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Obama's confused policy on deportations

By Ruben Navarrette Jr., CNN Contributor
October 7, 2011 -- Updated 1259 GMT (2059 HKT)
ICE Director John Morton, right, with Los Angeles County Sheriff Lee Baca and Homeland Security Secretary Janet Napolitano.
ICE Director John Morton, right, with Los Angeles County Sheriff Lee Baca and Homeland Security Secretary Janet Napolitano.
STORY HIGHLIGHTS
  • An illegal immigrant mother threatened with deportation was released
  • Ruben Navarrette says her lawyer cited new administration memo on her behalf
  • He says the memo isn't being enforced and may be a ploy to get Latino votes
  • Administration has deported more than a million people since Obama took office

Editor's note: Ruben Navarrette Jr. is a CNN.com contributor and a nationally syndicated columnist.

San Diego (CNN) -- Eulalia Barrientos spent the last four months in a detention cell in New Jersey. After being apprehended by agents from Immigration and Customs Enforcement in June, the illegal immigrant was just steps away from being deported back to her native Guatemala.

Then, this week, suddenly, the cell doors swung open, and the married mother of two U.S.-born children was sent home to her family. Barrientos has been granted a one-year stay of removal; after the year, she'll have to go before an immigration judge and plead her case as to why she should be given a green card and allowed to remain in the United States permanently.

There's no explanation for what melted ICE. After all, this isn't a touchy-feely agency. All ICE officials will say is that this was a result of "prosecutorial discretion."

Ruben Navarrette Jr.
Ruben Navarrette Jr.

But that doesn't explain why an agency that, for weeks, didn't return the calls of Barrientos' lawyer, Bryan Johnson, suddenly became much more accommodating.

It might have something to do with the call I made this week to an ICE representative to ask about the case or the story that the Spanish-language television network NBC-Telemundo did on Barrientos or the fact that New Jersey Sen. Robert Menendez took an interest in the fate of a woman who has resided in Newark for nearly 20 years or the fact that, according to Johnson, there may even be a congressional inquiry into whether Barrientos should have been taken into custody in the first place.

Whatever the reason, it had probably had nothing to do with the facts of the case or the letter of the law. Barrientos didn't have either on her side.

She and her husband, Jose DeLeon, came to the United States illegally in the early 1990s. In 1998, they were discovered and ordered deported, but they defied the removal order and continued living in the United States because she had just given birth to their first daughter.

Several months ago, on the bad advice of another lawyer, the couple went to check on the progress of their green card application and again came to the attention of federal authorities.

On June 2, ICE raided the family home and arrested Barrientos in front of her two daughters -- ages 12 and 14 -- while her husband was at work. Authorities haven't arrested the husband, because he's the only parent left at home to care for the children, who are U.S. citizens.

Barrientos was slated for deportation. All that stood between her and a one-way flight to Managua was some media interest and political pressure. Oh, and a memo.

The "Morton memo" is a June 17 in-house memorandum (PDF) from ICE Director John Morton to all field office directors, field agents and chief counsel.

In the document, Morton advised the bureaucrats that they "may" exercise discretion and show leniency toward some illegal immigrants by weighing certain factors. They include the length of time the person has lived in the United States, whether the person was brought as a child, whether the person is pursuing an education, whether the person has a criminal record, whether the person or immediate relative served in the U.S. military, whether the person has a spouse, child or parent who is a U.S. citizen or permanent resident, and other circumstances.

When he heard about the memo, Johnson decided to play that card.

"Two days after the Morton memo came out, I sent immigration officials at the local ICE field office a copy of it in along with a statement explaining all the factors," Johnson told me.

"And I asked them: 'So did you change your policy? ... So can she be released, right?' And they said: 'No, we can't do that.' "

In the past few months, I've heard from about a dozen immigration attorneys who have likewise tried to use the Morton memo to spring clients and likewise struck out. As illogical as it sounds, ICE field agents whose job it is to apprehend folks who break the rules for entering the United States seem to be themselves breaking a set of rules laid out by their supervisor.

I have three theories as to what's going on here: The memorandum was written by Morton, or people above him, in a deliberately vague manner to allow local agents to skirt it and continue to rack up deportations; there is massive insubordination within ICE at the local level; or this was a political stunt intended to con Latinos into thinking the Obama administration is being more compassionate and lenient in deportations when really nothing has changed.

I asked Johnson which theory he thought was at work here. All three, he said.

"I think it's a political stunt intended to fool Latinos into voting for this administration," Johnson said. "The whole thing is a farce, at least at the local enforcement level."

In less than three years, the administration, eager to show that it is enforcing the immigration laws, has deported more than 1 million people.

And just this week, in a speech at American University, Homeland Security Secretary Janet Napolitano bragged that her department is poised to set another record for deportations in the just-concluded 2011 fiscal year.

Write this down: The Morton memo isn't worth the paper it's written on. Latinos shouldn't be fooled into thinking otherwise, and neither should anyone else.

The opinions expressed in this commentary are solely those of Ruben Navarrette Jr.

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