Update, 3:32 p.m.
Edher Palafox was released from ICE custody Thursday afternoon, his lawyer said in an email.
The original story appears below:
It’s been a year and a half since President Barack Obama announced an executive order that could potentially transform the lives of many undocumented immigrants.
Under Deferred Action for Childhood Arrivals, young people who were brought to the United States illegally as children could come of out of the shadows: go to school, work legally, and get driver’s licenses without risk of deportation. The policy does not give them permanent legal status or a path to citizenship, which would take an act of Congress.
Nationally, more than 1 million young people are eligible. But some who have applied have found themselves in a kind of limbo, because you can’t receive DACA if you’re in immigration custody, even if you’re eligible.
Nineteen-year-old Edher Palafox has lived in Overland Park, Kan., since he was three. He says he always thought of himself as American.
Palafox was on the dean’s list at Shawnee Mission South High School, and was co-captain of the football team. He never imagined he’d spend the holidays in immigration detention at Morgan County Jail in mid-Missouri.
Palafox is in this situation, in part, because he made a mistake. It’s a mistake that has major consequences because of his immigration status.
“My mom, and my brother, everybody, told me you’re not an American, you can’t afford getting in trouble,” Palafox says. “And every little thing we do we have to be really careful about.”
When they were young children, Palafox and his brother were brought illegally to this country from Mexico by their uncle. Their mother had come before them. He says he didn’t realize his immigration status would affect his future prospects until high school.
“I got discouraged at the end of my high school because I saw a lot of [undocumented] Hispanics that were doing real good in school and then it didn’t pay off, if they couldn’t get into the jobs that they wanted to,” Palafox says.
When he heard about DACA, Palafox says that’s what he had been waiting for. He was studying mechanical engineering at Johnson County Community College, and hoping to transfer to K-State. He was also working a full-time job to pay tuition.
But a few months before the DACA policy was announced, Palafox had been stopped by police. They found marijuana in his car.
“I shouldn’t have had it in the car, or I shouldn’t have been doing it,” Palafox says. “But I feel like anybody else, they would have gotten the charges dropped, and I feel like I’ve been punished way more than I should have been.”
Palafox was eventually sentenced on charges of marijuana and paraphernalia possession. In the meantime, he had applied for DACA. His lawyer, Genevra Alberti, says he seemed like the perfect candidate.
“You know, the government shouldn’t really shouldn’t touch him because the whole idea is when you are a dreamer, they’re supposed to exercise discretion and not even put you in removal proceedings in the first place,” Alberti says. “But also, try not to keep these people in custody.”
Alberti calls him a “dreamer”, that’s a nickname these young undocumented immigrants have taken on because of the long-deferred Dream Act, which, if passed in Congress, could give them a chance at permanent legal status or a path to citizenship. DACA is just a temporary, two-year program.
Despite the pending application, at Palafox’s next check-in with immigration officials on Nov. 7, he was taken into custody. That was a problem because DACA rules say a case cannot even be considered as long as the applicant is in custody.
The situation is complicated because undocumented immigrants with drug offenses can be subject to mandatory custody. But DACA’s guidelines say that young people who have not committed “significant misdemeanors” can still be eligible. So for potential DACA applicants who are detained, their future in the United States can depend on ICE’s discretion on whether they’re in custody.
“ICE is in this extremely powerful position as this gatekeeper. So we’d like to know how they’re making that decision,” says Patrick Taurel, of the advocacy group, American Immigration Council.
Taurel says that nationally, ICE is not detaining as many so-called “dreamers” as they used to. They’re focused more on dangerous criminals. But he’d like to see more transparency on how they screen DACA-eligible detainees.
Immigration and Customs Enforcement officials would not get into detail about this process. But a written statement from the agency reads:
“ICE is focused on smart and effective immigration enforcement that prioritizes the removal of convicted criminals, recent border crossers and immigration fugitives. ICE exercises discretion on a case by case basis . . . such decisions are based on the merits of each case , the factual information provided to the agency and the totality of the individuals’ circumstances, including any criminal history, their length of presence in the United States and ties to the community.”
Another immigrants’ advocacy group, the National Immigrant Project of the National Lawyer’s Guild, is monitoring cases of DACA-eligible young people who cannot apply because they are detained. They’re trying to determine whether more of these cases are coming out of certain parts of the country.
Lawyer Genevra Alberti says besides Edher Palafox, she’s had two other similar cases here in Kansas City. One left under an order of voluntary departure after his DACA application was denied because he was in ICE custody. The other is still in custody.
As for Edher Palafox, ICE told us last night: “After a comprehensive review of the case, consistent with existing policy and procedures, ICE will soon be releasing Mr. Palafox.”