Policy shift eases up on deportation

— The Obama administration said Thursday that it will allow many illegal aliens facing deportation the chance to stay in the country and apply for work permits, while focusing on removing from the United States convicted criminals and those who might threaten national security or public safety.

That will mean a caseby-case review of about 300,000 illegal aliens facing possible deportation in federal immigration courts, Homeland Security Secretary Janet Napolitano said in announcing the policy change.

The announcement marks further steps to stop the deportation of people considered “low-priority” aliens such as so-called DREAM Act-eligible students and those with long-standing family ties in the country. These eligible students are those who were illegally brought to the United States as children by their parents.

“From a law enforcement and public safety perspective, DHS [Department of Homeland Security] 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.”

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-bycase’ 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. Advocacy groups have complained that people who had not 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 the DREAM Act, proposed legislation intended to give young illegal aliens 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 States, whether that person’s spouse or children are U.S. citizens and whether that person has a criminal record.

A senior administration official said that delaying deportation decisions in cases for some noncriminals would allow quicker deportation of serious criminals. The indefinite stay will not give illegal aliens a path to legal permanent residency but will let them apply for work permits.

“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 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 alien whose case has been stayed commits a crime or other circumstances change, the 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 alien 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 e-mailed 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.”

Durbin said he believed the new policy would stop the deportation of most people who would qualify for relief under the DREAM Act, formally known as the Development, Relief and Education for Alien Minors Act.

Some experts have estimated that more than 2 million people might be eligible to apply for legal status under the DREAM Act. Durbin’s office estimates that 100,000 to 200,000 could eventually earn citizenship.

Rep. Michael McCaul, R-Texas, said the Obama administration was implementing changes “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. After 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.”

White House officials said the new policy could help illegal aliens with family members in the United States. The White House is interpreting “family” to include domestic partners of homosexual and bisexual people.

Richard Socarides, a New York lawyer who was an adviser to President Bill Clinton on homosexual issues, said, “The new policy will end, at least for now, the deportations of gay people legally married to their same-sex American citizen partners, and it may extend to other people in same-sex partnerships.”

The announcement comes at the same time that hundreds of documents were released that a federal judge says show immigration officials misled states and local governments on how the so-called Secure Communities enforcement program would work.

“There is ample evidence that ICE [Immigration and Customs Enforcement] and DHS have gone out of their way to mislead the public about Secure Communities,” U.S. District Judge Shira Scheindlin wrote in an opinion on the release of the documents. “In particular, these agencies have failed to acknowledge a shift in policy when it is patently obvious - from public documents and statements - that there has been one.”

The documents show immigration officials struggling with whether the Secure Communities program is voluntary or mandatory for state and local agencies and changing its messaging to the public after some localities tried to opt out of the program.

The new revelations come as organized opposition to the program steps up with several protests around the country in the past few days. It also comes just weeks after Homeland Security told governors that the program did not need their approval to operate and that it was voiding agreements signed to authorize their states’ participation. The documents were released as part of an ongoing lawsuit filed by the Center for Constitutional Rights, the National Day Laborer Organizing Network and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.

Information for this article was contributed by Alicia A. Caldwell, Sophia Tareen and Laura Wides-Munoz of The Associated Press; by Paloma Esquivel of the Los Angeles Times and by Robert Pear and Julia Preston of The New York Times.

Front Section, Pages 1 on 08/19/2011