Many Undocumented Immigrants Without Criminal Records Facing Deportation Will Stay In U.S.
WASHINGTON — The Obama administration said Thursday it will allow many illegal immigrants facing deportation the chance to stay in this country and apply for a work permit, while focusing on removing from the U.S. convicted criminals and those who might be a national security or public safety threat.
That will mean a case-by-case review of approximately 300,000 illegal immigrants facing possible deportation in federal immigration courts, Homeland Security Secretary Janet Napolitano said in announcing the policy change.
Advocates for an immigration overhaul have said that the administration, by placing all illegal immigrants in the same category for deportation, has failed to live up to its promise to only deport the "worst of the worst," as President Barack Obama has said.
"From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities," Napolitano wrote a group of senators supporting new immigration legislation. "Doing otherwise hinders our public safety mission – clogging immigration court dockets and diverting DHS enforcement resources away from the individuals who pose a threat to public safety."
The Associated Press obtained a copy of the letter.
Republicans complained that the new policy circumvents Congress.
"They have created a working group that appears to have the specific purpose of overruling, on a `case-by-case' basis, an immigration court's final order of removal, or preventing that court from even issuing such an order," House Judiciary Committee Chairman Lamar Smith, R-Texas, said in a statement. "The Obama administration should enforce immigration laws, not look for ways to ignore them. The Obama administration should not pick and choose which laws to enforce. Administration officials should remember the oath of office they took to uphold the Constitution and the laws of the land."
Some states are rebelling against another administration effort to control illegal immigration known as Secure Communities. The program requires that when state and local law enforcement send criminal suspects' fingerprints to the FBI, the prints are run through an immigration database to determine the person's immigration status. States have argued that the program puts them in the position of policing immigration, which they consider a federal responsibility. Immigrant advocacy groups have complained that people who had not yet been convicted of a crime were being caught up in the system.
In June, the director of Immigration and Customs Enforcement, John Morton, sent a memo to agents outlining when and how they could use discretion in immigration cases. That guidance also covered those potentially subject to a legislative proposal, known as the DREAM Act, intended to give young illegal immigrants who go to college or serve in the military a chance at legal status.
Morton also suggested that agents consider how long someone has been in the United State, whether that person's spouse or children are U.S. citizens and whether that person has a criminal record.
A senior administration official said delaying deportation decisions in cases for some non-criminals would allow quicker deportation of serious criminals. The indefinite stay will not give illegal immigrants a path to legal permanent residency, but will let them apply for a work permit.
"As a matter of law, they are eligible for a work authorization card, basically a taxpayer ID card, but that decision is made separately and on a case-by-case basis," said the official, who spoke on the condition of anonymity because he was not authorized to discussed the change publicly.
The official said the change will give authorities the chance to keep some cases from even reaching the court system. The message to agents in the field, the official said, would be "you do not need to put everyone you come across in the system."
If an immigrant whose case has been stayed commits a crime or other circumstances change, their case could be reopened.
The decision was welcome news for people who have already been ordered out of the country but are fighting to stay.
Julio Calderon, 21, a Florida college student and illegal immigrant from Honduras, has been fighting his deportation order since he was 16.
"It's an important step for the human rights of undocumented immigrants," Calderon said.
Sen. Dick Durbin, D-Ill., a longtime supporter of immigration overhaul and the DREAM Act, applauded the policy change.
"These students are the future doctors, lawyers, teachers and, maybe, senators, who will make America stronger," Durbin said in an emailed statement. "We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember."
Rep. Michael McCaul, R-Texas, said the Obama administration was implementing reforms "against the will of Congress and the majority of American people we represent."
"It is just the latest attempt by this president to bypass the intended legislative process when he does not get his way," McCaul said in a statement. "The fact that we have a backlog and prioritize deportations is nothing new. This policy goes a step further granting illegal immigrants a fast-track to gaining a work permit where they will now unfairly compete with more than 9 percent of Americans who are still looking for jobs."
Other Republicans have previously criticized the DREAM Act and other immigration legislation that would provide a path to legal status as amnesty. Following Morton's June memo, Smith introduced a bill to block the administration's use of prosecutorial discretion and called the use of that discretion "backdoor amnesty."
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Associated Press writers Sophia Tareen in Chicago and Laura Wides-Munoz in Miami contributed to this report.
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Alicia A. Caldwell can be reached at http://www.twitter.com/acaldwellap
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ALICIA A. CALDWELL 08/18/11 07:34 PM ET Associated Press