Is ICE Being NICE? The True Impact Of Obama's New Immigration Policy

August 2011 - By Shahzad Ahmed with NeJame Law

Ever since the announcement by the Department of Homeland Security on August 18, 2011, that its agency, Immigration and Customs Enforcement (ICE), will consider administratively closing some of the deportation cases, there has been confusion in the community about how immigrants without status can benefit from the new policy.

Our office has been receiving numerous inquiries about the recent announcement. Hence, in this article, we present both the good and the bad about this policy and aim to educate our community about the true benefits of the new policy.

The Obama Administration announced that high-level officials from the Department of Homeland Securiy and Department of Justice will be reviewing the 300,000 cases that are pending with the immigration courts. Those cases that are "low priority" may be administratively closed. Cases considered to be high priority will be aggressively prosecuted. This prioritization of cases is a form of prosecutorial discretion which permits the government to decide which cases are to be pursued more aggressively.

Note that this determination is discretionary and is made by immigration authorities. There is no guarantee that a certain case will be considered a "low priority."

Further, for those not yet in removal proceedings, eventually the immigration authorities will review the cases in order to determine whether to place people in removal proceedings. If a person is determined to be of low priority, then he or she might not be referred to Immigration Court.

As for those who already have a final order of removal, the committee will Issue guidance for exercising discretion in compelling circumstances.

The high-level committee will also create official guidance for its officials in order to have consistent decisions about which aliens to place in removal proceedings.

Following is a brief Q & A session for further understanding of this new policy.

Q: Does the new Obama immigration policy provide amnesty?
A: No. And it is not new law. Rather it is a policy, which the government has created in order to better focus its resources by prioritizing its removal cases.

Q: Can I get my removal case prioritized as "low priority"? I do not have any criminal charges.
A: The designation of "low priority" is solely within the discretion of the immigration officials. You do not have a right to be designated as a "low priority" alien even if you do not have any criminal convictions. The government will make this determination on a case-by-case basis. And there is no application to fill out for your case to be considered as low priority.

Q: What happens if the ICE designates my case as "low priority"?
A: If your case is designated as low priority, then with the consent of the ICE, the Immigration Judge will "administratively close" your case. Administrative closure means that your case will no longer remain calendared for hearings on the court's docket. Administrative closure does NOT mean that your deportation is terminated. ICE can request the court to recalendar the case at any time in the future.

Q: What is the benefit of having my deportation case administratively closed?
A: Your case will be removed from the court's calendar and will not be scheduled for a hearing. In a way, your deportation case will be temporarily suspended. However, at any time, either you or ICE can request the court to place your case back on the court's calendar.

Q: Can I automatically get work authorization if my case is administratively closed?
A: Not necessarily. The Obama administration has said only that those individuals whose cases are administratively closed will be able to apply for work authorization. This may mean that such individuals must be eligible to apply for work authorization independently of the administrative closure. It does not necessarily mean that there will be an automatic right to get work authorization. At this point, there is no clear guidance on this issue.

Q: If I have no status, should I contact the government to consider my case for prosecutorial discretion?
A: Be very careful. If you have no lawful status in the United States, then bringing yourself to the attention of the ICE would risk your deportation. Instead contact an experienced immigration attorney to review your options. At some point, requesting prosecutorial discretion may be the right option, but such risk should not be taken without professional guidance.

It is extremely important for you to understand that the recent policy does not create a right for anyone. Further this article provides only an overview of the new policy. For specific guidance related to your individual case, contact an experienced immigration attorney.