Legal Question in Immigration Law in Texas

My name is Kerry Bretz and I am a Partner at Bretz & Coven, LLP, a full service immigration law firm located in New York City.

Tthe Obama administration, via the Secretary of Home Land Security, Janet Napolitano, and John Morton, and John Morton, Director of Immigration and Customs Enforcement (ICE), have issued a series of directions on how ICE employees in the field should exercise prosecutorial discretion.

This is a summary of the new policy:

OBAMA ADMINISTRATION ANNOUNCES NEW POLICY

ON PROSECUTORIAL DISCRETION

Low-Priority Removal Cases Will Be Granted A Reprieve

DHS announced the creation of an HQ-based committee. The purpose of the committee is to weed out low priority cases currently before the immigration court and to prevent low priority people from ending up in removal proceedings in the first place. The committee will do the following:

1. Review the 300,000 cases currently before the immigration courts to identify the low priority cases, which will be administratively closed, and to identify the high priority cases, which will be �accelerated.� Parallel with this process, ICE attorneys are to review the cases on their docket.

2. Low priority cases will be administratively closed

3. Admin closure cases will be eligible to apply for an EAD

4. Issue a department-wide guidance on prosecutorial discretion, which will be based largely on the ICE PD memo issued on June 17, 2011. The goal will be to keep people out of removal proceedings who are �low priority�

5. There is no system yet for identifying PD cases. But the goal is to i.d. these cases as quickly as possible.

DOJ requested to be part of the process and will be represented by OIL and EOIR:

� OIL will look at its cases in the federal courts to identify those that are low priority

� EOIR will assist in looking through cases that are low priority.

Other issues:

� Gay spouses: PD memo is meant to include LGBT individuals (falling under community ties and family)

� Announcements ONLY apply to those already in removal proceedings and those who are encountered

� There is no affirmative process for those who are not already in proceedings. For persons in proceedings, additional information can be submitted, although it is unclear through what process or mechanism.

� There is no timeline yet for when the review of the 300,000 cases will take place. However, in the meantime, ICE attorneys should be doing their own docket review.

� All factors in the PD memo will be considered (not just the shorter list of factors deserving of �particular consideration�

� Review will be based on a totality of the circumstances. Any person, even those with Level 1 or Level 2 convictions will be considered, however, it is unlikely that they would be considered.

This is a great step in the right direction. However, we really do not know how this will play out in reality and whether ICE employees will really exercise the discretion described here. It is too early to tell.

I hope this helps.

Please visit our web-site at www.bretzlaw.com

Thank you,

Kerry Bretz

Bretz & Coven, LLP

A Full Service Immigration Law Firm

New York City