A Chicago judge denied an immigration prosecutor’s request last week for an “administrative closure” of a deportation proceeding against Sebastian Pineda, a Mexican immigrant whose case was chronicled by The Chicago Reporter in August.
The decision threw a wrench into the U.S. Immigration and Customs Enforcement’s stuttering effort to carry out a 2011 directive by John Morton, the agency’s director, that urged the use of “prosecutorial discretion” to focus on deporting dangerous felons and less on minor offenders who pose no threat.
Under Morton’s policy, immigrants who have strong family ties to this country and no serious criminal background could get a reprieve from deportation. On Tuesday, Pineda, a 31-year-old father of two U.S.-born children, was hopeful; prior to that morning’s hearing, the prosecutor had agreed to seek an “administrative closure” that would have suspended his deportation case.
But immigration judge Craig M. Zerbe had other ideas. “It’s an arbitrary decision, and I will not agree with it,” he said, denying the prosecutor’s motion.
After the hearing, Pineda and his family met with U.S. Rep. Luis Gutierrez’s staff in his Chicago office. “Our immigration system is not supposed to work like this, and neither is prosecutorial discretion,” Gutierrez said in a written statement about Pineda’s case. “I will be looking into this case to see if there is anything the lawyer or the [Immigration and Customs Enforcement] lawyer can do to prevent the deportation of a breadwinner supporting his family and U.S. citizen children.”
For the immigration agency, the case represents a latest wrinkle facing the implementation of the prosecutorial discretion policy, which was announced in June 2011. The policy was initially met by an opposition from the agency’s deportation officers whose union resisted the training. The agency’s effort to comb through backlogged court dockets has also been slowed by bureaucratic delays with criminal background checks.
As of Dec. 31, 13,407 deportation cases, including 228 in Chicago, had been closed or suspended, according to the database maintained by Syracuse University’s Transactional Records Access Clearinghouse, which monitors immigration courts.
Gail Montenegro, the immigration agency’s public affairs specialist, said that most immigration judges have accepted the recommendations of prosecutors from her agency. But, she added, judges make the final determination for each case.
“U.S. Immigration and Customs Enforcement … carefully reviewed the case of Sebastian Pineda and determined that his case met the criteria for prosecutorial discretion,” Montenegro said in a written statement. “However, the immigration court, which is part of the Department of Justice, can make an independent decision despite ICE recommendations.”
Kathryn Mattingly, spokeswoman for the Executive Office for Immigration Review, an agency under the U.S. Department of Justice that oversees the nation’s immigration courts and judges, declined the Reporter’s request for comment.
Daniel M. Kowalski, an Austin, Texas-based immigration lawyer who edits Bender’s Immigration Bulletin, a legal newsletter, said immigration judges are sometimes wary of administrative closures because it keeps the cases in their docket–which affects their case-clearing ratio. “Judges are under a lot pressure to move cases,” he said.
During Tuesday’s hearing, Pineda’s family was waiting anxiously outside the courtroom. When he walked out of the room, Pineda looked stunned. “I didn’t expect this,” he said.
His wife stood by his side as he described what happened. “We’re still going to fight his case until the last day,” she said. “God will help us. This is not for us; this is for our children.”