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Prosecutorial Discretion May Signal Departure from Enforcement toward Legalization or Limbo

by Alice Yardum-Hunter

In a move timed to relieve swelling deportation courts and cut government spending, the Dept. of Homeland Security, through "Prosecutorial Discretion," announced on August 18, 2011 that it will review some 300,000 removal cases and terminate those who are least threatening to the U.S. including non-criminals who have been in the country since youth, those who have strong ties to the community, who are veterans or relatives of such persons, caregivers, those with serious health issues, victims of crime or otherwise have a strong reasons for continuing to remain unlawfully in the United States.

Given the reality that prioritization of scarcer resources is necessary, and the failure of the U.S. Congress to address the undocumented population in the U.S. in a way which would benefit the U.S. as well as those who cannot otherwise be brought into the system, we welcome this review which will instead focus further on criminal aliens. While enforcement focus by ICE has been said to be on criminal aliens in recent past, now this will be more likely.

Two specific groups most likely to benefit from this measure are DREAM ACT kids who, but for undocumented status for which they are not responsible feel and act American, and some 36,000 same sex homosexual couples where one partner from overseas has not otherwise been able to regularize their status.

While significant in numbers, the review and termination of deportation of even all these folks which will not happen as at least some are criminal aliens, still this is a small percentage relative to the millions of undocumented aliens in the U.S. who are not criminals and not in removal proceedings. The presence of these individuals must be addressed. If not by enforcement, then there must be some other mechanism to address them.

The significance of focus now not so much on immigration enforcement changes the immigration landscape and tips toward legalization or a new lack of direction in immigration policy relative to undocumented aliens. Approximately a half million such aliens have been removed from the U.S. annually over the past couple of years. At this rate, over about 20 years, assuming unlawful entries were to stop, it would take about 20 years to drastically reduce the number of undocumented aliens in the U.S. That DHS will now not continue that policy leads us back toward the other side of ameliorative legislation favoring undocumented aliens, or of the presence of larger numbers of shadow aliens who might be encouraged to enter the U.S. illegally or if in the deportation system, may have their cases terminated but their status still in limbo, unable to move freely.

While a small step, the execution of prosecutorial discretion relative to 300,000 could affect more than 10 million. Only though may the future reveal whether the tides are really turning away from enforcement and toward amnesty or other legalization or legislation having similar effect.

About The Author

Alice M. Yardum-Hunter is a Certified Specialist and Former Commissioner, Board of Legal Specialization, California State Bar, has practiced business immigration law for more than 30 years. She has been honored annually as "Super Lawyer" every year since inception in 2004 and for the 2012 edition, is on their Blue Ribbon Panel to assist the vetting process of Super Lawyers. Alice is the 2011 - 2012 Chair of the L.A. County Bar Association, Immigration Section. She has served on the Distance Learning Committee of the American Immigration Lawyers Assn., for which she has been a conference speaker and edited two books: California Chapters Conference Handbook and Practice Before the Department of Labor. In 2007, she was nominated as among the top 25 lawyers from 9,000 practicing in the San Fernando Valley. Alice represents employers who seek to hire lawful workers, family wishing to unite with foreign immediate relatives, extraordinary and exceptional aliens, citizenship matters, and those in removal proceedings.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.