POLITICS NOVEMBER 2, 2011
This story is one of a series aiming to answer a simple question: Why are undocumented immigrants that the administration says it intends to help stay in this country still facing deportation? For earlier stories on this topic, see “One Family In Limbo: What Obama’s Immigration Policy Looks Like In Practice” and “Are Bureaucrats Blowing Off Obama's New Immigration Policy?”
In El Salvador, in the spring of 2004, Fernando Quinteros-Mendoza was dating a woman who lived in a rough neighborhood riddled with gang violence. When Fernando started passing through the gang’s territory, its members noticed. Within a short time, the gang made Fernando’s life unbearable, and later that year Fernando fled to the United States. Today, he is trying to prevent a forced return, and a new Obama administration policy encourages immigration authorities to allow him to stay. But uneven and lax implementation of that policy means that Fernando could be headed back to El Salvador—and, perhaps, the gang that was targeting him—in a matter of months.
The attacks on Fernando became regular—three to five times per week, with gang members attempting to extort money from him each time. Eventually, the intimidation spread beyond his girlfriend’s neighborhood. On one occasion, according to Mendoza’s aunt, Iris Argueta, gang members “even put a knife to his head on the bus.” They accosted him outside his church, threatening (as records from a 2008 court hearing describe it) to hurt him if he continued to attend. Finally, Iris says, they told him they would “burn down his house and kill his father unless he gave them money.” Fernando was getting desperate. “There was no peace,” Iris told me. “He was always afraid.”
Fernando was a victim of El Salvador’s endemic violence. The country is home to about 10,500 gang members, according to a 2007 United Nations report. A 2011 report by the Congressional Research Service notes that it has one of the highest murder rates in the world. The U.S. State Department calls El Salvador a “critical-crime-threat” country, warning that some areas are “effectively controlled” by “violent, organized gangs.” These gangs, which have made extortion a particular specialty, often have “access to military-style hardware, including automatic weapons and hand grenades.”
In September of 2004, Mendoza decided to flee El Salvador. He was caught at the U.S. border, but instead of being turned around, he was sent to live with family in Maryland and given a date to appear in court. In 2006, he brought his case before an immigration judge who found him both credible and sympathetic—“I think you are in a terrible situation,” the judge said during the hearing—but who nonetheless ruled that Fernando did not qualify for asylum, which is only granted when an applicants’ persecution falls into one of five specific categories. (Intimidation by a gang is not one of those categories; religious persecution is, but because religion was not a “central reason” for Fernando’s persecution, it didn’t suffice.) The asylum bid failed—and so did an appeal to the Fourth Circuit in 2008.
Fernando received a deportation order, but was granted temporary relief by Immigration and Customs Enforcement (ICE) at the last minute. He was placed under an “order of supervision” that requires him to periodically report to ICE. On December 15 he’ll report to ICE authorities in Maryland, who will update him on the status of his order. They could give him a new date to report to them, or they could issue a removal order.
Fernando’s lawyer, Sheryl Winarick, is making simultaneous appeals to ICE (for a stay of removal) and U.S. Citizenship and Immigration Services (for deferred action). In her positive-discretion request, Winarick cites Fernando’s extensive family ties in this country; the dangerous conditions in El Salvador; his length of time in the U.S.; his clean criminal record. “If they exercise prosecutorial discretion and allow him to remain,” Winarick told me, “eventually he can adjust to legal permanent residency. But he has no way to stay unless they exercise discretion.”
Few immigration lawyers or activists are comfortable making firm predictions about Fernando’s fate. “Fernando should be a shoo-in,” says Winarick, “but if you look at the reality of what they’re doing, there’s a record number of deportations […] People have insecurity even when they shouldn’t.” Sandra Grossman, who serves as a liaison to the Baltimore ICE field office from a local chapter of the American Immigration Lawyers Association, told me the office has demonstrated “a more open attitude” after the Obama administration’s recent memos. Still, she says, some attorneys have made “bona fide requests for positive discretion in cases that are not enforcement priorities, and they either don’t get a response back, or they get a response that’s not in accordance with the memo.”
If the agencies deny Ferndando’s request, a return to El Salvador could be imminent. After seven years in the U.S., he could be at even greater risk for kidnapping upon his return. Earlier this year, one of Fernando’s friends was shot at a bus stop, and recently one of his former neighbors was murdered. The body was discovered inside a plastic bag.
What’s more, it’s been seven years since Fernando first arrived in the U.S. In December, he will celebrate his two-year anniversary with his girlfriend. He’s working part-time with a cousin doing remodeling, and he’s saving up money to apply for a work permit. “It’s important that I stay here,” Fernando told me. “I have no family back there.”
That points to the final reason Mendoza is eager to stay: his mother. Both of Fernando’s parents were legal, permanent residents in the United States. This past spring, his 86 year-old father, suffering from colon cancer and unable to afford a funeral in America, returned to El Salvador to die. Fernando’s mother has both breast cancer and chronic obstructive pulmonary disease. The latter, caused by a tumor on her lungs, makes it difficult to breathe—a problem exacerbated by both the conditions in her basement apartment and her inability to afford an oxygen tank (documents prepared by the family’s lawyer explain that she has “been surviving off inhalers”). Fernando is her sole caretaker. She doesn’t have health insurance, and she doesn’t qualify for Medicaid. The mounting bills make the $400 Fernando needs to apply for a work permit hard to come by—particularly since he often has to stay home to care for his mother.
Come December, he will find out whether he can stay in the U.S. with her or not. For now, the family can only wait. “Fernando is my only hope,” his mother says in documents submitted to immigration authorities. “I am not sure how much time I have left in this world because of my illnesses, so I [beg] you to let him stay by my side.”
Nathan Pippenger is a reporter-researcher at The New Republic.
UPDATE: At 9 a.m. on November 2, hours after the publication of this article, Fernando's lawyer, Sheryl Winarick, received notice from the regional ICE office that Fernando had been granted a one-year stay of removal.