Who may qualify to stay in the U.S. under the New Immigration Policy of Obama

On August 18, The President made a major shift in immigration policy, announcing that the Administration would allow many of the 300,000 illegal immigrants who now face deportation to remain in the country.

The White House announced that more discretion would be used in reviewing deportation cases individually, reserving possibly those who are not considered as a real threat to public safety. There was an article by Miriam Jordan of the Wall Street Journal announcing the policy change. This policy allows a new path of case by case review of deportation. But what type of individuals have a better chance of staying in the U.S.? Fortunately the Administration has provided some guidance.

They started with a statement placed on the blog (via internet) of the White House by Cecilia Muñoz, Director of Intergovernmental Affairs in the White House. "There are more than 10 million people who are in the U.S. illegally;" "clearly we can not deport such great numbers," she writes. "Therefore, the Administration has developed a strategy to ensure that we use those resources in a manner that places public safety and national security first."

With regards to deciding whom to deport, the Department of Homeland Security and the Department of Justice apply "directives of common sense," writes Muñoz. She links the June 17 memo written by John Morton, Immigration and Customs Enforcement Director, which sets out the guidelines or principles that will be implemented. To decide if a case deserves favorable prosecutorial discretion, Morton writes, immigration officers should consider factors such as:

• the time that the person has been present in the United States;
• the circumstances of the arrival of the person in the United States, particularly if they came to the United States as a small child;
• the education of the person in the United States, giving particular consideration to those who have graduated from high school in the U.S., or who are seeking to attend colleges or universities;
• if the person or the relatives of the person, have served in the armed forces, reserves, or the National Guard of the United States;
• the criminal history of the person, including arrests, previous judgments, or outstanding arrest warrants;  links and contributions of the person in the community, including family relationships;
• the age of the person, giving particular consideration to children and the elderly;
• if they have a spouse, child, or parent who is a United States citizen or permanent resident;
• if the person is the main guardian of a person with a mental or physical disability, a minor, or a close relative seriously ill;
• if the person or the wife of the person is pregnant or breastfeeding.

Morton warns that the list of factors provided is not exhaustive and that no single factor is decisive if a person stays or goes. A senior administration officer told WSJ (Wall Street Journal) that the new immigration policy is designed to make better use of limited resources in implementing the immigration laws and to help lighten the overloaded immigration courts. But a question that arises is whether the authorities of immigration, with its limited resources, will have the ability to classify the deportation case-by-case determinations cited by the new policy.

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ADVISE FOR PEOPLE WHO ARE NOT IN THE DEPORTATION PROCESS (OR THAT HAVE AN ORDER OF DEPORTATION PENDING)

What you shouldn't do

1. Undocumented immigrants who are not in the process of deportation CANNOT obtain a Work Permit.

2. Undocumented immigrants, who are NOT in the process of deportation or have a deportation order, should not pay a lawyer or consultant to try to benefit from this policy. WARNING! DO NOT BELIEVE IN THE PROMISE OF A WORK PERMIT OR LEGALIZATION IF YOU PAY A FEE. THIS IS NOT AN AMNESTY OR LEGALIZATION!

What you can do now to prepare in case that ICE starts a deportation case against you in the future:

1. Save money to pay a Bond.
2. Consider other options such as asylum.

ADVICE FOR PEOPLE THAT ARE IN A DEPORTATION PROCESS (BUT DO NOT HAVE AN ADMINISTRATIVE FINAL DEPORTATION ORDER)

1. DHS / ICE, primarily those who represent ICE in deportation cases, will review the 300,000 cases of people who are currently in the process of deportation (removal) to determine which cases should be closed administratively.
2. There is a possibility (but not a guarantee) that people whose cases are closed, may apply for a work permit.
3. There are no written policies or procedures from ICE for the implementation of this new policy.
4. A group, which was specifically mentioned as deserving of favorable discretion in prosecuting the process or closure of their cases, are young people who meet the requirements for the DREAM Act.
5. DHS (Department of Homeland Security) has stated that they wanted to focus on the process of deportation in those who have committed crimes, which represent a danger to the community. We do not know if it is likely that ICE will be closing cases of immigrants in the process of deportation who have an arrest or have been sentenced for driving without a license.
6. If a person is in the process of deportation and does not have a lawyer, he/she should get one soon.
7. If the person is in the process of deportation and has a lawyer, he/she does not need to contact the lawyer in the majority of the cases before November.
8. ...unless the person has a hearing before immigration court before January 1, 2012 or...
9. ...unless there is something that the lawyer and client is supposed to file or submit a request soon (such as an order of appeal or a request or petition).

ADVICE FOR PEOPLE WHO ALREADY HAVE AN ORDER OF DEPORTATION BUT HAVE NEVER LEFT THE COUNTRY

1. Obtain a consultation with a reputable immigration lawyer, show all papers and documents in your possession along with your alien number.
2. It is less clear how this new policy will be applied to people who already have a deportation order.