THE BLOG

Prosecutorial Discretion Is Not Amnesty

Aug 24, 2011 | Updated Oct 24, 2011

I have received many questions and requests for assistance in the wake of Pres. Obama's announcement on August 18, 2011 of prosecutorial discretion. Because it has been reported that employment authorization may also be provided, both pro and anti-immigrant voices have been clamoring about this benefit. Those in the U.S. in unlawful status want to apply for this "work permit" while opponents are accusing the administration of a back door amnesty. Both are wrong.

It must be understood that there is no new law. Only Congress may enact or change the law, which must then be signed by the president. Such action has not occurred. The only thing that is different is a new policy. This policy is based on the discretionary authority that the Departments of Justice and Homeland Security have. This is nothing new. What is new is that specific guidelines have been provided in the June 17, 2011 memo from the John Morton, Director, Immigration and Customs Enforcement (ICE), detailing how the discretion to remove (formerly deport) or not remove a person from the U.S. will be applied. And the reason it has attracted so much attention is that the President made the announcement.
As an immigration lawyer, my immediate concern is that the field is now ripe for victimization of the immigrant community by notaries and consultants who will see it as an opportunity to charge fees for a non-existent benefit. As I pointed out in my column of August 18, the ICE memo did not mention employment authorization. That benefit appeared only as a quote of an unidentified agency official who volunteered that the new approach "... will not give illegal immigrants a path to legal permanent residency, but will let them apply for a work permit."
Because the difference in ICE action is based on policy, it is important to understand that policy may be changed at any time, without notice. Also, the reason for the change in policy is that ICE lacks the resources to arrest, detain, and remove all those who are in the U.S. in unlawful status. As a consequence, it will be focusing on a select group. The starting point will be some 300,000 cases that are already clogging the courts, awaiting removal hearings. Under the policy guidelines, it is likely that spouses of these criminals who are unlawful but with a clean record, will be permitted to stay, particularly if there a baby on the way, there are U.S. citizen children involved, they are caretakers, or have close family members in the military. There is also a special provision for victims of crimes as their testimony is needed to successfully prosecute law violators.

What cannot be recommended is that a person who has not come to the attention of immigration, appear at the office or file for employment authorization. That is likely to accomplish nothing more than assure that all the applicant's information becomes part of the government's data base. On the other hand, if as person is already in the system, awaiting a court hearing, (s)he should consult an experienced immigration attorney to help present a detailed picture of the case, arguing why prosecutorial discretion should be exercised to grant relief or dismiss the proceedings.