Below is a letter from the #Not1More team at Mijente asking the Department of Homeland Security policy people about their policies on stopping deportations and using discretion when it comes to people with some sort of criminal history. The letter uses the example of a Tennessee father, Mr. Padilla-Ochoa, who was charged with a DUI 8 years ago, and facing deportation. Find out more about his case and sign his petition here. 

March 09, 2016

Via Electronic Mail

Amanda Baran
Principal Director, Immigration Policy
US Department of Homeland Security

Carlos Guevara
Special Assistant, Immigration Policy
US Department of Homeland Security

Mary Giovangnoli
Deputy Assistant Secretary, Immigration Policy
US Department of Homeland Security

Re: Inquiry on policy of use of prosecutorial discretion for individuals with a case history that fit a DHS priority category for removal

Dear Ms. Baran, Mr. Guevara and Ms. Giovangnoli,

I am writing to you to make an inquiry regarding the use of prosecutorial discretion by immigration enforcement officials on cases of individuals that fit one of the priority categories for removal, as described in Secretary Johnson’s November 20, 2014 memoranda, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (“Priorities Memorandum”). We are specifically interested in knowing:

1. What training or guidance do deportation officers, assistant field directors, and directors, or others who have jurisdiction over case-by-case evaluation receive regarding how to weigh factors of cases with characteristics that fall within the priority categories?
2. How is the DHS policy regarding case-by-case evaluation of DUI charges listed on the ICE website implemented by local ICE offices? 
3. What oversight exists to make sure these policies are implemented by local ICE offices?
4. What oversight exists to make sure these policies are implemented by ICE headquarters?

As described by the Priorities Memorandum, individuals who are convicted of a “significant misdemeanor” are considered part of the “Priority 2” enforcement category, which according to the memorandum includes convictions of driving under the influence. Although the document itself provides little guidance on how to weigh other factors, the “Frequently Asked Questions Relating to Executive Action on Immigration” published on the ICE website provides further guidance on the use of prosecutorial discretion in cases involving DUI, stating;

While individuals convicted of significant misdemeanors generally fall within Priority 2 of Secretary Johnson’s November 20, 2014 enforcement priorities, the Secretary’s guidance makes clear that, on a case-by-case basis, certain designated senior-level officials can determine that such an individual is not an enforcement priority when there are factors indicating that he or she is not a threat to national security, border security, or public safety. As with all criminal convictions, these factors could include the length of time since conviction, age at the time the offense was committed, sentence and/or fine imposed, whether the conviction has been expunged, and evidence of rehabilitation.

In the specific context of DUI offenses, such factors may also include the level of intoxication; whether the individual was operating a commercial vehicle; any additional convictions for alcohol or drug-related DUI offenses; circumstances surrounding the arrest, including presence of children in the vehicle, or harm to persons or property; mitigating factors for the offense at issue, such as the conviction being for a lesser-included DUI offense under state law, and other relevant factors demonstrating that the person is or is not a threat to public safety.

The document goes on to say that for Priority 2 “These aliens should be removed unless they qualify for asylum or another form of relief.”  Yet it has been our experience working with people in deportation proceedings with DUI charges that ICE has aggressively pursued deportations of individuals with these convictions, with little regard for mitigating circumstances when individuals fit one of the stated DHS priority categories.

The case that prompted this inquiry is that of Mr. Ladislao Padilla-Ochoa (A 076-301-279). As shown in the prosecutorial discretion request attached to this letter, shared with permission of the individual, Mr. Padilla-Ochoa is an immigrant in immigration detention currently requesting use of prosecutorial discretion in his deportation case. The New Orleans ICE office has denied a stay of removal, specifically citing that Mr. Padilla-Ochoa is a Priority 2(b) individual due to a “significant misdemeanor conviction.” The conviction is for DUI on November 17, 2008, after which he was placed in deportation proceedings.

The following are factors that Mr. Padilla-Ochoa asked the New Orleans ICE office to consider in evaluating his request for prosecutorial discretion:

• Mr. Padilla-Ochoa’s DUI conviction is from November 2008 — almost 8 years ago. At the time of the arrest there were no children present in the vehicle, there was no harm to any individual or property. This his only arrest of any kind.
• Mr. Padilla-Ochoa completed probation successfully and acknowledges that it was a mistake and has made efforts to recover. This includes completion of  the Alcohol and Drug Safety Course by a facility licensed by the State of Tennessee Department of Health, “designed for education, information and awareness in preventing the misuse of alcohol and other drugs in driving and for developing individual responsibility” in December of 2008.
• Mr. Padilla-Ochoa has stopped drinking since his arrest. Everything from his record shows that he has fully rehabilitated since this incident and is a respected member of his community, that he has recovered, and that he is not a public safety threat.
• Mr. Padilla-Ochoa has a pending I-130 petition awaiting adjudication by USCIS. The petition was filed by Ms. Jenner Padilla-Ortiz, Mr. Padilla-Ochoa’s son who is a United States citizen on July 21, 2014. According to the case status update on the USCIS website, the local USCIS Memphis Field Office received the case on December 31, 2014. If the form is approved, Mr. Padilla-Ochoa would be able to adjust his status. His attorney requested an expedited adjudication from the office on February 29, 2016.
• Mr. Padilla-Ochoa has 3 US citizen children and one who is Deferred Action for Childhood Arrivals recipient, showed that he has deep connections to his home and is invested in his children’s education, and that he has support from his church and other community organizations.

On March 9^th, 2016 the Tennessee Immigrant and Refugee Rights Coalition (TIRRC) filed a second Stay of Removal application for Mr. Padilla-Ochoa in Nashville, Tennessee. In addition to the information requested, we urge that your office ensure the policy is appropriately implemented and the case is appropriately reviewed.

Although the denial of prosecutorial discretion by the New Orleans ICE office in the case of Mr. Padilla-Ochoa is what prompted this inquiry, there are numerous examples of how ICE offices throughout the country have inconsistently treated individuals with DUI charges and other “significant misdemeanors,” particularly when it comes to the consideration of prosecutorial discretion. Attached is a DHS third party privacy waver authorizing disclosure to a third party signed by Mr. Padilla-Ochoa, in case it is needed.

Given that ICE is aggressively pursuing people with these charges, with tactics that include mass field operations, or immigration raids, the answer to these questions is of great importance and urgency to immigrant communities, particularly those who are targets of enforcement. For these reasons, we thank you in advance for providing this information.

For a response to this e-mail or if you need to reach us, please feel free to e-mail us at tania@mijente.net and jacinta@mijente.net.

Sincerely,

Tania Unzueta
Policy and Legal Director

Jacinta Gonzalez
Field Director