DHS REVIEW OF LOW PRIORITY CASES FOR PROSECUTORIAL DISCRETION

The American Immigration Council (AIC) has released a Practice Advisory on the new DHS Prosecutorial Discretion policy.  Here is my summary of that Practice Advisory

Click here for the FULL ADVISORY

The advisory asks a series of Questions and provides the best Answers available to date.  I have highlighted what I consider to be the most important of the Questions and Answers.  Basically, a joint Department of Homeland Security (DHS)-Department of Justice (DOJ) working group will conduct a case-by-case review of the approximately 300,000 cases currently pending before the immigration courts, the BIA and federal courts of appeals. Those removal cases that are identified as “low priority” will be administratively closed and the respondents will be eligible to apply for work authorization with USCIS.

What will happen to cases deemed low priority?

Low priority cases already in the system will be administratively closed.  It is unclear what treatment potential low priority cases will receive. 

Will individuals whose cases have been administratively closed receive EADs?

DHS has stated that all individuals whose cases have been administratively closed will be eligible to apply for an employment authorization document (EAD) with USCIS.

What are DHS’ enforcement priorities?

The enforcement priorities are national security, public safety, border security, and repeat immigration law violators.

What are low priority cases?

Low priority cases will be identified under the factors set forth in the June 17, 2011 Morton memo. The memo lists numerous factors that DHS should weigh in deciding whether a case is low priority or not. The memo does identify certain categories of individuals who are to receive particular attention. These include veterans; long-time permanent residents; minors and the elderly; individuals who have been present since childhood; individuals with serious disabilities or health issues; women who are nursing or pregnant; and victims of domestic violence or other serious crimes.

Is it possible for cases with criminal convictions to be considered low priority?

Possibly.  It would be a case-by-case consideration.

What is the difference between administrative closure and termination of the Notice to Appear (NTA)?

Administrative closure is a procedural convenience used to temporarily remove a case from the immigration court’s calendar. The case would have an inactive status. It is not the same as having your case terminated as it may become active once again in the future.