An 18-year-old federal court order—originally intended to protect refugees from a civil war in El Salvador—has become a gaping hole in the Bush administration’s effort to stop the flow of illegal immigrants across the border.
The order, known as the Orantes injunction, became a loophole when the administration ramped up a controversial policy to speed the deportation of illegal immigrants from countries other than Mexico, known as OTMs, by bypassing immigration courts.
The “expedited return” program, which took effect along all of the nation’s borders and coastlines in January, is designed to end a practice known as “catch and release,” in which illegal immigrants from countries other than Mexico are released after being issued notices to appear in immigration courts.
“We used to call it the notice to disappear,” said Zapata County Sheriff Sigifredo Gonzalez, whose border county has become a thoroughfare for illegal crossings.
Though notices to appear formerly were given to all apprehended illegal immigrants from Latin American countries other than Mexico, authorities now aim to reach a point where they are issued only to Salvadorans, because of the Orantes injunction. Others are detained.
As a result, Salvadorans—or people claiming to be Salvadoran—have risen to the top of the list of OTMs apprehended by immigration officials, according to figures from U.S. Customs and Border Protection.
Border Patrol spokesman Todd Fraser acknowledged that smugglers are telling illegal immigrants to masquerade as Salvadorans to avoid deportation.
Authorities say 33,053 Salvadorans were apprehended nationwide during the first eight months of fiscal 2006, which began Oct. 1. That’s more than one-third of the total of 83,484 other-than-Mexican illegal immigrants apprehended during that period.
Many Salvadorans surrender to immigration officials because they know they are likely to be released with a notice to appear, said CBP spokesman Xavier Rios.
The Bush administration is trying to plug the loophole by asking U.S. District Judge Margaret M. Morrow of Los Angeles to amend the Orantes injunction, which was imposed in 1988 by a federal judge in Los Angeles. The injunction was intended to prevent immigration officials from improperly discouraging Salvadorans who sought political asylum here because of the civil war in their homeland. It was tightened in 1990 after the court found violations by officials in South Texas.
The injunction requires, in part, that Salvadorans be advised of their right to a deportation hearing and an attorney, and to apply for political asylum. The administration argues that it is no longer needed because the civil war has ended.
Linton Joaquin, lead attorney for the plaintiffs in the Orantes case, said the loophole exists only because the administration has chosen to exclude Salvadorans from the expedited removal program, he said.
Even with the injunction, Joaquin said, Salvadorans can be returned under expedited removal as long as they are notified of their right to make an asylum claim.
Authorities began phasing in expedited removal elsewhere last September. It was expanded in January this year.
In January, Fraser said, expedited removal took an average of 16 days, compared with 89 days for those removed without it.
Although expedited removal is in effect nationwide, immigration officials are far from achieving their goal of eliminating catch and release. Of the 76,463 other-than-Mexican illegal immigrants detained during the first seven months of fiscal 2006, more than half were released with notices to appear, according to the CBP.