A cry for help

They know he is home when they hear his whistle. Whittle-WEE! Whether Jose Luis Guerrero’s wife and children will hear his call again, from the doorway of their small Aurora home, will be determined by the U.S. government.

Jose Luis has been in jail for five months. He was detained after Immigration and Customs Enforcement (ICE) officials came to his home looking for someone else. When they ran his ID, they found he had a prior deportation and re-entry on his record. ICE came back a week later and, with a gun to his head, arrested him and brought him to jail.

He now awaits deportation, and like many other families under similar circumstances, the Guerreros hoped that the Obama administration’s recent executive action on immigration would offer relief. With all indications from ICE that it won’t apply to him, the Guerreros will wait to hear if Jose Luis qualifies for a stay of removal, which would allow him to stay in the country, at home, for a year, and continue to file stay of removal requests annually in the future.

ICE spokesman Carl Rusnok says Jose Luis will not qualify for the executive action deferral, and “falls within the new enforcement guidelines” because he has a final order of removal dated after Jan. 1, 2014. This is despite the fact that Jose Luis has four U.S. citizen children, has lived in the country for more than five continuous years, has no criminal record, owns a small business and pays his taxes.

Jose Luis’ story is seen as a trial case for the executive order, according to his lawyer and the advocacy group Colorado Immigrant Rights Coalition. At least, it provides an opportunity to look at who the executive order is benefitting, and who is still slipping through the cracks.

• • • •

“It’s been a really hard couple months.”

Sofia Guerrero sits at the end of a baggy brown couch with her children. She is tired. They are all tired. She is soft-spoken and speaks carefully, recounting in Spanish the week her husband was arrested.

“We had agents come to our house one day,” Sofia says through an interpreter. “They knocked on the door and we had two doors so I opened the inner door and I left the glass door closed. They came looking for another person, they asked for another person. I kept on telling them that the person they were looking for wasn’t here, he didn’t live here, and I kept reiterating that to them. My husband was bathing, getting ready for work. I insisted and insisted and, really for wanting to cooperate with them, I went and got my husband. He spoke to them and they asked him for an ID and he gave them his ID at that time. They didn’t have any arrest warrant; I had asked them if they had a warrant. They went and then they returned a week later and they detained him before he got to the house, at the stoplight out there. I was able to find out because I had happened to come home by chance at that time and I saw that there were agents everywhere and they had picked him up. I didn’t have a chance to speak with him, I just had some agents who told me that, ‘We left a paper in your truck explaining what happened,’ and I didn’t get a chance to talk to him.”

The paper ICE left didn’t have much information, Sofia says, but she learned more when Jose Luis called her from a detention center in Centennial. Jose Luis was given a case number, and he was going to be deported. He also told his wife that ICE officials had waited for him to drop his youngest daughter, Lucy, off at the babysitter, and for Sofia to go to work before they “took him out of his truck with a pistol pointed at his head.”

Jose Luis was transferred to GEO Aurora Detention Facility after three months, in August, and he’s been there since. The Guerreros received no response to their petitions in those early months and Sofia says, “It just feels like the case is moving really slow.”

Then came a bit of hope. In November, President Obama announced new executive action that would offer relief to millions of immigrant families without documentation in the U.S. The executive order laid out guidelines for immigration enforcement and offered hope, it seemed, for families like the Guerreros who met certain qualifications.

Among other tenets of the executive action like strengthening border security, making naturalization easier and more cost efficient, and supporting foreign-born workers, it also laid out guidelines and enforcement priorities for undocumented immigrants.

First, the new executive action listed three groups who would be prioritized for removal. The top priority is national security threats, gang members and convicted felons. The next priority is those who have been convicted of significant or multiple misdemeanors, and those who entered the country “unlawfully” after Jan. 1, 2014.

The third priority for enforcement is people who are non-criminals but who have failed to abide by a formal order of removal dated after Jan. 1, 2014. This is a priority under which Jose Luis falls. That’s because when ICE found out he had previously been sent out of the country, called “a prior deportation,” after they came to his home looking for someone else earlier this year, he was given a final order of removal — thus causing him to fall into the third priority category.

The executive order also mentions that, “Under this revised policy, those who entered illegally prior to Jan. 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.”

ICE confirmed that Jose Luis is a “new enforcement priority,” but the Guerreros filed yet another petition after the guidelines were announced, asking for discretion under the new executive order.

That’s because the Guerreros and their lawyer, James Sarpong, noticed that in the executive order, there was an exception to the priority system that would seem to apply Jose Luis.

The clause reads: “Aliens in Priority 3 should generally be removed … unless, in the judgment of our immigration officer, the alien is not a threat to the integrity of the immigration system or there are other factors suggesting the alien should not be an enforcement priority.”

Those other factors include having young children, severity of crimes committed, length of time since the offense, or compelling humanitarian factors. It’s worth noting here, then, that Jose Luis is, as mentioned before, a small business owner as well as a Eucharistic minister in his local church. “Decisions should be based on the totality of the circumstances,” the clause reads.

But the Guerreros received a letter from Immigration shortly after filing that petition and submitting birth certificates, tax returns and proof of five years’ residency. The letter said Jose Luis did not qualify for the program and that his case was closed.

“At that moment we just felt like there wasn’t going to be any hope or opportunity for us anymore,” Sofia says.

But with the help of Sarpong and the Colorado Immigrant Rights Coalition, the Guerreros filed for a stay of removal that would allow Jose Luis to return home from jail and stay in the country at least for the next year. They are awaiting the verdict on that request.

Brendan Greene, a Colorado Immigrant Rights Coalition campaign director who is working with the Guerreros, says a stay of removal is “not ideal,” and that they will continue to work to try to include Jose Luis in the executive action program. Either that, or work to change the program to include families like the Guerreros.

“The bad part about the way the program is written now is that it’s all up to discretion at the local level, and it’s going to be a case-by-case basis to see how our local office is following through on that mandate to give this discretion proactively,” Greene says. “The place they give the most room for discretion is public safety issues, and we think that a thorough review of this case will really make it clear that he has done nothing that would put him into that category other than the prior deportation and the re-entry that was around noncriminal immigration issues. There’s nothing on his record, and there’s a lot of positive contributions to the community.”

The agency that is in charge at the local level varies throughout the country. In Colorado, the local ICE field office handles such cases, but elsewhere, it could be the U.S. Citizen and Immigration Service Field Director or Service Center Director; Customs and Border Protection Sector Chief or Director of Field Operations; or the Department of Homeland Security.

So, to be clear, the executive order lays out priorities but it gives the power to local officials to exercise judgment and discretion on a case-by-case basis. The local official in Jose Luis’ case, the Denver Field Office of ICE, says he falls under the new enforcement guidelines.

So unless he is granted a temporary stay of removal, Jose Luis will be deported away from his family.

• • • •

“It’s only for people that qualify for that freedom.”

Sofia, bleary-eyed already, starts to choke on her words when she talks about the impact Jose Luis’ absence has had on the family.

“It’s like we’re a chair and they just took one of the legs away from the chair,” Sofia says. “We’re trying to balance ourselves. It’s hard. It’s been really heavy for us.

“To see day to day that, the kids, they need their father and they need his attention. I’ve been forced to now take on two jobs. I come home from my day job, I finish work, I come home, I give them food, and then I have to leave to go to my second job. We’ve always tried to be there for them to help them with everything, to help them with their homework and now it’s hard.”

The eldest, Andy, 16, has had to take on more responsibility, helping get his brother and sisters ready for school and helping make meals while his mother works two cleaning jobs. His mother says his schoolwork has suffered and this event might be jeopardizing his future.

“[Andy] has a scholarship and one of the requirements is that he stay after school,” Sofia says. “He’s had to miss a couple different sessions just for the need of being able to support and being at the home. And same thing if I get home late or early in the morning, he helps get everyone ready for school. This hurts me because he shouldn’t have to be dealing with this, he should be able to focus on his school and only on his school. It’s causing us to have to stop or put a bump in his future to have to deal with all of this. We want him to be a professional and that to be the only thing he has to worry about: school and getting ahead.”

But the biggest issue, the family says, is the truth that it’s just tough to see their father in jail.

“It’s ugly to have to see them have to go to a jail to talk to their father behind glass,” Sofia says. “Sometimes they come home happy to see him and other times they come home crying because they’re unable to touch him. I’ve had five months since I’ve seen him.”

“I feel mad and angry that we can’t hug him or touch him because there’s a glass there and we can’t do nothing about it,” Kenneth, 11, says.

“My sisters go one week and we don’t go,” says Andy. “And the next week we go and they don’t go. The thing is to try to cheer him up. Tell him jokes so he’s glad that we’re there and make him happy. But it’s not the same.”

Sofia says that when her kids do get to see him, it sometimes does more harm than good.

“It’s also hard because sometimes they’re treated well and sometimes they’re not treated well. [Prison officials] waste their time or cut off their time. They see how they yell at him and tell him that his time’s up and that’s when they come home sad,” Sofia says.

Even as they fight for their husband and father to be able to come home, the Guerreros realize that their fight is one of thousands across the country.

“It’s like a horror movie,” says Jennifer, 13, “because I just can’t imagine, like I’m living it right now, but what about those kids that actually got their parents deported and they have to be in foster homes? It’s just scary. You never know if they take him and they come for my mom… it’s going to be the same thing. We’re going to have to be living with other people that we don’t even know.”

Sofia says by making their struggle public, they can help other families in similar situations by rallying public support.

“When we make it public and we fight for what is just, people are going to see that it’s not just us, there’s thousands of people in this situation,” Sofia says. “For people like us who sometimes get sent back home without knowing there were other options available to them and they probably have the same needs we have. We’re asking for discretion not just for us but for so many other people who are in this situation.”

But the way the Guerrero’s feel they’ve been treated isn’t without consequence. Andy, not yet out of high school, says he’s had to seriously question the notion of fairness and equality in America.

“The motto here is everybody is equal and it’s a place for freedom. But it’s only for people that qualify for that freedom. There’s people that work everyday, try to sustain a family, pay bills, pay taxes, but they don’t qualify for that freedom,” Andy says.

“It’s not so much the injustice but seeing that [Jose Luis] doesn’t have a chance to express himself and explain that he is here for his kids, out of necessity,” Sofia says of her view of the situation.

For now, the family takes solace in little reminders of Jose Luis, and they pray for the best. Each has their own story, their own favorite memory of their father and husband. But each are eager to start living their life again with him there.

“Inside there, the prison, he gave me this rosary that reminds me every morning or whenever I put it on, of him, telling me to keep on going, to not give up,” Kenneth says.

That rosary and a lone framed picture of Jose Luis on the living room table will have to do for now. They all remember his smile and take turns trying to mimic his whistle, Whittle-WEE. They smile. But it’s a sad smile, each of them, because it’s not the same.