Dream Act Law
The following article is offered in order to dispel rampant rumor and misinformation regarding the Obama Administration’s recent policy statement regarding “prosecutorial discretion” and work permission for immigrants in removal proceedings. No, the DREAM ACT has not become law and NO, there is no “amnesty.” Instead, the Administration has announced that it will embark on a review of some 300,000 pending removal cases and decide whether prosecuting the individuals in court is in the national interest, or if the cases should be dismissed to free up precious resources to focus on the deportation of criminals and terrorists. This common-sense approach has been long in the making, and took the form of a policy statement in the absence of any legislative solutions from a recalcitrant and obstructionist Congress.
As background, on June 17, 2011, Mr. John Morton, Director of US Immigration & Customs Enforcement (USICE) issued a new memorandum instructing ICE District Counsel and deputies to exercise “prosecutorial discretion” in removal proceedings. One year prior, USICE had issued a Memo from Mr. Morton that directed USCIS to expedite visa petitions affecting Respondents in removal proceedings and dismiss proceedings against certain foreign nationals who appear to be eligible for relief from removal, such as adjustment of status to lawful permanent resident. Since that Memo was met with a certain degree of hostility from Republican Congressmen, the picture remained unclear as to what the Administration’s position would be with respect to conduct of Removal Proceedings. The June 17, 2011memo made it clear that USICE is to prioritize certain types of cases to alleviate backlogs within the Executive Office for Immigration Review (EOIR) and lighten the Immigration Judges’ dockets throughout the US.
In removal or “deportation” proceedings, a foreign national or “Respondent” may challenge the grounds of removability asserted against him, or may apply for relief from removal once removability is conceded or established. For instance, a Respondent in removal proceedings may apply for cancellation of removal, asylum, or adjustment of status to green card, if otherwise eligible. Since an application for adjustment of status generally requires that a visa petition be approved making a visa available to the Respondent, a Respondent seeking adjustment of status in immigration court must pursue the visa petition with the USCIS, which has exclusive jurisdiction over the visa petition, in order to apply for that relief with the Immigration Judge.
In keeping with the now famous “Morton Memo,” the Administration’s new policy established a number of criteria under which each removal case will be evaluated to determine if “prosecutorial discretion” is warranted. If a case is closed pursuant to the new policy, affected individuals will be issued work authorization documentation and placed in a deferred action status. This means no deportation!
The first category of individuals who will benefit from the new policy are those who would have been eligible to adjust their status under the DREAM ACT, which has not been passed by Congress, despite numerous efforts by Democratic legislators. Basically, the DREAM ACT would have allowed people to apply for legal status who (1) came to the US while under the age of 15; (2) have been continuously resident in the US for at least 5 years; (3) Graduate High School or obtain a GED; and (4) complete 2 years of college or honorable military service.
The new policy statement also calls for the creation of a “working group” within the DHS and Department of Justice to further refine the Administration’s priorities. Individuals designated as candidates for prosecutorial discretion include minors, pregnant and nursing women, victims of crimes, veterans and members of the armed services, the elderly, and people with significant health problems.
While some politicians have openly criticized the Obama administration as endorsing a “de facto amnesty” by utilizing administrative policy change to de-prioritize removal of non-criminal and non-dangerous foreign nationals, this latest policy statement will surely cause a backlash of anti-immigrant rhetoric from the far right. Prior to the first Morton memo’s issuance last year, an unknown source within the Department of Homeland Security deliberately leaked an undated draft memorandum by USCIS Director Alejandro Mayorkas, encouraging the agency’s use of administrative and policy initiatives to promote family unity, foster economic growth and remove the unwarranted threat of removal against non-dangerous individuals present in the US without permission, in the absence of real legislative reform. The new policy statement and the Morton memo reiterate many of these policy objectives. The impending dialogue initiated by the new policy statement may be the spark needed to urge opponents of immigration reform to come to the table with meaningful solutions and not continue to sit back shouting insidious, anti-immigrant talking-points in Congress if they do not agree with the Administration’s policy initiatives.