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ICE To Continue Deportations of Parents Eligible for Deferred Action Until January 5, 2015

In May of 2014, Justin, a 4 year old U.S. citizen, asked ICE to release his dad, who is still detained and at risk of deportation despite being eligible for the new Deferred Action.

In May of 2014, Justin, a 4 year old U.S. citizen, asked ICE to release his dad, who is still detained and at risk of deportation despite being eligible for the new Deferred Action.

Yesterday President Obama released the details of f Executive Action for parents of certain U.S. citizen and lawful permanent resident children.

One of our clients, Wilfredis Ayala Castillo, has been detained for more than 9 months by ICE after his request for a stay of removal was denied by ICE in March of this year. Wilfredis qualifies for the new form of Deferred Action because he is the father of a U.S. citizen child, 4 year old Justin, has resided continuously in the United States since before January 1, 2010, and has no criminal convictions.

Yet ICE continues to pursue his deportation.

Today, I sent a request to the ICE Field Office in New Orleans for his immediate release pursuant to DHS Director Jeh Johnson’s November 20, 2014 Deferred Action Memorandum (“DA Memo”.)

On page 5 of the DA Memo, Director Johnson states that individuals would likely be able to start sending in applications for deferred action in approximately 6 months. In the next paragraph, Johnson makes three clear instructions to DHS agencies in three consecutive bullet points, including the following, which was listed first:

“ICE and CBP are instructed to immediately begin identifying persons in their custody…who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.”

In other words, ICE is instructed to release individuals from detention if they appear to qualify for deferred action.

However, an Assistant Field Office Director in New Orleans ICE stated that he was not sure if Wilfredis could be released because there was not sufficient guidance from ICE headquarters. The ICE officer cited to Jeh Johnson’s November 20, 2014 Prosecutorial Discretion Memorandum(“PD Memo”), which does not address the new Deferred Action program for parents of U.S. citizen children and lawful permanent residents.

In the PD Memo, Paragraph E on Page 6 states that: “The revised guidance shall be effective on January 5, 2015” The same paragraph goes on to clarify that the guidelines will only be applied to individuals who have not yet been removed from the United States.

From looking at both the PD Memo and the DA Memo, it is clear that the PD Memo is meant to apply to individuals not covered by the DA Memo.

The PD Memo specifically states that any individual who entered the United States after January 1, 2014 is a top priority for removal for the United States. After outlining the 3 categories of priorities for removal, the PD Memo briefly re-iterates well-established guidelines on when one should be granted prosecutorial discretion, such as whether one is seriously ill, is the primary caretaker of a young child, or is pregnant.

Between the lines, one must conclude that individuals who do not qualify for any new Deferred Action but entered before January 1, 2014 are not a priority for removal and therefore are more likely to be granted prosecutorial discretion.

The PD Memo was only meant to apply to those eligible for Deferred Action insofar as to clarify who would be disqualified from Deferred Action by, in effect, being a terrorist, spy, convicted felon, or posing a danger to national security.

Justin has suffered so much. He has not had his dad with him for more than 9 months. Yet ICE will not obey a clear directive that he be released immediately.

How many other ICE officers will continue to pursue the deportation of parents of U.S. citizens and lawful permanent residents by ignoring Obama’s new executive orders? Will ICE ratchet up deportations until 2015? It appears so.

Please give ICE Director Winkowski’s office a call  at 202-732-3100 to request the immediate release of Wilfredis Ayala Castillo. Sample script:

I am calling to request Wilfredis Ayala Castillo’s (A # 098-651-976) release from detention immediately. He qualifies for the new deferred action because he is the father of a U.S. citizen child, has never been convicted of a crime, and has resided continuously in the United States since 2005. The Deferred Action Memo instructs ICE to release all individuals who appear to qualify for Deferred Action so he should be released now!

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