DHS Announcement on New Process for Implementation of Prosecutorial Discretion Memo

In the wake of protests on Department of Homeland Security (DHS) prosecutorial discretion for removal cases, DHS Secretary Janet Napolitano announced a new process for implementation of the June 17, 2011, prosecutorial discretion memorandum. The letter included a background two-pager.

From the background two- pager – “the new interagency process is designed to ensure that resources are focused on the Administration’s highest enforcement priorities. As part of this process, an interagency team of DHS and Department of Justice (DOJ) officers and attorneys, including representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation at DOJ, will identify low-priority removal cases that should be considered for an exercise of discretion. This review will be conducted on a case-by-case basis and will consider cases that are at the various stages of enforcement proceedings, including charging, hearing, and after a final order of removal. The interagency working group will also issue guidance to prevent low priority cases from entering the system on a case-by-case basis. Resources that are saved as a result of this process will be used to accelerate the removal of high priority cases.”
The guidance from DHS is a good indication that the protests and the voice of the people is being heard. At a time when immigration enforcement has been highlighted by a wave of states enacting their own laws, DHS is showing that it is using its prosecutorial discretion to handle cases that warrant removal, including high profile cases involving convicted felons who are a threat to public safety. Although the letter stresses that it cannot make any categorical distinction for removal cases, such as those who might fall under the DREAM Act if it were passed, the director of DHS strongly believes in the Act and will continue to make efforts involving Congress to get it passed, including testifying before Congress. So even though DHS leadership stresses a need to enforce immigration laws, there is a feeling that reform is necessary so that our resources are being put in the right direction.