Immigration and the Executive

While the Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current Administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. Some 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month the Administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.

Prosecutorial Discretion

 A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, December 4 through January 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide.

While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future.  Stay tuned.

Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.

Adjudications, Entrepreneurs, Small Business

More informally, the Administration has engaged the public and immigration stakeholders on a variety of issues and has done so more directly that ever before. Recently, the USCIS Ombudsman’s Office held an Annual Conference attended by 300 to discuss improving the delivery of immigration benefits and services. USCIS also has hosted a number of teleconferences with the public. A teleconference was held on USCIS’s then-changed policy on where and to whom I-797 approval notices are sent. (Feedback from the call contributed to USCIS changing its policy.) Another teleconference was held on small and start-up business immigration issues and involved not only immigration officials but those from the Small Business Administration and other federal agencies. On a related note, USCIS just launched an “Entrepreneurs in Residence” initiative and hopes to bring business experts in-house to work alongside USCIS staff to ensure that its policies are reflective of industry realities. This could be a valuable opportunity for business experts and immigrant entrepreneurs, especially those who have engaged in the U.S. immigration system through immigrant visa applications, to join USCIS’s tactical team and affect how the agency adjudicates cases. Business members, however, must be U.S. citizens. To apply for the Entrepreneurs in Residence program, see http://www.dhs.gov/xabout/careers/loaned-executive-business-expert-uscis.shtm

It’s anyone’s guess whether the Administration’s formal policy changes (prosecutorial discretion) or its informal meetings and public engagements will result is administrative fixes that have real teeth. At the end of the day, however, these changes represent only modest remedies to a system that cries out for wholesale reform.

Category: Customs and Border Protection, Department of Homeland Security, Immigration and Customs Enforcement, Immigration reform, Worksite enforcement policies Comment »


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