[WASHINGTON, D.C.] - Today, in a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other Senators, Department of Homeland Security 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. If fully implemented, the new process should stop virtually all DREAM Act deportations.
“The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students,” Durbin said. “These students are the future doctors, lawyers, teachers and, maybe, Senators, who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. The Administration’s new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented.”
On April 21, 2010, Senator Durbin and Senator Richard Lugar (R-IN) asked DHS Secretary Janet Napolitano to suspend the deportations of DREAM Act students.
On April 13, 2011, Senator Durbin, Majority Leader Harry Reid (D-NV), and 20 other Senators followed up, asking President Obama to suspend DREAM Act deportations.
In June, John Morton, the Director of Immigration and Customs Enforcement (ICE),
issued a memo (“the Morton Memo”) advising ICE officials to consider certain factors when deciding whether to proceed with a deportation. One of these factors is whether an individual has been in the United States since childhood, like those who are eligible for the DREAM Act. During a Senate Immigration Subcommittee hearing on the DREAM Act, Senator Durbin asked Secretary Napolitano what is being done to implement the Morton Memo and ensure Dream Act students are not deported. Secretary Napolitano responded, “One of the things we’re working on now, is to design a process that would allow us as early as possible, to identify people who are caught up in the removal system, who in the end really don’t fit our priorities.”
There is a long history of the government exercising prosecutorial discretion in this manner. The government has always decided who to prosecute – and who not to prosecute – based on law enforcement priorities and available resources. The Supreme Court has held, “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”
How the New Process will Work:
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.
And here is how it will work.
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.
About The DREAM Act:
The DREAM Act would allow a select group of immigrant students with great potential to contribute more fully to America. These young people were brought to the U.S. as children and should not be punished for their parents’ mistakes. The DREAM Act would give these students a chance to earn legal status if they:
Came to the U.S. as children (15 or under)
Are long-term U.S. residents (continuous physical presence for at least five years)
Have good moral character
Graduate from high school or obtain a GED
Complete two years of college or military service in good standing
It is clear that the Regime will sell this as just for children, but it is a general amnesty for those other than convicted criminals, and, as the Edwin Ramos or Jose Manuel Gonzalez-Sandoval cases show, alot of them will slip throught as well, as this article in the NY Times states:
Deportation Halted for Younger Immigrants
By ROBERT PEAR
Published: August 18, 2011
WASHINGTON — The Obama administration announced on Thursday that it would generally not deport or expel illegal immigrants who had come to the United States as young children and graduated from high school or served in the armed forces.
White House and immigration officials said they would exercise “prosecutorial discretion” to allow these people to stay in the country while the government focused its enforcement efforts on higher-priority cases involving criminals and people who had flagrantly violated immigration laws.
President Obama is, in effect, doing administratively what he could not persuade Congress to do — allowing the secretary of homeland security to provide relief to a select group of students who are here illegally but show great promise.
Senator Richard J. Durbin of Illinois, the No. 2 Senate Democrat, has argued for a decade that “these young people should not be punished for their parents’ mistakes.”
White House officials emphasized that they were not granting relief to a whole class of people, but would review cases one by one, using new standards meant to distinguish between low- and high-priority cases.
“The president has said on numerous occasions that it makes no sense to expend our enforcement resources on low-priority cases, such as individuals” who were brought to this country as young children and know no other home, the secretary of homeland security, Janet Napolitano, said in a letter to Mr. Durbin.
Ms. Napolitano said that low-priority cases were “clogging immigration court dockets and diverting enforcement resources away from individuals who pose a threat to public safety.”
Mr. Durbin said he believed the new policy would halt the deportation of most people who would qualify for relief under a bill, known as the Dream Act, that he has repeatedly introduced in the last 10 years.
Under the new policy, the government will review 300,000 cases of people in deportation proceedings to identify those who might qualify for relief and those who should be expelled as soon as possible.
White House officials said the new policy would help illegal immigrants with family members in the United States. The White House is interpreting “family” to include partners of gay and bisexual people.
Those aren't just children, but long time illegals who came here as adults like this case from San Francisco which is already being touted as an end to DOMA:
Gay and lesbian married bi-national couples like San Francisco's Bradford Wells and Anthony John Makk may get some relief from the threat of deportation under the Defense of Marriage Act, thanks to action by the Obama administration today.
In a letter to Sen. Dick Durbin, D-Ill., Department of Homeland Security Secretary Janet Napolitano said a new working group will be established to identify low-priority cases for immigrant deportation. The administration will exercise prosecutorial discretion, widely practiced by all law enforcement officers, to identify which low-priority deportation cases to ignore. The policy is also posted on the White House website.
Napolitano cited a memorandum issued last June by Immigration and Customs Enforcement, or ICE, which contains a long list of mitigating factors to weigh in deciding whether to pursue deportation. These include whether the immigrant is married to a U.S. citizen, as Makk is, as well as whether the immigrant is the primary caregiver of a citizen, which Makk also is. Other factors include such things as length of lawful stay in the United States, criminal record and the like.
Sexual orientation is not specifically mentioned, but Mary Kenney, a senior staff attorney with the Legal Action Center arm of the Immigration Policy Center said the administration has indicated that same-sex marriages are included in the definition of family for the purposes of the enforcement memo. She called the move "very encouraging."
Napolitano said President Obama asked her to respond on his behalf, having said that "it makes no sense to expend our enforcement resources on low-priority cases." She said the June memo is now "being implemented."
Wells and Makk have gotten huge media attention, including a spot on CNN, since the Chronicle's second story on their case this month. You read about their case first in the Chronicle last June.
Most of the attention on today's action is focused on DREAM students, the illegal children of immigrants who know no other home but the United States. Durbin's DREAM Act, repeatedly defeated in Congress, would allow such immigrants to earn legal status by completing two years of college or military service. They would get additional latitude under the new guidance.
But Kenney said the memo covers much more than children and definitely will apply to same-sex married couples who want to pursue permanent resident status for an immigrant spouse. Before the Napolitano letter, the June guidance was left to the discretion of agents on the ground. Now it's policy.
Using prosecutorial discretion allows the administration in effect to choose when to enforce the Defense of Marriage Act for immigration purposes. DOMA bars all federal benefits, including immigration benefits, to same-sex couples. The immigration cases would likely be deferred until challenges to DOMA's constitutionality are decided by the Supreme Court, which is expected as early as next year or by 2013.
The Federation for American Immigration Reform, which opposes widening immigration, slammed the decision as "administrative amnesty" and "a sweeping overhaul of the nation's immigration policy without approval by Congress."