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In Test of Deportation Policy, 1 in 6 Offered Reprieve



DENVER — Prosecutors have completed a lightning review ordered by the Obama administration of virtually all 7,900 deportation cases before the immigration court here, identifying more than 1,000 foreigners who pose no security risk and allowing them to remain in the United States.

In a test run of the first comprehensive docket review ever undertaken in the nation’s immigration courts, 16 prosecutors, laboring long days and weekends since Dec. 5, read through looming stacks of paper files to meet a mid-January deadline laid down by Washington.

According to official results obtained by The New York Times, 16 percent of all those facing deportation in Denver — 1,301 immigrants — will receive offers from prosecutors to close their cases. After ironing out kinks in pilot projects here and in Baltimore, Department of Homeland Security officials plan to extend the review in coming months to all of about 300,000 cases before the country’s immigration courts.

The administration’s effort to apply prosecutorial discretion to halt tens of thousands of deportations is a major departure for prosecutors and enforcement agents, and was generally welcomed by immigrant organizations. But the administration is not offering any positive legal status to illegal immigrants permitted to stay. Many will be left in an indefinite limbo where they cannot work or obtain driver’s licenses and may struggle to subsist, lawyers said.

“They will be in immigration purgatory,” said Hans Meyer, an immigration lawyer in Denver.

The immigration court review is part of a broad effort by the administration, as President Obama heads into his re-election campaign, to ease the impact of enforcement on immigrant and Latino communities by stopping some deportations while also reducing huge backlogs swamping the courts.

Among other measures, federal officials this month proposed streamlining the procedures by which illegal immigrants with American family members apply for legal residency.

Based on a loose projection of results from the court reviews to date, about 39,000 immigrants nationwide could see their deportations suspended. Although only a fraction of nearly 400,000 deportations in each of the past three years, the numbers would be high enough to be felt across the country, administration officials said, and could show that Mr. Obama had heard increasingly bitter complaints from immigrant groups about families separated by removals since he took office.

Despite the immense workload that immigration prosecutors here suddenly faced, they said they liked their newfound flexibility in pursuing cases — more like the routine practice of their peers in criminal courts. Each minor case they close opens up time on the court’s jammed calendar for an immigration judge to expel a convicted sex offender or gang member, prosecutors said.

“It makes us feel good to know that some of these low-priority cases will be placed at the back burner,” said Corina Almeida, who, as chief counsel for Immigration and Customs Enforcement in Denver, is the senior prosecutor here. “These cases free up others to move to the front of the line: the egregious offenders, those who thumb their noses at the system or commit fraud.”

Administration officials are trying to thread a needle, refocusing immigration enforcement while fending off Republicans, who say Mr. Obama is doing an end run around Congress to give amnesty to illegal immigrants.

“These actions strain the constitutional separation of powers and defy the will of the American people,” Representative Elton Gallegly, the Republican from California who is chairman of the House Judiciary immigration subcommittee, said of the prosecutorial discretion policy.

Under a policy unveiled in June by John Morton, the director of Immigration and Customs Enforcement, or ICE, the agency’s officers are asked to be more discriminating with its resources, using prosecutorial discretion to hasten deportations of criminals while avoiding illegal immigrants charged only with civil violations who have strong family bonds in the country.

“If the only thing they did is enter illegally, they have established ties, they have U.S. citizen children, they are productive members of society, they have no criminal records, it makes prosecutors feel good when you know you can do something,” Ms. Almeida said. “They don’t have to worry about someone knocking on their door.”

But as the pilot project unfolded here, lawyers grew frustrated as it became clear that most illegal immigrants would not receive work authorization and that without new status, they would not be able to obtain driver’s licenses or financial aid for college.

Among the first to benefit under the Denver review was a student from Mexico whose parents had brought him to Colorado when he was 9. Jesús Gerardo Noriega, now 21, was put in deportation proceedings after a local traffic officer pulled him over for a burned-out license plate light. A 2006 Colorado law requires state and local police to report any suspected illegal immigrant to ICE.

Mr. Noriega met the standard for prosecutorial discretion in several ways: his parents are legal residents, and his three brothers are American citizens. He applied for residency, but his papers are stalled in the system. He graduated from high school and wants to go to college — to study automotive engineering to design energy-efficient cars, he specified.

Mr. Noriega was arrested 12 days before he would have completed 10 years living in the United States, when he would have become eligible to have his deportation canceled definitively, his lawyer, Mr. Meyer, said.

“My parents didn’t want me sent back, and they wanted to see me again,” Mr. Noriega said, recalling the days when he was detained. “We’ve always been a close family, and having your son put in jail and taken away from you definitely brought sadness and depression to the house.”

He learned just before the holidays that his deportation had been suspended. “I thought it must have been a miracle,” Mr. Noriega said.

But he is worried that without being able to work or drive, he cannot enroll in the courses he needs for the automotive degree.

“It definitely is a step forward,” he said. “But at the same time. I don’t think it’s a solution.”

Administration officials said they were going as far as they could under existing laws and would continue to press Congress for legislation giving legal status to illegal immigrants.

After being chosen for discretion, an immigrant must pass background checks against federal criminal and national security databases. Then ICE prosecutors offer to file a joint motion with the immigrant to close the deportation case. If both sides agree, the approval of an immigration judge is relatively quick.

The deportation then becomes a “sleeping beauty,” one ICE prosecutor said; it is closed and off the docket, but in theory it can be reopened at any time.

Judges and court administrators here were cheered by the prospect of reduced backlogs. With six immigration judges handling on average more than 1,300 cases each, the Denver courts are among the most clogged in the nation, and immigrants wait as long as 18 months for a hearing.

Another case closed in Denver was that of Raúl Cárdenas, who came here illegally from Mexico. He has been married for 11 years to an American citizen, and he and his wife, Judy, are raising three children, all citizens. Ever since they were married, the couple has been battling, unsuccessfully, to fix his status, Mrs. Cárdenas said.

After eight years in a job driving heavy tunnel-boring machinery, Mr. Cárdenas was arrested in 2009 when ICE determined that the Social Security number he had presented belonged to someone else. All serious criminal charges against him were dismissed, but he was placed in deportation proceedings.

“It was an absolute violation of the security and safety of my family,” said Mrs. Cárdenas, a public school kindergarten teacher. With the help of their Unitarian Universalist church, they held rallies, petitioned lawmakers and sought support on YouTube.

Mr. and Mrs. Cárdenas said they were greatly relieved that his deportation was stopped. But they remain frustrated, since he cannot get authorization to work.

“It’s anxiety-filled limbo,” Mrs. Cárdenas said.

In cases where discretion was denied, prosecutors and lawyers said, ICE leaned toward caution, passing over many immigrants who did not have criminal records but also did not show deep ties to the United States.

In many cases, lawyers for illegal immigrants are not accepting prosecutors’ offers because the immigrants have good chances of winning legal residency in court. Laura Lichter, the president-elect of the American Immigration Lawyers Association, who practices in Denver, said ICE could have done far more to reduce backlogs by rapidly completing those strong cases.

“It is a major undertaking,” she said of the docket review. “But it is also a major lost opportunity.”

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