On August 18, 2011 in a letter addressed to Senator Reid and 21 other Senators http://tinyurl.com/43hwtbt, Secretary Napolitano of the Department of Homeland Security (DHS) gave procedural legs to a prosecutorial discretion memorandum issued by John Morton, Director of Immigration and Customs Enforcement (ICE), in June. http://tinyurl.com/6j49mv3. Some are already trying to sell this announcement as a new amnesty program and others are taking advantage of this misstatement and charging fees and making promises about a solution that does not exist. The American Immigration Lawyers Association (AILA) issued an urgent warning last Friday to advise against those attempting to sell a fake form of relief. The focus of the AILA warning was:
A. 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! Anyone who says that is not to be trusted!
B. 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.
Please refer to www.stopnotariofraud.org for information related to immigration scams.
So what does this August 18, 2011 letter really mean?
1. Who can benefit from the announcement?
Those whose cases are currently pending before U.S. immigration courts, if the cases are considered to be a “low priority.” Certain qualifying cases may be administratively closed by the immigration judge. Then the person granted administrative closure may be able to apply for an employment authorization document (EAD). There is no grant via this use of discretion of any long term legal status.
2. What cases are low priority?
Some insight is provided in the June Morton memorandum. The non-inclusive list of factors to be considered contained in the memorandum are as follows:
• the agency's civil immigration enforcement priorities;
• the person's length of presence in the United States (U.S.), with particular consideration given to presence while in lawful status;
• the circumstances of the person's arrival in the U.S. and the manner of his or her entry, particularly if the alien came to the U.S. as a young child;
• the person's pursuit of education in the U.S., with particular consideration given to 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 U.S.;
• 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;
• the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person's ties and contributions to the community, including family relationships;
• the person's ties to the home country and condition~ in the country;
• the person's age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
• whether the person or the person's spouse is pregnant or nursing;
• whether the person or the person's spouse suffers from severe mental or physical illness;
• whether the person's nationality renders removal unlikely;
• 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;
• 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.
• 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.
3. So where do I apply?
There is no application process at present. Even when the process is worked out, it is no legalization or amnesty cure/program. This announcement refers to cases currently pending in immigration courts. It does not provide any avenue to seek some legal status for those who are not yet subject to deportation proceedings.
4. When can we expect this policy to be applied to cases pending in immigration courts?
We don’t know. The August letter was just an initial announcement. The government indicated that it would review pending cases (e.g. about 300,000 cases). There has been no announcement yet about whether legal counsel must file motions with the court or if the government will proceed on its own to move to administratively close qualifying cases.
5. If my case is approved for administrative closure using this policy, do I obtain legal status?
NO. The most you can hope for at this point is the approval of an employment authorization document (EAD) by U.S. Citizenship and Immigration Services (USCIS). Administrative closure of an immigration case by an immigration judge is just a temporary suspension of an immigration court case.
6. So what is this EAD and when will it expire?
An EAD (sometimes referred to as a work permit) gives an individual temporary permission to work lawfully in the U.S. The document is usually valid for one or two years
and can generally be renewed. The current application fee is $380, but applicants who can demonstrate financial hardship can be eligible for a fee waiver. Work authorization is not the same as legal immigration status.
7. What other actions by ICE, Customs and Border Protection (CBP), and USCIS may be affected in the future?
The June prosecutorial discretion memorandum also indicates that its factors should apply in any immigration removal proceeding before the immigration courts, on referral of the case from the immigration courts to the Attorney General, or during the pendency of an appeal to the federal courts, including a proceeding proposed or initiated by CBP or USCIS. If an ICE attorney decides to exercise prosecutorial discretion to dismiss, suspend, or close a particular case or matter, the attorney should notify the relevant charging official about the decision. For the future, we certainly have no idea if CBP will apply such a philosophy at our ports of entry or if Border Patrol will do so upon interdiction. In addition, in states providing arrest authority to local law enforcement as to an immigration violation, we also have no idea how this memorandum might impact such actions. Normally, states consult with ICE regarding immigration status, so one can only hope that we will see a reduction in referrals to ICE even in light of the Administration’s recent announcements related to Secure Communities. We will also have to wait and see if case cases with a final order of removal may be affected.