UPDATE: Who Qualifies to Remain in U.S. Under New Obama Immigration Policy

On August 18, the president made a major shift in immigration policy, announcing that the administration might allow many of the 300,000 illegally immigrants currently facing deportation to remain in the country.

The White House announced that it would begin to use more discretion and review deportation cases on an individual basis which would possibly spare those who aren’t deemed a true threat to public safety.

Under the president’s new approach to deportation, who stands an improved chance of remaining in the U.S.? The administration has provided some guidance.

We start with a statement posted to the White House blog from Cecilia Munoz, the White House Director of Intergovernmental Affairs: “There are more than 10 million people who are in the U.S. illegally; it’s clear that we can’t deport such a large number,” she writes. “So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first.”

In deciding who to deport, DHS and the Justice Department will apply “common sense guidelines,” Munoz writes. She links to a June 17, 2011 memo written by John Morton, director of ICE, which explains the guidelines that will be used.

In deciding whether to prosecute an individual immigration officials should consider such factors as:

• the person’s length of presence in the United States;
• the circumstances of the person’s arrival in the United States, 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;
• whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s ties and contributions to the community, including family relationships;
• 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.

The list of factors he provides is not exhaustive and no one factor is determinative of whether a person will stay or go.

A senior administration official told WSJ that the new immigration policy is designed to make better use of limited immigration-enforcement resources and to help ease overburdened immigration courts. But a natural question that arises is whether immigration authorities, with their limited resources, will have the bandwidth to make the sort of case-by-case deportation determinations called for by the new policy.

ADVICE FOR PEOPLE WHO ARE NOT IN DEPORTATION PROCEEDINGS OR WHO HAVE A PENDING DEPORTATION ORDER

1. Undocumented immigrants who are not in deportation proceedings can NOT get a work permit

2.   Undocumented immigrants, who are not in deportation proceedings or have a deportation order, should NOT pay anything to an attorney or consultant to try to benefit from this policy.

ADVICE FOR PEOPLE WHO ARE IN DEPORTATION PROCEEDINGS, BUT DO NOT HAVE AN ADMINISTRATIVELY FINAL DEPORTATION ORDER

1. DHS/ICE will review the 300,000 cases of people currently in deportation/removal proceedings to determine which cases should be administratively closed.

2. There is a possibility that those whose cases are closed will be able to apply for a work permit.

3. There are no ICE guidelines or procedures written specifically for the implementation of this new policy.

4. One group which was specifically mentioned as worthy of favorable prosecutorial discretion and the closing of their cases are young people who meet the requirements for the DREAM Act.

5. DHS wants to focus deportation proceedings on those who have committed crimes which represent a danger to the community.   We don’t know how this applies to cases of immigrants in deportation proceedings who have an arrest or conviction for driving without a license.

6. If a person is in deportation proceedings and does not have a lawyer, he or she should obtain one as soon as possible.

7. If the person is in deportation proceedings and has a lawyer, she does not need to contact the lawyer in most cases before November 1^st unless the person has an immigration court hearing before January 1, 2012 or unless there is something the lawyer and client are supposed to file soon such as a notice of appeal or an application.

ADVICE FOR PEOPLE WHO ALREADY HAVE A DEPORTATION ORDER BUT NEVER LEFT THE COUNTRY

1. Obtain a consultation with a good immigration attorney, show the attorney as many of the papers in your case that you have, and bring your “A number”

2. It is less clear how this new policy will apply to people who already have a deportation order.