Steller: Fate of former DPS officer depends on immigration 'discretion'

2013-12-15T00:00:00Z Steller: Fate of former DPS officer depends on immigration 'discretion'Tim Steller Arizona Daily Star Arizona Daily Star

Carmen Figueroa was a good Arizona Department of Public Safety officer for 10 years, but now faces the possibility of deportation to Mexico.

Whether she actually gets deported, though, depends.

Will the system view her as a foreigner who infiltrated not just the state police but the U.S. Bureau of Prisons, where she previously worked? Or will it view her as a woman who deserves a break because, in the words of DPS spokesman Bart Graves, she was an “above average” officer who put her life on the line as a narcotics investigator?

Figueroa’s case illustrates a key problem with our current system of dealing with people living illegally in the United States. How you’re treated depends not so much on the laws as how you work the system, and how the immigration bureaucrats use their judgment.

Just Thursday, immigrant-rights activist Erika Andiola of Phoenix celebrated the fact that her mother, who had been arrested for living illegally in this country, has been given an additional year’s stay in the country. She credits that achievement to the loud protests she and her friends have raised.

But that night, Andiola was in Florence protesting the threatened deportation of a Guatemalan man named Ardany Rosales, a father of U.S.-citizen children. He’s an unknown. He was deported.

“Right now, it’s all discretion through the authorities,” said Andiola, who herself is a “Dreamer” in the country thanks to the discretion of the Obama administration.

The situation is the result of a variety of factors: a wave of illegal cross-border migration and visa overstays, the refusal of Congress to either legalize these people or deport them, and the Obama administration’s effort to find an administrative way to let some people stay while they deport many others.

Andiola is a poster child of the need for new immigration laws that deal with the reality that we’re not going to deport the millions of people living illegally in the United States. Now, in Figueroa, we have a poster cop, too.

As far as we know, until this year, Figueroa thought she was born in Texas and is a U.S. citizen. She told DPS officials that she found out in June that she was actually born in the state of Sinaloa, Mexico. The discovery resulted from an application by her brother, an airman, for a passport, which prompted a State Department investigation into his eligibility.

It’s possible, of course, that Figueroa knew earlier that her birth certificate was false and she is not a citizen. But there’s good reason to believe otherwise: All peace officers in Arizona must go through a polygraph examination in which they’re asked whether they’ve lied or misrepresented on their application. Figueroa did so in 2003.

It would take a pretty brazen, even sociopathic, liar to get away with that whopper.

The one thing we can be feel sure Figueroa did wrong is react incorrectly to the bad news.

“Once she knew this, she should have immediately called her supervisor,” Graves said.

Instead, DPS learned of the problem from the State Department Aug. 22 and put Figueroa on paid leave Sept. 4. After DPS investigated the situation, she would have been fired this week had she not first resigned. State law requires all law-enforcement officers to be U.S. citizens.

So now Figueroa is in a very familiar limbo. She could face deportation to Mexico or — more likely, in my view — she could find herself filtered in the deportation sieve and, through a bureaucrat’s discretion, find a way to stay.

It is not unheard of that a person finds out as an adult that he or she is illegally in the country. Local immigration attorney Maurice ‘Mo’ Goldman told me he’s had several clients in that situation, though it’s more common that kids realize in high school, when they may first try to get a job.

Adults often confront the problem when they enter the military, Alaska immigration attorney Margaret Stock told me. She’s a current MacArthur Fellow who is an expert in immigration problems among military members.

“If you have made a false claim to American citizenship, then you have to admit to that,” she said of military members. “There’s a permanent bar to getting a green card, but there’s no bar to getting citizenship.”

So, Figueroa’s brother may not have such a hard path. But no such path is open to police officers.

“The problem with people who aren’t in the military is they can’t get citizenship unless they get a green card, and there’s a bar to getting a green card if you made a false claim to American citizenship,” she said.

So people like Figueroa are left looking for ways to work the system and find a way to stay.

One option open to some adults is what’s called “registry.”

Goldman explained: “If you came to the United States before Jan. 1, 1972, and you can demonstrate that you’ve been in the U.S. all that time, and you have no other ineligibility, then you could apply for a green card.”

Considering Figueroa’s age, 42, and the cutoff date — almost 41 years ago — it’s unlikely she’ll qualify for that. However, moving that date up to, say, 1996, might be a way to make the law conform to our reality that is simpler than a “comprehensive immigration reform” approach.

Another possibility for Figueroa, Stock said: “She might actually want them to throw her into deportation proceedings. It’s possible she’ll qualify for something called cancellation of removal.”

That would mean her transgression, claiming she’s a U.S. citizen when she’s not, is essentially forgiven, and she can apply for a green card. Figueroa could argue that being a police officer who has investigated drug trafficking and whose name has been in the paper would endanger her if she’s deported, Stock said.

That decision would come down to an immigration bureaucrat’s judgment, of course.

The other danger Figueroa potentially faces is criminal charges, but that’s unlikely unless it’s clear she knowingly lied about her status, Goldman said.

“It depends on whether the DHS wants to utilize their prosecutorial discretion,” he said.

So wherever she turns, Figueroa must now persuade federal bureaucrats to use discretion in her favor.

It would be better if the obvious conclusion — that Figueroa should stay — were spelled out clearly in law.

Contact columnist Tim Steller at tsteller@azstarnet.com or 807-7789. On Twitter: @senyorreporter

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