Reprinted from Legal Action Center

Immigration & Green Cards: Review of Low Priority Cases for Prosecutorial Discretion

Cautionary Note:

Up to now, there is still very little official information or direction published by DHS/USCIS. The below is not meant to imply AMNESTY, nor does the LAC believe it will halt or stop individuals who violate immigration laws from being placed in removal proceedings.

History:

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.

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.

Is it possible for cases with criminal convictions to be considered low priority?

The June 17, 2011 Morton memo, Exercising Prosecutorial Discretion, makes clear that
cases will be reviewed on a case-by-case basis and considered based on the totality of the
circumstances presented in each individual case. There is no bright-line rule that would
automatically disqualify any case. However, the memo does contain a list of negative
factors that will be looked at with particular care. This list includes “serious felons,
repeat offenders, and individuals with a lengthy criminal record of any kind,” as well as
“known gang members.”

What is the difference between administrative closure and termination of the Notice
to Appear (NTA)?

Administrative closure is a procedural convenience used to temporarily remove a case
from the immigration court’s calendar. Under current law, a case cannot be
administratively closed if both parties do not agree to the closure. A person whose case
has been administratively closed remains in removal proceedings, and either party can request
that the case be placed back on the court’s calendar at any time. A case that is administratively
closed remains pending, although inactive.

Termination means that the case has ended and the respondent is no longer in removal proceedings.
Upon termination, the individual will revert to the same status he or she was in prior to
commencement of proceedings. If the government wants to place the individual back
into removal proceedings after a case is terminated, it would have to file a new Notice to
Appear.

Should an individual (other than an “arriving alien”) whose case has been
administratively closed eventually become eligible for adjustment of status, he or she will
need to have the removal proceedings terminated before USCIS will have jurisdiction
over the adjustment application.

What should I (as an attorney) be doing now?

The DHS FAQ indicates that both removal proceedings and removals will continue while
the working group carries out its review. During this time, however, ICE attorneys and
officers have been told to consider all cases in light of DHS enforcement priorities. Thus,
you should continue to make requests for prosecutorial discretion. Requests should be
made in writing and include as much supporting documentation as possible.

You should also ensure that your clients understand that their obligations under the
immigration laws remain the same. There has been a lot of confusion and
misinformation over what the August 18th announcement is and is not. It is important
that your clients understand that the announcement is not an amnesty. We have, for
example, heard of individuals granted voluntary departure believing that they do not have
to leave, which is simply wrong. The August 18th announcement has no impact on an
existing voluntary departure order; anyone under such an order who fails to timely depart
will face the consequences.

Additionally, individuals should not seek to turn themselves into immigration authorities
to get an EAD. As the DHS FAQ explains, such action carries a high risk that the
individual will be placed in removal proceedings and may be ordered removed.