WASHINGTON -- The Obama administration announced on Thursday it will do a case-by-case review of deportations, allowing many undocumented immigrants without criminal records to stay in the United States indefinitely and apply for work permits.
Department of Homeland Security Secretary Janet Napolitano will send a letter on Thursday to Senate members who had asked for details on how the agency would prioritize its immigration enforcement. The policy change is meant as a framework to help prevent non-priority undocumented immigrants from "clogging the system," senior administration officials said on a conference call with reporters Thursday.
First, the agency will look at its pending immigration cases and close the low-priority cases, so immigration courts can focus on the most serious ones, administration officials said. The low-priority cases can be reopened if circumstances require. Next, guidance will be given to immigration enforcement agents to help them better detect serious criminals and other high-priority undocumented immigrants.
Undocumented immigrants whose cases are closed will be allowed to apply for work permits, but will not be given them automatically, officials said.
The move was perhaps meant to combat harsh criticism from Latino groups and immigration reform advocates, who have rebuked President Obama for continuing to deport undocumented people at record rates, while at the same time insisting he supports immigration reform.
Although the Obama administration has repeatedly said its deportation policies focus on the "worst of the worst," immigrant rights groups say enforcement agents still net a large number of non-criminal undocumented people.
The administration had earlier attempted to defend its record on Tuesday, with a blog post meant to "set the record straight" on the Secure Communities enforcement program.
Cecilia Munoz, White House director of Intergovernmental Affairs, wrote that more than half of all removals are of people with criminal records. Among non-criminals, most of those removed were apprehended crossing the border, had recently arrived in the United States or had been previously deported, she wrote.
"Those statistics matter," Munoz wrote. "While we have more work to do, the statistics demonstrate that the strategy DHS put in place is working."
The administration earlier tried to clarify its immigration enforcement policies in a June memo, which specifically recommended prosecutorial discretion. That memo cited the possibility of considering whether a person under removal proceedings would otherwise be eligible for the DREAM Act, an un-passed bill that would allow some undocumented young people to gain legal status in exchange for two years of college or military service.
Sen. Dick Durbin (D-Ill.), one of the key supporters of the DREAM Act, applauded the administration's decision Thursday.
"The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students," Durbin said. "These students are the future doctors, lawyers, teachers and, maybe, senators, who will make America stronger. 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.
Durbin pledged to "closely monitor DHS" to ensure the new policy would be implemented.
But increased discretion on the part of administration prosecutors may not be enough to please advocacy groups, many of which argue the administration should abolish certain enforcement programs altogether.
"In order to fulfill its promises, the administration must end policies like Secure Communities that result in the criminalization of innocent immigrants who are Americans in Waiting like those who came before them," said Chris Newman, legal director of the National Day Laborers Organizing Network, in an email statement. "The administration has pursued policies that are sowing fear and devastation among immigrant communities, and it must reverse course to stop the Arizonification of the country," he added, referencing Arizona's strict immigration enforcement policies.
View this slideshow to see who could benefit from prosecutorial discretion:
Undocumented young people who want to go to college or join the military -- the same individuals who would benefit from the DREAM Act -- could see their cases closed by the Department of Homeland Security. Immigration agents are instructed to factor in "the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degree at a legitimate institution of higher education in the United States." This could help young people in deportation proceedings, such as Monji Dolon, a 25-year-old born in Bangladesh who is slated for deportation.
Immigration officials are also instructed to consider "whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat" when making deportation decisions. This could help keep family members of troops out of deportation proceedings.
Immediate family members of U.S. citizens are designated as low priority for deportation if they have no criminal record. Officials are instructed to factor "whether the person has a U.S. citizen or permanent resident spouse, child, or parent," potentially helping families like Hope and Nazry Mustakim, who are fighting for Nazry to stay in the country.
Binational same-sex couples will be treated as families -- despite the Defense of Marriage Act -- in the eyes of immigration agents, senior administration officials confirmed in a call with reporters.
Immigration officials are told to consider age, particularly for the elderly and minors, when making immigration enforcement decisions.
Discretion should be applied in some cases where the immigrant is a primary caretaker of a disabled or seriously ill relative, according to the DHS memo. Immigration agents are also instructed to consider whether the person's spouse is pregnant or nursing.
Immigration agents are instructed to factor "whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime." If the person is likely to receive asylum, that person will be considered low priority for deportation.
Immigrants with severe mental and physical illnesses may be safe from deportation in some cases, provided they have not committed serious crimes. Officials are told to consider physical and mental illness when making a decision about deportation.