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DHS REVIEW OF LOW PRIORITY CASES FOR PROSECUTORIAL DISCRETION

By Alexsa Alonzo2 and Mary Kenney

On August 18, the Obama Administration and DHS announced the establishment of a high-level joint Department of Homeland Security (DHS)-Department of Justice (DOJ) working group charged with ensuring that DHS and DOJ resources are focused on the highest immigration enforcement priorities, namely, national security, public safety, border security and the integrity of our immigration system. See Napolitano Letter and Backgrounder.

• The working group will conduct a case-by-case review of the approximately 300,000 cases currently pending before the immigration courts, the BIA and federal courts of appeals. Those removal cases that are identified as “low priority” will be administratively closed and the respondents will be eligible to apply for work authorization with USCIS.

The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings meet DHS’s enforcement priorities and will issue guidance to prevent, on a case-by-case basis, low priority cases from entering the system.

• Additionally, the working group will issue department-wide guidance on prosecutorial discretion, including for cases that already have final orders of removal.

• In taking low priority cases out of the system, additional resources will be focused on those posing a threat to public safety. In essence, the announcement provides mechanisms for nationwide implementation of the two June 17, 2011 memoranda on prosecutorial discretion issued by John Morton, Director of ICE. See “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (“Exercising Prosecutorial Discretion”) and “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs” (“Victims, Witnesses and Plaintiffs”).

 

What will happen to cases deemed low priority?
Cases currently before the immigration courts and the BIA will be reviewed and those that are deemed low priority will be administratively closed. Removal cases currently pending in federal court will also be reviewed and low priority cases will be considered for an exercise of prosecutorial discretion, although it is not clear what this will be.
It is unclear what will happen from this point forward to new cases determined to be low priority. DHS has indicated that the working group will initiate a case-by-case review to ensure that new cases placed in removal proceedings meet DHS’s enforcement priorities. It is not clear for how long this review will last or how extensive it will be. The working group also will issue guidance to prevent, on a case-by-case basis, low priority cases from entering the system. If a case is identified as “low priority” it remains to be seen whether no enforcement action will be taken (i.e., removal proceedings will not be initiated) or whether these new cases will be placed into removal proceedings and then administratively closed.

 

Will individuals whose cases have been administratively closed receive EADs?
DHS has stated that all individuals whose cases have been administratively closed will be eligible to apply for an employment authorization document (EAD) with USCIS. The legal basis for the EAD, what factors might be used to grant or deny an EAD application under this policy, and the validity period of the EAD have not been clarified. It is quite possible, however, that the basis for issuing the EAD will be 8 C.F.R. § 274.12(c)(14), which allows an individual who has been granted deferred action to apply for an EAD.
What are DHS’s enforcement priorities?
In the June 17, 2011 Morton memo, Exercising Prosecutorial Discretion, and a subsequent question and answer guide (FAQ) regarding the August 18 announcement, DHS has made clear that its enforcement priorities are national security, public safety, border security, and repeat immigration law violators.

According to the FAQ, DHS will have “zero tolerance” for those apprehended at the border. It specifically states that removal cases involving recent border crossers will not be included in the review of cases carried out by the working group. It is not clear how DHS – and in particular CBP and ICE – will define who is a “recent border crosser.”

What are low priority cases?
Low priority cases will be identified under the factors set forth in the June 17, 2011 Morton memo, Exercising Prosecutorial Discretion. The memo lists numerous factors that DHS should weigh in deciding whether a case is low priority or not. While DHS has made clear that no category of cases will receive a blanket exercise of favorable prosecutorial discretion, the memo does identify certain categories of individuals who are to receive particular attention. These include veterans; long-time permanent residents; minors and the elderly; individuals who have been present since childhood; individual with serious disabilities or health issues; women who are nursing or pregnant; and victims of domestic violence or other serious crimes. The memo also identifies more general factors to be considered in all cases. DHS has stated that they will be weighing the totality of the circumstances in each case. For a full discussion of the factors in the Morton memo, see the Legal Action Center’s practice advisory, Prosecutorial Discretion: How to Get DHS to Act in Favor of Your Client.

 

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