Articles Posted in Prosecutorial Discretion

white house.jpgThe Center for American Progress and the Partnership for a New American Economy released a joint study which found that up to 223,000 of the 2.1 million young undocumented immigrants eligible for the DREAM (Development, Relief and Education for Alien Minors) Act would have an easier time enrolling, paying for and finishing college, which would in turn lead to increased economic gains for the United States. The report concludes that if undocumented immigrants brought to the United States as children were given legal status, their improved access to college and better jobs would add $329 billion and 1.4 million jobs to the nation’s economy over the next 20 years.

The report provides an argument in favor of the DREAM Act, which would grant legal residency to illegal immigrants, brought to the country as children and have completed or are in enrolled in high school or served in the military. When the DREAM Act was first introduced in 2001, it was a bipartisan effort sponsored by Sens. Dick Durbin, D-Ill., and Orrin Hatch, R-Utah. It has since become more one sided. The House of Representatives passed it in 2010 with minimal GOP support, and it failed in the Senate when only three Republicans voted for it.

President Barack Obama has supported the bill and used his executive authority to give some relief to DREAMers. He created the Deferred Action for Childhood Arrivals (DACA) program that does not grant legal residency or U.S. citizenship but gives young undocumented immigrants protection from deportation and work permits for two years.

1392509_rainbow_flag.jpgHomosexual couples are now considered by immigration officials to be “family relationships” according to Homeland Security Secretary Janet Napolitano, who issued the order to federal agencies. She said in a letter to U.S. House Representative Jerrold Nadler dated September 27, 2012, that she has directed the U.S. Immigration and Customs Enforcement agency (ICE) to exercise prosecutorial discretion with respect to lesbian, gay, bisexual, and transgender (LGBT) individuals. Napolitano’s letter also says that family relationships are to be interpreted by homeland security to include “long-term same-sex partners.”

Such prosecutorial discretion is used by ICE to determine whether an undocumented foreign national in removal proceedings merits special consideration and should be allowed to stay in the United States based upon several factors, one of which is whether an individual has close family ties to the United States.
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434537_statue_of_liberty_2.jpgNPR ran a story on Wednesday stating that 82,000 applications for deferred action have been received as of Monday. That seems to us to be a very low number, only 5.9% of the total (1,400,000) considered by most observers to be eligible for deferred action. Of those, 29 applicants, or 0.035% of the total received, have been processed and approved. These numbers, especially the first, surprised us at our firm. We had expected a much larger turnout in the first six weeks after the application process was opened. To a large degree much of our anticipation of a larger initial applicant pool was based on the high level of attention given to the newly announced prosecutorial discretion process by industry insiders: immigration lawyers, government spokespeople, social services, Hispanic organizations and the press. The relative low number of applications so far seems to point to several explanations:

  • Many potential candidates are holding off to see how the process goes for others. There is a marked distrust of government programs that seem too good to be true. Most of the potential applicants live much of their lives with their heads down, trying not to draw attention to themselves. Coming out openly and voluntarily goes against a strong sense of self-preservation. If they see it going well for others they know, they will come forward.
  • Waiting for the election. They don’t want to go through the process if Romney is going to halt and gut it. While most insiders agree that, once institute, the plan will be continued no matter who wins, that opinion is a hard sell to many illegal immigrants.
  • They are not convinced of the guarantees against punitive action against them or family members. This is similar to the first bullet point. If they see no detentions happening as a result of applying for deferred action, they will come forward.
  • Despite the anticipation prior to August 15th, word has not gotten out as well as we thought it had to a large number of potential applicants.

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1280927_ticked_checkbox.jpgThe Deferred Action for DREAMers program is expected to become available on August 15. The Program promises to grant relief from removal to certain undocumented immigrants and provide work authorization. It is anticipated that 1.4 million people may be eligible to apply. There are several things you can do to speed up your application and also improve your chances of having it granted.

Avoid notarios and non-lawyers
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congress.jpgLast Thursday, Homeland Security Secretary Janet Napolitano appeared as a witness before Congress’ House Judiciary Committee to defend her June 15 announcement of President Barack Obama’s deferred action DREAMers plan. “Our nation’s immigration laws must be enforced in a strong and sensible manner,” she said. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case.”

Some committee members disapproved of parts of the deferred action program, including the part that would grant work authorization to undocumented immigrants. Committee Chairman Lamar Smith (R-Texas) said the plan is a “magnet” for fraud and a “win for illegal immigrants but a loss for Americans.” Smith said that when undocumented immigrants are allowed to live and work in the United States, unemployed American workers have to compete with undocumented immigrants for scarce jobs. “With 23 million Americans unemployed or underemployed, this amnesty only makes their lives harder,” he said.
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918333_u_s__capitol_building.jpgSecretary of Homeland Security, Janet Napolitano, announced the new prosecutorial discretion policy on June 15 in a memo entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” The new policy aims to give relief to certain undocumented immigrants by giving them permission to live and work in the United States.

U.S. House Representative Lamar Smith (R-Texas), Chairman of the House Judiciary Committee, asked several questions in a letter to U.S. Immigration and Customs Enforcement Director John Morton on July 3 about how the Obama administration’s new prosecutorial discretion policy will be implemented. Smith blasted the new policy as “blatantly political” and an “unprecedented breach of faith” that “ignores the rule of law” and labeled it as “amnesty.”
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