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mczwaik@zwaik.com
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Astoria, NY 11103
Tel: 718-777-1110
Fax: 718-932-7188
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Halting Some Deportations? The Obama Administration recently announced plans to halt the deportations of certain “low priority” immigrants in order to concentrate on “high priority” criminal immigrants. What does this mean?
The Obama Administration took its first tentative steps to make good on its promises to reform U.S. immigration law
last month when it announced it was reviewing- and possibly halting- the deportation of “low priority” unauthorized immigrants.
Janet Napolitano, Secretary of the Department of Homeland Security, promised her department would review all 300,000 cases now in
deportation or removal proceedings to determine whether to continue with the case or halt the process and issue
temporary work cards to the immigrant. The purpose behind the program is to allow the government to concentrate its limited
resources on deporting those with serious criminal records and immigration violations.
In the months leading up to the 2008 Presidential elections, candidate Barack Obama promised to pass a Comprehensive Immigration Reform bill in the first 100 days of his inauguration. Instead, what he authorized is a record number of deportations and increased auditing of hundreds of businesses that hire undocumented workers. Immigration and Customs Enforcement (ICE- the immigration police) expects to deport about 400,000 people this fiscal year, nearly 10 percent above the Bush administration's 2008 total and 25 percent more than were deported in 2007. Business audits have nearly quadrupled since President Bush's final year in office.
The new policy by DHS is already underway. The government has agreed to terminate removal proceedings against certain “low priority” immigrants based on “a person’s ties and contributions to the community, their family relationships and military service record.” In our own practice, we are seeing the government terminate cases against immigrants with US citizen spouses and we are seeing a new willingness to reopen some prior deportation orders.
The new policy is NOT the result of new legislation and is not a legalization program or a means of obtaining permanent residency (a green card.) Instead allows DHS to use “prosecutorial discretion” in determining whether to place someone in proceedings or discontinue the proceedings if they have already begun. Still, the policy creates more questions than answers:
- What criteria will the government use to determine who gets beneficial treatment? Is one U.S. citizen child enough? Is paying taxes enough? Will misdemeanor convictions such as petit larceny or driving while intoxicated make someone ineligible for this relief?
- Does it only cover persons who are currently in removal proceedings? What about persons with prior orders of deportation or removal?
- Who will be entitled to work authorization?
- Will somebody who has never been in deportation or removal proceedings be allowed to apply for work authorization?
- Will the government act on its own initiative or will you need the help of an immigration lawyer?
- How will the government handle new cases put into proceedings after the DHS policy announcement?
Most of these questions do not yet have definitive answers. But we do have some important suggestions. The new policy follows a memo on prosecutorial discretion issued by ICE Director John Morton in June. That memo outlined both the positive factors that ICE would look to along with the negative factors (which would speed up deportation.) The positive included:
- An immigrant’s length of presence in the U.S.
- The manner of the immigrant’s arrival
- Whether the person has pursued educational opportunities in the U.S.
- An immigrant’s family ties in the U.S.
- The immigrant’s health and/or the health of US relatives
- The immigrant’s ties to the community
- The immigrant’s age, with particular consideration given to minors and the elderly
- Whether the immigrant is the primary caregiver or primary means of support for U.S. residents or citizens
- Military service
- The immigrant’s prior immigration history, including prior removal orders, denial or prior applications and evidence of fraud
Negative factors outline by Morton include:
- Individuals who pose a clear risk to national security
- Serious felons, repeat offenders, or individuals with lengthy criminal records
- Known gang members
- Persons with a record of serious immigration violations including those with a record of illegal re-entry and those who have engaged in immigration fraud.
Of great interest is a statement in the memo in which Morton notes that ICE would consider exercising greater prosecutorial discretion in “responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.”
What does all this mean? This policy is NOT legalization, amnesty or the passage of the Dream Act. At most, this policy will allow someone to halt deportation and obtain a work card. It is NOT a path to permanent residency (green card) or citizenship.
- Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement!
- There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.
- Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights. Do NOT seek legal advice from a notario or immigration consultant.
If you are presently in removal or deportation proceedings or have a prior order of deporation or removal, contact us and we will review your case with you and determine whether the new policy can be of help to you.
Frequently Asked Questions:
Does it only cover persons who are currently in removal proceedings? What about persons with prior orders of deportation or removal?
The only people who are specifically covered by the new policy are persons who are currently in removal or deportation proceedings in immigration court. However, a memoranda issued by ICE director John Morton in June says that ICE would consider exercising greater prosecutorial discretion in “responding to or joining in a motion to reopen removal proceedings”If you are presently in removal or deportation proceedings or have a prior order of deportation or removal, contact us and we will review your case with you and determine whether the new policy can be of help to you.
Is this the beginning of a new legalization program?
No. This policy is NOT legalization, amnesty or the passage of the Dream Act. At most, this policy will allow someone to halt deportation and obtain a work card. It is NOT a path to permanent residency (green card) or citizenship.
What is the purpose of the new policy?
The government claims that the huge backlogs in the immigration courts make it necessary to concentrate its efforts on removing high priority immigrants including:
- Serious felons, repeat offenders, or individuals with lengthy criminal records
- Known gang members
- Persons with a record of serious immigration violations including those with a record of illegal re-entry and those who have engaged in immigration fraud.
What are the positive factors that DHS will consider in order to agree to close my case and give me a work?
According to ICE director John Morton the positive factors include:
- An immigrant’s length of presence in the U.S.
- The manner of the immigrant’s arrival
- Whether the person has pursued educational opportunities in the U.S.
- An immigrant’s family ties in the U.S.
- The immigrant’s health and/or the health of US relatives
Should I surrender myself to immigration and allow them to put me into deportation as a way of getting work cards for myself and my family?
NO! ICE is unlikely to cooperate with you. They are trying to reduce the number of people in deportation proceedings. Ten million people coming forward to put themselves into proceedings is not likely to accomplish their goal. Furthermore, if they do accept your case and put you into deportation proceedings it probably means they have classified you as a high priority case and will do everything they can to deport you as quickly as they can.
I am told by a family friend (a notario) that he can help me get a work card under the new policy. Is he right?
Your notario friend is either a crook or an idiot. There is no way to get a work card under the new policy without going through ICE.
What should I do?
Consult with your attorney.
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