By Michael Spychalski

The Obama administration has decided to review 300,000 current deportation cases. Specifically, the administration is looking at giving aliens employment authorization to stay in the United States in what it deems “low priority” cases. “Low priority” means aliens who are elderly or crime victims, those who have close relatives in the military or parents and spouses who are U.S. citizens, and those who have lived in the United States since childhood.

One goal is to quickly identify noncriminals on deportation documents and close those cases so removals of gang members, drug traffickers and aliens who repeatedly return after being deported are dealt with. Currently the wait time on immigration court cases could be as long as 18 months. Many of these immigrants will be eligible for employment authorization, but this will be a separate process. These immigrants will be left in a limbo status — not eligible to be deported but also not lawful permanent residents or U.S. citizens. However, White House officials have stated that relief will be coming within a year for virtually all young, illegal immigrants facing deportation who might have won legal status under the Dream Act bill, which was turned down last year.

Each case will be dealt with on a case-by-case basis. The Department of Homeland Security will still have discretion in dealing with these cases. Prosecutorial discretion gives authority to the Department of Homeland Security to decide what charges to bring and how to pursue a case. A June 17, 2011, memo from John Morton described the following factors in dealing with discretion:

• the agency’s civil immigration enforcement priorities;
• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
• whether the person, or the person’s immediate relative, has served in the U.S. military, reserves or national guard, with particular consideration given to those who served in combat;
• the person’s criminal history, including arrests, prior convictions or outstanding arrest warrants;
• the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships;
• the person’s ties to his or her home country and conditions in the country;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child or parent;
• whether the person is the primary caretaker of someone with a mental or physical disability, a minor or a seriously ill relative;
• whether the person or the person’s spouse is pregnant or nursing;
• whether the person or the person’s spouse suffers from severe mental or physical illness;
• whether the person’s nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker or a victim of domestic violence, human trafficking or other crime; and
• whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the Department of Justice, the Department of Labor or National Labor Relations Board, among others.

Other factors can be considered.

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