Obama Administration Finally Flexes Its Prosecutorial Discretion Muscle

WASHINGTON, DC — The Obama administration today announced how it will begin implementing the prosecutorial discretion memo issued on June 17 by Immigration and Customs Enforcement (ICE) director John Morton. In response to pleas by families and students waiting for Congress to act on the DREAM Act or broader humane immigration reform, the Dept. of Homeland Security (DHS) finally issued a response to a letter sent on April 13, 2011, by a group of senators urging the administration to stem the deportation of students eligible for the DREAM Act.

Under the new process set forth by the administration today, a working group consisting of DHS and Dept. of Justice (DOJ) staff 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” mentioned in the ICE memo on prosecutorial discretion, which include whether an individual has been present in the U.S. since childhood (as is the case with DREAM Act students), or whether the person has been the victim of a serious crime or civil rights violation, is a minor, is elderly, pregnant, or a nursing woman, or has a serious disability or health problem.

The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria. The administration will quickly begin reviewing all 300,000 pending cases to identify those that meet these new criteria. And moving forward, ICE attorneys will conduct a regular review of every case scheduled for a hearing to also identify future cases that meet these specific criteria.

Cases that meet these criteria will be administratively 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.

Upon hearing the outline of the new process, National Immigration Law Center executive director Marielena Hincapié said, “We welcome this great news from the administration, which shows that it is finally listening to the community’s demands and exercising sound judgment to provide much-needed relief for immigrant families. This new process comprises a positive first step toward ensuring that the country’s limited resources are not misspent on ripping families apart or deporting students who came as children to the U.S., or workers who exercised their civil rights, or countless other immigrants who have been caught up in the deportation dragnet.

“Many questions as to what the specific criteria will be and how these priorities will be implemented remain unanswered, however. We remain particularly concerned about how the administration will apply these priorities to immigrants still being detained for low-level offenses and minor traffic violations as a result of the infamous Secure Communities program, and how it will ensure relief for immigrants who do not qualify for prosecutorial discretion. As always, the devil is in the details, but we look forward to working with DHS and DOJ to ensure that immigrants currently in deportation proceedings can benefit from this new process.”

(Original Press Release published on the National Immigration Law Center)


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