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Administration Puts Secure Communities Imbroglio To Rest With Prosecutorial Discretion Applicability To 300,000 National Immigration Court Caseload

by Alan Lee

We are all on tenterhooks to see how the exciting Obama Administration announcement on August 18, 2011, will be implemented that the Department of Homeland Security (DHS) and Department of Justice (DOJ) will be reviewing the current deportation caseload to prioritize the removal of people who have been convicted of crimes in the United States or pose a security risk, and take steps to keep low priority cases out of the deportation pipeline. It appears that Mr. Obama in one swoop has muffled criticism of his Secure Communities public-relations nightmare with the immigrant communities. He had previously faced withering criticism as the original proposed purpose of the program, protecting communities from violent criminals, had been statistically shown to be secondary to another purpose, the detention and deportation of non-criminal aliens, many of whom were caught for minor misdemeanors or civil offenses. The criticism became overwhelming two weeks ago when the Administration scrapped its memorandums of understanding (MOU's) with 40 states and announced that it did not require agreements in order to have the fingerprints of anyone arrested and sent to the FBI further transmitted to another federal agency, the Department of Homeland Security.

With the announcement and concurrent unveiling of a plan by DHS that an interagency team of DHS and DOJ officers and attorneys, including representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation (OIL) will identify on a case by case basis low priority removal cases that should be considered for an exercise of discretion including after a final order of removal, the starch has largely been taken out of those at the agency who were enthusiastic to deport non-criminal aliens caught by the Secure Communities program.

The significance of ICE Director John Morton's June 17, 2011, memorandum of prosecutorial discretion was largely lost in the din over the Secure Communities program as there were questions even in this corner as to what effect the memorandum would have since many of the factors to be considered in the exercise of prosecutorial discretion could only be determined after 48 hours of detention, at which point by law ICE had to make a decision of whether to issue a notice of detainer. (See our article, "ICE Halfway Solution not the Answer to Secure Communities Problem", Immigration Daily, June 20, 2011). The memorandum, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" spelled out a set of factors to be considered by the agency's officers, agents, and attorneys, with Mr. Morton saying that the list was not exhaustive and no one factor determinative. The list of factors was:

1. the agency's civil immigration enforcement priorities;
2. the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
3. the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
4. the person's pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
5. whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
6. the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
7. the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
8. whether the person poses a national security or public safety concern;
9. the person's ties and contributions to the community, including family relationships;
10. the person's ties to the home country and conditions in the country;
11. the person's age, with particular consideration given to minors and the elderly;
12. whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
13. whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative; 14. whether the person or the person's spouse is pregnant or nursing;
15. whether the person or the person's spouse suffers from severe mental or physical illness;
16. whether the person's nationality renders removal unlikely;
17. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
18. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
19. whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

Once in immigration detention, there appeared to be no transparent check and balance on ICE officers, agents, and attorneys on the use of discretion.

The applicability of prosecutorial discretion to the 300,000 cases in immigration courts nationwide is a game changer psychologically as prosecutorial discretion in the past has been perceived as an insular policy infrequently applied by ICE and usually refused by government attorneys after issuance of a notice to appear in the immigration court. The idea that an undocumented immigrant caught up in the Secure Communities program who has no criminal record may have his or her case administratively closed somewhere down the line by either an ICE agent, officer, or attorney must be a heavy discouragement to some ICE officers who would otherwise matter of factly issue notices of detainer. It should also be noted that although ICE and not the immigration court has the power of prosecutorial discretion, immigration judges oftimes exert effective pressure on government attorneys to modify their stances on cases. A further potent discouragement to the zealous enforcer is the idea that when reviews of individual cases result in their being closed, the individuals may now be able to apply for certain immigration benefits, including work authorization.

It is too early to offer congratulations to Mr. Obama for this move which has revitalized his popularity in the immigrant communities as the proof lies in the pudding of how the policy will be implemented in the months ahead. But at the present time, the August 18th announcement appears to be popular not only in the immigrant communities, but with the American public at large.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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