Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

The immigration reform update was waited for years years by millions. Brian Lerner explains that over 16 months ago, the U.S. Senate put together a comprehensive immigration package and sent it to the U.S. House to bring up for a vote and hopefully pass. However, the House just sat on the Bill and did not do anything. Whether it was only John Boehner who did nothing, or other people in the Tea Party forcing their views and policies is unknown. However, Brian D. Lerner states that the immigration reform update is given by President Obama as an executive order which has expanded the already existing DACA program and creates the new DAPA program.

However, another part of the immigration reform update is made so to give clear guidelines as to enforcement priorities for  whom will be deported. This will affect all those, states Brian Lerner, as to whom will or will not be deported, but under the immigration reform update, should also have an effect on who can and cannot qualify for DACA and/or DAPA who have a criminal history of some type. On the same day practically that President Obama made the announcement of the Executive Order in the immigration reform update, the Secretary of Homeland Security, Jeh Johnson sent a memo explaining the new enforcement priorities to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriguez

Director, U.S. Citizenship and Immigration Services and Alan D. Bersin, Acting Assistant Secretary for Policy. Thus, the immigration reform update initiated this memo to heads of about every division of U.S. Immigration states Brian Lerner. This means that the officer at the port of entry or one who works in the detention facility or one who is adjudicating petitions will all have to follow the guidlines in this memo as it is ordered by the Secretary of Homeland Security.

Therefore, what does the memo per the immigration reform update talk about and mandate, asks Brian Lerner? Foremost, it deals with the new/updated policies of removal, detention and apprehension of foreign nationals in the United States. The immigration reform update mandated the policies change and be updated. Brian D. Lerner explains that the overiding direction of the memo is that it directs enforcement against those who issue a threat to the public safety or national security of the United States. The immigration reform update also gives high priority to border security.

A quote from the immigration reform update memo from Jeh Johnson is a follows:

“In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. “

Clearly, explains Brian D. Lerner, the memo makes crystal clear that people who are not in the enforcement priority categories should not be targeted for deportation. That would serve the whole purpose of the immigration reform update. In fact, explains Brian D. Lerner, the memo states that the prosecutorial discretion can and should be exercised at all stages of the enforcement process from the time the initial contact with the foreign national up until the moment of removal. The prosecutorial discretion can be exercised at anytime .  

The immigration reform update divides enforcement categories into priorities with the top priorities listed in order of enforcment and significance. Priority 1 (threats to national security, border security, and public safety) gets the top tier attention. Brian Lerner states that foreign nationals described in this priority represent the highest priority to which enforcement resources should be directed. Per the immigration reform update, it is foreign nationals in this priority 1 enforcement that should be targeted for deportation. They are (a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; (b) aliens apprehended at the border or ports of entry while attempting to

unlawfully enter the United States; (c) aliens convicted of an offense for which an element was active

participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; (d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status; and (e) aliens convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.

Thus, the priority 1 category of the immigration reform update makes clear who and who will not be targeted. Therefore, if you are not under this particular category, you should be able to apply for the DAPA and expanded DACA programs. In fact, explains Brian D. Lerner, if you are under one of the Priority 1 updates, you should still seek immigration advice so as to see if you can reduce or vacate the crime so it is not listed as a Priorty 1 offense in the immigration reform update.

Filed under: Immigration Attorney, Immigration Reform | Tagged: #dapa, #executive action, brian lerner, DACA, Immigration Reform, immigration reform enforcement priority, immigration reform update, jeh johnson | 2 Comments »