On August 18, 2011, Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate an interagency case-by-case review to ensure that both those currently in removal proceedings and new cases placed in removal proceedings meet those priorities. Secretary Napolitano cautioned that this process “will not provide categorical relief for any group.”

A related memorandum from USICE issued in June on prosecutorial discretion notes:

The following positive factors should prompt particular care and consideration:

  • veterans and members of the U.S. armed forces;
  • long-time lawful permanent residents;
  • minors and elderly individuals;
  • individuals present in the United States since childhood;
  • pregnant or nursing women;
  • victims of domestic violence, trafficking, or other serious crimes;
  • individuals who suffer from a serious mental or physical disability; and
  • individuals with serious health conditions.

In exercising prosecutorial discretion in furtherance of ICE’s enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:

  • individuals who pose a clear risk to national security;
  • serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
  • known gang members or other individuals who pose a clear danger to public safety; and
  • individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

The new focus on only deporting high-priority cases, such as criminals, does not amount to an amnesty program for others, as Secretary Napolitano noted. Nor does the new policy necessarily mean that people whose removal cases are stayed can obtain work permits. They will remain in immigration limbo: not in removal proceedings but not legal either. A consumer advisory warning immigrants about the limited nature of the administration’s new policy is at http://www.aila.org/content/default.aspx?docid=36705.

Secretary Napolitano’s letter is available at http://blogs.suntimes.com/sweet/11-8949_Durbin_Dream_Act_response_08.18.11.pdf. The ICE memo is available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. An ICE FAQ about the new policy is at http://www.ice.gov/doclib/about/offices/ero/pdf/immigration-enforcement-facts.pdf.