Questions Arise with Implementation of Obama Administration's New Prosecutorial Discretion Policy

A policy change recently pursued by the Obama administration that prioritizes certain noncitizens for removal from the United States over others is likely to have a significant impact on many of the nation's unauthorized immigrants, allowing those deemed to be of “low-priority” to avoid deportation, at least temporarily.

Major questions are surfacing, however, regarding large-scale implementation of this policy given uncertainties surrounding its scope, reach, and implications.

Since the spring of 2010, the Department of Homeland Security (DHS) has emphasized the need to ensure that its limited immigration enforcement resources are strategically and systematically targeted toward high-priority noncitizens. To that end, immigration agents, officers, and prosecutors within all immigration agencies — Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP) — have been instructed to exercise prosecutorial discretion in deciding whom to place in removal proceedings and whom to ultimately deport.

A series of memoranda issued last summer and fall established it a "high priority" to remove noncitizens considered a public safety or national security threat, as well as those who were repeat immigration violators or who had recently crossed the border illegally. These cases will be expedited for removal under the new policy.

A June 2011 memorandum set out the criteria for “low-priority” cases by identifying several factors that should count in favor of discretion: U.S. military service, a long length of residence in the United States, and having U.S.-citizen or permanent-resident relatives, among other factors. The memorandum also advised the use of “particular care and consideration” in the exercise of prosecutorial discretion in cases involving veterans, long-term permanent residents, individuals who have been present in the United States since childhood, and minors and elderly individuals.

Prosecutorial discretion in the immigration context is not new — having been called for by various Republican and Democratic administrations since 1976 — but the Obama administration has taken its application a significant step further. While past guidance for exercising prosecutorial discretion focused only on prospective removal cases that had not yet been filed, the recent set of instructions also requires for the first time a comprehensive review of cases currently pending in the nation's immigration courts.

The recent push for prosecutorial discretion won high praise from immigrant advocates, who lauded the administration for moving forward with the new policy in the face of congressional inaction on immigration reform. Proponents of tougher immigration enforcement, however, have accused the administration of circumventing Congress and carrying out “administrative amnesty.” In some political circles, the new policy is seen as a move by the administration to bolster support for the president among Latinos ahead of the presidential election this November.

Implementation of Pilot Reviews

In November 2011, ICE began a pilot implementation of the prosecutorial discretion review process of pending cases in immigration courts in Denver, Colorado, and Baltimore, Maryland. At a recent Migration Policy Institute (MPI) briefing on prosecutorial discretion, DHS Deputy General Counsel Seth Grossman characterized the pilots as successful and noted that, over the course of six weeks, ICE trial attorneys in Denver and Baltimore had screened all of the pending court cases in those jurisdictions.

Once the results of these pilots are formally evaluated, ICE is expected to expand the court review process in a systematic manner to all of the roughly 300,000 cases currently pending in immigration courts nationwide. As part of the court review, ICE will offer noncitizens whose cases are deemed as low priority under the new policy the opportunity to administratively close their cases so that they will not be issued orders of removal (see sidebar).

While Denver and Baltimore ICE attorneys were reviewing pending court cases in those jurisdictions, attorneys working in the other 24 ICE offices around the country conducted a pilot review of all incoming cases that were about to be filed in immigration court. If ICE felt that a forthcoming case merited prosecutorial discretion, the agency exercised such discretion by not initiating court proceedings. ICE is currently reviewing the results of this pilot as well.

Questions Remain

With the initial pilot reviews of current and impending court cases complete and the agency's general prosecutorial discretion policy — which encompasses a broader array of enforcement decisions made by immigration officers with respect to noncitizens — already underway, new questions are being raised surrounding the scope and reach of the policy.

Inconsistencies with how and to what extent prosecutorial discretion is being applied across the country have raised questions related to whether the new policy provides for accountability or sanctions for those who refuse to follow the guidelines. News reports suggest that, in some jurisdictions, many immigrants have benefited from the exercise of discretion. In other areas, however, ICE agents and prosecutors have been reluctant to comply with the new policy, claiming that it amounts to turning a blind eye on illegal behavior. Additionally, the union representing ICE agency personnel has voiced concerns and has not allowed its members to attend new training sessions on the policy.

It also remains to be seen whether DHS will ultimately expand the reach of the new rules to apply to broader categories of people or to confer additional immigration benefits for those deemed to be of low priority. Advocates have argued that some low-priority immigrants who are eligible for certain types of relief from removal, such as asylum or cancellation of removal, should not have their eligibility contested in court by the government and that all beneficiaries of prosecutorial discretion should be eligible to apply for work authorization.

The potential benefits of the new policy change has also brought to the fore a discussion about how best to make available and apply prosecutorial discretion in cases involving immigrants who cannot afford legal representation. Applications requesting the exercise of prosecutorial discretion are sophisticated legal filings that require significant documentation. Given the lack of affordable legal services, there is concern that unlicensed practitioners may exploit people in the application process or that immigrants who might otherwise benefit from prosecutorial discretion will not apply due to lack of understanding or awareness of the policy.

There is also some concern among advocates that the implementation of the new policy is not adequately reaching the detained noncitizen population. According to Mr. Grossman, however, all pending cases involving detained noncitizens — though not a focus of the pilot programs — are under review. Mr. Grossman also indicated that very few of these cases would likely warrant prosecutorial discretion because noncitizens who are subject to detention are more likely to fall within the realm of DHS's enforcement priorities.

Finally, major questions remain on how the new prosecutorial discretion policy can be affirmatively used by noncitizens in removal proceedings. On February 6, the U.S. Court of Appeals for the Ninth Circuit issued a series of decisions demanding that DHS explain how it intends to apply the new prosecutorial discretion policy to individuals who appear to qualify for such discretion, but who have already been ordered removed and whose cases are now being appealed. The DHS response, due in court March 19, may provide additional insight into how sweeping the government intends the new policy to be.

• Read ICE's June 17, 2011 memorandum on exercising prosecutorial discretion.
• Read the agency's follow-up November memorandum on next steps for implementation of prosecutorial discretion.
• Read an example of the Ninth Circuit's decisions on prosecutorial discretion.
• Read MPI's report Executive Action on Immigration: Six Ways to Make the System Work Better, which suggested the use of prosecutorial discretion in certain cases.

Policy Beat in Brief

New Hardship Waiver Policy Proposed

In January 2012, the Obama administration announced a significant immigration policy change that would minimize the amount of time unauthorized immigrants petitioning for permanent residence will be separated from their sponsoring U.S. relatives by allowing them to apply for I-601 “hardship waivers” while still in the United States.

The policy is designed to alleviate a legal catch-22: Under current immigration law, many unauthorized immigrants who can be sponsored for permanent residence by U.S.-citizen or permanent-resident relatives must return to their country of birth to obtain an immigrant visa at a designated U.S. consulate. However, individuals who have resided in the United States illegally for more than six months are barred from re-entering the country (on immigrant visas or otherwise) for periods of either three or ten years, depending on their length of unauthorized presence. While these bars to re-entry can be waived in circumstances of “extreme hardship” for U.S.-citizen or permanent-resident relatives as a result of the immigrant's absence, currently the application for this waiver (officially the I-601) can also only be submitted at a U.S. consulate abroad.

The new rule, when finalized, will remedy this dilemma by allowing some applicants — those who are the spouse, parent, or minor child of a U.S. citizen — to apply for and receive a preliminary adjudication on their hardship waiver application before leaving the United States.

Immigrant advocates believe that many qualified unauthorized immigrants currently do not apply for lawful permanent residence for fear that the I-601 waiver process will take long periods of time, or because they do not want to risk denial of their application, which would result in separation from their families for years. The actual number of people who stand to benefit from the new rule is unknown.

• Read the new proposed rule on the three and ten year bar waiver change in the Federal Register.

New Plan to Spur International Travel Unveiled. In response to concerns that foreign travel to the United States plateaued between 2000 and 2010, the Obama administration announced in January a new directive aimed at boosting the number of foreign visitors.

The directive calls on several administrative agencies to develop and implement a plan that will increase visitor visa processing capacity in China and Brazil by 40 percent and ensure that 80 percent of visa applicants are interviewed within three weeks of applying for a visa. The directive also notes that efforts to expand the U.S. Visa Waiver Program, a program that currently allows nationals of 36 countries to enter the United States for short-term stays without a visa, should be increased.

In a related move, DHS announced in February that it would make permanent the Global Entry program, a program (in its pilot stage until this point) that allows prescreened individuals to enter the United States through automated kiosks at designated airports, thereby skipping customs and immigration queues. Currently, Global Entry membership is open to qualified U.S. citizens, lawful permanent residents, and Mexican and Dutch nationals. According to DHS, the program significantly cuts down on the amount of time frequent travelers spend waiting in line to be cleared for admission to the United States.

• Read more about the Global Entry program in the January 2011 Policy Beat.
• Read the Source Spotlight on temporary admissions.
• Read the text of the new travel directive here.
• Read the new Global Entry rule here.

Haiti Receives Designation for Temporary Worker Visas. U.S. Citizenship and Immigration Services (USCIS) has added Haiti to its list of countries whose nationals may participate in the H-2A and H-2B temporary worker programs. The decision is designed to expand opportunities for Haitian nationals to enter the United States for employment, as Haiti continues to rebuild after the country's devastating 2010 earthquake.

The H-2A and H-2B programs are temporary worker programs that allow U.S. employers to sponsor qualified foreign workers to fill short-term or seasonal agricultural (H-2A) and nonagricultural (H-2B) positions. Each year, USCIS designates nationals from certain countries for participation in the two programs. Nationals from 58 countries are now eligible to participate.

• Read more about U.S. immigration policy efforts in response to the 2010 Haitian earthquake in the February 2010 Policy Beat.
• Read more about the Haitian immigrant population in the United States in the Source Spotlight on Haitian immigrants.
• Read the Federal Register notice designating Haiti for H-2A/H-2B participation.

E-Verify Self-Check Now Operating Nationwide. As of this month, the E-Verify Self-Check program has been expanded by USCIS to all 50 states and Puerto Rico. The program is an extension of the agency's E-Verify program, an online system that allows participating employers to check whether new employees are authorized to work by entering their biographic information into an internet database. E-Verify Self-Check allows prospective employees to confirm their work authorization on their own and to thus take steps to resolve potential discrepancies in their record before they apply for employment. Since launching Self-Check last year, roughly 67,000 people have used the program according to USCIS.

• Read more about E-Verify in The Basics of E-Verify, the U.S. Employer Verification System.
• Read the new USCIS press release on the expansion of E-Verify Self-Check.

State Department Removes Key Placement Organization from J-1 Travel Program. Following a review of its Summer Work Travel Program for exchange visitors, the U.S. Department of State (DOS) removed a key participant, the Council for Educational Travel, USA (Cetusa), from the list of organizations eligible to recruit foreign exchange students. Through the Summer Work Travel Program, a subset of the department's larger J-1 visa program, foreign students receive permission to live and work in the United States for up to four months. Last summer, however, both the program and Cetusa came under fire after dozens of the exchange students they had placed at a Hershey's candies plant walked off the job, protesting low pay and dangerous working conditions. In addition to removing Cetusa from the list of eligible sponsoring organizations, DOS will be issuing new rules expanding the list of occupations that are excluded from eligibility for the summer exchange student program.

• Learn more about DOS's review of the Summer Work Travel Program in the October 2011 Policy Beat.
• Read more about the Summer Work Travel Program in the State Department's informational brochure on the program.

Immigration Prosecutions Dominate Federal Docket. A new report from the Transactional Records Access Clearinghouse (TRAC) found that immigration-related prosecutions referred by DHS immigration enforcement agencies now constitute the majority (59 percent) of all federal prosecutions. The report, which used data from October 2011, also found that the number of immigration-related prosecutions filed last October was 119.5 percent greater than the number filed in 2006. Immigration-related prosecutions may be referred to either a federal magistrate judge or a federal district court judge. According to TRAC, the immigration charges most frequently filed before magistrate judges are illegal re-entry and illegal entry, while the charges most frequently filed before district court judges are illegal re-entry and drug-related offenses.

• Read more about immigration-related criminal prosecutions in Arrested on Entry: Operation Streamline and the Prosecution of Immigration Crimes.
• Read the new TRAC report here.

Proposed Rule to Expand Fair Labor Standards Act Coverage to Domestic Workers. The U.S. Department of Labor (DOL) published a new rule in December proposing to amend its current definitions of "domestic care workers" and "companionship services" so as to broaden the number of workers who are covered by the protections of the Fair Labor Standards Act (FLSA). The new proposed rule would apply overtime and minimum wage provisions to more people by narrowing the criteria for the FLSA exemptions. In its new proposed rule, DOL states that the changes are necessary because of "significant changes in the home health industry" since 1974, when the exemptions were added.

• Read more about labor standards and immigrants in MPI's July 2011 report, Labor Standards Enforcement and Low-Wage Immigrants: Creating an Effective Enforcement System.
• Read the new proposed DOL rule here.

Portions of South Carolina Immigration Enforcement Law Blocked. A federal judge in Charleston, South Carolina, issued a temporary injunction blocking several of the most contentious aspects of South Carolina's 2011 immigration enforcement law, S 20, from taking effect. The blocked provisions include a section of the law requiring state and local police officers to inquire into a stopped individual's immigration status when they have "reasonable suspicion" that the person is an unauthorized immigrant; a section of the law making it a state crime for noncitizens to fail to carry proof of their legal status; and a provision making it a state crime to harbor or transport an unauthorized immigrant.

The law is one of five state laws modeled loosely after Arizona's controversial 2010 immigration enforcement law, SB 1070. Thus far, federal judges have blocked parts of all six of these state-level immigration enforcement laws, although there is some variation among which provisions have been blocked in each state. The Supreme Court will hear arguments in April in the case challenging the constitutionality of the Arizona law.

• Read more about S.20 and other state laws modeled after Arizona's SB 1070 in the December 2011 Policy Beat.
• Read the text of the recent decision here.

State and Local Policy Beat in Brief

Less Funding Sought for 287(g), Program Terminated in Maricopa County, Arizona. The Department of Homeland Security (DHS) has requested $17 million less funding for the 287(g) program for fiscal year (FY) 2013 than they did for FY 2012, according to the agency's proposed budget request. The program, authorized in 1996, allows designated state and local law enforcement agents to perform certain immigration enforcement functions.

The decision to decrease the 287(g) program's funding comes soon after DHS decided to terminate the program in one of its most controversial jurisdictions, Maricopa County, Arizona. Critics of the Maricopa County 287(g) program allege that Maricopa Sheriff Joe Arpaio used his 287(g) authority to discriminate against Hispanic-looking individuals and to conduct sweeping immigration raids. The decision to end Maricopa County's participation in the program came after the Department of Justice (DOJ), as part of an ongoing civil rights investigation, found that there was reasonable cause to believe that the Maricopa County Sheriff's Office had engaged in a pattern of racial profiling and unconstitutional policing.

• Read more about the 287(g) program in MPI's December 2010 report, Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement.
• Read more about the 287(g) program in Maricopa County in the September 2010 Policy Beat.
• Read the new DHS Budget Request here.
• Read the results of the DOJ 287(g) investigation here.
• Read the new DHS announcement ending Maricopa County's participation in the program.

Massachusetts Must Expand Immigrant Health Care Coverage. Massachusetts's highest court ruled that a 2009 law excluding noncitizens who have been in the United States for less than five years from the state's subsidized health care policy, Commonwealth Care, was a violation of equal protection under the state's constitution. It is estimated that Massachusetts will have to provide coverage for an additional 37,400 people as a result of the ruling.

In 2006, Massachusetts became the first state to require all residents to have health insurance, and Commonwealth Care was created for low-income residents who are not otherwise covered by insurance. While all lawful permanent residents and other lawfully present noncitizens (such as asylees and refugees) were originally eligible for Commonwealth Care, Massachusetts passed the law excluding recently arrived noncitizens in 2009 under tough budget constraints.

• Read more about the debate in Massachusetts over providing health care to legal immigrants in the August 2009 and May 2011 Policy Beats.
• Read the new Massachusetts Supreme Judicial Court ruling (Case is Finch v. Commonwealth Health Insurance Connector).

Tennessee Drops Detainee Screening Policy. The Tennessee Peace Officer Standards and Training Commission voted unanimously to scrap new rules requiring detention officers to ask new detainees about their citizenship status. According to press reports, the decision was made primarily in response to a lawsuit filed in December that alleged the state did not follow its requirements for holding public meetings and soliciting comments before it adopted the new policy. Tennessee jailers began implementing the new policy on January 1, 2012.

• Check out the MPI data hub to learn more about immigrants in Tennessee and other states.