Immigration Reform: Authorities No Longer Shielding DAPA-Eligible Immigrants From Deportation Cases

Immigration officials are no longer screening out undocumented immigrants who may be eligible for deportation relief under President Barack Obama’s most recent executive action, following a Texas judge’s injunction last week on the deferred-action programs. Some immigration lawyers say the policy shift has made some immigrants vulnerable to deportation again, even though they might have been otherwise protected under the president's executive action on immigration. Some of them are being detained and face deportation proceedings, even though they should be allowed to stay under the Obama policy.

The Obama administration released several memos in November outlining a slate of new immigration policies in light of the deferred-action programs, DAPA (Deferred Action for Parents of Americans and Long-Term Residents) and an expansion of DACA (Deferred Action for Childhood Arrivals). One of those directives instructed Immigration and Customs Enforcement (ICE) agents to identify any immigrants in custody who may be eligible for deferred action under these new programs, and close their cases.

But on Feb. 17, a Texas federal judge temporarily halted the executive action, pending resolution of a lawsuit challenging the deferred-action programs. ICE officials confirmed to International Business Times that it was no longer taking eligibility of DAPA or the expanded DACA into consideration when dealing with unauthorized immigration cases.

Immigrants who aren’t in detention or don’t have pending deportation orders won’t likely be affected. Those who qualify for Obama’s 2012 DACA program also are unaffected. But immigrants already on ICE’s radar may be facing a heightened risk of deportation -- and some immigration lawyers say they already are seeing the effects.

“We’ve seen reports coming in from immigration lawyers with clients eligible for DACA or DAPA, saying that they’re being ordered to report to ICE while on supervised release and expeditiously deported,” said Matthew Kolken, an immigration lawyer based in Buffalo, New York. He detailed some of those lawyers’ accounts in a blog post, adding that the reports were coming from “all over the country.”

ICE has been public about the shift. A recorded message on the ICE Community and Detainee help line states: “Unless and until further guidance is given, ICE will not consider the new DAPA and expanded DACA guidelines as the basis for exercising prosecutorial discretion,” meaning the policy under which people deemed a low risk would be allowed to stay in the U.S.

Officials also said the agency had removed all information posters in detention facilities notifying immigrants of the new deferred-action programs.

ICE is instead using another November memo issued by Homeland Security Secretary Jeh Johnson as the basis for its deportation operations. That memo, which outlines a policy known as prosecutorial discretion, directs ICE agents to use three priority categories when considering which immigrants to detain and ultimately send into deportation proceedings. Those are immigrants who have recently crossed the border, those who present national security or public safety threats and those with felonies or serious misdemeanor convictions. Obama reaffirmed during Wednesday’s town hall meeting in Miami that these prioritization guidelines were still very much in effect.

ICE has also confirmed this: The prosecutorial discretion memo is "in full force and effect, and ICE continues to effectively use its resources by implementing the Secretary’s priorities directive," said ICE Director Sarah Saldaña in a statement.

Any immigrant who qualifies for DAPA or DACA would categorically not fall into any of these groups. But some lawyers have said they were still being targeted.

Meggie Biesenthal, an immigration lawyer based in St. Louis, said one of her clients, a DAPA-eligible father of four, was scheduled to be deported this week. She asked the client’s ICE officer if they were aware the immigrant wasn’t a priority for deportation. “The officer said they’re following their own guidelines,” she said, noting that he gave no other details about what those guidelines were.

Greg Chen, director of advocacy for the American Immigration Lawyers Association, or AILA, said his organization had heard some similar accounts. “These reports are preliminary, and we’re hearing inconsistent reports in many cities across the country,” he said.

But Chen said part of this could be attributed to confusion within ICE about how to apply the enforcement priorities laid out in Johnson’s Nov. 20 memo. “First of all, we have a very large agency trying to implement the policies, and then comes a Texas court saying you can’t do some of it,” he said. “So it makes sense that the agency is encountering inconsistencies.”

“But historically, ICE has not had a strong track record of implementing prosecutorial discretion,” he added. “When AILA monitored what ICE did on a 2011 memo, we found many offices either unable or completely unwilling to do it properly.”

Bryan Johnson, an immigration lawyer based in Long Island, New York, said relying on the priorities memo alone as a deportation guideline was “meaningless.”

“The problem with the priority memo is the same problem with the [2011 memo], in that they were not orders, they were guidelines,” Johnson said. “ICE officials leave it to the discretion of officers around the country.”

“What President Obama said at the town hall meeting is that [DAPA-eligible immigrants] are not in danger of being removed. And that’s clearly not true,” he said. “Relying on the prioritization memo still means that deferred-action people will be deported.”