Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

The immigration reform USA has made specific reference to three priorities and how they are to be deported and put into removal proceeding and deported. However, the same memorandum, explains Brian D. Lerner, goes into exceptions of what you can do in order to not be deported or placed into deportation proceedings, even if you fall under one of the priorities.

Priority 1 Exceptions:

Brian D. Lerner reminds that Priority 1 targets are the highest level of targets, such as terrorist suspects, national security, various felonies, aggravated felons and various gang related crimes. The immigration reform USA exceptions to priority 1 are as follows: Of course, if you qualify for asylum, then it does not matter if you are in priority 1 as you can apply and stay if granted asylum. However, the immigration reform USA states that if you do not qualify for asylum and are under priority #1, that you can request that under prosecutorial discretion, you are not placed into removal proceedings and/or removed if in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate you are not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.

Clearly, the immigration reform USA is quite strict on allowing an exercise of prosecutorial discretion if you are under Priority #1. It also allows a variety of levels of personnel to make the decision. It might be best, states Brian D. Lerner, to apply with the top official, rather than the lowest level official who might not have as much sympathy or knowledge or procedure. However, it is possible explains Brian D. Lerner if you have a packet put together that is persuasive and that shows that there are compelling and exceptional factors to grant the request for prosecutorial discretion to not be removed. In the memo itself, in the immigration reform USA, it does not discuss what is defined as ‘compelling’ or ‘exceptional’, and therefore, there is lots of room to properly argue relief from deportation.

Priority 2 Exceptions:
Brian D. Lerner reminds that Priority 2 is the mid level priority to deport people. In summary, Priority #2 deals with persons who have 3 or more various misdemeanors, or a significant misdemeanor of which deals with specific crimes such as domestic violence, gun crimes, drug crimes, burglary, or other crimes where there was 90 days or more in custody. The immigration reform USA also included in Priority #2 includes people entering illegally or re-entering illegally and cannot prove they have been in the U.S. prior to January 1, 2014 and finally those people who have abused the visa waiver or other visa programs and in their discretion should be deported.

Thus, Brian Lerner states, that under immigration reform USA, it is in the memorandum that in order to try to apply for prosecutorial discretion so that you are not deported or put into deportation proceedings if you are in Priority #2, the following must be done: First, as with Priority #1, if you qualify for asylum, explains Brian D. Lerner, then you will not be deported here. However, assuming that is not the case as under the immigration reform USA, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security.

Brian D. Lerner, explains that the procedure and requirements to qualify for a Priority #2 exception, might look the same as Priority #1 under the immigration reform USA, it is not the case. First of all, you do not need to show ‘compelling’ or ‘exceptional’ circumstances. Brian Lerner states this is huge. The burden of proof needed to show why prosecutorial discretion should be exercised is much less with a Priority 2 request. Additionally, in Priority 2, you must only show that you will not be a threat to national security, whereas under Priority 1, you must show not only you will not be a threat to national security, but to border security or public safety. Thus, the immigration reform USA makes it abundantly clear that it will be easier to get prosecutorial discretion granted under Priority 2, rather than Priority 1.

Priority 3 Exceptions
As you might already guess, Brian D. Lerner explains, Priority #3 is the least priority given to deporting people. The immigration reform USA states that Priority #3 which basically consists of persons issued a final order of removal after January 1, 2014, but do not fall under the other priorities.

In order to be issued prosecutorial discretion if you fall under Priority 3, it must be shown that 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. Thus, Brian D. Lerner states that under immigration reform USA, this burden is even less than Priority 2. No arguments need to be made about national security. Rather, it must be shown that there is no threat to the integrity of the immigration system, or in the alternative, you are not an enforcement priority. Brian Lerner states it is a bit ambiguous what exactly is meant by ‘integrity to the immigration system’, but the fact it is listed on Priority 3 exceptions, would mean it has the least amount of burden to prove.

Therefore, there are ways to argue that prosecutorial discretion should be exercised in each and every priority. Brian Lerner reminds you that you should have the packet for prosecutorial discretion exercised in a very persuasive manner and get a qualified immigration attorney to help comply with the requirements of the immigration reform USA.

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