Administration Policy on Removal: A Matter of Priorities

We at the Murthy Law Firm have received some inquiries connected to the August 18, 2011 Obama Administration announcement regarding changes in certain immigration enforcement policies. The crux of the administration’s position is that government enforcement efforts should focus on individuals who meet high priority guidelines. This means that some foreign nationals may be temporarily reprieved from removal (formerly deportation), depending upon a variety of discretionary factors. The policy does not create any new benefits or provide any type of amnesty.

Background: Prosecutorial Discretion

Immigration and Customs Enforcement (ICE) Director John Morton issued a June 17, 2011 memorandum addressing matters of prosecutorial discretion. As explained in our NewsBrief ICE on Prosecutorial Discretion: Real Relief or Business as Usual? (08.Jul.2011), the focus of this memorandum was the long-standing concept that not every violation of any type of law needs to be pursued to the full extent possible. The memorandum was intended to allow ICE to focus the limited resources at their disposal on internal priority cases and the priorities of the Secure Communities Program.

On behalf of President Obama, the Department of Homeland Security (DHS) announced that current removal cases would be assessed by the administration on a discretionary case-by-case basis to determine if they should be halted to focus on higher-priority cases. This has no bearing, however, on enforcement efforts that will continue against many who are not lawfully in the United States.

DHS Security Prioritizes on Case-by-Case Basis

DHS Secretary Janet Napolitano indicated that the case-by-case approach used to examine each removal cases would enhance public safety and allow immigration judges to swiftly adjudicate high priority cases. Immigration judges will be able to focus on convicted felons and other violent offenders in order to remove them from the United States before others who pose less of a danger to the U.S.

In addition to the review of cases currently pending at various stages of the removal process, further guidance will be issued with the aim of preventing the initiation of removal proceedings against low-priority cases in the future. This would allow removal efforts to concentrate on individuals who present a danger to public safety.

Some of the factors that will be favorably considered in the exercise of discretion include: having family members serving in the military, having primary responsibility for family members’ care, and attending school. High-priority cases for removal include individuals who are members of gangs and/or who have committed certain crimes.

No Congressional Action

Congress has yet to pass any immigration reform. The Secure Communities Program is an effort by the President and DHS to change immigration policy within the restrictions of current immigration law. It is not a change in the law, and individuals who are given a reprieve based upon a discretionary decision do not receive any immigration status or benefits as the result of the decision not to pursue their removal at this time. Unless they are able to obtain immigration benefits on some unrelated basis, they potentially could face removal at a later time.

Conclusion

MurthyDotCom and MurthyBulletin readers will be provided with updates regarding new immigration laws enacted by Congress and important changes in immigration-related procedures or policies. It should be clearly understood that the changes announced by the Obama Administration primarily are an effort to set a common-sense immigration enforcement policy, and do not grant any type of status or authorization to foreign nationals who may benefit from this policy.

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