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Biden's limits on ICE offered hope. But immigrant advocates say he's broken promises

ICE Field Office Director, Enforcement and Removal Operations, David Marin and U.S. Immigration and Customs Enforcement's (ICE) Fugitive Operations team make an arrest at a home in Paramount, Calif., on March 1, 2020.
LUCY NICHOLSON
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REUTERS
ICE Field Office Director, Enforcement and Removal Operations, David Marin and U.S. Immigration and Customs Enforcement's (ICE) Fugitive Operations team make an arrest at a home in Paramount, Calif., on March 1, 2020.

When the Biden administration announced broad new limits on immigration enforcement last year, it offered hope for those fighting deportation.

But so far, some immigrants and their advocates say, the reality is falling short of the administration's rhetoric.

"We're a year in, and it's not working," says Inna Simakovsky, an immigration lawyer in Columbus, Ohio, in an interview. "I just want them to actually do the right thing, and do what they promised."

As the Biden administration approaches its one-year mark, there's mounting frustration among immigrant advocates at what they see as a growing list of broken promises.

Ambitious plans to overhaul the immigration system have stalled. Trump-era restrictions on asylum are still in place at the southern border — including the public health order known as Title 42, which allows authorities to quickly expel most migrants, and the return of a policy that forces some asylum-seekers to "Remain In Mexico" until their immigration court hearings. And the U.S. Department of Justice pulled out of settlement talks over financial compensation for families that were forcibly separated during the Trump administration.

The Biden administration can, however, point to some victories — including detailed guidelines laying out who should be a priority for arrest and deportation, and who should not.

"The guidance recognizes the incontrovertible fact ... that the majority of undocumented individuals have contributed so significantly to our communities across the country for years," Department of Homeland Security Secretary Alejandro Mayorkas told NPR last year.

But immigration lawyers in some parts of the country say the execution of that guidance is not living up to expectations.

"If there's anyone that deserves prosecutorial discretion, this is the case"

When Simakovsky heard about the new enforcement guidelines, she thought immediately about one of her clients in Columbus. Carol came to Ohio from Africa on a student visa more than 20 years ago, and never left. She asked us not to use her last name, or say where she's from, because her asylum case is still pending.

Carol and her husband own a house and pay their taxes. She works in banking; her husband is a nurse. They have four kids, all U.S. citizens.

But Carol knows that their lives in the U.S. are precarious.

"If my kids are playing sports, I'll be sitting in a corner crying because I don't know if next year I'll see him play," she says in an interview. "So it's like you live day by day. You don't know what will happen."

On paper, Simakovsky says Carol and her husband are exactly the kind of people that the enforcement guidance from Immigration and Customs Enforcement should help: They have no criminal records, long-standing ties to their community and a potential pathway to permanent legal status through their children. So Simakovsky wrote to ICE requesting what's known as prosecutorial discretion — when prosecutors agree to put a case on hold, or drop it altogether.

The answer was no.

"It's crazy," Simakovsky says. "If there's anyone that deserves prosecutorial discretion, this is the case."

ICE did not respond to a request for comment on Carol's case.

Officials say immigration enforcement guidance is working as intended but advocates say not at all

Biden administration officials insist that the immigration enforcement guidance is working as intended. Immigration arrests in the interior of the country are down significantly compared to the Trump or Obama administrations, while the number of immigrants in ICE detention is relatively low by recent standards.

Central American migrants are apprehended by U.S. Customs and Border Protection agents after crossing the Rio Grande in LaJoya, Texas, on June 12, 2021.
/ Nicolo Filippo Rosso/Bloomberg via Getty Images
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Nicolo Filippo Rosso/Bloomberg via Getty Images
Central American migrants are apprehended by U.S. Customs and Border Protection agents after crossing the Rio Grande in LaJoya, Texas, on June 12, 2021.

In a statement, an agency spokesperson said the new guidance is intended to "better focus the Department's resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security and advance the interests of justice by ensuring a case-by-case assessment of whether an individual poses a threat. ICE's attorneys are directed to consider the exercise of discretion, consistent with this guidance."

ICE says in a statement that it has received roughly 47,000 requests for prosecutorial discretion so far — and that it has granted 70% of those requests. But immigration lawyers around the country remain skeptical.

"The language coming from Washington is not at all the actual practice that we're experiencing in Boston," says Michael Kaplan, a lawyer at the firm Rubin Pomerleau.

Kaplan represents two Central American women who won their asylum cases in immigration court. When the new guidance came out, Kaplan says he immediately asked the ICE office in Boston to drop its appeals in their cases. Kaplan says he heard nothing back for months, until ICE eventually declined his request.

"Maybe I'm naïve. I still have hope that maybe I'll win the lottery with it, and be able to to help one of my clients in that way," Kaplan tells NPR. "But some attorneys are really finding it pointless."

Other immigration lawyers say it's still too early to draw conclusions.

"We have heard from some practitioners that they are getting requests approved but many are still running into obstacles with ICE even for cases that seem to fit the guidance to a T," says Jen Whitlock, policy counsel for the American Immigration Lawyers Association. "It seems to depend a lot on geographical jurisdiction."

Immigration lawyers across the country are confused about how the new guidance is being applied

In interviews, half a dozen immigration lawyers from different parts of the country expressed confusion and disappointment about how the new guidance is being applied. Several suggested that ICE staff hired during the Trump administration, which took a harder line on interior enforcement, could be undermining the new policy.

But a senior Biden administration official disputed that theory. In a background interview, the official said it was inevitable that immigration lawyers would be frustrated with the outcome in a handful of cases. ICE has more than 1,200 lawyers on staff. The official says they are very busy, and it might take time for all of them to get up to speed on the new policy.

Still, some immigrants say they can't afford to wait.

Thousands of demonstrators rally in the street outside Immigration and Customs Enforcement headquarters while demanding a pathway to citizenship for the more than 11 million undocumented immigrants living in the United States on September 21, 2021 in Washington, DC.
Chip Somodevilla / Getty Images
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Getty Images
Thousands of demonstrators rally in the street outside Immigration and Customs Enforcement headquarters in Washington, D.C., on Sept. 21, 2021, while demanding a pathway to citizenship for the more than 11 million undocumented immigrants living in the United States.

"My life will end when I return to Mexico," says Miguel Araujo in Spanish through an interpreter. Araujo says he was forced to flee Mexico more than 40 years ago, because his work exposing collusion between the government and drug cartels made him a target.

"They want me in Mexico so they can assassinate me, the same way they assassinated my brother, and the same way they have assassinated hundreds of activists in all parts of the country," he says.

Araujo's case for prosecutorial discretion isn't perfect. There's a decades-old drug conviction in his past. And the government of Mexico has made it clear that they want him back, filing what's known as a "Red Notice" with INTERPOL seeking his return.

But Araujo's lawyers insist he is no threat to public safety. They describe him as a well-known journalist and restaurant owner in Northern California, where he's spent more than half of his life.

"There's nothing shameful or wrong about taking a second look at the case, and that didn't happen here," says Francisco Ugarte, a lawyer in the San Francisco Public Defender's Office, which is representing Araujo. "When we see the way the government is litigating these cases ... you have to call into question whether they're fulfilling the promises of this current administration."

Araujo, who is 73, says he can't understand why the Biden administration is still fighting to deport him.

"It's very confusing," he says. "On one hand, they want to be our friends, and extend the hand of a friend. And with the other, they're beating us down, and they're sending us back."

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