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Federal Judge who granted injunction on DAPA drags feet on ruling on Motion to Stay injunction

The federal judge in Texas who blocked President Barack Obama’s latest executive actions on immigration signaled Tuesday that he isn’t inclined to rush a decision on the Obama Administration’s request to lift the injunction he imposed last week. The Justice Department warned in its stay application filed on Monday that if the judge does not act on the stay by the end of business today, it would move to a higher court.

Congress stops playing games and passes a clean Bill to fund DHS

Last week, the Senate passed a DHS appropriations measure that did not include the House amendments that would block DAPA implementation and DACA expansion by a vote of 68-31. Today, in a surprising move, Speaker Boehner allowed for the Senate-passed version of the DHS funding bill to be voted on in the House. The bill passed with bipartisan support in the House, 257-167 (with 75 Republicans joining 182 Democrats), and will now be sent to President Obama’s desk for his signature. The bill will fund DHS through September 2015. The bill that passed does not include language that would prohibit the implementation of the President’s November 2014 executive actions on immigration.

The Preliminary Injunction of Expanded DACA by Texas Judge

Reuters: Hearing on States’ Suit Against Obama Immigration Plan to Begin in U.S. Court

Reuters reports that today, a federal judge in Texas is set to hear arguments in a lawsuit brought by two dozen states that seeks to block President Obama’s executive actions on immigration.

Immigration Reform: The new Prosecutorial Discretion Memo and Priorities for Apprehension

Immigration Reform: New Detention Policies

Immigration Reform News Makes new Policies for deportation

The immigration reform news has made new policies states Brian D. Lerner, for who will be targeted for deportation. There are three different priorities with the first priority being the highest level of deportation and the second priority being the middle level priority and the third priority given the least preference and lowest priority for deportation.

However, the immigration reform news makes clear that there are issues and policies that apply to all of the priorities. Brian D. Lerner explains that prior policy memos were specifically revoked per the immigration reform news. The memorandum by Jeh Johnson states as follows: Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest. Unfortunately, Brian D. Lerner, immigration attorney, states that this is a rather wide open policy. It certainly allows an ICE official to simply claim that deporting a particular individual is in the ‘federal interest’ of the U.S., or deporting somebody who entered illegally would serve the ‘federal interest’ by not encouraging others to do the same act. The immigration reform news certainly has delineated the different policies, but this particular paragraph, explains Brian D. Lerner is problematic. It would seem that the ICE official which is essentially on the bottom of the enforcement hierarchy should not be given the authority in her own individual opinion what is and is not in the Federal interest of the U.S. This is exactly what the memorandum on the ‘policies’ of deportation spells out.

The immigration reform news then goes on to state that its policies on detention. It is actually quite fair states Brian D. Lerner. Specifically, the immigration reform news states as follows regarding the detention policies: As a general rule, DHS detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law. The immigration reform news states that absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. The Law Offices of Brian D. Lerner states it is about time. There has been years of detaining pregnant mothers, elderly, mentally infirm and persons with physical disabilities. It has taken a toll and not looked very humane to the rest of the world. However, the immigration reform news per this memo seems to put an end to this type of detention. The immigration reform news goes on to state that to detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE Field Office Director.Brian D. Lerner explains this is very fair as it does not put all the decision making ability in the front-line officer and will make a more uniform execution of this policy If an alien falls within the above categories and is subject to mandatory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.

Brian D. Lerner explains that this immigration reform news shows how the Obama administration priority is to not deport or to detain persons who are not in the listed priorities of deportable persons. What is interesting, explains Brian D. Lerner, is that on other parts of this memo, broad discretion is given to officers to decide whether or not to place one in removal proceedings. However, here, if the person is in detention, in accordance with the immigration reform news, they are not given that discretion, and in actuality, must go to a supervisor to keep the person detained if they fall under this category. Thus, the immigration reform news is good, but there are parts that could use clarification states Brian Lerner.

Immigration reform update gives hope to millions even with criminal history

 

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.

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