Immigration News and Developments
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Immigration News and Developments

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November 25, 2011, 1:03 pm
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Obama Implements Phase One of Deferred Deportation
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                                  What is deferred action?
 

Deferred action takes place when Immigration and Customs Enforcement (ICE) decides to not execute an alien’s order of removal or to not put that individual into removal proceedings. This is not done by the order of an Immigration Judge but through a decision made at the ICE office. Even if you already have an order of removal, you can be granted deferred action status and apply for a work permit. ICE may agree to delay deporting an individual for one of the reasons in its latest memo as explained below.  During the time a person is in deferred action status, he or she can apply and receive work authorization. The length of time deferred action status can be granted varies; it generally lasts for about a year. But it is renewable and you can apply again when your status is close to expiring.

                                    What is prosecutorial discretion?

 Prosecutorial discretion is a power of ICE offices and the Immigration government attorneys that allows them to use their “best judgment” in deciding which cases to prioritize. Having this power means that every ICE office has the ability to choose which cases are most important to prosecute, and which to delay, rather than treating every case exactly the same.

 On 6/17/11, a memorandum was released by the Director of ICE, John Morton, which stressed the use of prosecutorial discretion by ICE offices and reminded each office that the use of this power is encouraged. The power of prosecutorial discretion means that ICE is expected to focus first on cases they consider most serious. This typically means cases involving serious crimes, drug trafficking, and international terrorism. Government attorneys can also join in the alien’s request to reopen in case if they already have a final order. There is not a conclusive list, but there are other sympathetic factors that may help your case in being granted deferred action status. For example, if you or a dependent family member has a serious illness you may be considered. The obvious benefit is that ICE will stop actively pursuing your deportation. A second benefit, as mentioned above, is that once deferred action status is granted, you will able to apply for work authorization and have legal work status.

                                     ICE to begin closing depotration cases

 U.S. Immigration and Customs Enforcement (ICE) issued new policy memos last week instructing agency attorneys to begin reviewing immigration cases and administratively closing those that do not meet its "priorities." As part of phase one of the program, the memos direct attorneys at district ICE offices to immediately begin reviewing all incoming deportation cases.  A pilot program for reviewing all pending deportation cases will begin in Baltimore and Denver immigration courts December 4 and will continue into January 2012.

The memos laid out detailed procedure to which the agency's attorneys must follow when reviewing not only ICE removal cases, but also all of Customs and Border Patrol and U.S. Citizenship and Immigration Services (USCIS) cases.  ICE attorneys must determine whether removal cases fall into one of two categories: (1) cases that are enforcement priorities for the Department of Homeland Security (DHS) and (2) cases that are not enforcement priorities for DHS and thus should be considered for administrative amnesty.

According to the memos, cases that are enforcement priorities include aliens who: (1) are suspected terrorists; (2) have been convicted of a felony or multiple misdemeanors; (3) are gang members or human rights violators; or (4) entered the country illegally or violated the terms of their admission within the last three years.  This appears to indicate that ICE no longer intends to deport illegal aliens who have been in the country more than three years. 

Cases that are not enforcement priorities and thus are eligible for administrative amnesty include aliens who meet the criteria of the failed DREAM Act.  These include aliens who came to the U.S. under the age of 16, who have been in the country for over five years, and who have completed high school or a GED program.  Other deportation cases eligible for administrative amnesty include those in which aliens have a" very long-term presence" in the U.S., have an immediate family member who is a U.S. citizen, and have made" compelling" ties and contributions to the U.S. to remain in the country.

Critics have decried the policy for diverting taxpayer dollars Congress has appropriated for immigration enforcement into its backdoor amnesty program. "In both money and manpower, including the reassignment of lawyers and judges, the administration is diverting resources from enforcement priorities set by Congress to identifying illegal aliens whose cases are to be dismissed."

After the pilot program for reviewing pending deportation cases ends mid-January, DHS will review the data and consult with the Department of Justice on how to proceed.  The next phase will likely include expanding the review of deportation cases in Baltimore and Denver to other major cities around the nation. 

                           New York Steps Closer to Giving Financial Aid to undocumented Students

The New York State Board of Regents voted last Monday to propose its own version of the DREAM Act in an effort to make illegal aliens eligible for state financial aid.  ( New York Daily News, Nov. 15, 2011)  According to the Board, its proposal would  eliminate the requirement that students  be a U.S. citizen or lawful permanent resident to receive publicly funded grants, awards or student loans, and make illegal aliens eligible for the Regents' loan forgiveness program. It would also allow non-residents, including illegal aliens, who graduate from New York State high schools to receive general awards, academic performance awards and student loans. Under the proposal  state-aided programs, scholarships or other financial assistance would be available to illegal aliens who graduate from New York State high schools.

 My thanks to Apsan Law Offices for their help in preparing this update

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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