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New Policy is Not Amnesty but Fewer Will Be Deported

The Obama administration announced last week a new immigration policy that will allow many undocumented immigrants facing deportation to remain in the United States.

In a letter addressed to a group of U.S. senators, including DREAM Act sponsor Sen. Richard J. Durbin (D-Illinois), Department of Homeland Security Secretary Janet S. Napolitano unveiled a policy that will identify low-priority removal cases that should be considered for prosecutorial discretion following previously-issued DHS guidelines on prosecutorial discretion.

Secretary Napolitano stated that an inter-agency working group would conduct a case-by-case review of all individuals currently in removal proceedings to ensure that DHS resources are focused on the government’s highest enforcement priorities.

This policy entails the review of about 300,000 pending court cases. DHS will determine whether each case is a “low priority” or “high priority” case. A case may be considered “low priority” if it meets the factors outlined in the Morton Memo dated June 17, 2011.

“High priority” cases involve aliens who pose risks to the national security or public safety, such as convicted felons. It has been said that almost 80% of deportations involved non-criminals and aliens involved in lower level offenses.

Under the new policy, “low priority” cases may be administratively closed. This means that although an alien is still legally under a removal proceeding, the case is not active and no action will be taken, including future hearings.

The Obama administration has also stated that individuals whose cases are administratively closed would be eligible to apply for a work permit or employment authorization document (EAD).

In an effort to help the public avoid immigration scams, the American Immigration Lawyers Association (AILA), of which this author is a member, has issued an advisory to warn the public that the new policy is not an amnesty program.

Many undocumented immigrants may be tempted to present themselves to authorities in the hope of obtaining work authorization and legal status under the policy. This is a mistake and should not be done without the advice of a qualified immigration lawyer.

Administrative closure is only a temporary suspension of a case, and an EAD only gives temporary permission to work. Neither the administrative closure nor EAD gives legal status.

The AILA warns that there is no safe way of turning oneself in to immigration authorities and that there are no guarantees that a particular case would be considered “low priority” as to be administratively closed. Only immigration authorities can make a finding that a case is “low priority”, and anyone who promises that a case would be found “low priority”, whether a friend, relative, paralegal, notario or even a lawyer, should not be believed.

There have been at least two reported cases of cancelled deportations on account of this brand new policy: a Florida man who came to the U.S. to escape violent gangs in Mexico, and a lesbian from Mexico who is in a same-sex marriage with a U.S. citizen. The fact remains, however, that there are still no details on how the policy will be implemented.

Only cases already pending in court are included in the review and there is still no guidance on whether aliens not yet placed under removal proceedings would benefit from this new policy at all.

Apart from stating that the review will be done on a case-by-case basis and with a view to the totality of circumstances of each case, the DHS has not released guidelines on how the review process will be carried out or any indication on its timeframe for finishing the review of all 300,000 cases.

Furthermore, guidelines on the application procedure and eligibility standard for the EAD have not been issued. In other words, it does not necessarily mean that a “low priority” alien would be eligible for a work permit.

Lauded by immigration advocates, the new deportation policy is expected to benefit thousands of immigrants, including students who would have qualified for relief under the Dream Act had it been passed by Congress, as well as gay and lesbian couples where a spouse faces deportation because their marriage is denied federal recognition.

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