When the director of Immigration and Customs Enforcement issued a memo this summer that urged “prosecutorial discretion” in pursuing illegal immigrants, it was hailed by liberals as a step in the right direction. The memo was largely a restatement and clarification of longstanding immigration practice, but with an important new twist: It discouraged the pursuit of undocumented immigrants who would be covered under the DREAM Act, which the Obama administration favors but can’t get through Congress. The memo covers, among many other groups, those who were brought here as children and those currently in college.
But there was a catch: The memo wasn’t an order. It was merely a recommendation. The decision to issue the memo in this way probably helped the White House avoid a politically explosive and constitutionally murky fight. But it also created an unsettling, uncertain situation for many of the people it was supposed to help. After all, just as immigration officers can choose to follow a recommendation from ICE headquarters, they can also choose to ignore it.
The story of 19-year-old Luisa Argueta shows just how tough this situation is on the people involved. Argueta is a classic example of someone who should be covered by the new recommendations: a community college student who came to the country with her mother from Guatemala when she was just four months old. “I have been in California my whole life,” she told me via email.
But Luisa and her mother, Brenda, had been scheduled to be deported this past Monday—September 12—and because the ICE memo was only a recommendation, not an order, there was no guarantee that they would be granted a reprieve. I learned about the Arguetas through their lawyer, Zachary Nightingale, during the weeks leading up to September 12. Their story seemed to me a good illustration of the absurdities that still permeate our immigration system, even in the wake of the well-intentioned ICE memo.
Brenda had been a teacher in the 1980s in Guatemala, where she belonged to a union that was striking for better benefits. The union’s activities were not without risks: During a protest in front of Guatemala’s National Palace, Brenda was shoved around; she later testified that she was “cut and hit” by palace police. Around the same time, Brenda went on maternity leave; when she returned to the school, she discovered that some of her colleagues had been beaten up, and at least one teacher had received specific threats. According to Nightingale, Brenda “no longer felt safe because of how other teachers had been treated,” and she decided not to try her luck. Along with her new baby, Luisa, she fled to the United States, arriving here in December 1991.
In 1996, Brenda applied for political asylum. The case took years to move through the system, but, eventually, in 2003, an immigration judge rejected her request. The judge found her to be credible, but said that the level of persecution she suffered in Guatemala did not meet the threshold for political asylum. She appealed the case up to the Ninth Circuit, but in 2007 her appeal was finally rebuffed.
Meanwhile, in 1999, Brenda had married a man who, a decade later, became a legal permanent resident. She had two more children, both of whom are U.S. citizens by birth. The youngest, now 6, suffers from a rare medical disorder called neutropenia that makes her prone to infections. Luisa, now 19, was on the honor roll at her private high school and, in addition to attending Diablo Valley College, helps her mom out with her two half-sisters.
In January 2009, Brenda and Luisa received a one-year stay of removal, and they got another one-year stay in January 2010. But in early 2011, they were given only a six-month stay. Brenda and Luisa were told to report to the San Francisco ICE office for removal on September 12 at 9:00 a.m. The letter delivering these instructions was signed “Very truly yours” and instructed them that they were limited to 40 pounds of baggage.
Brenda and Luisa now faced an agonizing choice: return to Guatemala by themselves and split up their family; or keep the family together and move everyone to Guatemala. Because of the six-year-old’s medical condition, the risks of the second option were considerable. In documents submitted to ICE, a practicing Guatemalan doctor stated that no Guatemalan hospital has a specialist equipped to treat a child with neutropenia. “We never stopped praying that a miracle would happen and we wouldn’t have to leave,” Luisa told me.
The ICE memo handed down from Washington this summer was only half a miracle. On the one hand, Nightingale’s firm was able to cite the memo in arguing for a reprieve. “If the memo had not come out, I think we’d have gotten an immediate no,” Nightingale told me. On the other hand, while the memo bolstered Luisa and Brenda’s case, it did not guarantee them a victory. Their fate was ultimately in the hands of the ICE field office, and there was no way to know whether it would apply the recommendations from ICE headquarters to this case.
When I requested a comment from ICE on September 1, Brenda and Luisa’s scheduled deportation was eleven days away, and there was no decision yet. Still hopeful, they hadn’t yet started to pack their bags—but they were speaking with family members in Guatemala who had offered them a place to stay. After a day-long wait, I received a very brief email from ICE saying the case was “under review.” But later that night, I received an email from Nightingale’s law firm. A decision had finally come in: ICE had granted Luisa and Brenda another stay until June 2012. “My mom calls me and asks if I had heard the news,” Luisa later recounted to me over email. “She told me that ICE had extended our deportation till June 30th, 2012. I was extremely happy!”
Still, Luisa’s future—like the future of every other DREAM Act candidate in the country—remains uncertain. There is simply no way to predict what will happen next summer when the latest reprieve is set to expire. Luisa knows this all too well: She wrote to me that after her initial joy subsided, she realized that “come June we will be in the same limbo as we are now.”
Nathan Pippenger is a reporter-researcher at The New Republic.