Today, in a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other Senators, Department of Homeland Security Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. If fully implemented, the new process should stop virtually all DREAM Act deportations.
"The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students," Durbin said. "These students are the future doctors, lawyers, teachers and, maybe, Senators, who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. The Administration's new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented."
On April 21, 2010, Senator Durbin and Senator Richard Lugar (R-IN) asked DHS Secretary Janet Napolitano to suspend the deportations of DREAM Act students.
On April 13, 2011, Senator Durbin, Majority Leader Harry Reid (D-NV), and 20 other Senators followed up, asking President Obama to suspend DREAM Act deportations.
In June, John Morton, the Director of Immigration and Customs Enforcement (ICE), issued a memo ("the Morton Memo") advising ICE officials to consider certain factors when deciding whether to proceed with a deportation. One of these factors is whether an individual has been in the United States since childhood, like those who are eligible for the DREAM Act. During a Senate Immigration Subcommittee hearing on the DREAM Act, Senator Durbin asked Secretary Napolitano what is being done to implement the Morton Memo and ensure Dream Act students are not deported. Secretary Napolitano responded, "One of the things we're working on now, is to design a process that would allow us as early as possible, to identify people who are caught up in the removal system, who in the end really don't fit our priorities."
There is a long history of the government exercising prosecutorial discretion in this manner. The government has always decided who to prosecute -- and who not to prosecute -- based on law enforcement priorities and available resources. The Supreme Court has held, "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion."
How the New Process will Work:
Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on "positive factors" from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.
On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.
About the DREAM Act:
The DREAM Act would allow a select group of immigrant students with great potential to contribute more fully to America. These young people were brought to the U.S. as children and should not be punished for their parents' mistakes. The DREAM Act would give these students a chance to earn legal status if they:
* Came to the U.S. as children (15 or under)
* Are long-term U.S. residents (continuous physical presence for at least five years)
* Have good moral character
* Graduate from high school or obtain a GED
* Complete two years of college or military service in good standing
More information about the DREAM Act can be found here.