Long waits, small odds: Changing immigration status in the U.S.

Maureen Feighan
The Detroit News
In July 2018, people lined up to cross into the United States to begin the process of applying for asylum near the San Ysidro port of entry in Tijuana, Mexico.

More than 20 years into her career practicing immigration law, attorney Marya Lorenzana-Miles is thinking about getting out of the field. It's too frustrating.

The Mount Clemens attorney deals with clients every day trying to change their immigration status but facing incredibly difficult odds. They grapple with long wait times, an incredible amount of paperwork, fees and more.

"It’s almost like we went from 'How can I serve you' to 'How can I deny you?'" said Lorenzana-Miles, sitting in her office in downtown Mount Clemens. "It’s a change of policy."

More:A year without Jorge: Family endures without deported father

Lorenzana-Miles is representing Jorge Garcia as he tries to find a way back to the United States and his family in Lincoln Park after being deported to Mexico nearly a year ago in January 2018. Garcia entered the country when he was 10, one year too old to qualify for protection under the Deferred Action for Childhood Arrivals act, and had no criminal record. 

Now living with an aunt outside Mexico City, Garcia has been waiting for something called visa processing since last spring, which requires a meeting at the American embassy in Juarez, Mexico. Even after his meeting, which could happen in February, he'll need two waivers before being allowed to return to the United States, one for the unlawful presence that he had in the United States and one as a provision to reapply after being deported, said Lorenzana-Miles.

"Juarez delays are unbelievable," said Lorenzana-Miles. "From three months, now sometimes, I have cases that are eight months. Even for an employment authorization, it used to be three months. Now it can be eight to 10 months. It’s almost like the system is strangling people just to make them suffer on purpose."

In Garcia's case, he lost a 2006 trial in federal immigration court in Detroit. He had to prove his wife and family would suffer "exceptional, extremely, unusual hardship" if he was deported. In 2008, the Board of Immigration Appeals remanded Garcia's case back to the lower court, which subsequently allowed him to voluntarily depart, according to Khaalid Walls, a spokesman for U.S. Immigration and Customs Enforcement. 

"After he failed to depart within the timeline of the agreement, he became subject to a final order of removal in 2009," said Walls in an email. "ICE exercised prosecutorial discretion on multiple prior occasions in Mr. Garcia's case in 2011, 2012 and 2014. In a further exercise of discretion during the this period, Mr. Garcia-Martinez was never detained."

Lorezana-Miles said the odds of winning a case in immigration court by proving "exceptional, extremely, unusual hardship" are very small, only about 8 percent.

"It’s a very high threshold to cross," she said. In proving extremely unusual hardship, "separation is not enough. Economic problems are not enough. Asthma is not enough. It’s something that the court considered that it’s not the same suffering that families in the same circumstances would suffer."

The only cases that successful are those facing terminal medical challenges such as cancer, she said.

Longtime immigration attorney Ron Kaplovitz said most cases are denied.

"It’s a harsh, cruel thing to say, but you’re hoping for sick kids -- a child that can't go to Mexico," he said. "Who would hope for that? But in this kind of case, it might be enough to win."

There was a time that Detroit's immigration court had just one judge, but it now has four, a sign of how much immigration policy has changed in the United States.

"People are getting deported at record rates," Kaplovitz said.

Immigrants who've committed crimes have always been deported. But in 1996, the government made it even easier to deport people for crime, lowering the bar, Kaplovitz said.

"That was really the beginning of the immigration courts that we now have," said Kaplovitz. 

ICE removals have actually dropped every year since 2012, during former president Barack Obama's administration, from a high of 409,849 that year to 235,413 during the 2012 fiscal year. The difference now, Kaplovitz said, is that illegals such as Garcia's, those with no criminal record, are also being targeted for deportation.

"Suddenly with Trump, things changed," said Kaplovitz. "They want to start ramping up the deportation. The people who normally would've been left alone -- no crime, families here, no reasons to push them out -- that's not going to happen anymore." 

So when a client comes in that can't be helped, they have few options. Some chose to stay undocumented.

"I have several clients a week who come in for consultation that are prepared to hire me if I have a way or method (to help them) and I don’t," said Kaplovitz. "They come in and there’s nothing I can do. There's no way to fix their situation or help these people."