In that Jun 17 memo, under a header called "Factors to Consider When Exercising Prosecutorial Discretion," ICE officials are directed to weigh some 20 considerations in deciding whether to apprehend, detain, or remove any of the 300,000 immigrants who currently face deportation. Such factors include education, age, health status, ties and contributions to the community, and family ties to legal residents.
However, as reported in this Contra Costa Times article about the Rengifos, the case-by-case reviews under the new policy have not yet begun, as the process for assessment is still being worked out. However:
Bay Area immigration lawyers have heard of a few anecdotal cases of immigration agents or judges halting a deportation since the June memo, and all of those involved illegal immigrants who are students or same-sex married spouses.
Last week, a San Francisco judge closed a deportation case against a member of a same-sex couple from southern California. The judge’s decision came at the request of ICE. Two other same-sex couples, including one from Oakland, have also had their deportation orders rescinded. All the cases involve men who married legal residents in states allowing same-sex marriage. Previously, this was not enough to shield an undocumented spouse from deportation, as it would in an opposite-sex marriage, because the Defense of Marriage Act prohibits federal recognition of same-sex unions.
Here's an FAQ on the policy shift recently posted by the Department of Homeland Security. Some important points, if they prove to be adhered to:
Will removal proceedings or removals be halted while the interagency working group completes its review?
No. DHS will continue to enforce immigration laws. ICE attorneys and agents, however, will be tasked to review each case prior to the expenditure of resources to determine whether it is a priority case as defined in the June 30, 2010 Civil Enforcement Priorities memorandum and the June 17, 2011 Prosecutorial Discretion memorandum. Removals will continue while the working group undertakes its review.
Can individuals affirmatively apply for an exercise of discretion through this process?
No. This process does not involve the creation of an affirmative application process, although, consistent with longstanding practice, individuals in removal proceedings and their representatives remain free to submit information relevant to their case to the appropriate ICE field offices or attorneys. Any attorney or representative who purports to be able to secure an individual relief through an affirmative application to ICE or DOJ as part of this process is engaged in a scam and should be reported to the relevant authorities at DOJ, the Federal Trade Commission (FTC), or DHS.
When will the working group complete its review?
Given the volume of cases involved, it will likely take the working group several months to complete its review of cases pending in immigration and federal court.
Does the implementation of the process mean that only individuals with criminal convictions will be removed?
No. Many individuals who have violated civil immigration law but lack a criminal conviction are a DHS priority for removal from the United States. This process is designed to free up additional resources to process and remove high priority cases. DHS priorities include threats to public safety and national security, repeat violators of immigration law, recent illegal border entrants, and immigration fugitives.
Should unlawfully present individuals who do not consider themselves high priority cases voluntarily surrender to ICE to avail themselves of this process?
No. Any individual who self surrenders due to a belief that they will benefit from an exercise of discretion is very likely to be placed in removal proceedings and runs a serious risk that they will be removed from the United States. Nothing in this process creates a right or an entitlement to any person regardless of their individual circumstances