Immigration Lawyers Clarify What DHS’s Announcement on Prosecutorial Discretion IS and IS NOT

This is an important update to know since our firm has received a lot of calls about a new “amnesty,” which isn’t the case.  In a recent post from American Immigration Council’s Immigration Impact addresses this issue:

There has been much confusion in the wake of DHS’s recent announcement about how immigration agencies will use prosecutorial discretion in determining low and high priority immigration cases. What is considered a low priority case? Who is eligible for employment authorization? How should those with pending removal cases proceed? In an effort to protect immigrants who might be taken advantage of by immigration consultants (or notarios) and to clarify the information currently available, the American Immigration Lawyers Association (AILA) recently issued a consumer advisory outlining what DHS’s announcement is and is not.

AILA’s advisory starts with a series of basic warnings to protect folks against misinformation and immigration scams

  • Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement!
  • There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
  • Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.

The advisory then describes what DHS’s announcement IS NOT. It is NOT a blanket legalization program or a policy designed to give large groups of people temporary relief. No one will get a permanent legal status, nor is there a program to sign up for. Contrary to recent attention-grabbing headlines, DHS’s announcement is about targeting its limited enforcement resources on high priority immigration cases by removing low priority cases from the system. As AILA’s advisory clarifies, “the announcement applies ONLY to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.”

So what IS DHS’s new policy on prosecutorial discretion and what does it do? According to the advisory, DHS expanded prosecutorial discretion guidelines—taken from a June memo by ICE Director John Morton—agency wide and the created a high-level working group to:

  • Review all cases already pending before the immigration courts. Those that are considered “low priority” may be administratively closed. Those that are considered a “high priority” will be prosecuted more aggressively. There are no rules or guarantees that a particular type of case will be considered a “low” or “high” priority. Recent guidelines are helpful, but no one can tell you if your case is a low priority-only immigration authorities will make that decision.
  • Create department-wide guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings. In the future, immigration authorities will review the cases people before they are placed in removal proceedings. Those that are “low priority” may not be referred to the immigration court.
  • Issue guidance on providing discretion in compelling cases for persons who already have a final order of removal.

Folks who have been caught up in our broken immigration system for years are understandably hungry for more information about how DHS’s recent announcement might affect them and what they can do to be proactive. Unfortunately, the best advice for them right now is to “wait and see” as the government makes more information available.

As of now, DHS has not provided any further details on how the review process might work or when it will begin. In the meantime, AILA is advising interested parties to “consult an immigration lawyer or accredited representative” (, and NOT to rely on the advice of immigration consultants (notarios) or rumors from friends, neighbors or coworkers. Most importantly, immigration attorneys warn folks not to fall victim to immigration scams by staying up-to-date on notario fraud.

Obama Deportation Reforms–Good Only for Some

Bill Ong Hing, professor of law at University of San Francisco writes for ImmigrationProf & Huffington Post. His latest article is a critique on last week’s White House announcement (from Huffington Post):

With much fanfare last week, White House officials announced that the deportation of thousands of undocumented immigrants could be halted if they are not criminals and pose no national security threat. Once terminated, the individuals can apply for permission to work. A special government working group will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis. The idea is to make more room to deport people who have been convicted of crimes or pose a security risk. The likely beneficiaries of the termination of deportation action include undocumented students whose parents brought them to the U.S. as youngsters (commonly called DREAM Act students), spouses of U.S. military members, and same-sex partners of U.S. citizens. In large part, the announcement was simply a statement of clarity and a vow of consistency for orders by ICE director John Morton issued in June, announcing that prosecutorial discretion could be exercised to terminate certain deportation proceedings.

Some immigrant rights advocates were quick to hail the White House announcement as a sound policy decision, while progressive members of Congress like Senator Dick Durbin and Congressman Luis Gutierrez applauded the measure.

There is no denying that the new procedure is good for anyone currently facing deportation and gets their proceedings terminated. In fact, just a few days before the White House announcement, deportation was terminated for one of my own clients — the case of a 16-year-old boy, Roberto, involving minor charges over bringing a toy pellet gun to school. Roberto benefited from the new process that likely was already underway before the White House announcement. Roberto and his family were overjoyed, and the legal services attorney I assisted was extremely happy as well.

Yet the new case-by-case determination that can lead to work authorization for individuals facing deportation is a far cry from what Durbin, Harry Reid, and advocates were actually hoping for — an across the board, blanket halt to any action against all DREAM Act-eligible students including those not facing deportation. The timing of the White House announcement was also curious, coming on the heels of high profile protests by immigrants and their advocates against the DHS Secure Communities initiative (S-Comm) that has resulted in the removal of thousands of immigrants who are not dangerous criminals or national security problems. The announcement appeared to serve as cover for the growing criticism against the White House for its harsh immigration enforcement policies. Whatever its justification, Obama’s DHS has been shattering Bush era deportation and detention records.

Read more…

US Immigration Policy since 9/11: Understanding the Stalemate over Comprehensive Immigration Reform

In a new Migration Policy Institute report, US Immigration Policy since 9/11: Understanding the Stalemate over Comprehensive Immigration Reform, Marc Rosenblum examines the altered political landscape that emerged after 9/11, detailing the legislative actions that resulted in significant new enforcement mandates and the failed efforts to enact comprehensive immigration reform.  The report reviews the history of US immigration legislation over the last decade and describes the challenges and opportunities ahead, which are tied in large measure to economic realities, as well as the regional context of US border security and economic integration.

Taco Truck Regulation Redux – My Streets! My Eats!

Taco truck regulation has increased coincidentally with the national concern with immigration from Mexico, a land filled with some true fans of the taco.  Rumor even has it that the capital of the state of California, Sacramento is considering a change to its food truck ordinance to deal with the taco truck “problem.”

A clinic of the University of Chicago Law School, well-known for its law-and-economics approach to law, has started a campaign to defend street vendors in Chicago.   Should the city of Chicago be allowed to turn business districts into No-Vending Zones to protect brick-and-mortar restaurants from competition? That is the question that surrounds a grassroots campaign being launched earlier this week — My Streets! My Eats!  by the Institute for Justice Clinic on Entrepreneurship. The Clinic, which brings together law students to assist low-income entrepreneurs, will advocate for freedom for “mobile chefs” to prepare food on-the-go and serve their customers wherever they can do so safely.

When Will Congress Pass Comprhensive Immigration Reform?

As Julia Preston reported yesterday, vocal protests over Secure Communities are heating up.

Preston reported that SComm “is central to President Obama’s immigration enforcement strategy [and] has drawn protests by Latino and immigrant organizations in six cities in the last two days, as those groups stepped up their confrontation with the administration over the fast pace of deportations.”

As Julianne Hing has observed, the White House appears nothing less than deaf to the protests and the cries for justice. Ignoring the fact that the many of the so-called criminal violators are guilty of petty crimes and are not a public safety risk. Cecilia Muñoz, Director of Intergovernmental Affairs at the White House, states on a post on a White House blog:

“The Secure Communities Program is a powerful tool to keep the government’s immigration enforcement resources focused where they belong – on those who fit within DHS’s highest enforcement priorities, such as those who have committed crimes in the United States.”

When will the Obama administration recognize that efforts to facilitate mass deportations, separating families, destroying communities, and making people live in terror, is not acceptable — especially without any meaningful efforts to bring forward comprehensive immigration reform that allows for more legal immigration, provides a path to legalization, etc.?

Some activists claim that President Obama is worse on immigration than President Bush. It is true that the administration”s “enforcement now, enforcement forever” strategy has resulted in record levels of deportations, breaking the records of the Bush administration. You be the judge.

Jailing Undocumented Immigrants Is Big Business

The recent animated video Immigrants for Sale by the activist group Cuéntame illustrates some facts behind the connection between the ongoing crackdown on illegal immigration and the for-profit corrections industry.

The video follows the trail of money and political power behind this piece of the national immigration debate. Its creators say it’s an attempt to uncover what lies behind the positions and ideologies in a discussion in which statements and accusations made at maximum volume have long replaced the open exchange of ideas and opinions.

For more on this story on The Huffington Post on the dollars in immigration detention, click here.

Jared Polis: Debt Ceiling and Immigration Reform

As deficit reduction discussions come to a close today to raise the debt ceiling, Congressman Jared Polis’ (D-CO) suggestions to President Obama and Speaker John Boehner (R-OH) calling on them to consider immigration reform as a way of raising revenues without raising taxes have been ignored. Polis wrote recently:

“Studies from groups across the political spectrum have proven the economic and fiscal benefits of comprehensive immigration reform. By requiring [undocumented] immigrants to register with the government, pay fees and back taxes, and correct their status, we can drastically expand our tax base.” A report by the Center for American Progress found that passing comprehensive immigration reform would generate $4.5 to $5.4 billion in additional net tax revenue over three years. The nonpartisan Congressional Budget Office scored the bi-partisan 2007 comprehensive immigration reform bill that was proposed in the Senate as increasing federal revenues by $15 billion over the 2008-2012 period and by $48 billion over the 2008-2017 period. […]

Just like our budget deficit, immigration reform is an issue that we cannot afford to ignore. Bipartisan proposals that are tough, fair, and practical have garnered support from across the ideological spectrum in Congress, as well as from President Bush and the current administration. Comprehensive immigration reform would clearly help us reduce our deficit and debt, and would do so without raising tax rates. Therefore I strongly encourage you to include an immigration reform package as part of the larger compromise.”

Read more…

The Obama Administration Acts: Department of Justice Challenges Alabama Immigration Law

The Department of Justice challenged the state of Alabama’s recently passed immigration law, H.B. 56, in federal court on August 1st. In a complaint and brief filed in the Northern District of Alabama, the department said that various provisions of H.B. 56 conflict with federal immigration law and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. The brief filed today makes clear that, while the federal government values state assistance and cooperation with respect to immigration enforcement, a state cannot set its own immigration policy, much less pass laws that conflict with federal enforcement of the immigration laws.

Alabama’s law is designed to affect virtually every aspect of an unauthorized immigrant’s daily life, from employment to housing to transportation to entering into and enforcing contracts to going to school. H.B. 56 further criminalizes mere unlawful presence and, like Arizona’s law, expands the opportunities for Alabama police to push aliens toward incarceration for various new immigration crimes by enforcing an immigration status verification system.

Consistent with the department’s position in United States v. Arizona, in which the department last year successfully obtained a preliminary injunction against Arizona’s S.B. 1070, the brief said that the mandates that H.B. 56 imposes on Alabama law enforcement may also result in the harassment and detention of foreign visitors, legal immigrants and even U.S. citizens who may not be able to readily prove their lawful status. In addition, H.B. 56 will place significant burdens on federal agencies, diverting their resources away from dangerous criminal aliens and other high-priority targets.

In addition to interfering with law enforcement, H.B. 56 imposes further burdens on children by demanding that students prove their lawful presence, which could discourage parents from enrolling their children in school.

Birmingham Chief of Police A.C. Roper believes that the Alabama immigration law will hamper local law enforcement’s ability to police the community effectively. Roper stated that the law will require the Birmingham Police Department to “expend scarce resources on immigration matters at the expense of” municipal priorities. The department filed the suit after consultation with the Alabama governor, Alabama attorney general and Alabama law enforcement officials.

The suit was filed on behalf of the Departments of Justice, Homeland Security and State, which share responsibilities in administering federal immigration law, and the Department of Education was also consulted. The department has requested a preliminary injunction to enjoin enforcement of the law, parts of which go into effect on Sept. 1, 2011, arguing that the law’s operation will cause irreparable harm.

BREAKING NEWS – Gov. Quinn signs Illinois Dream Act

In a recent article by the Chicago Tribune reports that Illinois Gov. Pat Quinn signed a state law setting up a commission to raise private money for college scholarships for undocumented students.  Similar to the California law  signed into law last week, the Illinois law, which is designed to benefit undocumented college students, is referred to as a DREAM Act.

Gov. Pat Quinn signed the law Monday at a high school in a Latino neighborhood in Chicago.

He called the occasion a “landmark” day and told an auditorium of people that education is the key to opportunity in a democracy.

The new law sets up a commission to raise private money for college scholarships.

Students qualify if they attended an Illinois high school for at least three years, received a diploma and have at least one parent who is an immigrant. Immigrant children here both illegally and legally can apply.

It also allows anyone with a Social Security number or taxpayer identification number to enroll in state-run college savings programs.

Although the Illinois law is a step in the right direction, we have many steps to take to do justice for undocumented college students.  Among other things, a federal DREAM Act that regularizes the status of undocumented college graduates is a necessity.

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