Wednesday, April 23, 2014

Immigration Enforcement Policy: Stuck Between a Rock and a Hard Place

Guest blogger: Tiffany Lam, second-year law student, University of San Francisco

This is a tragic case of violence and fear in McAllen, Texas. Mely Saldana’s 15-year-old son got into an argument with his stepdad over what channel to watch on television. The stepdad threw the teen down to the floor and the teen’s foot landed in an awkward position. The teen suffered severe pain. Saldana and her son moved out of the shared house after the incident. However, as an undocumented immigrant with very little money, Saldana attempted to treat the foot injury with Tylenol for about a month. Saldana did not immediately take her son to the hospital because of the expense and because she was afraid of being deported.

However, after the pain became unbearable for her son, Saldano took him to the hospital where he underwent surgery for his fractured ankle. Sure enough, the authorities arrested Saldana for child endangerment and then turned her over to Immigration and Customs Enforcement because she failed to report her son’s injury to authorities. The stepfather was later charged with battery, but Saldana faces deportation.

Irrespective of what you or I would have done in this situation, we should be concerned about an immigration policy that leads to the Saldana situation where the fear of deportation is so coercive that it only leads to terrible options. Not only has the young teen been abused by his father, he is in the process of losing his mother. Saldana, a mother, had to choose between seeking treatment for her son and possibly being separated from him indefinitely or treating the injury with medicine and hope for the best.

Saldana believed that if she took her son to the hospital, she would be deported once the hospital discovered she was undocumented. What would happen to her son then? Saldana, as a mother tried to keep her family together. In this case, since Saldana did not report the crime or seek medical attention for her son, she was charged with child endangerment. Now she is subject to deportation. Is this the type of policy and solution that we want in place in our society? Surely, this is not the desired policy outcome. The cost to family integrity cannot be what was contemplated. 

Saldana did the best that she could under the circumstances, even though none of her options were ideal. Especially in this specific context of domestic violence, is this the calculus we want victims to be forced into putting into effect? Do we really want people to weigh the risk of deportation against safety and family integrity?

The situation Saldana now faces could have been prevented in two ways. First, if local law enforcement authorities communicated with undocumented immigrants and made it clear that the law enforcement priorities in the area were about crime and not about immigration enforcement, Saldana would have felt secure enough to seek treatment for her son. In many cities, this community policing strategy is recognized as legitimate and good criminal justice policy. Sometimes an undocumented immigrant may be a crucial witness to a crime, but if she fears deportation she will not come forward. However, in community policing jurisdictions, her status will not be shared with ICE, and she will be more comfortable reporting the crime to local law enforcement. This has huge implications for society at large because perpetrators of crime, especially perpetrators of violent crime need to be stopped. Criminals should not be able to escape punishment because of a witness’s fear of deportation.

Second, if Saldana’s husband was a lawful permanent resident or a U.S. citizen, she may have been eligible to apply for lawful permanent resident status under the Violence Against Women Act (VAWA) and be protected while reporting the crime against her son. Congress recognized that there are instances where people in domestic violence relationships may not otherwise report acts of domestic violence because they fear deportation. Without the VAWA protection, deportation looms as a heavy-handed punishment to those already suffering from domestic violence.

Strong advocacy, communication, and compassion could have gone a long way in preventing the Saldana scenario. Policy changes are necessary to prevent another family from suffering in the same manner.

bh

http://lawprofessors.typepad.com/immigration/2014/04/immigration-enforcement-policy-stuck-between-a-rock-and-a-hard-place-.html

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