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The new immigration reform bill makes changes to prosecutorial discretion


The immigration reform bill just issued by President Obama is actually not a ‘bill’ per se, but rather, an executive order. One part of the order was a comprehensive memo by the Secretary of the Department of Homeland Security that changed, altered and made in some respects clearer the priorities for deporting people and/or putting people in deportation proceedings.

Brian D. Lerner, Immigration Attorney, states that the immigration reform bill that deals with priorities has three major parts. The highest priority is referred to as Priority 1, second highes t is Priority 2 and of course the third and least preference is Priority 3. Therefore, states Brian Lerner, if you will be requesting prosecutorial discretion and you are under Priority 3 of the immigration reform bill, you should have the highest chance of success.

Priority 3 of the immigration reform bill states as follows: Priority 3 (other immigration violations): Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. The immigration reform bill states that aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Hence, states Brian Lerner, it is listed by the Secretary of Homeland Security that is the lowest priority. This is quite interesting, because usually somebody with a prior removal order will get one of the highest priorities from immigration.

Resources should be dedicated accordingly to aliens in this priority according to the immigration reform bill. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. Unfortunately, it is this part of Priority 3 of the immigration reform bill that gives most concern. It puts a great deal of discretion in the officer at the lowest levels the ability to basically believe that removing somebody is always an enforcement priority. Brian Lerner states that it is this section that also is the most ambiguous and unclear. Perhaps in the months to come before the regulations are issued, there will be clarification as to this last part of Priority 3.

Brian D. Lerner explains in more detail the immigration reform bill and its reference to a ‘final order of removal’. It is necessary, explains Brian Lerner to know what is meant by the term ‘final order of removal’. An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals; (b) Upon waiver of appeal by the respondent; (c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time; (d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal; (e) If an immigration judge orders an alien removed in the alien’s absence, immediately upon entry of such order; or (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. Brian Lerner states that if the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General.

The immigration reform bill does give a lot of hope to the families and to foreign nationals here in the U.S. However, Brian Lerner states there are ambiguities in the Priorites memo and you should get an experienced attorney to help you.

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