Political or Judicial

On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), released a memo setting forth the policy regarding the exercise of prosecutorial discretion by certain agency employees. This policy gives certain ICE agents the discretion to decide to what degree they will enforce immigration laws against a particular individual.

Prosecutorial discretion will be implemented in furtherance of the enforcement priorities of ICE, as set forth in a March 2, 2011 memo entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens”.

According to this new directive, ICE will prioritize the use of its enforcement personnel, detention space, and removal resources to pursue the removal of aliens who pose a threat to national security, public safety, or the integrity of U.S. immigration laws. ICE officers, agents, and attorneys may consider any relevant factors in deciding whether to grant favorable discretion, including but not limited to: length of presence in the U.S., family ties and contributions to the community, physical or mental illness, serious medical conditions, criminal history, pursuit of education in the U.S., immigration history, and risk to national security or public safety. When considering an exercise of favorable discretion, ICE agents, officers, and attorneys are to base their decision on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.

ICE also specified certain categories of undocumented aliens that should prompt special care and consideration in the exercise of discretion. Examples of these categories include: Veterans and members of the U.S. Armed Forces, long-time lawful permanent residents, minors and elderly individuals, pregnant women, and victims of domestic violence or other serious crimes.

In an effort to further this enforcement policy, an interagency working group composed of ICE and Department of Justice staff will execute a case-by-case review of all individuals currently in removal proceedings to ensure that they meet ICE removal priorities. The group will monitor new cases as well, to ensure that cases continue to meet these priorities.

While those in removal proceedings or their counsel may request a review of their case for prosecutorial discretion, it is unclear at this time whether those requests will be granted before the case-by-case review by the interagency group is completed. Additionally, ICE attorneys are encouraged to consider using their discretion without waiting for a request from those in proceedings or from counsel.

While the exercise of prosecutorial discretion is not a right, and does not provide categorical relief for any particular group of aliens, it is a step in the direction of recognizing inconsistency in the current enforcement of U.S. immigration laws, and in allowing productive members of the undocumented community to avoid lengthy detentions and removal to countries they no longer call home.

On July 25, 2011, Gov. Jerry Brown signed a California bill (AB 130) that would allow undocumented immigrants to receive privately funded scholarships to attend state colleges and universities. AB 130 is set to take effect on January 1, 2012. The second half of the California DREAM Act (AB 131) would expand AB 130 to include some state-sponsored financial aid, which undocumented students are currently ineligible to receive. AB 131 is still in legislative committee.

The 2011 session of the Colorado General Assembly drew to a close in early May after months of tough decisions for lawmakers. The session saw a host of immigration bills and resolutions. Certain anti-immigrant bills would have negatively impacted individuals who are lawfully present in the country or targeted marginalized migrant populations in Colorado. The constitutionality of other bills was questionable in the larger context of federal immigration law, and some bills would have hiked state and local spending without generating tangible benefits to local communities. Debate on these bills was emotional and lengthy. Representatives from agriculture, tourism, hotel, lodging, and restaurant industries spoke out in opposition to some of the proposed legislation.

Almost all immigration-related bills and resolutions this session – including provisions that would have authorized police to require proof of citizenship or lawful presence upon a vehicle stop, increased bond requirements for arrested individuals who were suspected of being undocumented, and complicated voter registration – were summarily rejected by the Legislature.

HB11-1003: Define ID for Voting
This bill would have required a government- issued photo ID for election-related purposes. It was postponed indefinitely in the Senate.

HB11-1088: Bond for Persons Illegally Present
HB 1088 would have increased disincentives for bail bondsmen to provide bail to arrested people who might be undocumented, and would have required advising the court and district attorney before bail being set if there were reasonable grounds for believing the defendant might be undocumented. The bill was postponed indefinitely in the Senate.

HB11-1107: State Illegal Immigration Enforcement
An omnibus immigration bill, HB11-1107 echoed much of the Arizona approach to immigration issues in employment and law enforcement found in Arizona SB-1070. One provision authorized police to contact anyone they suspected of being an illegal immigrant, while another required lawful immigrants to carry their papers on them at all times. The bill was postponed indefinitely in the House.

HB11-1140: Strengthening Illegal Alien Laws
HB11-1140 would have sanctioned local governments that did not participate in the Secure Communities program. Postponed indefinitely in the Senate

HB11-1252: Proof of Citizenship for Voter Registration
This provision would have directed the Secretary of State to compare public databases and determine if there was evidence indicating registered voters were not citizens. Voters notified by the Secretary of State that there was evidence indicating they were not citizens would be obliged to prove citizenship. The bill was postponed indefinitely in the Senate.

HB11-1309: Prevent Unlawful Employment & Human Smuggling
Another omnibus immigration bill addressing employment and law enforcement issues, HB11-1309 was postponed indefinitely in the Senate. Among its objectives, HB11-1309 sought to criminalize stopping and blocking traffic to hire and pick up passengers for work at a different location, and would have made any record related to a person’s immigration status admissible in a court without further foundation or testimony from a custodian of records.

SB11-054 Authority to Arrest Unlawful Aliens
SB11-054 would have authorized police officers to make arrests without a warrant if the officer had probable cause to believe that the individual was in violation of certain immigration provisions. It was postponed indefinitely in the Senate.

SCR11-002 Voter Registration Proof of Citizenship
This Senate Concurrent Resolution would have referred to the voters a state constitutional amendment providing the same citizenship investigation of registered voters as set out in HB11-1252, above. The resolution was postponed indefinitely in the Senate.

SCR11-003 Elected Official Proof of Citizenship
SCR11-003 would have referred to the voters a state constitutional amendment providing that anyone elected to public office in the state of Colorado must provide proof of citizenship along with the oath of office. Postponed indefinitely in the Senate.

SCR11-004 Require Employers Use E-verify
This bill proposed an amendment to the state constitution that would have required all private employers in the state to use the federal E-verify System for establishing eligibility for employment and set out significant sanctions for employers found in violation. Postponed indefinitely in the Senate

In an important step forward, the Senate held its first-ever hearing on the DREAM Act. The DREAM Act allows many young immigrants, who have grown up in the United States, the opportunity to become permanent residents of this country. The hearing highlighted the fact that many of these individuals are top students and aspire to be professionals and entrepreneurs in this country as well as serving America by enlisting in the military. The lack of a path to permanent residence for these individuals puts them in a “dead-end” position in the United States. As a country of immigrants, we need to empower these individuals to become full-contributing members of our society. Hopefully, the hearing will have a positive impact on the passage of this important legislation.

In an effort “to make our national laws actually work” the Obama administration will deport a record number of undocumented immigrants this fiscal year. ICE expects to deport about 400,000 individuals this year, which is 10% more than the Bush administration total for 2008. Obama’s government is also auditing hundreds of businesses that have been routinely hiring undocumented workers. The pace of these audits has roughly quadrupled since Bush’s last year in office.

The director of ICE, John Morton, says that the expected 400,000 deportees is the maximum number that the overburdened processing, detention, and immigration court system can handle. President Obama is walking a political tightrope: he is criticized by those who say he is weak on border security as well as by those who say he isn’t keeping his campaign promise to assist the more than 11 million illegal residents.

Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) have prepared and presented a bi-partisan blue print for immigration reform legislation. President Obama has met with the two senators to discuss the future of comprehensive immigration reform. Now that the Congress had concluded its work on health care reform, there is some hope that it will turn its attention to comprehensive immigration reform pursuant to the blue print created by the two senators. It is still too early to determine what impact the debate on health care reform will have on Congress’s ability and willingness to move forward on comprehensive immigration reform or any other major pieces of legislation – stay tuned.

In early July, both the Senate and House of Representatives passed DHS appropriations bills with a few immigration related provisions. The House version reauthorized E-Verify for a period of two years. The Senate bill made both E-verify and the EB-5 pilot programs permanent, extended the Conrad-30 waiver program and non-ministerial religious worker immigrant visa programs for an additional three years, and authorized 700 miles of reinforced fencing. The bill also seeks to allow employers to use e-verify on current employees, and not just on new hires. Finally, the bill would seek to reverse the decision of the administration to withdraw the SSA no-match discussed above. The bill will proceed to conference to resolve differences in the bill and to determine which provisions will make it into a consolidated bill that will be presented to the President for signature.

The Department of Homeland Security (DHS) announced that it will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees.

DHS also announced support and plans for a new regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After detailing the technical improvements to the system DHS Secretary Janet Napolitano announced that the Administration plans to push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.