But, What Will Implementation of Obama's Plan Look Like?

08/19/2011 10:00 am ET Updated Oct 19, 2011

The announcement yesterday by President Obama to take a new approach toward apprehension and removal of the undocumented is fiscally and politically sound. Prosecutorial discretion will help to relieve immigration courts in large metropolitan areas that suffer from overload. Even with the regular addition of newly hired judges, the wait in Los Angeles for a merits hearing is a minimum of two years. Mixed in with the cases of criminals are people who were brought here by their parents as children; they played no role in their unlawful presence. Often their parents, in an effort to protect them, have kept their unlawful status secret, Imagine the shock and suffering of these young adults when they are denied admission to colleges because of their lack of legal status.

Rightly, the focus now will be on immigration violators who have serious criminal convictions, posing a danger to our community. Prosecutorial discretion is not new. There have been various government memos issued on the subject dating back to 1976. Previously, the decision not to deport was based on presence of "substantial federal interest." The most recent memo of June 17, 2011, authored by John Morton, Director, Immigration Customs Enforcement (ICE) is based on the need for "priorities."

Here is a sample of who and what can be done. ICE officers, investigation agents, and their attorneys can decide whether to question, stop questioning, detain, release, issue Notice to Appear (NTA) in immigration court, settle or dismiss a court proceeding, expedite removal, dismiss an appeal, and join in reopening court cases.

While the listed examples are not complete, positive considerations in determining what action to take include close legal relatives in the U.S., manner of entry into the U.S., level of education completed in the U.S., military service or relative of serviceperson /veterans, conditions in the home country, elderly or minors, those with health issues or their primary caretakers, pregnant or nursing women and their spouses and victims of crimes who will cooperate in prosecutions. Negative considerations include criminal convictions, violations of law, entry after deportation/ removal, and danger to national security.

Although the memo does not mention employment authorization for those who remain in the U.S., this paper reported today that many have an opportunity to apply for employment authorization. That would indeed be a positive form of relief, not only for the applicant and his/her family, but also to the country. Those with the right to work will no longer be working under the table, will pay taxes, and contribute to Social Security.

Clearly, our system is overwhelmed and something had to be done; hopefully humanitarian
reasons formed part of the consideration. Left now is favorable implementation of the new directive.