White House and Department of Homeland Security (DHS) Take Action to Ease Deportation Policies

On August 18, 2011, the White House and Department of Homeland Security (DHS) Secretary Janet Napolitano announced steps that the Administration is taking to focus its efforts on removing criminal and other “high-risk” individuals and not “low-priority cases,” such as students, military veterans, and spouses of active-duty military personnel.

In a blog posting on the White House Web page, Cecilia Muoz expressed President Barack Obama's “deep commitment to fixing our immigration laws” and stated:

"As he focuses on building a new 21st century immigration system that meets our nation's economic and security needs, the President has a responsibility to enforce the existing laws in a smart and effective manner. This means making decisions that best focus the resources that Congress gives the Executive Branch to do this work. There are more than 10 million people who are in the U.S. illegally; it's clear that we can't deport such a large number. So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first. ... Under the President's direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States."

The blog goes on to laud the announcement, also made on August 18, 2011, that DHS is strengthening its ability to target criminals by making sure that it is not focusing resources on deporting people who are low priorities, including young people who were brought to this country as small children and who know no other home and military veterans and the spouses of active-duty military personnel. Rather, DHS will focus its resources on more serious concerns, such as individuals who have been convicted of serious crimes.

The White House further announced that DHS, along with the Department of Justice (DOJ), will be reviewing the current deportation caseload to (1) clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk and (2) keep low-priority cases out of the deportation pipeline, using common-sense guidelines, such as a person's ties and contributions to the community, their family relationship, and military service record. The White House sees this as “the smartest way to follow the law while we stay focused on working with the Congress to fix it.”

In a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other senators written in response to Sen. Durbin's letter to President Obama regarding the Administration's immigration-enforcement policies and the Development, Relief, and Education for Alien Minors (DREAM) Act [FN1] sponsored by Sen. Durbin, DHS Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. In lauding this action, Sen. Durbin stated that, “[i]f fully implemented, the new process should stop virtually all DREAM Act deportations.”

In her letter, Secretary Napolitano points out that, over the past two years, DHS has established “clear and well-reasoned” priorities to govern how DHS uses its immigration-enforcement resources and to focus those resources on enhancing border security and identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law violators, and other individuals prioritized for removal. Initially set forth in a March 2010 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton, these priorities were recently reiterated and clarified in Director Morton's June 17, 2011, memorandum regarding the exercise of prosecutorial discretion by ICE personnel. Secretary Napolitano restated the President's position that enforcement resources should be focused on those who pose a danger to the U.S. and pledged that the June 17, 2011, prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities.

Secretary Napolitano explained that DHS and the DOJ together have initiated an interagency working group to (1) execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute the highest priorities and (2) to ensure that new cases placed in removal proceedings also meet these priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Further, she stated, DHS will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety.

In closing, Secretary Napolitano observed that this process will not provide categorical relief for any group and therefore will not obviate the need for passage of the DREAM Act or for more comprehensive immigration reform.

In response to this letter, Sen. Durbin issued a statement lauding the initiative and observing that:

"Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria."

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

Reaction from immigration advocates was mostly positive, though some expressed skepticism that U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection are capable of making this shift and urged additional administrative action, such as permitting spouses of U.S. citizens who are eligible for green cards and waivers of undocumented presence to apply for those waivers in the U.S. Others continue to urge more comprehensive reform.

ICE Memo on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities

Memorandum by Director John Morton issuing guidance to ICE personnel on the exercise of prosecutorial discretion. The memo also sets forth which agency employees may exercise prosecutorial discretion and what factors should be considered. ICE 6/17/11

Here is a June 17, 2011 memo from Morton on on "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens."   The memo emphasizes that "ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

Below are certain classes of individuals that, according to the Morton memo, warrant particular care.

"The following positive factors should prompt particular care and consideration:
• veterans and members ofthe 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 ofdomestic violence; trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions."
The memo further states that, in exercising prosecutorial discretion, "the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:
• individuals who pose a clear risk to national security;
• serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
• known gang members or other individuals who pose a clear danger to public safety; and
• individuals with an egregious record ofimmigration violations, including those with a record ofillegal re-entry and those who have engaged in immigration fraud."

Importantly, the memo states that, "[w]hile ICE may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding."

ICE Memo on Prosecutorial Discretion Regarding Certain Victims, Witnesses, and Plaintiffs

ICE 6/17/11 memo from Director John Morton setting policy on the exercise of prosecutorial discretion in removal cases involving victims and witnesses of crime, including domestic violence, and individuals involved in non-frivolous efforts related to civil rights protection.