EXERCISING PROSECUTORIAL DISCRETION FOR DREAMers

Posted by: Norka M. Schell, Esq. 
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
www.lawschell.com

On July 19, 2012, Secretary Napolitano testified before the House of Judiciary Committee and clarified that "deferred action for DREAMers is not "amnesty" and does not provide green cards or any other legal status that would put DREAMers on the path to citizenship".

Here is some history on Prosecutorial Discretion. Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases, there has been increased attention to the scope and discretion of former Immigration and Nationality Services' (INS) prosecutorial discretion.

"Prosecutorial discretion" is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The Department of Homeland Security (DHS), like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to place someone in proceedings, but also to a broad range of other discretionary enforcement decisions.

The favorable exercise of prosecutorial discretion to grant deferred action to DREAMer only means --a discretionary decision not to assert the full scope of the DHS's enforcement authority as permitted under the law. DHS can not admit an inadmissible alien to the United States unless a waiver is available or unless Congress pass a DREAM Act legislation and President Obama signs it.

When President Obama announced on June 16 that DHS will grant deferred action to DREAMers, he only confirmed that we already know -- DHS has finite resources and it is not possible for DHS to investigate and prosecute all immigration violations. Therefore, it will focuses its finite resources in furtherance of its enforcement priority -- serious criminals, threats to national security, recent border crossers and repeat immigration violators.

The guideline on deferred action program would be available on August 1, and applications would be available on August 15. There will be an application fee but the amount is yet unknown.