'Unusual' Northwest Arkansas case spotlights immigration system in flux

FAYETTEVILLE -- The last time Erick Rodriguez was near home, he and his younger brother were in a holding cell in the Washington County jail. He and Alan Rodriquez were facing misdemeanor charges of public intoxication and possession of marijuana and alcohol, which often means a night in jail or less before bonding out. They wouldn't be there long, the younger brother thought.

But then Erick Rodriguez, 21, was abruptly taken out of the cell. He returned a short while later, his eyes defeated, Alan Rodriguez, 20, said in an interview in late April, a few days after the arrest.

"'Looks like I'm about to get deported,'" Alan recalled his older brother saying. "'When you get out, tell Mom to tell the family to come pick me up in Mexico.'"

The brothers were toddlers when their mother brought them into the United States illegally. Eighteen years later, his night in jail was enough to attract the attention of U.S. Immigration and Customs Enforcement thanks to a previous conviction for having a fake Social Security card.

Erick Rodriguez was moved to the federal LaSalle Detention Facility in central Louisiana in less than a week. He's still there as his deportation case moves through immigration court.

"Convicted felons are our highest priority for removal," Bryan Cox, an ICE spokesman in New Orleans, said in a phone interview in April. Violent criminals and gang members fall into that category. Though the Rodriguez conviction was for a nonviolent crime, "a felony is a felony," Cox said.

Erick Rodriquez' story is a tale of poor personal choices colliding with a national immigration policy in transition.

The system today is pulled on all sides. Immigrant advocates press for reform that would let the Rodriguez family and others like them stay in the country. Opponents argue the border must be more tightly sealed before any reform. And the Obama administration's attempt to act on its own has led to a ongoing lawsuit filed by 26 states, including Arkansas.

The crossing

Erick and Alan Rodriguez were ages 3 and 1 when their mother, Veronica Razo, decided to break the law and enter the United States with them, Razo said.

The visa system is so backlogged an immigrant visa can take years, even decades, to process, according to the U.S. State Department's most recent visa bulletin. If Razo had applied in the late 1990s and was a sibling of a U.S. citizen, her application would just now be considered. The only foothold she had was her ex-husband, who was living in Northwest Arkansas.

Razo left a life cleaning for her sister in the central Mexican state of Guanajuato after hearing from others people how much more money could be made in the U.S., she said during an interview in her Johnson home. She crossed the border on foot near McAllen, Texas, with no water and a crying 1-year-old in her arms.

She knew to cross about when church was letting out to avoid drawing attention. Razo hasn't returned to Mexico since, and said she didn't regret bringing her children to this country.

Her sons graduated from Fayetteville High School. The family lives in a Johnson duplex, the walls adorned by crucifixes, images of Jesus, family photos and Alan Rodriguez's bright, abstract paintings. In interviews in the past several months, Alan and Erick Rodriguez both said they feel American despite their legal status. The youngest brother, Kevin, was born here and is a citizen, while a fourth brother, the oldest, still lives in Mexico.

The family became known as honest, loving and hardworking, often volunteering through Fayetteville's St. Joseph Catholic Church, family friends said. Razo still cleans houses, and Alan Rodriguez said they hope to formally start a cleaning business.

"No matter what, they just think positive, and their faith in God is so strong," said Kathy Hariell, a retired Fayetteville resident who met the family four years ago. "And they try so hard."

The chance

The middle brothers first encountered the immigration system in fall 2013, when they applied for, and were granted, Deferred Action for Childhood Arrivals, an enforcement policy President Obama announced in 2012 after Congress failed to pass a similar program called the DREAM Act into law.

It allows immigrants who came to the U.S. illegally before they turned 16, lack a criminal record and meet several other requirements to apply for a two-year, renewable deferral of deportation or other penalty. They may also apply for a work permit and a Social Security number.

About 750,000 people had applied by March this year, or about half of those who are or could soon be eligible, according to a report this month from the nonpartisan Migration Policy Institute. Applications were approved nearly 90 percent of the time, according to an institute report last year.

Deferred action was the two brothers' first chance to get Social Security cards -- Erick Rodriguez got a fake card through a family member when he was a teenager to get a job washing dishes at a restaurant, his mother said.

Luz Morlet, a member of St. Joseph, said she helped about 100 people fill out applications and prove they'd been in the U.S. the required amount of time.

"That is better than nothing," she said of deferred action, talking as she cooked coiled tortilla flautas and gorditas at a May 16 fundraiser for Erick Rodriguez at Springdale's Immigrant Resource Center. Fellow church members and others chatted and laughed in the center as heat from a grill billowed around two people cooking meat outside.

Morlet noted many families were worried deferred action could lead to trouble, as if they were saying, "'Here I am, deport me.'"

"There's no guarantees," Morlet said. "The difference between a citizen and one of these young people is they can be deported."

Elizabeth Young, an associate law professor at the University of Arkansas who directs the school's immigration law clinic, compared deferred action to a kind of probation for immigrants who come forward. Many eligible people likely haven't applied because the status could be taken away at any time because of national politics or other factors, she said.

That risk became real for Erick Rodriguez on the evening of March 29, 2014, when he ran a red light in Johnson.

The conviction

A Johnson police officer saw the violation and stopped the car, according to an incident report. The officer arrested Erick Rodriguez for driving without a license, and an investigator looking in his wallet found the fake Social Security card.

The problem was Erick Rodriguez was approved for deferred action but was in the middle of getting the documents that follow. His genuine Social Security card hadn't yet arrived in the mail, and he had been planning on getting his license that day, said K. Drew Devenport, a Springdale immigration attorney representing him.

"It's almost a comedy of errors -- timing could not have been worse for him," Devenport said. An immigrant losing deferred action's protection after receiving it is "extremely unusual," Devenport added.

Neither ICE nor U.S. Citizenship and Immigration Services tracks how often deferred action has been revoked, a spokesmen said. Sue Long, co-director of Syracuse University's Transactional Records Access Clearinghouse, said she hadn't heard of a situation like Erick Rodgriguez's. The nonpartisan research center compiles troves of immigration data each month.

Erick Rodriguez's forgery charge is also uncommon among removal cases historically, according to data from the center. Fraud charges, a category including forged identity documents, were the basis for deportation proceedings about 1 percent of the time in all 2.6 million proceedings between fiscal 2002 and 2011. Most cases are for illegal entry or other immigration violations.

Using a bogus Social Security card is a fairly common tactic to get a job for people who immigrate illegally, Young said.

"I can say the vast majorities of individuals I've worked with, it's just to work," she said. "They're very careful not to use it to take out loans or get a credit card."

According to court records, Erick Rodriguez's crime was victimless, meaning there was no one left with damaged credit or other effects. Erick Rodriguez eventually pleaded guilty in Washington County Circuit Court to second-degree forgery, a felony. He was sentenced to three years' probation, and he knew and accepted he could be deported because of the conviction, he wrote in his July 2014 plea agreement.

Less than a year passed before the possibility came true. The brothers were asleep in their car after a night out last April when a police officer knocked on their window. The two were arrested for misdemeanor public intoxication and possession charges based on the older brother's response to sobriety tests when awoken, the smell of intoxicants and a "small amount" of marijuana belonging to the younger brother, according to the police report.

"He was just trying to figure out what I was doing," Erick Rodriquez said of the officer during a brief phone interview from LaSalle in July. "I don't blame the cop. I think he was just doing his job."

The earlier felony conviction for forgery then re-emerged; a felon is ineligible for deferred action, and a felony essentially negates its protection, said Cox, the ICE spokesman. Erick Rodriguez's fingerprints had been researched through an FBI database at the jail as a matter of routine, and ICE took him into custody after he was flagged, Cox said.

The system

Between 2008 and 2015, almost 300 people were removed by ICE from Washington County, more than from any other county in Arkansas, according to the Center for Immigration Studies in Washington, which typically calls for more immigration restrictions.

Nationwide deportations in fiscal 2014 numbered about 316,000, according to ICE statistics -- down from a peak near 400,000 in 2011.

The number of immigrants present illegally also has fallen from about 12.2 million people in 2007 to about 11.3 million in 2014, according to a Pew Research Center report last month. The recession and a slowdown in immigration from Mexico contributed to the drop, the report said.

Erick Rodriguez said others in the facility come from countries around the world, and all share the same fear of deportation. He at least has an older brother to pick him up if he's deported, he said. "If you have family down there, you don't got much to worry about."

The experience is a jarring reminder that he doesn't legally belong in the country he grew up in, Erick Rodriguez said. He's picking up new Spanish phrases from detainees. Guards are watching at all times. Other detainees wear dark blue or orange, marking low- and medium-security designations. His uniform is dark red, for the highest-security category.

President Obama has overseen a narrowing of deportation priorities in the past few years, which the president said will devote the government's limited resources to finding high-risk gang members, national security threats and the like. About 95 percent of the people removed in fiscal 2014 had a conviction or were captured trying to enter the country, according to ICE.

"Felons, not families," Obama said in a speech last November outlining his goals. "Criminals, not children. Gang members, not a mom who's working hard to provide for her kids."

In a November 2014 memo to customs and immigration officials, Homeland Security Secretary Jeh Johnson said agents should focus on immigrants with felonies or multiple serious misdemeanors.

"State or local offenses for which an essential element was the alien's immigration status" shouldn't count in that calculation, he wrote.

The Rodriguez family argues Erick Rodriguez's charge is such an offense, because an immigrant without a work permit needs a fake Social Security card to have a job. The American Civil Liberties Union agrees in a September 2014 report.

There's also no guarantee that Erick Rodriguez's offense would have been treated as a felony everywhere, said Young, the law professor.

"It really does depend on what police officer pulls you over in what town and what state," she said. "That (forgery) is a crime. But there are other ways, something other than a felony conviction."

Cox said there is no clear policy on whether having a bogus Social Security number should be viewed as less serious than other felonies. The announced priorities notwithstanding, immigration officials can decide to begin removal proceedings for any immigrant they believe is breaking the law, he said.

More than half a million immigration court cases have resulted in convictions since Obama's election, more than twice those under George W. Bush, according to the Syracuse center, but they've fallen slightly in the past few years.

The politics

When Obama announced narrowed priorities last fall, he also tried to expand deferred action to include millions more people brought into the country as children and their parents. These steps have sparked an impassioned backlash from opponents who say Obama has overstepped his power and isn't following law set by Congress. The expanded deferred action is on hold in federal court after Arkansas, Oklahoma, Texas and 23 other states filed a lawsuit against it.

"As this case moves forward, I will stand against the president's unconstitutional and unilateral action in order to protect the interest of all Arkansans," Arkansas Attorney General Leslie Rutledge said in a statement in February.

A ruling against the program from a Texas district judge, "which blocks the president's unlawful executive action on immigration nationwide, is an important victory in reigning in a president who has attempted to bypass Congress," she wrote.

The 5th Circuit Court of Appeals in New Orleans heard arguments in the case in July, and a decision is pending.

Marguerite Telford, communications director for the Center for Immigration Studies, said Erick Rodriguez's story is just one of many showing the federal government's attempt to mix forgiveness and enforcement isn't working.

"That's the reason a lot of this stuff has slipped past," Telford said in a phone interview. The immigration system may need reform, she said, but it needs enforcement, too. And every step taken needs to be split into understandable pieces and discussed by Congress and the American people, she said.

"Enforcement first," she said. "It's not like we're not willing to have an amnesty conversation. Certainly there's a section of people that absolutely deserves that. But I don't think that conversation takes place until we address enforcement."

Immigrant advocates praise Obama's programs -- or say they don't go far enough.

"Deferred action is not sufficient. It's just a temporary Band-Aid," said Mireya Reith, executive director of Arkansas United Community Coalition, which is at the Springdale resource center along with Catholic Charities. She said Erick Rodriguez's case stands in contradiction of the Obama administration's promises to focus on dangerous criminals.

"They need to pay for the thing they do," Razo said of her sons, but she wants them to be treated as a citizen, without the threat of deportation. "I know we're going to pay for it. At least give us the chance to do it the way you do it here."

Alan Rodriguez, who was granted deferred action without incident, said he hopes to keep pushing for pro-immigrant political change. He's channeled that passion into a painting this summer showing a giant bald eagle carrying a man away from his companions, who are held helpless by stone-faced immigration officers. The background is an American flag, its paint dripping like tears or blood.

"One thing I really strongly believe is that, through this, hopefully the community comes together," Alan Rodriguez said at the May fundraiser, noting non-Hispanic people were also there. "I want to continue fighting."

Though Erick Rodriguez thanked all of his supporters during his interview, he had adopted a guarded realism about his situation.

"I think she did what she thought was the best thing for me," Erick Rodriguez said of his mother, adding he loves America. "You can pray all you want, but at the end of the day, it's what the judge says. Hopefully God changes the judge's mind."

Devenport said his client's final hearing should be in late September or October. In his experience, there's no predicting how immigration cases will turn out. Non-citizens in deportation cases during the past few years have had about a 50-50 chance of being allowed to stay, at least temporarily, according to the Syracuse center.

Erick Rodriguez's second request for a bond allowing him to leave the facility was denied earlier this month. The family went to Louisiana to see him Monday, Razo said, but because of her legal status, she stayed behind while her younger sons visited him.

"They said he's OK, he's strong. He looks like a grown man now," Razo said Wednesday. "He's just waiting, like us."

Dan Holtmeyer can be reached at dholtmeyer@nwadg.com and on Twitter @NWADanH.

NW News on 08/23/2015