Need A Work Permit? Place Yourself In Deportation

Today, in a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other Senators, Department of Homeland Security Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. If fully implemented, the new process should stop virtually all DREAM Act deportations.

I’ve personally been dreading this bit of news since I heard about it a couple weeks ago. This is President Obama’s solution to an immigration system in shambles as a response to immigrant youth who are increasingly speaking out against the criminalization of immigrant communities, taking action against Secure Communities and capturing the media airwaves on issues beyond just the narrowly-tailored DREAM Act.

Here is how the new process works:

Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

This “change” is actually putting into effect the guidelines in the new “Morton memo” or the older “Meissner memo.” It’s too early to say whether the new cosmetic change would fetch changes to the lives of real immigrants in proceedings but it certainly doesn’t do anything for the more than 11 million undocumented immigrants living in the shadows .

It is a real wonder how Obama suddenly finds that he has some power over immigration matters when it becomes politically convenient for his re-election campaign. The guidelines clearly gives undocumented youth more incentives for putting themselves in removal, which is hard to do. And I won’t go into how to do it here. The blueprint comes after months of organizing by undocumented youth asking to stop the deportations of DREAM students so it is a direct answer to a persistent request and a win of sorts but that doesn’t mean DREAM-eligible youth won’t find themselves in deportation proceedings.

I also wonder what is “low priority” as opposed to “high priority.” Are undocumented immigrants arrested for minor traffic infractions going to be “high priority” for deportation given how the Obama Administration is hell-bent on expanding the notion of criminality and crime?

In sum, as Attorney Cyrus Mehta states, “the White House announcement is a promotion of Morten memo on prosecutorial discretion rather than a new form of administrative relief.” Only time will tell whether it actually has any tangible effect. From one point of view, undocumented youth could already place themselves in proceedings and get work permits so this is really nothing new. And yet, this is the first time, the Obama Administration has actually set out to follow its defined immigration priorities.

Here’s my problem — 501(c)(3) advocate are rushing to call this a victory or good news when it doesn’t directly impact their lives. President Obama should not be let off the hook or praised for doing something considerably small. It’s a small fix to ensure that the system keeps working as immigration courts become increasingly clogged with useless cases year after year. Instead of buying into this re-election sham, immigrant rights activists must keep up the pressure and continue to hold his feet to the fire.

Nothing has changed yet — families are still being torn apart. ICE raids and Secure Communities continue to terrorize us. And I still need a job to make any of this count.

Nothing on this site creates an attorney-client relationship or replaces advice from a competent attorney. Success in one case does not guarantee success in all cases. 

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