Published:  August 22, 2011

It made a splash, a big splash, even a misunderstood splash (as is common with splashes in immigration law).  Last week, the Obama Administration delivered the news that it would be re-prioritizing its immigration enforcement efforts, starting with a review of 300,000 removal (deportation) cases pending on the immigration court docket and consideration of “administrative closure” for the cases of non-criminals.  Administrative closure effectively, and indefinitely, puts a halt to the deportation process.  Furthermore, an individual benefiting from administrative closure mercy will be eligible to obtain an Employment Authorization Document.

This announcement offers hope to many in the midst of fighting removal proceedings.  It also offers confusion to millions of undocumented individuals living in the U.S. hungry for a solution to their immigration problem, and who are vulnerable to misinformation, fantasy, despair or all of the above.

Here is what we know about the new program:

1)      A high level “working group” comprised of Department of Homeland Security and Department of Justice officials will review all cases pending before the immigration courts, with cases deemed “low priority” being administratively closed, and those considered “high priority” to continue to be prosecuted.

2)      Although “low priority” and “high priority” have yet to be defined, there is reason to believe – based on previous Obama Administration memoranda and policy – that non-criminal cases, involving, among other factors, hardships to individuals and families residing in the U.S. for extended periods will qualify as “low priority”.  “High Priority” no doubt will be cases involving individuals with criminal backgrounds of some sort or another.

3)      New guidance will be issued to the various immigration related agencies within the Department of Homeland Security (including U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection) regarding what constitutes “low priority” and “high priority” to assist in decision-making, before the fact, for the initiation – or non-initiation – of removal proceedings.

4)      Individuals with administratively closed cases will be eligible to apply for employment authorization, although details of how such an application process will work have yet to be revealed.  Further, individuals granted employment authorization in this context are not considered to be in “legal status” or even on the road toward legal status, but only the subjects of a temporary, perhaps indefinite, reprieve.

5)      It is NOT an amnesty.

6)      It is not an avenue that can be availed of by which individuals who are not in removal proceedings.

The wording of this announcement appears to indicate that consideration of cases for “low priority” status and administrative closure will take place regardless of whether the subject requests such review.  However, it makes good sense for non-criminals in the midst of fighting removal proceedings, and with compelling, or even semi-compelling humanitarian factors, to take the initiative to approach their prosecuting ICE attorney’s office and seek an exercise of prosecutorial discretion consistent with the spirit of this new program.

In no case should an individual, who is not in removal proceedings, pay an attorney or other purported professional to avail of benefits under this program – as no benefits exists outside the context of removal proceedings.  And again, even for those in removal proceedings, details regarding how the act of mercy (administrative closure), or employment authorization can be accessed are few and far between at this point.  As always, though, important developments in this area, and all areas of immigration law, will continue to be reported on here.

Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois