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Immigration Policy: People Are Still Falling into the Gaps 

Wednesday, Oct 24 2012

Diango Iztun-Reyes, 22, is one of the dreamers — that emerging group of young and educated immigrants who spent their childhoods pledging allegiance to the America flag alongside American classmates in American schools. His mother brought him to the U.S. when he was 2 months old, to escape civil war in Guatemala.

He grew up in San Rafael, was captain of his Marin High School soccer team, and enrolled in the College of Marin, aspiring to transfer to a four-year university and become the first member of his family to graduate with a degree.

But Iztun-Reyes didn't know he was an undocumented immigrant until the night of June 22, when he was arrested for a DUI. He had been driving home from a get-together with friends, he says, when he saw the blue and red lights in his rearview mirror. He had downed a few beers but figured he was fine to drive.

The breathalyzer showed him over the legal limit. And the background check showed that he was in the country illegally. He spent that night, and the next three weeks, locked up in immigration detention.

That first week, when he met with a lawyer, he also learned that the DUI had disqualified him for the Obama administration's Deferred Action for Childhood Arrivals program, which offers young immigrants a temporary reprieve from the threat of deportation.

"I was in complete shock," he says. "I was here thinking I was like anybody else. My world just crashed down."

The arrest had come exactly a week after the president introduced the initiative, his most progressive push for immigration reform. Over the previous year, immigration officials had been operating under an informal policy that focused resources on deporting criminals rather than upstanding citizens. A set of rough guidelines codified by U.S. Immigrations and Customs Enforcement Director John Morton, the "Morton Memo" was intended to inject reasonable compassion into a deportation system that, before, didn't appear to discriminate between law-abiders and lawbreakers.

But the Morton Memo was vague, simply listing a set of positive and negative factors ICE should consider before initiating deportation proceedings. These included "length of presence in the United States," "pursuit of education," "ties and contributions to the community," "record of immigration violations," "criminal history," and much more. To many immigration advocates, the Morton Memo's subjectivity left too much control in the hands of anonymous officials.

With DACA, the Obama administration presented a formal alternative to that process, announcing that the government would grant two-year deportation deferrals to young undocumented immigrants. As of early October, 46,000 applicants have been approved.

The program replaced many of the vagaries from the Morton Memo, specifying a clearer set of qualifications for approval. One of the new details: A DUI conviction would be classified as a "serious misdemeanor" and eliminate an immigrant from consideration.

"Diango would have been better off had DACA never been put into effect," says his lawyer, Marc Van Der Hout.

The deferred action program attempts to draw an official line between the undocumented immigrants with spotless records who can stay in America and the ones convicted of felonies or violent crimes who face deportation.

Then there are those in the middle, like Iztun-Reyes, a college student with no entries on his rap sheet other than a single drunk driving conviction. Iztun-Reyes' situation highlights a fundamental question of whether a DUI — a crime for which San Francisco's archbishop Salvatore Cordileone, President George W. Bush, and Vice President Dick Cheney, have also been convicted — should automatically deny an undocumented immigrant's best chance at deportation deferral. The Obama administration has decided that it should.

"I think the administration didn't want DACA blowing up in their faces because of one person who had been granted deferred action with a prior DUI, and then again drove while intoxicated and killed someone," says San Francisco immigration attorney Randall Caudle.

Yet while DACA's specificity hurts people like Iztun-Reyes, Caudle says it does offer potential applicants a clearer understanding of deferral qualifications that were once only in the Morton'd minds of the officials reviewing the paperwork.

On Aug. 7, Iztun-Reyes was denied a one-year stay through the original Morton process. Hours before he would have been on the plane back to Guatemala, though, a judge granted his request for an emergency appeal. He had filed paperwork seeking a green card for asylum, based on the claim that it would be dangerous for him to move back there. Over the past year, two of his cousins have been kidnapped and murdered and another cousin is missing.

If his final legal effort fails, he may soon parachute into that world, in a country he has no memories of.

"It's just a future you don't want to think about," he says. "But, obviously, you have to think about it."

About The Author

Albert Samaha


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