Department Of Homeland Security Prosecutorial Discretion Memo Affords Undocumented Immigrants An Escape ValveWednesday, June 22nd, 2011
On June 17, 2011 the Director of the Department of Homeland Security issued a stunning memorandum to the United States Immigration and Customs Enforcement (ICE). The memo in part read as follows:
This memorandum provides U.S. Immigration and Customs Enforcement (ICE) personnel guidance on the exercise of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities. The memorandum also serves to make clear which agency employees may exercise prosecutorial discretion and what factors should be considered.
The turnabout in change and policy is a win for President Barack Obama and helps neutralize those who have been critical of his administration regarding Immigration policy and in particular enforcement, especially when it comes to the secure communities program placed in effect under the Bush administration, but that has continued in force under the Obama administration.
Pro Immigration advocates have been extremely critical of President Obama calling for a halt to deportations and immediate relief from congress in the form of the controversial legislation titled “Development, Relief and Education for Alien Minors Act”, commonly referred to as the Dream Act. The Dream Act was originally penned and presented in August of 2001 and subsequently reintroduced once again to the Senate in May of 2011.
The memo issued by Morton addresses “Exercising Prosecutorial Discretion Consistent with the Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.” Which includes the following:
• settling or dismissing a proceeding;
• granting deferred action, granting parole, or staying a final order of removal;
• agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
• pursuing an appeal;
• executing a removal order; and
• responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.
Morton’s memo makes it clear that certain factors should be taken into consideration while excogitating prosecution of individuals in the United Stated unlawfully. The memo refers to the first set of these as positive factors. These individuals would essentially be given priority in expediting their cases for possible immediate release or deferral of arrest or prosecution.
The following positive factors should prompt particular care and consideration:
• veterans and members of the U.S. armed forces;
• long-time lawful permanent residents;
• minors and elderly individuals;
• individuals present in the United States since childhood;
• pregnant or nursing women;
• victims of domestic violence; trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions.
The next set is equally as important and further specifies those who would once again qualify for immediate release or deferral of arrest or prosecution.
The factors utilized for the following set would be what would essentially offer an escape valve for what are commonly referred to as the Dream Act students or for spouses of individuals married to U.S. Citizens or legal permanent residents who currently don’t qualify for relief under the existing Immigration statutes. Amongst those categories are the following:
• the agency’s civil immigration enforcement priorities;
• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his or her entry,particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
• whether the person, or the person’s immediate relative,has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships;
• the person’s ties to the home country and condition~ in the country;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative; ;
• whether the person or the person’s spouse is pregnant or nursing;
• whether the person or the person’s spouse suffers from severe mental or physical illness;
• whether the person’s nationality renders removal unlikely;
• Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; . and .
• whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.
It’s clear that Morton’s memo was a directive from the White House to Janet Napolitano the Secretary of Homeland Security, and was meant as a form of relief for what many see as an unjust prosecution of young adults who were brought to the U.S. as children by their parents.
It’s important to note that many of the adult Immigrants currently residing in the United States have been here most of their lives and have been integrated into the existing workforce that the U.S. desperately relies on for their low skilled labor.
The broadening of the prosecutorial discretion suggested in this memorandum will provide relief for a large majority of those currently listed as part of those 12 to 20 million undocumented Immigrants currently believed to be in the United States and could very well be a changing trend in how DHS deals with unlawful Immigrants that do not pose a security threat to the Unites States or its citizens, potentially setting the tempo for Comprehensive Immigration Reform within congress.