NORTHWEST ARKANSAS — Federal immigration authorities are no longer trying to deport a University of Arkansas student whose parents brought him to the United States as a child.
The deportation case against Jonathan Chavez, 21, was administratively closed Tuesday, allowing him to stay in the country and work toward a bachelor’s degree in music, said his attorney, Elizabeth L. Young, an assistant professor at the UA School of Law in Fayetteville.
“It’s just the coolest thing. I will be able to do my master’s here and not have to fear deportation,” Chavez said. “Jesus is so great. I’m so thankful.”
Young said administrative closure doesn’t guarantee Chavez won’t be deported but it is in-step with the recent shift of the U.S.Department of Homeland Security’s enforcement priorities.
“Essentially what it means is his court case is on a hiatus,” said Young, who is also the director of the UA’s Immigration Law Clinic.
Chavez, a native of Peru, was 13 when his parents brought his family to the county using temporary six-month tourist visas.
He said his father, Felix Chavez, was unable to get a job and obtain a employersponsored visa so that he and his family could stay in the country.
When his parents’ tourist visas expired, the family stayed and made their home in Rogers, Jonathan Chavez said Tuesday.
Later his parents divorced, and Chavez had not obtained legal residency.
The lack of a visa didn’t stop Chavez, an illegal alien, from enrolling in the UA’s Honors College music program.
On Jan. 3, Chavez, by then a senior at UA, was detained by U.S. Immigration and Customs Enforcement agents when he stepped off a Greyhound bus in Fort Lauderdale, Fla., to visit his mother.
Chavez was detained and accused of overstaying his tourist visa, a civil violation, Young said.
He posted a $1,000 bond and was released from the Broward Transitional Center in Fort Lauderdale.
A few days later, he was back in Fayetteville contemplating how he would keep pursuing a career in music if he was deported to Peru.
‘A HUGE MIRACLE’
“It really is a huge miracle, when I think about that if I hadn’t been arrested and detained in Florida this never would have happened,” Chavez said.
“It’s almost like Jesus had a plan for all of this to happen.”
Young, who has been working with Chavez since February, said administrative closure allows him to stay in the country and apply for a travel document and employment authorization.
His status as an illegal alien doesn’t change.
She said there is no set length of time Chavez’ case will remain closed, but it is unlikely the government will reopen it in the next few years because of the backlog of cases.
Young said if Immigrations and Customs Enforcement were to process the significant backlog of administrative cases it is handling, Chavez could again face deportation.
Young believes administrative action will give theU.S. Department of State enough time to process Chavez’ application for a family visa.
His parents have both remarried U.S. citizens and are lawful permanent residents, Chavez said.
Young said Chavez’ parents are close to completing the requirements to become U.S. citizens, which could hasten Chavez’s process of obtaining a family sponsored visa.
Each month, the U.S. Department of State issues a visa bulletin outlining application wait times for certain visa types, including family sponsored visas.
Application processing times vary depending on who is filing the application and their circumstances.
When his parents applied for Chavez’s visa in January, the processing time was between six and eight years, according to the January bulletin.
Young said Chavez could also pursue some type of conditional permanent residency should Congress pass legislation such as the DREAM Act.
DREAM, which stands for Development, Relief and Education for Alien Minors, would be a way for college students, members of the military and others in certain situations to obtain legal status. Congress debated the bill in 2010, but it failedto move to the Senate.
CHAVEZ PRIME EXAMPLE
UA Chancellor G. David Gearhart said Chavez is a prime example of why such legislation is needed.
Gearhart offered his support in a letter to Chavez upon hearing of his arrest in January.
In an April letter forwarded to the court, Gearhart described Chavez as an outstanding student and “truly exceptional young man.”
“[Chavez is] a fine young man... the kind of person we want to be an American citizen. In a way, he exemplifies what it is to be an American citizen,” Gearhart said Tuesday. “Let’s be honest, we are a nation of immigrants.”
Gearhart said students in situations like Chavez’s should be afforded access to higher education regardless of their immigration status, especially when they wereraised in the country.
“It just didn’t seem to make much sense that he would be incarcerated and sent back to his country of birth,” Gearhart said.
“It just didn’t seem to make any sense at all to do that.”
Young said Wednesday that the administrative closure in Chavez’s case is an example of Immigrations and Customs Enforcement applying broader prosecutorial discretion because of a memorandum issued in June by Immigration and CustomsEnforcement Director John Morton.
Morton’s six-page memo said that immigration enforcement officers and federal prosecutors should first focus on prosecuting and removing criminal illegal aliens who pose a threat to public safety and national security.
Young said prosecutors informed her last week of their intent to seek administrative closure.
The closure was approved Tuesday afternoon by Immigration Judge Charles E. Pazar in Memphis, said Drew Devenport, a third-year UA law student who is working on Chavez’s case.
PROSECUTORIAL DISCRETION
Devenport said they tried unsuccessfully to have prosecutorial discretion applied to Chavez’ case before the Morton memo was issued.
Immigrations and Customs Enforcement spokesman Danielle Bennett wouldn’t talk about Chavez’s case but said the agency is exercising prosecutorial discretion as needed.
“ICE is focused on smart, effective immigration enforcement that prioritizes the removal of criminal aliens, recent border-crossers and egregious immigration law violators, such as those who have been previously removed from the United States,” said Bennett, based in Florida.
Bennett said the agency only has the resources to remove 400,000 illegal aliens a year, so it must set priorities.
She said removal of illegal aliens happens in one of two ways, either the person agrees to leave or they are deported.
Last year the agency set a record, removing 396,906 illegal aliens, Bennett said.
Of the total number removed, 216,698 had criminal records, she said.
Immigrations and Customs Enforcement sought deportation orders in 187,837 cases during the first 10 months of 2011, according to Transactional Records Access Clearinghouse at Syracuse University, whichcompiles records from immigration courts.
Of those 187,837 cases, only 8,532 were administratively closed, compared with 132,341 that were ordered removed or voluntarily left the country, according to the clearinghouse.
Secretary of Homeland Security Janet Napolitano in August announced the department’s enforcement priorities were shifting to reflect the directive issued by Morton.
Napolitano informed members of Congress the policy shift will be accompanied by a case-by-case review of 300,000 illegal aliens facing deportation in immigration courts, though department officials contacted Tuesday could not comment on the status of that review.
Prosecutorial discretion has long been a tool available to immigration officers but rarely ends in a favorable outcome for the petitioner, said Laura Ferner, an immigration attorney in Springdale.
Ferner said Chavez’s case is the first where she’s seen prosecutorial discretion lead to an administrative closure.
Immigrations officials have become more open to applying discretion since the Obama Administration announced its shift in enforcement priorities in August, Ferner said. She said that’s a trend she hopes will continue because she’s sought prosecutorial discretion on many occasions, but “before August, I was basically laughed out of court.”
Ferner said Chavez benefited from the administration’s policy shift and from having the support of Gearhart.
Still Young should be proud of her work, Ferner said.
Young said with prosecutorial discretion, there’s no definitive outcome.
“There’s no case law. It’s all just a shot in the dark. You just try to submit the most complete, sympathetic package you can.” To contact this reporter:
Front Section, Pages 1 on 11/10/2011