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Prosecutorial Discretion - What Does It Mean For Me?

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On August 18, 2011,  DHS Secretary Janet Napolitano announced a new process for implementation of the prosecutorial discretion memo.  This episode will discuss the memo and take listener questions.



0:00 Renee Pobjecky

Good morning and welcome. Welcome to another episode of "The Immigration Hour". I am your host, Renee Pobjecky, and today we are broadcasting live from beautiful Winter Haven, Florida. As a little bit of background information for those of you who are just tuning in to our show, I am an immigration attorney and a partner of Pobjecky and Pobjecky, LLP. Yes, that is a mouthful. I have over five years of experience practicing immigration law and if you want more information about me or the firm, you can find us on the internet at www.pobjeckylaw.net. That is w w w . p o b j e c k y l a w . n e t. I am also on Facebook so be sure to like the office Facebook page at Pobjecky and Pobjecky so that you can receive daily and weekly immigration updates. If you are interested and need more specific immigration advice, you can contact me at my office number at 863-294-0602. My law practice is limited to immigration law. In that way, I can focus 100% of my time on the needs of my immigration clients. As an immigration attorney, I am able to practise across the United States and throughout the world so I have clients from many different countries and on the six continents as well as clients throughout the United States. At this time, I set up the special immigration edition of The Immigration Hour to talk about a brand new memo. We have been receiving many, many calls regarding the memo that came out last Thursday.

1:57 Renee Pobjecky

This memo was released through the White House on August 18th 2011 and the Obama administration is asking Department of Homeland Security to implement a prioritization plan for deportation cases that are currently pending. Right now, there are over 300,000 cases currently before the immigration court. This memo is requesting that the immigrants who are in deportation proceedings be divided into high-priority cases and low-priority cases. This announcement does not affect those immigrants who are here and unlawful status and are not in immigration proceedings. So you do want to -- if somebody tells you they can get a work authorization card for you or you can get your status change if you are not in deportation proceedings, you cross that border illegally without permission, moved after the year 2000, then you really need to make sure that that person is a licensed attorney and do some background work because this does not apply to people who are not in immigration proceedings. High-priority matters are those that where immigrants have been convicted of serious crimes or oppose of Bristol National Security. Low-priority cases will be a subject to prosecutorial discretion and I will explain what that means in a minute. And those are going to be looked at on a case-by-case basis. Just because you may not be a person who has committed a serious crime or you may not be a threat to the National Security does not mean that your case will be automatically closed or that you will be automatically granted work authorization status.

3:55 Renee Pobjecky

Again, look at on a case-by-case basis and it is up to the government attorneys to determine whether they will exercise that prosecutorial discretion. This came about as I said because there is, right now, over 300,000 cases currently pending before the immigration court. There is huge backlog and nearly 60% of individuals deported have convictions for only minor offenses or no offenses at all. So this is to try and clear up that backlog. It does not mean that if your case is put or set aside that you will not be deported at a later date. In fact, the government can reopen those cases. So there are some things that you need to keep in mind. One, it is very important, you cannot believe anyone who tells you they can sign you up for a work permit, employment authorization, document or get you a legal status based on the announcement by Janet Napolitano last week. Anyone who says that cannot be trusted and I highly doubt that they are a licensed attorney. Another important factor, there is no safe way to turn yourself into immigration and there is no guarantee that your case will be considered low priority. If you come in contact with immigration authorities, you could be arrested, detained, or even deported. This is especially true if you have a prior deportation order of removal against you. In some instances, you are not even entitled to have another hearing before the judge if you have a current deportation order. It is imperative that it is so important that you talk to a qualified immigration lawyer.

5:50 Renee Pobjecky

If you cannot afford one, there are many agencies in cities where they will offer or provide pro bono assistance. You can obtain that information on the internet. There are also -- look at through your State Bar Association. They often have a referral program. In that way you know that your attorney is licensed in that state and subject to rules. You cannot seek legal advice from a notario or an immigration consultant. There are a lot of immigration scams that are going on. Unfortunately, it is going to probably be even worse with this advisory and so only speak to an attorney. The Obama administration did make it clear that this does not -- the announcement that came out last Thursday does not provide any way to apply for a work permit nor is it a way to apply to remain in United States. This does not give people work permits or legal status and it only applies to cases that are already in this system. It is just ensuring that low-priority case, and we will talk about that, do not clog up the already overwhelming overburdened immigration court system. So what is a low-priority case? There is a memo that came out and there is an attachment on my Facebook page with a copy of the memo. There are several many factors that can determine whether a case is a low-priority case. So you want to look at that memo to see if you may qualify for that. Some of this is -- look at your length of status and presence in the United States. If you just cross that border, then you are not going to probably have enough status to where the government will warrant that discretion.

7:48 Renee Pobjecky

Also, look at how the person arrived in the United States. A lot of this is going to apply to the DREAM Act kids who may be eligible if they ever pass that law who came in to the United States when they were very young. They came in with their parents and did not really have any understanding or any ability to follow the law or understand the law. The government will also look at the person's pursuit of education in the United States. So if you are in school, it is very important that you stay in school, you maintain good grades, you get your degree, and apply for college. There are wonderful programs out there and you do not want to give up on your educational studies. So if you have that, then you will most likely be put on -- discretion could be provided to you. Also, look at whether an immediate relative -- the immigrant's immediate relatives have served in the US military with particular consideration given to those who served in combat. There is -- for those who are -- if a person is married to somebody on act of duty, there is a parole in place where they may be eligible to obtain lawful permanent resident status without leaving the United States. So, if you are married to a service member, men or women, definitely talk to an attorney, a licensed attorney because you may not have to leave the United States if you are eligible for the parole in place and that is a whole another discussion for another day. Some other issues to look at, is criminal history including arrest or prior convictions whether there is an outstanding warrant.

9:40 Renee Pobjecky

It is important, do not break the law especially if you are not here lawfully. Even if your here as a permanent resident, you can be deported for certain crimes. For example in the United States, it is a crime to drink and drive. It is a crime to have sexual relations with anyone under 18. You do not want to be faced with having those crimes and being deported. It is also illegal to use illegal drugs or to be involved with the trafficking of drugs. Certain crimes mean that you can never come back to the United States. Ties to and contributions to the community including family relationships. If there is an opportunity to volunteer in the community, help your community, help your community out and do that. If you have children in school, be active with the school and volunteer for opportunities. That will come into consideration. The government has also been instructed to look at the person's ties to their country and conditions in that country. So for example, if Mexico with the violence more weight may be given if you are from an area that has seen increasing violence. That is just on the news. They have found five more decapitated heads in Acapulco. So if you are from a region where is on the Department of State's travel advisory, more emphasis or more discretion may be given to that. Again, looking at other issues is the immigrant pregnant or their spouse pregnant or nursing.

11:22 Renee Pobjecky

Whether the spouse suffers from mental or physical illness, the person who is a citizen or permanent resident, spouse, child, or parent, whether they are the primary taker of a person with a mental or physical disability or have a seriously ill relative. So again, that is on a case-by-case basis and they will be looking at those factors. So if you just came in to United States to look for work, you do not have any ties here, you are not married, you may not -- there is a good chance that you will not be given that prosecutorial discretion or placed in a low-priority case. And just because a case seems to fall into one of the categories I mentioned does not automatically mean that it will be considered low priority. The people reviewing the cases will look at all of the factors together so just because you have one factor, it does not mean you will go into that low-priority classification. What will happen if you are in a low-priority classification? Then the court could administratively close the individual case and the Department of Homeland Security attorneys would ask that be administratively closed. That means that the case is no longer active and no action will be taken including future hearings unless or until the government or the immigrant themselves ask for the case to be made active again. Even if your case is administratively closed, you are still in removal proceedings. This administrative closure does not give legal status and it is merely temporary in nature.

13:17 Renee Pobjecky

If you - based on the announcement that came out last week, again, I cannot state enough. It does not give you employment authorization status and it does not give you lawful status in the United States. It just means that your case will either be closed or no enforcement action will be taken in order to deport you. It is not amnesty. But again, it is just temporary. At the time, there is no - right now because it just came out last week. The attorneys- we do not have a lot of information that will probably be coming forth in the next couple of weeks, but I can tell you, there is no application to fill out. There is no form that we can file to obtain this. There is no filing fee to be paid and there is no guidance. Again, it is just taken on a cases-by-case basis talking to the government attorneys. Again, eventually, we expect the government to decide and provide further guidance, but the only guidance we have received is from that June memo, which outlines the circumstances in which discretion should be provide. Again, it only applies to people currently in deportation proceedings and if you try and commit a crime or give yourself or turn yourself into Border Patrol, it is not a guarantee that you will not be deported. So there are still risks involved. This is just one avenue, as I said to weed out the criminals who have committed a horrible, horrible crime or people who are threat to the national interest and security of our country.

15:15 Renee Pobjecky

So again, the memo is posted on our office Facebook page. We also put -- the American Immigration Lawyers Association has submitted an advisory. Again, I read most of the important points from that and that is also listed on the Facebook page. If you have additional questions, you can email the office at i n f o info@pobjeckylaw.net. That is @ p o b j e c k y l a w . n e t or contact our office at 863-294-0602. Again, just be careful. If somebody says they can get you a green card and you did not - and it sounds too good to be true, then it probably is and you could be taking steps to ensure that you are deported and maybe have a ban whether it is permanent or 10 years or 3 years or 5 years. So this is not amnesty, it is not providing legal status to those who are not already in deportation proceedings. I hope you find this information helpful. We will plan another episode of The Immigration Hour. We have some more information out there so at this time, I am going to sign off as your host. I look forward to future episodes and will keep saying your prayers that eventually our government will come around to having an amnesty program or having the DREAM Act where children can have opportunities after high school. Right now, what I could is I advise you to contact your congressmen and tell them how you feel about this memo that came out that was released from the Department of Homeland Security. If you support it, you need to let them know that you are a voter and that you are in support of the prioritization plan.

17:14 Renee Pobjecky

But that we do not want our government to stop there, we need to go further. In the meantime, until we meet again. Do not forget to follow our Facebook page for frequent immigration updates or check out our office website page at www.pobjeckylaw.net. Have a blessed week and I look forward to talking to you soon.