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Letter to Secretary Napolitano and Director Morton


Location: Washington, DC

Today, U.S. Senator Charles E. Schumer urged the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) to give a one-year "deferred action" legal status to immigrants whose court removal cases have been administratively closed under new immigration initiatives. This "deferred action" legal status would give a small group of non-criminal immigrants the ability to work while the deportation of higher priority criminal cases are processed first, which is expected to take over a year.

About 40,000 non-criminal immigrants with close family ties in the United States are expected to see their cases closed in immigration court in the coming months, which will likely delay their eventual deportation for over a year. Schumer is pushing for these immigrants to be granted a temporary legal status for that time, so that these individuals can work and pay taxes. Schumer also noted that this legal status would allow DHS and ICE to use their limited resources effectively, by minimizing the chance that immigration proceedings will be repeated for immigrants whose cases have already been closed.

"Given our scarce enforcement resources, it is critical that we prioritize the deportation of criminal immigrants, and de-prioritize the deportation of non-criminals with significant family ties and long time residence in the United States," said Schumer. "For that small percentage of individuals who meet this criteria, it is only practical to provide them with actual relief that encourages them to contribute to the country rather than remaining in the shadows in a state of legal limbo. The administration should grant these individuals status for a period of one year, so that they can legally work and support themselves and their families while still residing in the U.S., all while clearing out courtrooms for higher priority criminal immigrant cases."

In April 2011, Schumer urged DHS and ICE to use their limited resources to prioritize criminal deportations and de-prioritize non-criminal deportations, and the administration took that course of action in June 2011. Since announcing a plan to use prosecutorial discretion in non-priority removal cases, ICE has conducted pilot programs in the Denver and Baltimore immigration courts. Of nearly 12,000 removal cases combined, 1,667 were administratively closed for non-criminal immigrants with strong family ties, pending a background check. Nationwide, approximately 40,000 immigrants could see their cases closed in this way under the administration's plans, and would remain in the United States for at least one year as the deportation of higher priority criminal immigrants is processed first. Schumer is urging authorities to allow this small group of immigrants to be able to spend this year in the U.S. in a productive manner by working and paying taxes.

Schumer was expected to present the letter to ICE Director John Morton in person at a meeting scheduled for Tuesday afternoon. Schumer stated that granting "deferred action" legal status after the administration closes a removal case would help to ensure that those same immigrants are not subjected to repeated court proceedings because their status cannot be verified. Without a legal status, even after an immigrant's court case is closed by the administration, ICE could end up repeating investigations of this low-priority individual. Schumer stated that these duplicative investigations would be a drain on already limited federal resources, which should be directed at high-priority criminal deportation cases.

A copy of Senator Schumer's letter to DHS and ICE appears below:

Secretary Janet Napolitano
Department of Homeland Security
U.S. Department of Homeland Security
Washington, DC 20528

The Honorable John T. Morton


United States Immigration and Customs Enforcement

500 12th Street, SW

Washington, DC 20536

Dear Secretary Napolitano and Director Morton:

As Chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, I am responsible for directing the Senate's oversight of the immigration functions of the Department of Homeland Security, including U.S. Immigration and Customs Enforcement (ICE). It is in this capacity that I write to you today asking you to confer a one-time one-year grant of deferred action status for individuals whose cases you administratively close as part of DHS's prosecutorial discretion initiative.

Firstly, I would like to complement the work you are doing on immigration enforcement. Your administration is the first to take a rational approach to enforcing America's immigration laws. The statistics speak for themselves--you are using your scarce enforcement resources to deport many more dangerous criminals than prior administrations, and you are focused on making us safer rather than causing disruptions to the economy or to families with deep roots in the United States.

I sent each of you a letter on April 14, 2011 which asked you to use your scarce resources to prioritize criminal deportations and de-prioritize non-criminal deportations. I commend you for following this course of action in your June 17, 2011 announcement regarding the use of prosecutorial discretion in non-priority removal cases and your November 17, 2011 guidance to ICE attorneys implementing this guidance.

As part of your implementation of the prosecutorial discretion initiative, you conducted pilot programs in the Denver and Baltimore immigration courts. The data from these pilots shows that ICE attorneys reviewed 3,759 cases in Baltimore and recommended that 366 of those cases be administratively closed provided they clear a comprehensive background check. With regard to the Denver pilot, the data also indicates that ICE reviewed 7,923 cases and recommended that 1,301 of those cases be administratively closed pending a background check. If those numbers are extrapolated nationwide, approximately 40,000 immigrants nationwide could see their removal cases administratively closed.

For those individuals, however, administrative closure often presents a new set of complications. These individuals continue to lack legal status, and have no ability to work here lawfully to support the very family members that often merited the grant of prosecutorial discretion. The inability to work and support oneself and one's family would make a favorable exercise of discretion a potentially hollow victory to the vast majority of those who may otherwise benefit from this discretionary exercise of law enforcement priorities. The inability to seek work authorization will also have the added negative effect of forcing individuals who are otherwise granted a temporary reprieve from deportation to seek work in an underground economy from unscrupulous employers in order to support themselves and their family members. This is a suboptimal solution both for these individuals and for the American economy.

Given that the average immigration removal case takes nearly 1 year to complete from the date a removal notice is served to the foreign national at issue, it stands to reason that any individual who is granted an administrative closure as part of your prosecutorial discretion initiative is essentially being conferred the ability to remain in the United States for at least one year. If a small number of individuals are being permitted to remain in the United States for one year, this one year status should also contain the ability to work. That is why I respectfully ask you to confer the status of deferred action for a one-year period to the immigrants you identify as meriting an award of prosecutorial discretion due to deep roots and family ties in the United States. Deferred action also has the additional advantage of not requiring DHS to waste resources potentially rounding up individuals it has just given prosecutorial discretion to--only to give these individuals prosecutorial discretion again--squandering enforcement resources that should have been expended on other higher-priority foreign nationals requiring removal.

I thank you for your attention to this important matter, and look forward to working with you in any manner necessary to further our joint mission of improving the functioning of our immigration system.


Charles E. Schumer


Senate Judiciary Subcommittee on Immigration, Refugees and Border Security

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