In Immigration Court, few criminals, far more minor offenders
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Rodrigo Osorio’s odyssey through the U.S. Immigration Court in Chicago began when he bought a used pickup truck with tinted windows.
A Villa Park cop pulled Osorio over in the Ford F-150 in March 2011 because the windows were too dark. The police found he had pleaded guilty to a misdemeanor DUI charge in another DuPage County suburb.
By early May, Osorio — who has lived and worked in this country as an undocumented immigrant — was placed in “removal” proceedings. That presented him with the prospect of having to return to a homeland he hasn’t seen since he sneaked across the border from his native Mexico in 1995, when he was 17.
But for nearly six years Osorio has fought to stay in this country, arguing that deporting him would cause extreme hardship for his three U.S.-born teenage sons.
Last month, a judge gave him another reprieve, setting his next Immigration Court hearing for January 2018.
“This country is very beautiful,” Osorio says, speaking Spanish. “I came only to work, to support my family, not to harm anybody.”
President Donald Trump has said his administration will focus on “deporting illegal aliens with violent criminal records.” That was also a stated priority of past administrations. Over the past decade, the government has routinely deported immigrants who had been convicted of — or even accused of — violent crimes, drug offenses or crimes involving “moral turpitude,” such as fraud.
Yet most of the deportation cases that pass through Immigration Court don’t involve violent criminals. In fact, only 12 percent of all deportation cases opened in Chicago and nationwide from 2010 to 2016 involved criminal charges of any kind, according to TRAC, a research center at Syracuse University that collects such data.
Instead, the nation’s Immigration Courts — which operate apart from the federal court system — are clogged with nonviolent offenders like Osorio, whose most serious offenses in this country have been misdemeanor traffic violations, and with people who haven’t been charged with anything but immigration violations.
Deporting more people, as Trump has vowed to do, would put an added strain on immigration courts in Chicago and elsewhere that already are faced with record backlogs.
Judge Richard Posner, an outspoken federal appeals court judge in Chicago, blasted the U.S. Immigration Court in a ruling in December as “the least competent federal agency.” Posner also blamed the court’s shortcomings in part on “crushing workloads.”
In a system notorious for years-long delays, the Immigration Court branch on Van Buren Street in downtown Chicago is one of the nation’s worst, data from TRAC shows. In the past 10 years, the number of pending Immigration Court cases nationwide has tripled. In Chicago, that figure has increased nearly fivefold — from fewer than 4,900 cases in 2007 to more than 23,000 as of August.
Chicago’s Immigration Court has the second-longest wait times in the country — an average of 966 days, on average, far exceeding the national average of 678 days. And the time that cases here have been pending has gotten longer every year since 2010, when the average was 381 days.
Chicago’s court serves Illinois and other Midwestern states. Mexicans, Salvadorans, Guatemalans and Honduras account for 71 percent of the cases pending here, though people from 161 other countries also are represented.
Immigration authorities are “trying to do everything they can to deport people, but they’re so overwhelmed, it’s impossible,” says Brian Seyfried, a Chicago immigration attorney. “There are some cases, even if you’re trying to speed them up, they take a year — even if they’re not charged with a crime.”
On a recent day, the waiting areas outside the courtrooms are filled with families, including restless children squirming in the few available seats. More people stand in the hallways, waiting to be called.
Each of the five judges is expected to hear at least 26 cases that day. Judge Kathryn DeAngelis has 61, including 18 in the afternoon involving people seeking to have removal orders cancelled.
“We’re just very, very busy right now,” DeAngelis says.
Among those on her case call of preliminary or procedural hearings: a man from Nigeria, a couple from India, a former student from Kazakhstan who had overstayed an exchange visa and a man from Mexico who’d been in the United States for two decades but was locked up after a traffic offense. Each is given a new date for a longer, individual hearing — next year.
“That is actually not bad — I have some dates for 2019 and 2020 already,” lawyer Moises Hernandez says outside court. “This is not the court’s fault. Congress mandates all sorts of things they don’t provide funding for. The judges try to do the best they can.”
About 2,200 hearings already have been scheduled in the Chicago court for 2018, federal records show. About 10,000 more are on the docket for 2019, and 400 already are set for 2020.
A spokeswoman for the U.S. Justice Department, which administers the Immigration Court, says the budget for judges and court staff “did not keep pace” with the amount spent on immigration enforcement, causing the backlog.
Retired Immigration Court Judge Eliza Klein says that when she first took the bench in 1994, cases typically lasted months, not years.
Between 2013 and 2015, the number of judges in the Chicago court dropped from nine to six. With new hires, it’s now up to 10.
At the same time the number of judges was falling, waves of people were coming to the United States to flee violence in Central America. Many of those seeking asylum weren’t represented by attorneys in Immigration Court. They have the right to hire lawyers — but, unlike in the criminal court system, they’re not guaranteed that representation. So immigration judges often give them extra time to try to come up with the money to hire a lawyer or to try to find pro bono counsel.
As cases have stretched longer and longer, “I think there’s been a real breakdown over time with the judges’ ability to recollect what happened,” Klein says. “The pressures of the docket have eroded their confidence in the system — especially judges who’ve been there a long time.”
In a Chicago immigration courtroom, Judge Virginia Perez-Guzman hears from a series of women with children, all facing removal orders but seeking asylum.
One of the women says she and her four children fled Honduras after gangs threatened to burn down her business if she didn’t pay them. Another says her husband was abducted, dismembered and burned in Mexico in November 2015.
When Veronica Manuel-Francisco is called forward, Judge Perez-Guzman tries to find someone to interpret her Mayan language, Konjubal. Manuel-Francisco fled Guatemala with her daughter last year, arriving at Hidalgo, Texas, in June. They’re now staying in Champaign instead of a detention facility while her case is sorted out.
On a speakerphone, the judge calls the dial-up service Interpretalk in search of an interpreter who knows Konjubal — a language with only about 80,000 native speakers. Several minutes pass before one is found and the proceedings continue.
Even with the interpreter, Manuel-Francisco struggles to understand the legal terminology and process without the help of an attorney, which she says she can’t afford. The judge says she’ll put her in touch with legal aid groups but cautions, “They can’t help just everybody.”
Manuel-Francisco asks whether she’ll be granted asylum. Perez-Guzman says first she must apply for it. “So it will not be granted to me right now?” Manuel-Francisco asks.
The judge tells her she has to let the court know if she changes address: If she misses a notice about a court date and doesn’t appear, the judge will have to order her and her daughter removed from the country.
“So you’re ordering me removed?” Manuel-Francisco asks through the interpreter.
No, the judge says, not at this time. And she explains again that Manuel-Francisco will have to apply for asylum — in English.
Manuel-Francisco indicates that she understands.
Despite Trump’s vow to boot out undocumented criminals, attorney Rosalba Pina says, “It’s not that easy. There is such a thing as due process.”
Pina represents Osorio, the Mexico native who was pulled over for driving the truck with tinted windows in March 2011.
In a court filing last year, Pina said Osorio, now 40, “entered the United States without inspection on or around May 1995.”
He left his hometown of San Lucas Tulcingo in the state of Puebla because “my family was poor” and friends had told him there were jobs in the Midwest.
He’s worked as a busboy, dishwasher, cook and golf-course landscaper in the Chicago suburbs, Michigan and Indiana, where he is now a full-time welder making about $500 a week — far more than the minimum wage of $4.41 a day in his hometown in Mexico.
Osorio “has maintained gainful employment since his arrival in the United States and has always taken care of his children,” Pina wrote.
Pina also has argued that Osorio’s record does not include any “crimes involving moral turpitude.”
He was arrested in Addison in 2009 after the police found him changing a flat tire and discovered he had a blood-alcohol level around .18 percent. He told officers he’d had seven Modelo beers.
He pleaded guilty to a misdemeanor driving under the influence charge and was sentenced to community service and probation. He completed his sentence, according to court records.
That case didn’t cause problems for him with immigration authorities until his 2011 arrest in Villa Park.
“As the truck passed me I noticed there was dark window tint on the drivers side window,” the arrest report from the Villa Park cop says. “I made a u-turn and stopped the truck.”
The officer said he “asked Osorio if he had ever been arrested for DUI or any other criminal offense and he advised that he had not.” Osorio didn’t answer when asked “why he was lying,” according to the report.
Instead of a valid driver’s license, Osorio showed the officer a Mexican passport.
Suspecting it was fake, the officer took the passport to the U.S. Department of Homeland Security’s offices in Oakbrook Terrace, where an agent said it “appeared to be legitimate” and found Osorio in a Mexican database of birth records.
But Osorio was arrested and then turned over to federal authorities at the DuPage County sheriff’s office in Wheaton after missing a court date for the tinted-window citation. Records show a notice of the court date was “returned to sender.” Osorio says he did not know he was scheduled to appear.
Gail Montenegro, a spokeswoman for U.S. Immigration and Customs Enforcement, says the agency took Osorio into custody in 2011 after he failed to appear for a court hearing following his traffic arrest. Montenegro points to his record of “multiple misdemeanor convictions, including one for driving under the influence.”
Osorio’s case to stay in the country might hinge on Pina’s ability to demonstrate that his departure would cause “exceptional and extremely unusual hardship” to three U.S. citizens — his sons. The oldest is 16, and one of Osorio’s 15-year-old twins has been diagnosed with an intellectual disability, Pina wrote.
Going with their dad to Mexico, where they have never been, would force them “to abandon everything and everyone they know.
“They have acculturated to life in this country,” Pina wrote, noting that they are in high school with “friends in this country who share their same culture and language.”
Osorio isn’t scheduled to appear in Immigration Court again until Jan. 25, 2018.
After his hearing in January, Osorio walked out with his lawyer and his sons, who wore dress shirts and ties for the occasion.
A devout Catholic, Osorio says he’s carried a prayer card with the image of San Toribio Romo — considered the patron saint of undocumented Mexican immigrants — since he left his hometown.
“For now, I’m happy because I still have hope of staying with my children,” he says. “We trust in God that I can stay here.”