Enrique Candia lives a quiet life. When he's not working, he takes care of his ailing wife and his three grandkids and makes sure his son is on track to finish college. Although he has no criminal record, the 56-year-old is facing a court battle that could take him away from his family for years.
In June 2010, Candia arrived at a work site in Monterey County and was arrested for not having any documentation. A Mexican national who has lived in the United States for nearly 20 years, Candia was sent to an Immigrations and Customs Enforcement detention center.
"It's the first time it ever happened to me," he said during a recent telephone interview. "In that moment, I felt they were really going to deport me."
His attorney thought Candia would not face prosecution. Last year, ICE Director John Morton asked prosecutors to consider a number of factors – including an individual’s length of time in the United States, educational pursuits, family ties, contributions to the community and criminal history – before deciding whether to proceed with a deportation case.
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By urging prosecutors to use greater discretion, Morton hoped to reduce the strain on the immigration court system and place more of a focus on higher-priority criminal cases.
But since then, prosecutors have opted to close 1.9 percent of the nearly 300,000 cases in the immigration court system, according to the latest data released last week by the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University. In San Francisco, prosecutors closed 2.9 percent of cases.
A large backlog remains, and immigration rights advocates question whether prosecutors are doing enough to dismiss low-priority cases.
The number of closed cases is "abysmally low for the number of cases pending," said Jackie Shull-Gonzalez, an attorney with Dolores Street Community Services in San Francisco, who has taken on Candia's case.
Prosecutors have closed 4,360 cases and reviewed 288,000 since Morton issued his directive last year, according to ICE. The closed cases include 3,302 people with “a long-term presence” in the country and a close family member who is a U.S. citizen; 303 children who had been in the U.S. for more than five years; 10 individuals with good records from the Coast Guard or Army; and 91 victims of domestic violence, human trafficking and other serious crimes, the agency said.
“Obviously ICE disagrees with those who are characterizing this ongoing effort as a failure,” ICE spokeswoman Virginia Kice wrote in an email to The Bay Citizen. “The ongoing case-by-case review is helping to alleviate backlogged immigration courts and enabling ICE to more quickly remove those individuals who pose the greatest threat to public safety.”
After an initial review, prosecutors declined to close Candia's case.
His case appears to highlight a problem that immigrant rights advocates say has beset ICE’s prosecutorial discretion program. Unlike the criminal court system, defendants in the immigration courts are not entitled to legal representation. Advocates say that without adequate representation, individuals often receive only cursory reviews. In many cases, prosecutors review files without asking for materials that might better showcase an individual's track record in the U.S. The latest TRAC data shows that an overwhelming majority of defendants whose cases are closed through prosecutorial discretion have legal representation.
“The government says it’s reviewing all the cases, but oftentimes, what they’re reviewing is just the file they have, which is why the person got put into proceedings in the first place,” Shull-Gonzalez said. “Their ties to the community, their children – that’s just not in a government file, if it’s not given to (the prosecutor). It’s not a meaningful review.”
In his memo last year, Morton said prosecutors "may request" additional information to “assist in reaching a final decision.” But such requests are not required, and several immigration attorneys consulted by The Bay Citizen said prosecutors did not make that attempt for their clients. Immigrants without representation likely do not know that prosecutorial reviews are an option, Shull-Gonzalez said.
Candia told The Bay Citizen that he didn’t have a lawyer until his second court hearing, after prosecutors already had reviewed and denied closing his case. That attorney, provided pro bono by The Bar Association of San Francisco, listened to Candia's story and referred him to Shull-Gonzalez, who requested another prosecutorial review.
Candia then began collecting materials to send to prosecutors, such as tax records and information about his family, including his brother-in-law, a U.S. citizen who has petitioned for the family to remain in the United States.
Candia said he hopes to learn at his next hearing in August that his case is being dropped. In the meantime, he remains in Oakland, where he takes care of his wife and grandchildren. His 22-year-old son also lives at home while going to school.
The battle to stay in the U.S. has taken a toll on him and his family, he said.
“There’s a saying in Spanish, ‘Me cortaron las alas,' " he said. "It’s like clipping your wings, your ability to do anything.”