The INS appears to be softening its position in its deportation sweep against drunk drivers in Texas. Last month we reported on Operation Last Call, an effort by the INS to deport persons with multiple drunk driving convictions. The courts have held that multiple drunk driving convictions can constitute an aggravated felony. Aggravated felons can be deported and have very few defenses that can be made in a court.

The INS policy change was announced earlier this month at a press conference in Dallas of Democratic Congressman Martin Frost and State Representative Domingo Garcia. Garcia announced that the INS will not automatically deport anyone and that each of the detainees will have a right to a full hearing.

The INS will, on a case by case basis, consider asking the judge to terminate proceedings. That would be the only way to actually end the cases now that they are in the Immigration Court. The INS will probably be most sympathetic in cases where families will be separated. Whether those who are, in fact, deported have any constitutional equal protection arguments will certainly have to be dealt with by the courts.

The INS may have felt pressure to reverse itself after a number of immigration lawyers expressed an interest in challenging the INS in court on the question of whether drunk driving offenses constitute aggravated felonies. That INS interpretation is based on a Board of Immigration Appeals decision called In re Magallanes-Garcia. A case was recently filed by immigration lawyer Lisa S. Brodyaga of Harlingen, Texas that would enjoin the INS from deporting drunk driving offenders. Others are expected to also challenge the BIA ruling.