The Washington PostDemocracy Dies in Darkness

They met with immigration officers to apply for legal residency — only to be arrested by ICE

The White House has said they are focused on deporting undocumented immigrants who "pose a threat to this country." (Video: Monica Akhtar/The Washington Post)

Leandro Arriaga has been in the United States illegally since 2001.

He stayed despite a deportation order and over the past 16 years has made a living fixing and remodeling homes. He also started a family. But the father of four had grown tired of “living in the shadows,” his attorney said.

So last week, he went to a U.S. Citizenship and Immigration Services (USCIS) office for his marriage petition interview — the first step to legalize his presence in the United States through his wife, a naturalized citizen. The process, called an I-130 visa petition, is a common way for foreigners to gain legal residency through their relatives or spouses.

But Arriaga was arrested that day, along with four others who also showed up at the USCIS office in Lawrence, Mass. All five have deportation orders, according to the U.S. Immigration and Customs Enforcement, or ICE.

Though the arrests aren’t unprecedented, legal experts say they are indicative of the Trump administration’s broader view on what counts as high priority for deportation. Adam Cox, an immigration law professor at New York University, said the arrests signify a level of immigration enforcement that is “very different” from that of the previous administration.

Absent serious criminal violations, the five arrests on March 29 in northeastern Massachusetts were less likely to happen in the Obama years, said Hiroshi Motomura, an immigration law professor at the University of California at Los Angeles.

“This is not to say that, under Obama, they absolutely would not have been removed and arrested. That could have happened,” Motomura said. “But there is less bureaucratic constraint now than during Obama, and this means that their arrest, detention and removal is more likely than before.”

According to two former Department of Homeland Security officials, someone like Arriaga — someone who has no criminal history, has been in the country for a long time and whose wife and children are U.S. citizens — would not have been a priority for deportation during the previous administration.

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Arriaga would have been a “very, very, very, very low priority for removal,” said John Sandweg, a former acting director of ICE.

“Our position was, ‘Don’t waste your time getting this individual. Go get a criminal instead,’ ” said Sandweg, who also was acting general counsel for the Department of Homeland Security at one point under President Barack Obama. “What’s very clear that’s happening is that they have put a strong emphasis to the officers and agents to focus on people who are ordered deported and didn’t leave the country.”

David Martin, an immigration law professor at the University of Virginia, points to a November 2014 memo by former secretary of homeland security Jeh Johnson that curtailed deportations by not removing people who have been in the country for a long time. Violent criminals are the highest priority, as has always been the case. Next are those who have been convicted of misdemeanors other than minor traffic offenses. The third are those who were issued final deportation orders on or after Jan. 1, 2014.

Under Johnson’s memo, Arriaga, whose deportation order is more than a decade old, would have been left alone, Martin said.

That appears to have changed.

“There seems to be a more concerted effort to act on people with any kind of final removal order, no matter how old,” said Martin, who was deputy general counsel for the Department of Homeland Security from 2009 to 2010.

A February memo by Secretary of Homeland Security John F. Kelly details sweeping new guidelines that empower ICE agents to not just focus their efforts on criminals but also on those who have outstanding deportation orders — regardless of how long they’ve been in the country.

Memos during the Obama administration, specifically one issued in 2011, directed ICE agents and other immigration officials to look at several factors, such as familial relationships with U.S. citizens, criminal history, education pursued in the country and contributions to the community, in deciding whether arrests and prosecution are warranted.

Kelly’s memo, which calls for the hiring of additional ICE officers and agents, does not list any of those factors. It states: “Prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of immigration laws.”

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ICE has maintained that the arrests aren’t anything new and aren’t indicative of a shift in policy or priorities. Criminals are always the top priority for removal, but that doesn’t mean everyone else who is in the country illegally is ignored, an ICE official said. Because the five individuals have outstanding orders of removal, ICE agents are mandated to carry out those orders.

In a statement confirming the arrests, an ICE spokesman in Boston said that agents were “responding to an investigative tip.”

“All five individuals have final removals of removals (deportation orders) issued by a federal immigration judge,” according to the statement. “All five will be held in custody pending removal from the United States.”

ICE said it could not comment on why the five individuals were at the USCIS office. But Susan Church, chair of the New England chapter of the American Immigration Lawyers Association, said at least four of them were at the USCIS office to apply for green cards and at least two are married to U.S. citizens.

According to ICE, two of the individuals have no criminal history; the others have traffic offenses.

The arrests angered immigration advocates who believe federal officials have created anxiety among undocumented immigrants like Arriaga — green-card applicants who are not a threat to public safety and have taken steps to become lawful residents of the country.

“It injects a sense of fear into the process that shouldn’t be there for people who are otherwise going forward with their application that they’re entitled to pursue,” said Avideh Moussavian, senior policy attorney for the National Immigration Law Center. “They’re now being sent this message that they should be very, very afraid and very cautious.”

Church said the arrests conflict with what President Trump has said about focusing deportation efforts on hardened criminals, on deporting only “bad hombres.”

“It’s scaring people who need not be scared,” Church said.

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Zoila Gomez, Arriaga’s attorney, said she had advised her client that there is a good chance he would be detained if he showed up at his immigration appointment.

“I explained to him that if you don’t want to go to the interview, we could cancel it. Canceling meant the process would be stalled. That would be the end of it,” Gomez said. “He said, ‘No, I’m going to the interview even if I’m detained. I can’t continue to live like this anymore.’ ”

Arriaga is now detained at the Bristol County House of Correction and Jail in North Dartmouth, Mass. Gomez said his I-130 application has been recommended for approval, meaning officials have determined that his marriage to a U.S. citizen is legitimate.

Gomez said she has requested a stay on Arriaga’s removal. If approved, he’ll be allowed in the country while his application for a green card is pending.

Undocumented immigrants who have been in the country for a long period of time, have no criminal record and are related to a U.S. citizen are eligible to apply for immigration benefits, even if they have deportation orders, said Cox, the New York University professor. These benefits include permanent residency, work eligibility and citizenship, according to the Department of Homeland Security website.

But today, those who want to — and can — legalize their presence in the United States will likely be more afraid to come forward, Gomez said.

Motomura, the UCLA professor, agrees.

“Being afraid would be much more of a reasonable reaction,” Motomura said. “So much more than ever before, what happens, even to people who have filed papers to get themselves legal status under federal immigration statutes, is at the whim of an individual agent or a local office decision.”


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