Friday, September 23, 2011

Prosecutorial Discretion- Don’t Be Fooled It’s NOT Amnesty

Recently I received a call from a prospective client inquiring about the new “backdoor amnesty” program.  Although no amnesty legislation has passed in recent years, I knew what he was incorrectly characterizing as amnesty.  The client was referring to President Obama’s new policy on prosecutorial discretion. It’s important to note at the outset that prosecutorial discretion does not provide any immigration status in the United States.  There is no application process or filing fees associated with requesting prosecutorial discretion. In the immigration context prosecutorial discretion refers to an agency or agency official’s discretion to either administratively close or not pursue a removal proceeding. Advocates for persons in or facing removal proceedings can request that prosecutorial discretion be exercised if the person qualifies.

At any rate let’s get into exactly what's causing all the confusion.  In August 2011, the Obama administration announced that the government will begin implementing the prosecutorial discretion memo that was issued on June 17th, 2011 by the Immigration and Customs Enforcement (ICE) director, John Morton. If you’re interested you may read the memo in its entirety here.  In an effort to efficiently utilize the government’s limited resources Department of Homeland Security (DHS) will develop a criteria to determine which cases are can be categorized as “low priority” and should be considered for administrative closure.  These criteria could consider positive factors such as:

• Circumstances of arrival – especially if the person came to the US as a child
• Pursuit of education – if they have graduated from high school in the United States and/or are pursuing higher education
• U.S. Military service
• Ties to the U.S., including family relationships
• Pregnant or nursing women
• Age, especially for minors and the elderly
• If the person is a primary caretaker of another person with a severe illness or disability
• Persons who are likely to be granted temporary or permanent status because they are an asylum seeker, victim of domestic violence, human trafficking, or other crime

Before contacting DHS or ICE regarding prosecutorial discretion you should consult with a qualified immigration attorney to discuss whether prosecutorial discretion is available to you. The American Immigration Lawyers Association (AILA) published an excellent advisory warning immigrants about what this new policy is and is not.  You may read that advisory here.