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  1. New Deportation Priorities: How Will This Work?

    On August 18, the Obama Administration announced that all 300,000+ persons currently in removal proceedings as well as those subject to final orders of removal will have their cases reviewed by ICE, and that many of them will have their cases terminated and some will even be granted work permits. This announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from the anti-immigrant right wing. Congressman Luis Gutierrez (D-IL) was effusive in his praise, calling this "a victory not just for immigrants but for the American people as a whole" and calling on ICE Director John Morton to appear before Congress to explain how the new program will be implemented. Senator Richard Durbin, (D-IL) a co-sponsor of the DREAM Act, and one of 22 Senators who had called on the Obama Administration to halt DREAM Act deportations, stated that "the Administration's new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented." However, House Judiciary Committee Chairman Lamar Smith (R-TX) denounced the new program as a "backdoor amnesty".

    The big questions left unanswered are who will benefit from this new program and how?

    We recommend that our readers carefully examine the text of the following three documents:

    1. DHS Secretary Napolitano's letter to Senator Durbin's dated August 18, 2011.
    2. ICE Director Morton's prosecutorial discretion memo dated June 17, 2011.
    3. The August 18, 2011 post on the White House Blog entitled "Immigration Update: Maximizing Public Safety and Better Focusing Resources"

    Although Senators Durbin and Lugar (R-IN) and 20 of their colleagues wrote solely about the DREAM Act students to Secretary Napolitano, her reply is written more broadly:

    "Accordingly, the June 17, 2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety."

    A case-by-case review on all individuals currently in removal proceedings in order to implement the June 17 prosecutorial discretion memorandam will be quite an undertaking. First, the number of individuals involved exceeds 275,000. That's a lot of files to evaluate. It will take not days or weeks to evaluate all of these cases, but many months. Secondly, the government not only needs to review pending court cases, but those on appeal and those with final orders. Finally, the government will need to evaluate who will be placed in removal proceedings in the future. This will truly be a massive undertaking, and given the immensity of the bureaucracy and varied outlooks of ICE District Counsels (who must coordinate with the USCIS, CBP and other governmental agencies), the results may be highly divergent.

    Another wild card is the ambiguity of the June 17th Morton memo. This memo builds on seven previous prosecutorial discretion memos, most of which are listed on our website. The Morton memo lists 19 factors that should be considered in exercising prosecutorial discretion and cautions that "this list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

    What's that suppposed to mean, you ask? Wait, there's more!

    Consider the concluding paragraph of the White House Blog:

    "So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person's ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn't - that's the smartest way to follow the law while we stay focused on working with the Congress to fix it."

    And what are these "common sense guidelines"? Here, the Blog wisely punts this issue by linking these three key words to the Morton memo.

    And none of the above statements deal with persons who are not in removal proceedings which raises the question: If you want to obtain a work permit, do you have to find a way to get yourself in removal proceedings, and then ask ICE to terminate proceedings? Curious immigrants want to know.

    And, finally, what is a "low-priority case"?

    As a former INS prosecutor, I can't explain it to you, but I know it when I see one ;-)

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    Updated 12-02-2013 at 02:53 PM by CShusterman

  2. A Nation Divided By Immigrants ‚Äď DHS Announces Plan To Review 300,000 Cases in Removal Proceedings; By Danielle Beach-Oswald

    It is increasingly difficult to try to pinpoint where President Obama truly stands regarding immigration. Although his administration has been a harsh critic of state immigration laws with the Obama administration filing lawsuits against several states including Arizona, Alabama, and Georgia for their state immigration measures, statistics from Immigration and Customs Enforcement (ICE) note that the deportations during the Obama administration have seen a 10% to 25% increase from the later years of the Bush administration.
    Although Obama believes that immigration should remain in the federal domain, earlier this month he showed his clear support for the mandatory use of the Secure Communities Program by preventing states from withdrawing from the program. Rather than trying to insure that immigration remains a federal issue, Secure Communities does exactly the opposite. By requiring local enforcement agencies to share the fingerprints of all detained individuals with ICE in order to verify their legal status in this country, Secure Communities gives too much power to local law enforcement authorities in immigration matters. ICE advertises on its website that Secure Communities is a "common sense way" for it to carry out its priorities, however several states including Illinois, New York, and Massachusetts disagreed and unsuccessfully attempted to "opt out"of the program. When started in 2008 it was clearly stated by the Obama administration that any state could opt out. Now the exact opposite has been stated and states are prevented from opting out of the program. By 2013, Secure Communities will exist in all law enforcement jurisdictions in the United States.
    President Obama previously promised that the focus of his deportation efforts would be "the worst of the worst." However, Jorge Mario Cabara of the Huffington Post noted that over 25% of those deported under the Secure Communities Program had no criminal charges filed against them. The Secure Communities Program has led to over 77,000 deportations and estimates from the Associated Press noted that over 25% were from minor criminal convictions.
    On August 19, the Obama administration has once again shown a change of face on the issue of immigration. After protests in several American cities and widespread criticism from immigration advocacy groups and Hispanic organizations regarding his Secure Communities policy, the Obama administration's August 19th announcement is yet another unclear change of policy. Many are wondering if the Obama's administration latest decision is a way to attract Hispanic voters as this election season gears up. His administration's decision to require the Secure Communities Program is also under new judicial scrutiny after the decision of Federal District Judge Scheindlin to release ICE documents which stated that ICE would have to re-write prior memos to comply with the administration's new mandatory adoption of Secure Communities.
    With so many changes on immigration policy, it's hard to understand where President Obama truly lies. Although his August 19, 2011 decision is to be commended, one can't help wonder what direction this administration will take next and who would administer this change with so many branches of DHS and ICE.
    So what exactly does this August 19 announcement mean for individuals in deportation/removal proceedings? The New York Times stated that this would help the youths of America by removing their possibility from deportation proceedings. Here are some of the possible effects according to Reform Immigration for America

    The announcement is about deportation cases only. This announcement is DHS's attempt to "unclog" the deportation case log by removing "low-priority" cases in order to focus on individuals who pose serious dangers to our communities and our country.
    "High-priority" individuals include, but are not limited to, those who pose a serious threat to national security, are serious felons and repeat offenders, are known gang members, or have a record of repeated immigration violations.
    "Low-priority" individuals include, but are not limited to, veterans, long-time lawful residents, DREAMers and others brought to the US as children, pregnant women, victims of domestic abuse and other serious crimes, and spouses.
    Individuals in deportation proceedings who are deemed "low-priority" will get a letter from DHS stating their case has been administratively "closed".
    Those whose cases are closed can apply for a work permit program. Decisions about work permits will be made on a case-by-case basis. Undocumented immigrants not in deportation proceedings cannot seek work permits.
    Individuals SHOULD NOT attempt to be placed in deportation proceedings in order to apply for a work permit.
    While these changes do not directly benefit non-criminal, undocumented immigrants who are not in deportation proceedings, if implemented properly, these individuals will not be placed into deportation proceedings in the first place.
    The announcement does not change programs such as 287g and Secure Communities.
    This is not "back-door amnesty" as our opponents will claim. This is a procedural change in the implementation of DHS's enforcement policies to target only those who pose serious threats to the US and those with long criminal records.

    However, the problem lies in implementation and discretionary review and it does not help all those who currently are here unable to work or to leave the country.
    For further information see:

    Prosecutorial Discretion: A Resource Page
  3. Shackled, Pregnant Immigrant Receives $200,000 Jury Award from Nashville Jury

    by , 08-20-2011 at 01:17 PM (Greg Siskind on Immigration Law and Policy)
    I love Nashville, really my second hometown, but they've got a zealot for a sheriff who doesn't reflect the laid back, pragmatic views of most in the city. Back in 2008, I wrote about an abhorrent case where a pregnant woman arrested for driving without a drivers license who was jailed and shackled up to the point of giving birth to her child and then shackled again after she delivered. Jurors in the Music City awarded her $200,000 this week, though the Sheriff's office is completely non-apologetic and is vowing to appeal the verdict. Classy.
  4. Smith to Bring Up E-Verify After August Recess

    by , 08-20-2011 at 10:59 AM (Greg Siskind on Immigration Law and Policy)
    House Judiciary Committee Chairman Lamar Smith (R-TX) is pushing legislation to mandate all employers use E-Verify. He's probably got the votes in the House, but the big battle will be in the Senate.
  5. Deportation Priority Policy FAQ

    by , 08-20-2011 at 05:43 AM (Greg Siskind on Immigration Law and Policy)
    Siskind Susser FAQ - The 8/18/2011 Deportation Relief Announcement
    By Greg Siskind ( / 901-682-6455) 
    1.       What does the newly announced policy do?

    On August 18, 2011, Secretary Janet Napolitano sent a letter to key members of Congress informing them that the Immigration and Customs Enforcement (ICE) would be reviewing all pending deportation cases and would be handling cases under a new process that will ensure that resources are being put in to deporting serious criminals and not focusing on deporting individuals who are not a priority for deportation. The announcement should mean the end of the deportation process for a large number of individuals. The news follows the June release of a memorandum advising ICE officials to consider certain factors when deciding whether to proceed with a deportation.
    2.       What factors are to be considered when deciding to close deportation proceedings?

    In the June ICE memorandum, several factors are listed including

    Whether someone is a child or came as a child and finished high school in the US
    How many years the person has been in the US
    Whether the person is elderly
    Whether the person has close family members who are permanent residents or citizens
    Whether the person is a caretaker for someone who is elderly or in poor health
    Whether the person is pregnant or nursing or suffers from an illness or a disability
    Whether the person or a family member is in the military

    3.       Will everyone who is illegally present in the US benefit? Is this an "amnesty" or legalization program?

    No. Individuals whose deportation proceedings are closed are not going to receive a visa, green card or any new type of legal status. Some may be eligible for work authorization, however, but even being granted such documentation will not be the same as having a legal status in the US.
    4.       How many cases are affected by the new policy?

    All 300,000 cases currently in the immigration courts will be reviewed for eligibility under the new guidelines. Also, future cases will also be reviewed under the guidelines to determine if ICE should be closing the case or proceeding with removal proceedings.
    5.       Is there some kind of application I can file to have my case considered under the new policy?

    No. ICE will be reviewing all cases.  If someone is already in deportation proceedings, their case will be reviewed.
    6.       I'm not in deportation proceedings. Can I request to be placed in proceedings if I think I fit under the new policy?

    There is no formal way to force ICE to put someone in removal proceedings. ICE has the discretion to issue a Notice to Appear and individuals who think they might benefit from the new guidelines may want to discuss with their lawyers the possibility of approaching ICE. But whether an individual would be placed in to proceedings would be entirely up to an ICE official.
    7.       What if I have already been ordered deported or have been issued a voluntary departure order and have not left?

    The process here is also unclear. Some immigration attorneys may seek to have such cases administratively reopened to benefit from the new policy, but these issues have not yet been addressed by ICE. 
    8.       Are employment and other benefits available to people whose cases are closed under the new policy?

    Yes, though details on how this will work are currently unclear. According to congressional offices briefed on the new program, individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. DHS will review such applications on a case-by-case basis and it is not yet clear what standards they will be applying. Applications for work cards should NOT be filed until the procedures are clarified.
    9.       How long will it take for ICE to start closing cases?

    ICE attorneys are being asked to immediately start reviewing cases with hearings set in the next one to two months. DHS will also shortly begin the process of reviewing the rest of the 300,000 cases currently in the immigration courts. No guidance has been provided, however, on how long it will take before cases begin to be closed and how long it will take to review the entire caseload.
    10.    What will my status be once my case is closed?

    Once a case is closed, an individual will continue in the same status he or she was in prior to being placed in proceedings. Some individuals may gain work authorization, but they would not be considered to otherwise be in a legal status in the US.
    11.    Will I be able to apply for other immigration benefits like a green card after my case is closed?

    Possibly. However, the new policy will not remove barriers to green card processing such as being subject to the three and ten year bars on reentering the US as well as bars on adjusting status for individuals who entered the country without inspection.
    12.    Can I travel home for a visit after my case is closed?

    We do not believe travel will be possible for most since departing the US would trigger bars on readmission and most would not be able to meet the requirements for being re-admitted back to the US. But this is a question to discuss with counsel.
    13.    My lawyer says I have a good case for cancelation of removal. Can I keep my case open even though I fit under the new policy?

    That should be possible since all parties must agree for a case to be closed.
    14.    A notario has told me that she can submit a request for work authorization under the new guidelines. How is that possible?

    It is not. Everyone should be very careful to avoid non-lawyers offering immigration services. There is no application process to benefit under the new policy. Anyone who suggests otherwise is engaging in fraud. We highly recommend consulting with a member of the American Immigration Lawyers Association. Do not file any application with USCIS at this time unless advised by a licensed attorney competent in immigration law.
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