a second stay, however, while his plane was on its way to Hawaii where it would refuel.
An individual in custody without such an order of deportation may have more options — and time.
The detainee can apply for asylum or other such programs. Even if that relief isn’t available, immigration courts are often backlogged and arrestees have several rounds of appeals to exhaust, a process that can take some time.
That said, they may have to spend some or all of that time in detention, where many who lack legal representation simply agree to be deported anyway.
Can ICE make arrests anywhere?
No. There are two kinds of restrictions on the places where immigration officers can make an arrest: legal and self-imposed.
Like other law enforcement agencies, ICE must respect constitutional protections, meaning its officers can’t enter a private residence without consent or a warrant, according to Grisel Ruiz, a staff lawyer with the Immigrant Legal Resource Center.
The agency has also vowed on its own to avoid making arrests at “sensitive locations,” a policy intended to build trust and allow individuals to engage in some activities “without fear or hesitation.”
Those include schools, places of worship, hospitals and public demonstrations. (In response to criticism, ICE recently said it would also put more limits on when it will make arrests in courthouses.)
But that voluntary policy is just that: “It’s not binding, it’s not law,” Ms. Ruiz said.
And she and other immigrant advocates say that while the agency may avoid making arrests at those sensitive locations, it continues to arrest people near them.
Does ICE have to let deportees get their affairs in order?
While they sometimes do, immigration officers are not required to give arrestees the chance to gather their belongings or even say farewell to their loved ones. Mr. Jamal’s family said that the officers who arrested him, for example, denied them the right to hug him goodbye. And, often, those being arrested may be far from home and family.
Depending on the stage of the deportation process and criminal history, some individuals are allowed to go free on the condition that they commit to voluntarily leave the country within a specified period.
Do contributions to society make any difference?
ICE agents are given discretion to decide whether someone should be deported.
The agency may let someone stay, under supervision, in extenuating circumstances — if the person is receiving medical treatment or caring for an elderly parent, for example. That appears to have been the case for Mr. Berrones, who reportedly received a one-year stay on his removal that will allow him to continue caring for his ill son.
Community pressure, and media attention, has swayed the agency in the past, too.
But, under President Trump, ICE is using that discretion in favor of detainees less often. The administration’s position is that anyone who is in the United States illegally is a target for deportation. In the last few years of the Obama administration, on the other hand, agents were told to prioritize some groups, like serious criminals and recent arrivals.
So while family, personal circumstances or contributions to society may be considered, they are less likely to help an individual’s cause now than they once were.
What role does a criminal record, or the lack of one, play?
The Trump administration considers being in the United States without proper documentation to be a crime, a stricter approach than in the past, when immigration offenses were often thought of more like civil infractions.
That means that the agency takes seriously cases in which the only significant mark on someone’s record is a failure to comply with a deportation order, as it says was true of Mr. Jamal.
But a lack of a criminal record, apart from immigration offenses, can help to persuade the government to let individuals remain free while they await an administrative decision about their status.
Do you get points for trying to achieve legal status?
While some immigrants, like asylum seekers, are protected from deportation as they await a decision on their status, merely applying does not provide protection. Without a court order or a government commitment to pause deportation, the only thing that matters is a person’s current legal status.
But attempts to achieve legal status can help to persuade a judge that an individual need not be detained, says Jesse Lloyd, an Oakland immigration lawyer who is the vice chairman of the American Immigration Lawyers Association’s ICE committee.
“A history of otherwise complying with immigration authorities is at least a good indication that someone’s not a flight risk,” he said.