OC Immigration Attorney

Whether it was progressive policymaking or a shrewd political move, President Barack Obama’s announcement to stop deportations for some undocumented immigrants in June was hailed as victory by immigrant rights activists. Since the 2001 introduction of the federal “DREAM Act” bill, which would grant higher education and a path to citizenship for undocumented youth, many of these youth have organized one of the strongest online and offline movements in American history. They staged sit-ins in June at Obama campaign offices around the country, putting additional pressure on the Administration and later resulted in Obama’s deferred action announcement.

This month, the Department of Homeland Security will release additional details on how to apply for the deferred action program. What we know so far is that applications will be considered on a case-by-case basis for those who meet specific criteria, such as completing education or military service, meeting a certain number of years of U.S. residency, reaching a certain age, and having a clean criminal record. Those who are granted deferred action get a guarantee that they will not be deported for two years, with an option to extend that period.

Regardless of this promise, many eligible undocumented youth still remain in danger of eventual deportation. For instance, Daniela Pelaez, a high school valedictorian from Florida, found out that she may still be deported as she prepares for her freshman year at Dartmouth College this fall, with immigration authorities promising only to hold off for two years before initiating deportation proceedings again.

The feeling that deferred action is only temporary has caused frustration among immigrant rights advocates and undocumented immigrant communities, who continue to be on alert.

Deferred action serves as only a temporary solution to our nation’s problem of undocumented immigration. Immigrant youth hesitate to apply for fear that if Obama is not re-elected, they may fall to the whims of Mitt Romney, who has vowed to veto the DREAM Act should it ever reach his desk as president.

“As it [deferred action] is a policy change, a new administration could simply reverse the policy,” Uy said. “Further, there is no guarantee as to what will happen to the families of eligible students, as the guidance does not contemplate what the government will do with the information gathered from the eligible students in their applications. As such, many students and youth are afraid to apply at this point.”

On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters.  Prosecutorial discretion refers to the agency’s authority to not enforce immigration laws against certain individuals and groups through deportation or removal proceedings.

The Morton Memo calls on ICE attorneys and employees to exercise prosecutorial discretion and refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. Instead, the memo instructed them to invest the agency’s resources for people who pose a threat to public safety or national security. It also articulates the expectations for and responsibilities of ICE personnel when exercising their discretion.

Two Premises for Prosecutorial Discretion
There are two historical basis for the use of prosecutorial discretion. First, it provided a framework to use the agency’s limited financial resources wisely. ICE only has the resources to remove 400,000 aliens per year, less than four percent of the illegal alien population in the United States. Therefore, ICE policy requires priority categories of individuals ICE seeks to target for arrest and removal. Priority 1 includes aliens who pose a danger to national security or a risk to public safety. Priority 2 includes recent illegal entrants. Priority 3 includes aliens who are fugitives or otherwise obstruct immigration controls.

Secondly, it represented a compassionate and humanitarian use of law-enforcement tools. Humanitarian factors for prosecutorial discretion include older age, existence of medical or mental health condition, the presence of family in the U.S., and positive contributions to the United States.

Exercising Prosecutorial Discretion
Prosecutorial discretion can be exercised in various forms by any branch of Department of Homeland Security (DHS) in the enforcement process. For example, an office may decide not to bring charges against someone who is out of status and is otherwise in the U.S. working. After an arrest, an officer may decide not to detain a person who does not appear to be a danger or a flight risk. A DHS attorney many decide against serving the individual and the court with a Notice to Appear because he appears to be eligible for a family benefit with United States Citizenship and Immigration Services (USCIS). It is to be noted that, regardless of the way prosecutorial discretion is exercised, the act itself does not give any substantive benefit or right of action to the noncitizen.

Factors for Prosecutorial Discretion
The Morton Memo on Prosecutorial Discretion clarifies the standard for prosecutorial discretion in five ways. First, it builds upon pre-existing policies on the subject. Second, it allows ICE trial attorneys to review charging decisions by DHS employees and dismiss low-priority cases. Third, it directly addresses the role of ICE attorneys during a removal proceeding and virtues of exercising discretion in those proceedings. Fourth, it encourages ICE employees and attorneys to consider prosecutorial discretion without waiting for the alien or alien’s counsel to request favorable exercise of discretion.

Finally, the Morton Memo offers a list of 19 factors pertaining to humanitarian circumstances that should trigger favorable exercise of prosecutorial discretion, such as persons’ pursuit of education in the U.S., criminal history, immigration history, possible threat to national security or public safety, etc. Likely, the Morton Memo identifies classes or persons who warrant “particular care” when making prosecutorial decisions, such as veterans and members of U.S. armed forces, long-time lawful permanent residents, minors and the elderly, pregnant or nursing women, victims of domestic violence, handicapped individuals, etc.

If you or a loved one are in immigration court proceedings, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your options and whether we might be able to help you.