Articles Posted in Prosecutorial Discretion

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It’s a historic day in Washington State. Thanks to the voters who approved Referendum 74, same sex couples can legally marry starting today. The referendum went into effect on December 6, when couples started applying for marriage licenses. Along with the eight other states that permit same sex marriage, what does this new historic opportunity mean for couples where one or both spouses are foreign nationals? This blog post looks at the current status of options for foreign nationals to legally come to the US, options if foreign nationals lack valid status, the potential impact of pending cases before the US Supreme Court, recent Obama Administration activities, and Congressional and advocacy efforts.

Spouse Sponsorships for Green Cards and Other Spouse Provisions

First the bad news. So long as the federal government continues to enforce the Defense Against Marriage Act of 1996 (DOMA) in the immigration area, US citizen and green card holding spouses may not sponsor their foreign national same-sex spouses for a green card. In immigration law, the rule is that the federal government must honor the laws of the jurisdiction where marriages (divorces, adoptions, etc.) take place, EXCEPT that under DOMA, marriage is only recognized between a man and a woman. Therefore, until Congress eliminates DOMA or DOMA is found to be unconstitutional by the US Supreme Court, foreign nationals in same sex relationships will continue to be discriminated against for immigration sponsorship purposes. By sponsorship, I mean the US citizen spouse cannot have form I-130 approved on behalf of a same sex spouse as an immediate relative, nor can a lawful permanent resident expect to have a form I-130 visa petition approved for a same sex spouse in the second preference FB 2A category.

The term “spouse” appears in other contexts in immigration law besides direct sponsorships for green cards. This includes qualifying relatives for waivers of inadmissibility and cancellation of removal where typically the foreign national has to show “extreme” or “unusually exceptional” hardships to a green card holding or US citizen spouse, child or parent. In addition, there are provisions under the Violence Against Women Act for spouses to self-petition in the case of domestic abuse. There are also provisions for surviving spouse beneficiaries, where the petitioning spouse dies and the beneficiary wants to continue their cases through substitute petitioners. Finally, there are “dependent” provisions for spouses of principal applicants for asylum, green cards, diversity visas, nonimmigrant visa holders and more where the dependent spouse can obtain status through the principal spouse. DOMA’s repeal or a US Supreme Court finding that DOMA is unconstitutional would fix these problems for same sex couples.

US Supreme Court Takes on Several DOMA cases

The good news is that on December 7, 2012, the US Supreme Court decided to hear two important cases, Windsor v. U.S., as well as the California Prop 8 case, Hollingsworth v. Perry. Oral arguments will be in the spring with decisions expected next June 2013. This means there is hope that foreign national spouses will eventually be able to be sponsored directly for green cards or make use of some of the other spouse provisions mentioned above if the US Supreme Court determines that DOMA is unconstitutional.

Windsor v. US deals with discriminatory application of federal estate taxation between same sex and heterosexual couples. In this case, Ms. Windsor’s partner had died and Ms. Windsor was subject to an estate tax that would have been zero had she been married to a man. The Second Circuit Court of Appeals struck down DOMA.
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During the last month since President Obama announced the new Deferred Action program for Certain Young People, I have mulled over the commentary by media, politicians, and immigrant advocates. There is plenty of information out there about the eligibility requirements or how they should be interpreted, but little discussion about whether people should apply in the first place. is this program all it’s hyped up to be and should people apply if qualified? After all, Deferred Action is not a visa, a green card, citizenship, or an amnesty. It is only a temporary administrative reprieve from removal or deportation.

President Obama’s June 15, 2012 program applies to two primary groups of young people: 1) those already in removal proceedings and 2) those who have never been in removal proceedings or who already have final orders of removal. The basic requirements are mentioned in my earlier post, President Obama Announces Deferred Action to Would-Be DREAMers. Deferred Action is already available for the first group currently in removal proceedings as well as to anyone else in proceedings whose compelling humanitarian situation justifies the grant of Deferred Action. Deferred Action is one tool in the government’s tool box of discretionary actions available. DHS is already contacting potentially eligible DREAM Deferred Action applicants, including those whose cases were previously administratively closed or their cases were rejected for administrative closure as part of the general prosecutorial discretion memos announced last summer. Individuals under 31 years old who may be eligible for Deferred Action may make motions now before ICE and the courts to determine if they can apply for Deferred Action. This article, however, is about the second group who will be able to step forward and apply for Deferred Action in mid-August. There is no way to file for Deferred Action right now. Eventually, DREAMers not in proceedings will apply directly to USCIS. The details of this program are being worked out and have not yet been announced. In the meantime, besides determining basic eligibility, now is the time for undocumented young people who have had no prior encounters with immigration authorities or removal proceedings to think about whether they should apply for Deferred Action at all, even if they qualify. Whether a person should step forward and announce their undocumented status is a very significant question, despite the opportunity for a temporary benefit. I believe this question requires thoughtful and well-informed consideration.

Looking at the limited commentary by immigration attorneys and immigrant rights advocates on whether potential DREAMers should step forward at all, I came up with these four broad and varying points of view:

1) Political Pessimists View Initially, several organizations and practitioners suggested that people should wait to apply until after the election to see how the Presidency and Congress shape up. While it is hard to predict what the next President or Congress will do, there is a chance that a more divided or conservative Congress would attempt to legislate this program away. GOP Presidential candidate, Mitt Romney, has not directly said he would do away with the program. He has stated that he prefers that Congress pass a DREAM Act (forgetting that Congress tried but failed to pass a DREAM Act in 2010-11). If elected to the Presidency, Mr. Romney will have the same Executive Powers that President Obama has to either disband, change or continue what President Obama started. However, we all know examples of how candidates can say one thing on the campaign trail and do something else once elected. Only time will tell. At this point in time, no one can predict what will happen.

2) Political Optimists View Other organizations and practitioners suggest that the more people who step forward to apply early on before the election, the less likely the next President or Congress will be willing to take status away from a largely sympathetic population, i.e., young people who were brought to the US by their parents with no control over their parents’ decisions who are going to school or starting careers. Most of these young people act or feel American but for the paperwork to prove it. The more sympathetic cases that are publicized, or the more DREAMers who “out” themselves publicly, the more likely legislators will be reluctant to take such a benefit away. Polls show that a majority of Americans favor granting some status to this population. Deferred Action will relieve some stress, at least temporarily, for a potentially large number of people, enabling them to work and/or move on with their lives.
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School’s out just in time for the Obama Administration to announce today in an interesting political move that it will grant deferred action status for would-be DREAM Act students. (See Spanish version of the announcement.) I say “would-be” DREAM Act students because Congress never did pass the DREAM Act. Various versions of the DREAM Act would have provided a path to legal status and citizenship for many young people whose parents brought them to the US illegally at a young age (or they overstayed visas). Instead, in a political move to attract the Hispanic vote, President Obama (known by many as the “Deporter-in-Chief” for his record-breaking deportation numbers) is offering something less than any prior version of the DREAM Act would have provided. But, at least the President has done something more than Congress has done where children and young people are involved. It’s also the right and moral thing to do under the circumstances and the tools the administration has to work with. See my earlier blog post on the DREAM ACT: A Good Mind is A Terrible Thing to Waste.

President Obama and his administration are constrained by the limits of executive authority and administrative powers. In the end, it is the job of Congress to create or revise categories of legal immigration. In the case of this population, Congress has chosen to do nothing. Therefore, there is no real DREAM Act that is the law of the land. While this program gives qualifying young people some limited welcome relief in the form of a two-year hiatus from removal proceedings or the risk of removal, unfortunately, it does not provide a long term solution to permanent residency or citizenship. Congress still needs to step up to the plate and provide a legislative fix.

Deferred action is part of the government’s larger prosecutorial discretion strategy or tool box. More details about how deferred action relates to PD is found in several ICE memos. A number of immigrant advocacy groups are advocating this deferred action program as “Dreams Come True” and other similar titles. But is it really a dream come true?

What is Deferred Action?

Deferred action is a law enforcement tool for those who are or could be in removal proceedings. It means that the government knows a person is in the U.S. unlawfully, but for the time being, the government exercises its “prosecutorial discretion” (PD) not to remove the person. In other words, law enforcement actions against the person are deferred or postponed. It could be for a short or long period. In this case, DREAMERS will be given two years of deferred action. It is NOT a path to legal status. There is no green card (permanent residence) or citizenship involved whatsoever. It’s just a temporary moratorium not to deport young people.

Historically, Immigration and Customs Enforcement (ICE), the agency that arrests and prosecutes people in civil removal proceedings, has allowed those with deferred action to obtain work authorization (or employment authorization documents – EADs) upon proof of “economic necessity.” However, the government’s ongoing prosecutorial discretion program to administratively close cases does not provide for EADs. This has been a major complaint of the PD program. Only those receiving deferred action or who have had an underlying application for an immigration benefit for relief from removal have been able to get EADs. Thus, the young people in this group will be able to work for two years if granted deferred action status.

Buyer Beware!

Deferred action is a good interim solution for the young people already in removal proceedings because this means their proceedings will be put on hold and continued action will be deferred. But, should people not in proceedings step forward to apply and be included in this program? Don’t forget that this is all a political ploy in an election year. What if Mitt Romney wins the Presidency? How likely is he to continue the program? He hasn’t been too friendly on immigration issues thus far. What if the anti-immigrant crowd wins a majority in Congress, or even if they don’t, the next Congress is just as deadlocked as the current Congress? A recently passed House bill (specifically, Amendment #33, the King Amendment), HR 5855, would prohibit the Administration from exercising prosecutorial discretion and implementation of the “Morton memos” from last year. Furthermore, Congress could not get a full DREAM Act bill passed even in the Obama Administration. Therefore, what happens in two years when deferred action and EADs run out? Although DHS is saying they will be renewable, what about a change in Administration or an antagonistic Congress? No one knows at this point what the future holds. In other words, “he who giveth can taketh away!”

I believe it’s an open question about whether it is worth the risk to step forward if the government does not yet know about young people in unauthorized status. Every individual considering stepping forward should weigh the pros and cons very carefully, preferably in consultation with legal counsel. It’s also very early right now to know just how this program will be implemented or played out. One option is to just wait until after the election to apply (depending upon whether there will be any sign-up expiration dates). Another option is to take the risk and go forward, knowing that if the program ends, the person could end up in removal proceedings. An ICE FAQ memo mentions that DREAMERS who are NOT in proceedings will be able to apply directly to USCIS for deferred action and an EAD, as will those who have a final order of removal.

Who Qualifies?

Individuals can qualify if they:

1. Came to the United States while under the age of sixteen;
2. Continuously resided in the United States for a least five years preceding the date of “this memorandum,” i.e., June 15, 2012. In other words, the person must have lived continuously in the US from June 15, 2007 to June 15, 2012.
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.

Note again that deferred action does NOT lead to green cards (permanent residence) or citizenship!

Each case will be decided on its own merits. Continuous residence, physical presence on June 15, 2012, education, military service and economic need must be documented with real, legitimate, authentic evidence from financial, medical, employment, school, and military records.
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Washington State appears poised in the next few days to be the seventh state in the nation to legalize same-sex marriage. It would go into effect on June 7, 2012. Assuming expected legal and referendum challenges fail, what would that mean for immigrant couples?

Visas and Green Cards for Binational Couples

Unfortunately, it will still be impossible to obtain a green card or permanent residence through sponsorship by a gay or lesbian US citizen or permanent resident spouse until Congress repeals the Defense Against Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex marriage for the purpose of marriage-based green cards. Because who can immigrate in what category is statutory, the Obama administration is not in a position to deviate from the existing spouse sponsorship statute even though his administration is not defending DOMA in some litigation. Such an important change to the marriage based immigration statute requires an act of Congress, and this Congress is not likely to repeal DOMA.

Visas for Dual Foreign National Couples

In the case where both partners in a couple are foreign nationals, for temporary visas, same-sex partners and spouses are not specifically recognized as dependents where one partner qualifies for a specific temporary business, family or student visa. Therefore, both partners have to qualify individually for their own visa types. However, there are some policy memos and provisions in the State Department’s Foreign Affairs Manual that allow certain qualifying partners to come to the U.S. with the principal visa holders. The most frequently used visa for non-principal partners or spouses is the B-1/B-2 tourist visa. However, it is limited as to length of stay and ability to work is not authorized. These and other lesser known provisions are described in an earlier blog post at “Impact of DOMA on Bi-National Couples.”

For dual foreign national couples seeking to immigrate permanently, the law presently does not allow the non-principal partner to qualify as a dependent. For example, if one partner qualifies for a business based green card, the other partner will need to qualify for his or her own green card category or may have to rely upon the restrictions of other temporary visas.

Binational Couples Where the Foreign Partner/Spouse is Out of Status
There are some avenues for relief from removal proceedings where an individual has a US citizen or permanent resident partner. They include cancellation of removal, asylum and various types of waivers of inadmissibility or deportability. None of them specifically allow consideration of the hardships to gay or lesbian US citizen or permanent resident spouses/partners. However, their hardships can come up in the exercise of discretion or possibly in relation to other citizen or green card qualifying relatives for whom hardship can be shown. Recently, there have been a few cases in which Immigration Judges have allowed consideration of the hardships to gay partners or spouses as a matter of discretion.
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In an earlier post, Prosecutorial Discretion: “Backdoor Amnesty”? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket “low priority” cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo
The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• 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;
• the person’s pursuit of education in the United States, 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 United States;
• 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 conditions 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.

ICE states: “This list is not exhaustive and no one factor is.determinative. 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.”
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On August 18, 2011, Secretary Janet Napolitano, announced that her office, the U.S. Department of Homeland Security (DHS), will work with the Immigration Courts in the Executive Office of Immigration Review (EOIR), to review over 300,000 pending court cases to determine which ones are “low priority” and can be closed or terminated. This will enable DHS and EOIR to focus scarce resources on dangerous criminals and terrorists. Locally, DHS has already been reviewing the detention status of immigrants currently locked up in immigration jails to determine who is low risk and can be released. This announcement follows two DHS memos issued on June 17, 2011 clarifying “prosecutorial discretion” criteria for victims and witnesses of crimes, and summarizing enforcement priorities for the field based on prior memos on the subject.

What is “prosecutorial discretion”? It is the agency’s and individual law enforcement officer’s decision making process, weighing the favorable facts with the unfavorable facts to determine whether to prosecute, in this case civilly, any individual who has broken the immigration laws. There are three main areas where prosecutorial discretion can be carried out in the immigration enforcement area: 1) before a person is placed in removal proceedings in Immigration Court (whether to arrest, detain and/or commence removal proceedings), 2) while in removal proceedings (whether to continue or terminate removal proceedings) and 3) after an order of removal has been issued (whether to carry out removal of the person, defer or withhold removal). Criminal law enforcement agencies and prosecutors use their discretion every day to decide who to prosecute or not. (A current example would be the Dominque Strauss-Kahn affair.) Similarly, immigration officers decide every day whether to put someone in removal proceedings, continue proceedings or carry out removal orders if there other other equities or already existing eligibility for immigration benefits. Therefore, prosecutorial discretion is not new.

However, a combination of recent factors have contributed to the most recent pronouncement dealing with court backlogs. Last year, DHS deported almost 400,000 people and is on target to do the same this fiscal year. As a result, the Immigration Courts are experiencing stunning backlogs with the average case taking 439 days for a merits hearing. In addition, the Administration has mandated that Secure Communities will be in every state along with the Criminal Alien Program in which DHS combs the jails for individuals without status, whether or not they have been charged or convicted of a crime.
Therefore, it makes obvious sense for the courts to prioritize cases based on the objectives mentioned above.

MYTH 1: DHS and the Courts can’t do that!

Congress makes the laws and Courts interpret the laws. The administrative agencies of the Executive Branch (under President Obama) carry out the laws enacted by Congress. Inherent in each agency’s authority is the discretion to determine how the agency will enforce the law within the bounds of the agency’s legal authority to act. When Congress enacts a law, it is generally with broad strokes. Then, each agency involved implements regulations and policies about how the statute will be implemented. In this case, Congress has not enacted any new statutes. The agencies involved with immigration enforcement are taking a look at the way in which they carry out the regulations and polices with the resources they have. There is both agency-wide prosecutorial discretion as well as individual officer prosecutorial discretion out in the field. Where a particular action is mandatory in the law, the agency/officer must carry it out. In an era of limited resources, the agency must consider how and where to spend its resources. This applies to all agencies of the government. With severe budget cuts to look forward to, all federal agencies are prioritizing how they will spend limited funds within the bounds of their authority. In this case, DHS has announced that its priorities are to protect national security, public safety, border security and to proect the integrity of the immigration system. While it is arguable that every single person found to be in the U.S. without status should be prosecuted to the fullest, the fact is, the surge in arrests has clogged the jails and the courts. In additional, the states that now prohibit immigrants from getting drivers licenses are clogging their local courts with cases involving driving without a license or similar minor offenses. Secure Communities and the Criminal Alien Program route these individuals to ICE and the Immigration Courts, creating huge pressures on the system and lengthy backlogs in the Immigration Courts.

MYTH 2: Prosecutorial Discretion is “Backdoor Amnesty”

Congressman Rep. Lamar Smith (R-Tx), leader of the House immigration restrictionists, and others with his view, such as the Center for Immigration Studies, FAIR and other anti-immigrant groups, claim the exercise of prosecutorial discretion by DHS and the Courts is “backdoor amnesty.“. This simply is not true! Because Congress has refused to enact meaningful immigration reform legislation, immigrants’ rights organizations have asked the Obama administration to make use of already existing powers the agencies have to exercise discretion in order to provide some humanitarian relief to long term residents and to cut back on splitting up families. However, even among immigrants’ advocates, the prosecutorial discretion memos do not solve what is broken about our immigration system. After three years of President Obama as the greatest “Deporter-in-Chief” in the nation’s history, his office is exhibiting some common sense by having DHS concentrate its limited resources on “high priority” cases, depending upon how that is ultimately defined and actually carried out.
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