The Obama administration announced last month that 300,000 pending deportations of undocumented immigrants in federal immigration courts will be reviewed on a case-by-case basis by a joint task force of the Department of Homeland Security (DHS) and the Department of Justice to determine which cases are low priority and can be administratively closed.
The ABA supports the action as a way to reduce the burden on the immigration adjudication system.
The policy, conveyed to Capitol Hill Aug. 18 by DHS Secretary Janet Napolitano, is intended to focus the government’s efforts on deporting convicted criminals and those who might be a public safety or national security threat.
A lengthy list of common sense guidelines used to prioritize cases was sent to U.S. Immigration and Customs Enforcement (ICE) personnel by ICE Director John Morton in June. Low-priority cases include young people who were brought to this country as children and individuals who are military veterans or are spouses of active-duty military personnel. Other factors being considered include the person’s age, ties to the community, and physical or mental health.
High-priority cases involve individuals posing a clear risk to national security, serious felons, repeat offenders, known gang members, and individuals with egregious records of immigration violations.
“Prioritization, including the prudent use of prosecutorial discretion, is an essential function of any adjudication system,” according to Karen T. Grisez, chair of the ABA Commission on Immigration, who testified in May before the Senate Judiciary Committee. She explained that the practice has not been widely utilized in the immigration context even though there are numerous circumstances in which a respondent is not likely to be removed regardless of the outcome of the legal case.
“The ABA recommends that limited enforcement and adjudication resources should be preserved for conducting removal proceedings against those individuals within our country’s stated enforcement priorities, such as those who present a true risk to our national security or public safety and those the government actually plans to remove,” Grisez said.
She explained that a barrier to the effective exercise of prosecutorial discretion and the efficient handling of cases by DHS trial attorneys is the current practice of assigning attorneys on a hearing-by-hearing basis in removal proceedings. This practice may result in several attorneys being required to become familiar with the same case from one hearing to another rather than a single attorney having overall responsibility for a particular case.
Sen. Richard Durbin (D-Ill.) applauded the administration’s decision as a “fair and just way” to deal with immigrant students who would be helped by the proposed DREAM Act, legislation he introduced this Congress as S. 952. The proposed act, which is supported by the ABA, would provide a path to legal residence and citizenship for young immigrants who meet certain requirements, including successfully completing a criminal background check, demonstrating good moral character, and completing two years of college or military service.
“These students are the future doctors, lawyers, teachers and, maybe senators, who will make America stronger,” Durbin said.