Legal trickery by ICE denies Dallas mother due process

Rose Moreno, her husband Maximo (L),
 and ICIE founder Ralph Isenberg (R)

Rosa Moreno spent 18 months in a Texas jail on an immigration charge before being released this past December. At the time, she hoped Immigration and Customs Enforcement (ICE) would recognize she qualified for legal residency under U.S. immigration law, but instead, ICE has aggressively continued their efforts to prosecute and deport her. By seeking an “expedited removal order” from a federal judge, ICE is using a legal move usually reserved for convicted felons, even though Moreno has never been found guilty of a crime.

The prosecution of Moreno exposes a tactic by the Department of Homeland Security (DHS) to bypass immigration courts and use federal courts to prosecute and deport immigrants. In many cases, these foreign nationals could be given legal U.S. residency if their case is heard by an immigration judge. In a federal court, however, the process of earning legal residency becomes much more difficult, and according to Ralph Isenberg of The Isenberg Center for Immigration Empowerment, ICE's legal maneuvers deny foreign nationals due process and a fair hearing.
Moreno, whose incarceration we have previously detailed here, has lived in the United States for nearly 20 years, and lives with her husband and two young U.S. citizen children on a small farm in north Texas. She left the country only after she learned her two adult sons were murdered by drug cartels in Mexico. When she tried to return to the United States, Moreno was detained by ICE, and she should have appeared before an immigration judge.

Instead, ICE attempted to get the expedited removal order from a federal magistrate, who has the authority to remove dangerous foreign national felons. It is an unusual move to take in Moreno’s case, and it is likely unlawful, according to Isenberg, who has been assisting Moreno. “The type of expedited removal ICE is seeking of Rosa is used on convicted felons, and Rose has never been convicted or accused of any crime,” Isenberg said.

“An immigration judge would have taken into consideration the circumstances of Rosa’s situation - her 19 years of continuous residency in the United States, her U.S. citizen children, and the fear of violence in Mexico from the cartels that killed her sons. An immigration judge would have immediately ordered a cancellation of removal and given her legal permanent residency on the spot. That’s how the law works,” Isenberg said.

Without a hearing in front of an immigration judge, ICE officials denied an I-246 request filed on her behalf, which would have granted a cancellation of removal. Isenberg has asked for prosecutorial discretion in her case, which would mean ICE drops all charges and allows Moreno to stay in the country without fear of prosecution. While a decision on that request has not yet been received, Isenberg says ICE staff in Dallas have indicated they still plan to deport Moreno. He says the Morenos leave in fear that their family will be torn apart again, and Rosa’s children are so distraught that they often sleep in the same bed with their parents.

The prosecution of Rosa before a federal magistrate is indicative of a trend by DHS and ICE to prosecute foreign nationals not in immigration courts, but before federal magistrates and district court judges. According to Syracuse University, whose “TRAC” project registers immigration prosecutions by the government, the last six years has seen an unprecedented rise in immigration cases brought before federal judges against foreign nationals, almost double the number seen in previous years.

Between 2004 and 2008, immigration prosecution cases never topped more than 4,000 new filings in a single month, and averaged around 3,000 per month. Since 2008, the government has averaged around 7,000 new prosecutions a month, and hit highs of nearly 10,000 prosecutions a month twice, in 2008 and 2012.

99% of the cases were brought by DHS through its agencies: Customs and Border Protection (CBP) and ICE. Most of the cases involve criminal charges of illegal reentry into the United States after deportation, but also include cases involving fraud, misuse of government documents like a passport, and harboring undocumented foreign nationals. Rosa’s case does not fit any of these parameters; her mere undocumented presence in the United States is the issue. That means her case should have been heard by an immigration judge, not a magistrate who hears felony cases.

Foreign nationals who go through the federal courts also face another hurdle: a lack of legal advice on immigration law. Immigrants that go before federal judges or magistrates are not assigned immigration attorneys, but rather public defenders who cannot discuss immigration issues. It is the dilemma Moreno currently faces, but unlike many immigrants, she now has an advocate in Isenberg, who is determined to keep her in the country.

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The Isenberg Center for Immigration Empowerment (ICIE) is "a resort of last hope” for foreign nationals. People come to ICIE because the system has failed, and as a result, someone is facing a wrongful deportation. Since their founding in 2011, ICIE has helped hundreds of deserving families, and provides all services pro-bono. The organization deals with the entire family unit, from teaching the basic fundamentals behind community service, to English education, to individualized counseling to build positive mental health.