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Are Bureaucrats Blowing Off Obama’s New Immigration Policy?

This story is one of a series aiming to answer a simple question: Why are undocumented immigrants that the administration says it intends to help stay in this country still facing deportation? For an earlier story on this topic, see “One Family In Limbo: What Obama’s Immigration Policy Looks Like In Practice.”

For the first time in years, Mayra Godoy, who came to this country after fleeing Guatemala’s civil war in 1991, ought to have reason for optimism. As an undocumented immigrant with no criminal record and deep roots (including a U.S. citizen child), Mayra is just the kind of person the Obama administration has signaled its intent to help. So why, after declaring its plans to grant relief to immigrants like Mayra, is the government still trying to deport her? If a last-ditch legal effort fails, Mayra could be sent back to Guatemala in a matter of weeks.

In this case, the crucial matter of whether Mayra can stay hinges on a much smaller question—whether she failed to appear at a hearing 17 years ago. 

The details of that incident are a major bone of contention between Mayra’s lawyer, Scott McVarish, and the Los Angeles ICE office. McVarish explains that when Mayra first arrived in the United States in the early 1990s, she could not afford a lawyer. Like many immigrants, she turned to a “notario.” Notarios cast themselves as “immigration consultants,” but in reality (as the American Bar Association warns), they are unscrupulous frauds who prey on vulnerable immigrants. Notarios charge exorbitant amounts for legal assistance that may, the ABA notes, fatally damage immigrants’ cases.

Mayra’s notario, predictably incompetent, bungled her request for asylum. Her case was further damaged when the INS mailed an order for Mayra to appear at a hearing to the wrong address (even though it had Mayra’s correct address on file). The government (through ICE, one of the agencies that has since replaced the INS) maintains that Mayra received a verbal order to appear. McVarish says the law requires written notice, since immigrants, who often can’t speak English, are frequently confused by verbal instruction. The entire problem might have been avoided if Mayra had found competent representation. In any case, Mayra failed to appear at the hearing. She has spent the last 17 years fighting the deportation order that resulted from her absence. “She wasn’t given notice of her one chance to fight the case back in 1994,” says McVarish, “and ever since then ICE has been fighting against giving her that chance.” 

In those years, Mayra has never received so much as a parking ticket. She has worked as a housecleaner and raised a U.S. citizen daughter, Yvonne. She has a network of friends and supporters through her church, Our Lady of Perpetual Help Church in Santa Clara, where she has been a member since 2006. Mayra’s employers affirm her work ethic; letters of support praise her charitable contributions to food banks and a local hospital. Many people mention how Mayra inspired and pushed Yvonne to study hard. Yvonne is now a sophomore at Berkeley, where she is studying psychology and political science.  

But Mayra is still fighting an active removal order. McVarish has filed a motion to reopen her removal proceedings, and he’s seeking prosecutorial discretion, citing numerous criteria in the Obama administration’s memo issued last June by ICE Director John Morton: her length of time in the U.S., the circumstances of her arrival from war-torn Guatemala, her deep roots in this country, and her U.S. citizen child. She meets none of the agency’s supposed enforcement priorities. 

But when McVarish recently approached ICE about seeking discretion, the agency not only rebuffed him, it filed its own eleven-page brief outlining why the motion to reopen should be denied. In the brief, ICE calls Mayra’s claim that she did not receive written notice of the order to appear at the 1994 hearing “absurd and disingenuous” (as well as “preposterous”) and dismisses Mayra’s claim that she was misled by a notario, saying that the alleged malfeasance of an unlicensed adviser does not merit reopening of the case. McVarish was taken aback. “If that’s the standard,” he told me, “no one would get prosecutorial discretion.”   

Mayra’s deportation is stalled for now while McVarish, Mayra, and Yvonne wait for the immigration judge to determine if her case can be reopened. If it is, Mayra can rest easy—she has been waiting for a green card, requested through her U.S.-citizen sister, for about a decade, and is only eleven months from receiving one. If the judge decides against her, Mayra will have come within months of obtaining a green card, only to end up back in Guatemala. 

The news could come any day now. Mayra told me that she’s holding out hope that the immigration judge will agree to reopen the case. McVarish hopes so too, because Mayra’s long legal saga is nearing an end. “If he rejects the motion to reopen,” he says, “we’re probably talking a week or two before she gets deported.” 

Nathan Pippenger is a reporter-researcher at The New Republic.