UnDACAmented Transcript

January 30, 2016
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It’s been 20 years since Congress has passed comprehensive immigration reform in the US. So, in 2012 President Obama took matters into his own hands. His administration signed a memo granting undocumented immigrants who came to the US as children, a chance to defer deportation. It’s called Deferred Action For Childhood Arrivals or DACA, for short.

Now that we’re in an election year the men and women running for president say they have a better way to fix our immigration system. But in the meantime, an estimated 11 million men, women, and children live and work in the US without documentation. That means one in every 30 people living in the United States is undocumented. DACA was created to provide a temporary legal right to work for the children who came to the US without documentation. It’s not permanent and it doesn’t provide a path to citizenship. But since it was presented in 2012, an estimated 1.5 million people have applied for DACA status. The stakes are high. It’s discretionary. That means simply coming forward to apply for DACA can mean deportation. And as the law currently stands, getting deported means you lose any chance to apply for DACA in the future.

Jonathan Hirsch has this story.

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It was 2013. Luis was nineteen. He’d been living in the US without documents since he was eight–and now a new government policy called DACA meant he could apply to live and work here legally. He started to get an application together, and his mom helped him set up an appointment with an attorney.

Then, a few weeks later, Luis was driving around Texas’  hill country with some friends. The low brush and wide horizons of South Texas rushed past the windows.

LUIS: Me and two friends went to San Antonio just to cruise around for a bit. And from there I fell asleep. My friend says she took a wrong turn. I don’t know you know? And then from there I woke up I saw the sirens on the back.

While Luis was asleep in the back seat, local authorities had stopped the car.

LUIS: I asked my friends in front what had happened? She said that she didn’t know. That she just got pulled over.

The driver and the other passenger both had Texas state ID’s, but Luis didn’t. All he had was an ID from the community college where he was taking classes. He didn’t have a social security number, either. By law, Luis wasn’t obligated to give the police a social security number–or to admit he didn’t have one. But he didn’t know that. A female officer approached the car.

LUIS: She said that my friend got pulled over for speeding. She asked everybody for social security. And when my friends gave the sheriff their ID I gave the sheriff my ID too. But I told her that I didn’t have a social. At the time I wasn’t really thinking of anything until the border patrol came. That’s when I got nervous.

While Luis slept, his friends had driven into borderland territory, less than 50 miles from the US/Mexico border. The local sheriff told Luis and his friends to wait until Customs and Border Patrol Officers could arrive.

LUIS: They told us to step out of the car. Well, we got out of the car and they made us stand in front of this van. Then they were asking a lot of questions like what are you doing here, and stuff like that. We all told the Border Patrol, we told them that we were just cruising around. And from there they put us all in handcuffs.

Luis was taken into custody and transferred to a Border Patrol Station. From the movies, he knew that if you’re arrested you get a phone call. He says he asked the border patrol agents if he could call his mother, Rosa.

LUIS: I asked them for a phone call and they said not until I filled out those papers.

Luis couldn’t read the papers he’d been given because he’s legally blind. He says that he asked if an agent would read the papers aloud. But that no one did. A report his attorney later obtained indicates that Luis was informed of his rights. It includes Luis’ date of birth, country of origin, and the exact location and nature of all six of his tattoos. But nowhere on the report does it indicate that any official documentation was read aloud to him. Then Luis was given another form.

LUIS: And they just told me to sign here and here. Well I signed. And I guess I signed for my deportation.

The form given to him by Border Patrol agents said he would do what’s called a “voluntary return.” Without knowing it, Luis had signed a piece of paper that said he would go back to Mexico. Later that day, he was deported.

Elora Mukherjee is Director of the Immigrants’ Rights Clinic at Columbia University. Mukherjee says undocumented immigrants are often asked to sign voluntary deportation documents…

MUKHERJEE: Unfortunately, that is not an uncommon experience. I hear about that very experience in case after case after case.

And most of the time, she says, they don’t realize that by signing such a form, they are waiving their rights to stay in the U.S.

MUKHERJEE: America should be a land that welcomes refugees, welcomes immigrants; we’re a country that is built on immigrants and yet at this moment in history, our country’s policies are particularly punitive.

Luis’ parents came to the US for the reasons most people come here. Better paying jobs. More opportunity. Safety.

Rosa Morales is Luis’ mother. She was the person who made an appointment for Luis to start the process of applying for DACA a few weeks before he was detained. When Luis was a baby, back in Mexico, Rosa was the person who first noticed that her son’s left eye had started to look milky, opalescent. At first, doctors weren’t sure whether he was able to see at I all.

MORALES: He was born with the vision problem. It’s related to a bacteria that I had during the pregnancy. We took him to the opthamologist. We’ve tried to do everything possible so he could see.

Two surgeries were performed on Luis in Mexico City, but the doctors were unable to save his left eye.

MORALES: After the operation the eye started getting smaller and smaller. I went to the doctor and asked why it was getting smaller and smaller. They said that the bacteria had killed all his nerves. They tried to do everything possible to save the eye, but they couldn’t.

Knowing that they couldn’t get the care Luis would need in their village, Rosa says she and her husband decided to move their family across the border. Luis’ dad crossed the first. Then Rosa. And in 2001, Luis crossed the border to join his family in the U.S. He was eight.

LUIS: When I got here I enrolled into elementary school. I didn’t like it at first. At first I wanted to go back to Mexico. I didn’t wanna be brought over here. But then I got used to it. I started liking everything about being here.

Luis made friends. By his estimation, he was treated well by other classmates. And despite the vision problems, he learned English, and completed his freshman year of high school. But learning was still challenging for Luis, and he started skipping classes. Before finishing his sophomore year, he dropped out and got a job working in construction. He says he was content with his life in the US. He had a girlfriend for a while, and together they have a son, Alexander. Luis definitely didn’t want to go back to Mexico.

LUIS: I mean Mexico it’s a pretty place, you know, but it’s just not for me. I prefer being here you know. Where I was raised. I guess Mexico is now to me a place that I’d like to visit. But I wouldn’t go back to live over there.

In 2001, a year before Luis first crossed the border as a kid, Congress introduced a bill called the Dream Act. If passed the bill would provide a path to lawful residency for immigrants who arrived in the US as kids, because of decisions made by their parents or other relatives. Many versions of the Dream Act have been introduced in the Senate and Congress. And all of them have failed. Then, in June of 2012, the Obama Administration wrote a memo instructing all branches of the DHS to exercise “prosecutorial discretion” in cases where young people are brought to the US as children. A policy that is called Deferred Action For Childhood Arrivals: DACA for short.

Muszaffar Chishti is the Director of the Migration Policy Institute’s New York City office at New York University. He explained to me exactly what DACA is supposed to do.

CHISHTI: It says anyone who has entered the country before they were 16 and now are less than 31 years of age, and have they either gone to high school or GED or are pursuing college or military service, they are eligible for the DACA program. You are allowed to stay in the country without fear of removal. That means your potential removal is suspended. It’s not to say we’ll never remove you, but we are going to put you in the back of the line.

Basically, Chishti says that if someone came with their parents, there’s no way they could’ve intended to break the law; that they were just doing what their parents told them to do. But Chishti also points out that DACA is by no means legislation itself… Nor is it a legal status. It’s a postponement of your deportation. And it’s entirely at the discretion of immigration enforcement agents. Which means that one enforcement agent could look at your case and see you as DACA eligible…and another might not.

DACA grants important benefits. DACA recipients can get a Social Security number. They can apply for a work permit. They can get jobs previously available only to lawful permanent residents. Jobs that pay more, and often give workers protections not available for “under the table” employment.

So when Luis found out that he might be eligible for DACA–this is back before his friend’s car was stopped by the police–he knew he wanted to apply. To meet all the requirements, he had to finish high school or the equivalent, so he’d enrolled in a GED program. And his mother Rosa had set up an appointment with an attorney named Chito Vela, to start the paperwork. The things is–and this is pretty confusing, so bear with me… By law, a person can be eligible for DACA, and still get deported. And if that person does get deported, they’ll no longer be considered eligible for DACA. And when Luis was deported, he hadn’t yet submitted his DACA paperwork.

So Chito Vela took up that case, too.

VELA: Luis’s case is the kind of case that make me want to stop practicing immigration law.

Chito is tall and slight with bushy salt and pepper sideburns. He wears Wrangler jeans, cowboy boots, and a paisley tie. He runs a private law practice in Austin that focuses on immigration cases. When we first meet, he says he has two weeks to figure out how to keep Luis in the country. After that–he’ll either have to go back to Mexico, or if he stays in the US, face deportation. Again.

I ask Chito what he thinks happened that night when Luis and his friends were stopped by the police

VELA: It’s still not completely clear what happened. But what should have happened was that the Border Patrol agents should have immediately recognized that Luis was in all likelihood eligible for DACA and should have released him and allowed to apply for DACA.

In a kind of second hand situation, if they took him into custody, once he was in custody they should’ve evaluated him for the requirements for the DACA requirements and could have even granted him DACA while he was in custody, that is within ICE’s powers… That didn’t happen.

Instead, after his arrest, Luis was deported to Mexico.

A couple of weeks later, he crossed the border back into the US, legally, in Laredo, Texas. At the border, Luis told the authorities from Immigration and Customs Enforcement (ICE) that he was seeking asylum because he didn’t feel safe or at home in Mexico. From there he was detained by ICE at the South Texas Detention Center for a month. He was let out on bond, while his asylum case was reviewed. The asylum request was denied.

Being deported had disqualified him for DACA–but he applied anyway. Chito, his attorney, said that he hoped the circumstances of Luis’ deportation would warrant an exception. The DACA application was denied. Chito then requested what’s called a “stay of removal” to allow for an appeal. Luis was granted a one year stay in the US. Then another. But all subsequent appeals to ICE regarding Luis’ case have been denied.

In the two and a half years since Luis was first detained and deported, immigration policy has changed. The Obama administration extended the deferral period from two to three years, and decided that parents of lawful permanent residents will be protected from deportation. Even though he has a son who was born here, the decision came too late to help Luis.

When I met Luis he was living  a quiet life, largely under the radar. He’d been washing dishes in the kitchen of a restaurant, but he lost the job when the friend who helped him get it was arrested. So he’d started to work the graveyard shift cleaning corporate offices.

VELA: Luis? How are you doing? We’re gonna come over to your house right now, alright?

Luis’ apartment is a just a few miles from the quiet suburb where his attorney, Chito, lives–but the two places look very different. Where Chito’s neighborhood is filled with single family homes, with lawns and trees in each yard, the area Luis lives in is made up of old apartment complexes, and vacant lots. Luis opens the door to the apartment he shares with two brothers, his mother, and his father. He’s wearing a black shirt, black pants, and black shoes. We go upstairs to his bedroom, where his brother Chris is playing Call of Duty. During the week, Luis’ two-year-old son Alexander lives with his mother. On the weekends he shares Luis’ small bedroom.

HIRSCH: And what are these all about.. can you show me them?

LUIS: oh and this one is…

When we sit down, he shows me the tattoos on his hands. He has the name of an ex-girlfriend on one hand, and his own name on the other. Luis. He’s got more on his arms and shoulders but I’ve made him uncomfortable by asking  about the tattoos. He says that after he was deported and legally re-entered the US, and was in the custody of Immigration and Customs Enforcement authority (ICE), his tattoos made officials suspicious. Because of the tattoos, officers assumed that he was part of a gang.  

Luis is soft-spoken. When he’s not at work, he likes to play video games with his brothers, and to spend time with his son. He says he’s always been a bit of a loner, and very sensitive about being legally blind . In fact, he agreed to be interviewed for this story because it’s for radio–so no one will see his face. And because his attorney told him he was running out of options.

Remember: Luis has no criminal record, and his entire family lives in in the US. Luis’ brothers were born here and are citizens. His son was also born here and is a citizen. And before he was deported, Luis was enrolled in a GED program and preparing to apply for DACA. Every attorney, scholar, and advocate that I spoke with considered Luis to be what the DHS refers to as a “low priority” for deportation.

Because of Luis’s disability, he was unable to read the document given to him the night he was detained. Nowhere on the report that was filed does it indicate that the voluntary deportation forms were read aloud before he was told to sign them. Border Patrol authorities who processed Luis didn’t apply the sort of discretion called for in the Obama administration’s 2012 memo–meaning, they didn’t recognize the fact that he was DACA eligible. And because those authorities decided to deport him, Luis then became ineligible for DACA. I ask him to tell me about the night he was first detained. The night in 2013 when Border Patrol officials told him they were deporting him to Mexico, a country he hadn’t seen since he was eight years old.

LUIS: And then from there they took me to the room to the cell. Then they just said that I was going to Mexico and they were just waiting on the bus to arrive. I told them I was scared because I didn’t know that place. I don’t know a lot of stuff came to my mind. It’s just like this feeling you get when you don’t think of anything but your mind goes blank you know? Have you ever had that feeling?

There’s a lot of controversy over the Obama administration’s decision to expand DACA. Several states have challenged the expansion in court. And on January 19th, the Supreme Court announced it’s going to review Obama’s executive action on immigration. The case will be argued in April and decided by late June–right in the middle of the 2016 presidential election. Meanwhile, Immigration and Customs Enforcement officials  throughout the country have been carrying out raids to deport undocumented Latino immigrants who have arrived here more recently.

As for Luis Perez-Morales,  ICE officials agreed to review his case one last time.  And they concluded that, quote: “the totality of circumstances do not support the favorable exercise of prosecutorial discretion”. Which means that now, Luis is supposed to go home. To Mexico. The problem is that as far as Luis and everyone he knows is concerned, home is the United States.

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