Multi-American | How immigrants are redefining 'American' in Southern California

With Dream Act a tough sell, ICE prosecutorial discretion memo will be put to test

Photo by olongapowoodcraft/Flickr (Creative Commons)

A recently reintroduced Development, Relief and Education for Alien Minors (DREAM) Act received its first Senate hearing this morning, in a chamber packed with young undocumented immigrants who stand to benefit from a bill that proposes granting conditional legal status to young people who arrived in the U.S. before age 16, provided they attend college or join the military and meet other criteria.

There's no date set yet for a vote, and the Dream Act has historically been a tough sell. In the meantime, though, the Obama administration recently clarified its position on Dream Act-eligible immigrants and where they fall on the priority scale for deportation, which is low.

Earlier this month, as U.S. Immigration and Customs Enforcement announced planned reforms to its embattled Secure Communities enforcement program, among the memos released by the agency was one urging the use of prosecutorial discretion in the cases of certain immigrants when determining who should be detained or deported. Among these are undocumented immigrants who came as young children, have graduated from a U.S. high school, or who have pursued or are pursuing a college education. Those with military ties are on the list as well.

That's not to say that Dream Act-eligible youths aren't being placed in deportation proceedings. Many still face deportation, promising a test for the new guidelines as advocacy groups, already well-versed in mounting successful social media campaigns and petition drives that have kept some young people in the country, continue pushing to halt the removal of students who wind up with deportation orders.

From the ICE memo dated June 17, here is a list of  factors for agency employees to consider when exercising prosecutorial discretion (bold type added):

When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to --

• the agency's civil immigration enforcement priorities

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status

• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child

• the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States

• whether the person, or the person's immediate relative, has served in the U.S. military reserves, or national guard, with particular consideration given to those who served in combat

• the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants

• the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud

• whether the person poses a national security or public safety concern

• the person's ties and contributions to the community, including family relationships

• the person's ties to the home country and condition in the country

• the person's age, with particular consideration given to minors and the elderly

• whether the person has a U.S. citizen or permanent resident spouse, child, or parent

• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative

• whether the person or the person's spouse is pregnant or nursing

• whether the person or the person's spouse suffers from severe mental or physical illness

• whether the person's nationality renders removal unlikely

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and

• whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others

ICE goes on to note that the list is "not exhaustive and no one factor is determinative," and that officers, agents and attorneys should consider consider prosecutorial discretion on a case-by-case basis. Since the memo went out, ICE union leaders have complained about the guidelines being a "law enforcement nightmare" that will complicate the work done by agents.

The agency has already dismissed some cases not deemed priorities. The Houston Chronicle reported yesterday that the federal government downplayed hundreds of case dismissals in that region, most involving people "who had lived in the United States for years without committing serious crimes."