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Greg Siskind on Immigration Law and Policy

BREAKING: White House Announces Specific Plans to End Deportations of DREAM Act, Others

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Major good news and thanks to my friend Rob Gard for forwarding me the link from Senator Durbin's office:



Today, in a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other Senators, Department of Homeland Security Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. If fully implemented, the new process should stop virtually all DREAM Act deportations.


"The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students," Durbin said. "These students are the future doctors, lawyers, teachers and, maybe, Senators, who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. 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."


On April 21, 2010, Senator Durbin and Senator Richard Lugar (R-IN) asked DHS Secretary Janet Napolitano to suspend the deportations of DREAM Act students.


On April 13, 2011, Senator Durbin, Majority Leader Harry Reid (D-NV), and 20 other Senators  followed up, asking President Obama to suspend DREAM Act deportations.


In June, John Morton, the Director of Immigration and Customs Enforcement (ICE), issued a memo ("the Morton Memo") advising ICE officials to consider certain factors when deciding whether to proceed with a deportation.  One of these factors is whether an individual has been in the United States since childhood, like those who are eligible for the DREAM Act.  During a Senate Immigration Subcommittee hearing on the DREAM Act, Senator Durbin asked Secretary Napolitano what is being done to implement the Morton Memo and ensure Dream Act students are not deported.  Secretary Napolitano responded, "One of the things we're working on now, is to design a process that would allow us as early as possible, to identify people who are caught up in the removal system, who in the end really don't fit our priorities."


There is a long history of the government exercising prosecutorial discretion in this manner.  The government has always decided who to prosecute - and who not to prosecute - based on law enforcement priorities and available resources.  The Supreme Court has held, "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion."


How the New Process will Work:


Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion.  These criteria will be based on "positive factors" from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems.  The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria. 


On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria.  These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward.  DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria.  These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward.  Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization.  All applications for benefits will be reviewed on a case-by-case basis.


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Comments

  1. Another Voice's Avatar
    I am sorry to be a skeptic here but this feels and smells toooo much like BS. It's all about bettering Obama's image with Latinos after he has deported more people than anyone else and ripped apart many Latino families. But I must admit is good BS it will sell well in the media and with the Latino community, we will just have to see the stats and the numbers to see if they really mean what they say.....
  2. Legal and no longer waiting's Avatar
    It is a good move (and possibly just a good PR move - 300,000 cases will take forever to process), however, it seems like an attempt to create an underclass of people in permanent limbo, unable to move any further in immgration process and unable to travel overseas without consequencies.
  3. Jack's Avatar
    "The Obama administration announced on Thursday it will do a case-by-case review of deportations, allowing many undocumented immigrants without criminal records to stay in the United States indefinitely and apply for work permits."

    So let me get this straight...if you get caught in violation of immigration law, you won't just be let go but rewarded with a work visa?! The lawbreaker gets the prize over suckers who respect our law. Nice incentive system! You might be better off getting caught? Sounds bizarre but not unfamiliar: Remember that this has happened before under the Obama administration. E.g., they handed out 28 work visas to unauthorized workers snared in the Bellingham raid.

    ------

    >

    Those 27 factors are so vague they could be used to throw out just about every removal case. If you also have one of the negative factors, presumably you won't get administrative amnesty?


    "Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis."

    What are these other "certain immigration benefits"? At what point does "prosecutorial discretion" (a misnomer since deportations aren't prosecutions) become the executive branch essentially creating the DREAM Act in violation of the Constitution? In other words, not executing a law in such a way as to essentially make a new law (which is solely for Congress).

  4. Jack's Avatar
    Sorry, where I posted a >, there should have been the quotation:


    These criteria will be based on "positive factors" from the Morton Memo
  5. JoeF's Avatar
    Let's hope it is more than just PR.
    They need to actually do this to get re-elected. If they don't follow through, they can forget the 2012 elections.

  6. gg's Avatar
    the devil is in the details ....
    low priority cases that are likely to be closed during review could be re-opened at later time once high priority case backlog is cleaned as per reports ....
    this is no substitute for immigration reform

  7. Ap's Avatar
    This is a complete PR strategy and was expected considering the election next years. Any idiot can see thru this, but who am I to say!!! Keep up the status quo, the broken immigration policies, keep trashing sensible reform policies sitting on the desk, keep blaming the immigrants, and ohh i forgot..let the economy tank again, which will take another 30 yrs or more to recover!!! who elected these guys??
  8. Another Voice's Avatar
    Off course is PR, ICE and DHS don not have to comply with this is "discretionary" like many thingS in Immigration. So other than a nice suggestion that could be followed, is not the law and they are not required to do this.... So if it looks like duck, quacks like a duck then it must be a duck!!
  9. Another Voice's Avatar
    "it seems like an attempt to create an underclass of people in permanent limbo"

    Exactly it gives the undocumented a chance remain undocumented!!! wuuuuhhhuu the WH pulled out all stunts here....some problem solvers they are, this gives them political cover for not acting on EO and still say that they are doing something, specially for the "DREAMers".
  10. Jack's Avatar
    "They need to actually do this to get re-elected. If they don't follow through, they can forget the 2012 elections."

    Or it could cost him the 2012 election. Here's how his opponent could use it against him in a way that could even resonate with some black and Hispanic voters...

    Before the latest actions, constitutional law expert Obama said:

    "Well, the truth of the matter is that we have exercised as much administrative discretion as we can."

    So there's a flip-flop issue both sides don't like.

    Now he is not just dictating that the immigration enforcement system not do the thing it was created to do, but rewarding those who get caught with work permits at a time of very high unemployment. If you or someone in your family is unemployed, Obama is increasing the ratio of those seeking work to available jobs when he could be decreasing that ratio by enforcing the law. Some Americans who are out of work are going to be out of work that much longer thanks to Obama selling you out for votes. He chose law breaking "illegals" [not a term I ever use] over our most vulnerable and hurting Americans.







  11. Sam's Avatar
    Work Permit? It means permission to work? One more USCIS form (what could be the number of the form)to fill and renew forever?

    Cha-ching!!
  12. Another Voice's Avatar
    "Some Americans who are out of work are going to be out of work that much longer thanks to Obama selling you out for votes. He chose law breaking "illegals" [not a term I ever use] over our most vulnerable and hurting Americans."

    This is not some amnesty so people can get a work permit a go to work. This is "discretionary" authority on a casa by case basis for people that ARE in deportation proceedings to stay in the same legal limbo they are and remain in the country undocumented. Most of the IF the get to stay probably means that they built a life here and have good moral character and some how manage to get ICE to give them some sort of break. I double that this will actually will happen a lot since this is just a publicity stunt by the WH. But I can tell that your folks are already working the talking point Jack in the end that is ALL you always bring to the table, NOTHING ELSE sort of like Obama, all talk!!!!
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