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PRACTICE ADVISORY 1Updated June 24, 2011PROSECUTORIAL DISCRETION: HOW TO ADVOCATE FOR YOUR CLIENTBy Mary KenneyHighlights of the June 17, 2011 Morton Memoranda on Prosecutorial DiscretionOn June 17, 2011, John Morton, Director of Immigration and Customs Enforcement(ICE), issued two new memoranda encouraging the expanded use of prosecutorialdiscretion by ICE officers, agents, and attorneys in all phases of civil immigrationenforcement. The first outlines in detail how ICE employees should approach a widerange of opportunities to apply prosecutorial discretion in line with ICE enforcementpriorities; the second describes specific protections for certain crime victims, witnesses,and plaintiffs.These recent memoranda are significant: if followed in the field, more intelligentexercises of prosecutorial discretion should be forthcoming. Building on decades ofagency guidance, the first memorandum sets forth a broad range of alternatives for ICEpersonnel and encourages targeted enforcement on a case-by-case basis. This newguidance provides the broadest and most explicit instruction, setting the agency’senforcement priorities as the standard for the exercise of prosecutorial discretion. Thememorandum outlines who within ICE is authorized to make discretionary enforcementdecisions and what factors they should consider. Furthermore, ICE personnel areencouraged to consider proactively the appropriate exercise of discretion as early in acase or proceeding as possible. John Morton, Director, ICE, “Exercising ProsecutorialDiscretion Consistent with the Civil Immigration Enforcement Priorities of the Agencyfor the Apprehension, Detention, and Removal of Aliens” (June 17, 2011) (hereinafter“Exercising Prosecutorial Discretion”).1Copyright (c) 2011 American Immigration Council. Click here for information onreprinting this practice advisory. This Practice Advisory is intended for lawyers and isnot a substitute for independent legal advice supplied by a lawyer familiar with a client’scase. The Legal Action Center thanks Maurice Goldman, Matthew Guadagno and ShobaSivaprasad Wadhia for their assistance with the original version of this practice advisory.The LAC thanks Laura Lichter for her assistance with the current version.1331 G Street NW, Suite 200 · WASHINGTON, DC 20005 · TEL: 202-507-7500 · FAX: 202-742-5619www.legalactioncenter.org · clearinghouse@immcouncil.org

The second memorandum highlights ICE’s recognition that cases involving crimevictims, witnesses and plaintiffs require a heightened standard of prosecutorial discretion.This guidance makes clear that it is generally against ICE policy to initiate removalproceedings against victims or witnesses to a crime, or to “remove individuals in themidst of a legitimate effort to protect their civil rights or civil liberties.” John Morton,“Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs” (June 17, 2011) at1-2 (emphasis added) (hereinafter “Victims, Witnesses, and Plaintiffs”). This is the firsttime that the Department of Homeland Security (DHS) has formally recognized thatprivate civil rights and labor litigants are deserving of protection. Moreover, thelanguage of the memo is expansive and will protect those involved in labor, housing orsimilar disputes being waged outside of a courtroom. These protections could go fartowards removing the fear of retaliation and removal that noncitizens face whencontemplating whether to defend their rights.The following are the highlights of each of the two memoranda (more detail about theseand the earlier memoranda is provided throughout the practice advisory):1. “Exercising Prosecutorial Discretion Consistent with the Civil ImmigrationEnforcement Priorities of the Agency for the Apprehension, Detention, andRemoval of Aliens.” This memorandum:• Emphasizes that prosecutorial discretion decisions should be consistentwith ICE enforcement priorities and reframes the standard forprosecutorial discretion decisions to whether the case meets the agency’scivil immigration enforcement priorities, 2 which are national security,border security, public safety, and the integrity of the immigration system;• Clarifies the broad scope of options to exercise prosecutorial discretion bysupplying a list of examples of the types of decisions that can be made;notable among these are the decisions on whether to:• Issue or cancel a notice of detainer;• “Reissue” or “serve” Notices to Appear (NTA); arguably, thisgives an ICE officer the flexibility to allow a respondent toaccrue the necessary continuous residence or continuous physicalpresence time for LPR and non-LPR cancellation, respectively;• Settle or dismiss a proceeding; this appears to apply at all stagesof a removal proceeding, including federal court appeals;• Expands the list of favorable factors to be considered, to include:• Whether the case falls within agency priorities;• Graduation from a U.S. high school and/or pursuit of highereducation in the U.S.; inclusion of this factor will benefit“DREAM” students;• A much greater emphasis on family relationships; thus, forexample, consideration is now to be given to the military service2Previously, the Meissner memo had articulated the standard as whether a“substantial federal interest” was present.2

of a noncitizen or an immediate relative; whether a noncitizen orspouse is pregnant, nursing, or has a severe mental or physicalcondition; and whether the noncitizen is the primary caretaker ofan ill relative (emphasis added); family relationships also noware recognized explicitly as part of a noncitizen’s ties to thecommunity.• Identifies the ICE personnel who can exercise prosecutorial discretion;significantly, ICE attorneys can exercise such discretion at any stage of acase, including at the federal courts; moreover, ICE attorneys can do soeven in cases initiated by United States Citizenship and ImmigrationServices (USCIS) or Customs and Border Patrol (CBP);• Identifies classes of individuals warranting “particular care”: veterans andmembers of the U.S. armed forces; long-time permanent residents; elderly;minors; seriously ill or disabled; victims of abuse, trafficking or othercrimes; pregnant or nursing women; those in the U.S. since childhood;• Identifies only a few negative factors warranting “particular”consideration: national security risks; serious felons, repeat offenders, orthose with lengthy criminal records; known gang members; and“egregious” immigration violators;• Encourages personnel to proactively consider prosecutorial discretioneven absent a request from the noncitizen or representative; and• Requires that ethics rules be followed regarding contact with representedindividuals.2. “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs.” Thismemorandum:• States that, absent special circumstances, it is against ICE policy to initiateremoval proceedings against crime victims and witnesses, or to removethose in the midst of legitimate efforts to protect their civil rights;• Seeks to minimize the deterrent effect that immigration enforcement mayhave on victims, witnesses, and plaintiffs calling police and pursuingjustice;• Identifies classes of individuals warranting “particular care”: victims ofdomestic violence, trafficking, or other serious crimes; witnesses inpending criminal investigations or prosecutions; plaintiffs in non-frivolouscivil rights lawsuits; and individuals involved in protected activity relatedto civil or other rights (such as union organizing or complaining aboutdiscrimination in employment or housing); and• States that, in the absence of serious adverse factors (such as nationalsecurity concerns; serious criminal history; significant immigration fraud;human rights violations), exercising prosecutorial discretion “will beappropriate.” (Emphasis added).3

IntroductionLike all other enforcement agencies, ICE has prosecutorial discretion. When ICEfavorably exercises prosecutorial discretion, it essentially decides not to assert the fullscope of the enforcement authority available to the agency in a given case. Morton,“Exercising Prosecutorial Discretion” at 2. In immigration cases, this discretion can beexercised with respect to investigations, arrests, detention, parole, the initiation ofremoval proceedings, and even the execution of final removal orders. In some cases, afavorable grant of prosecutorial discretion may be the only relief available to a client.This practice advisory explains what prosecutorial discretion is, who has authority toexercise it, and how it is exercised most often in immigration cases. It also suggests waysthat attorneys can advocate for the favorable exercise of prosecutorial discretion by DHSofficers, whether from ICE, USCIS or CBP. 3This practice advisory also discusses all currently applicable agency guidance onprosecutorial discretion in immigration cases – including memoranda from the legacyImmigration and Naturalization Services (INS), ICE and USCIS – and summarizes thisguidance in an attachment at the end of the advisory. In general, this guidanceencourages officers to consider the exercise of prosecutorial discretion in a variety ofsettings and sets forth guidelines for doing so. In particular, Director Morton clearlyexplains that, because of limited resources, ICE officers should focus enforcement effortson cases that fall within the agency’s four enforcement priorities: national security,border security, public safety, and the integrity of the immigration system. See Morton,“Exercising Prosecutorial Discretion.”Unfortunately, in the past, officers in the field too often failed to follow the guidance onprosecutorial discretion and, as a result, infrequently exercised such discretion favorably.For that reason, it is essential that attorneys advocate for expanded use of prosecutorialdiscretion, consistent with the 2011 Morton memoranda, by specifically requestingfavorable prosecutorial discretion in meritorious cases, and building a case for this reliefon behalf of clients, just as you would any other type of relief.What is prosecutorial discretion?“Prosecutorial discretion” is the authority of a law enforcement agency or officer chargedwith enforcing a law to decide whether – and to what degree – to enforce the law in aparticular case. See Morton, “Exercising Prosecutorial Discretion.” A law enforcementofficer who decides not to enforce the law against a person has favorably exercisedprosecutorial discretion. Examples of the favorable exercise of prosecutorial discretion inthe immigration context include a grant of deferred action; a stay of removal; or adecision not to issue a Notice to Appear (NTA).3For a more in-depth discussion of prosecutorial discretion, see Shoba SivaprasadWadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int.L.J., No. 2, 2010.4

Prosecutorial discretion applies in the law enforcement context only; that is, only insituations in which a person is suspected of having violated the law (whether civil orcriminal). Both ICE and USCIS officers have the authority to exercise prosecutorialdiscretion. In immigration cases, prosecutorial discretion primarily is exercised withrespect to removal proceedings (including the decision whether to place a person inproceedings); detention; parole; and the execution of removal orders. Prosecutorialdiscretion is not the same as the discretion that a USCIS officer exercises when decidingan affirmative application for an immigration benefit, such as adjustment of status, sincesuch a decision is not about whether to enforce a law against a person. However, if afterthe officer denies an adjustment application, he agrees not to issue an NTA against anapplicant who might be subject to removal, he has favorably exercised prosecutorialdiscretion.Prosecutorial discretion can be exercised on either an agency-wide basis or by anindividual officer or employee. When ICE adopts priorities streamlining its enforcementefforts, for example, it is exercising prosecutorial discretion as an agency with respect tohow to spend its resources. Administrative advocacy and liaison efforts often seek toinfluence the agency-wide exercise of prosecutorial discretion by advocating for adoptionof more favorable enforcement practices and policies. For example, in response tocoordinated advocacy efforts, USCIS adopted a new policy establishing a procedure forsurviving spouses and children of deceased U.S. citizens to apply for deferred action. SeeDonald Neufeld, “Guidance Regarding Surviving Spouses of Deceased U.S. Citizens andtheir Children” (June 15, 2009). In contrast, a DHS officer who decides to cancel anNTA as improvidently issued, see 8 C.F.R. § 239.2(a)(6), is exercising favorableprosecutorial discretion on an individual basis.Prosecutorial discretion is not addressed in either the immigration statute or regulations(although there may be statutory or regulatory authority for some of the decisions made).Rather, prosecutorial discretion is the inherent discretionary authority that the agency haswith respect to how it enforces the law. See Bo Cooper, General Counsel, INS, “INSExercise of Prosecutorial Discretion” (undated) (discussing the origins of prosecutorialdiscretion and its application in immigration proceedings). Both courts and the Board ofImmigration Appeals (BIA) have long recognized the agency’s authority to exerciseprosecutorial discretion. See, e.g., Reno v. American-Arab Anti-Discrimination Comm.,525 U.S. 471, 489-92 (1999) (finding that the INS retains inherent prosecutorialdiscretion as to whether to bring removal proceedings); Matter of Yauri, 25 I&N Dec.103, 110 (BIA 2009) (noting that DHS has prosecutorial discretion over deferred actionand citing cases); Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000) (finding that theformer INS had prosecutorial discretion to decide whether to commence removalproceedings against a person subsequent to IIRIRA).However, prosecutorial discretion only can be exercised within the bounds of theagency’s – or an officer’s – legal authority to act. Where the Immigration andNationality Act (INA) makes a determination/action mandatory, the agency or officergenerally does not have discretion to act in ways contrary to that mandate. For example,DHS has stated that the mandatory detention statute, INA § 236(c), eliminates an5

officer’s prosecutorial discretion to release a person subject to such detention. See DorisMeissner, Commissioner, “Exercising Prosecutorial Discretion” (Nov. 17, 2000)(“Meissner memo”). Note, however, that this would not prevent an officer fromexercising prosecutorial discretion and not issuing an NTA against a person who – if andwhen the NTA were issued – would be subject to mandatory detention. Id. at 6.Arguably, and for the same reasons, an officer also might be able to cancel an NTA in acompelling case before it is filed with the court and thus eliminate the basis formandatory detention. Thus, while it is always important to keep in mind the limits of anofficer’s statutory authority when seeking prosecutorial discretion, it is also important tothink creatively about potential solutions not prohibited by law – especially inparticularly compelling cases.Finally, prosecutorial discretion is not only a humanitarian tool of the agency. It alsoserves other agency purposes. As a practical matter, understanding these purposes willassist you in arguing that your client is a good candidate for favorable prosecutorialdiscretion. Important among these purposes is that the agency’s ability to exerciseprosecutorial discretion – by declining to prosecute certain cases or types of cases –assists it in focusing its limited resources on higher priorities. DHS estimates that ICEonly has resources to remove, annually, less than 4% of noncitizens who are in the U.S.without authorization. John Morton, Director, ICE, “Civil Enforcement: Priorities for theApprehension, Detention, and Removal of Aliens” (March 2, 2011). 4 Consequently, ICEhas set as its highest enforcement and removal priorities national security, public safetyand border security. Id.; see also Morton, “Exercising Prosecutorial Discretion.” 5 Inaccord, the agency has s explained that the first question behind all prosecutorialdiscretion decisions should be whether the enforcement action advances the agency’sgoals. Meissner memo, at 4-6. Consistent with this, the standard for prosecutorialdiscretion in a given case now is whether pursuing it meets the agency’s priorities forfederal immigration enforcement. Morton “Exercising Prosecutorial Discretion,” at 2n.1.Over what types of immigration decisions can an immigration officer exerciseprosecutorial discretion?In the immigration context, DHS officers have the authority to favorably exerciseprosecutorial discretion at all stages of any enforcement process. This discretion can be4This memorandum is a reissuance of a memorandum first issued on June 30,2011. The only difference between the two is that the current version, cited above,contains a final paragraph stating that it does not create any right or benefit enforceableby law.5Unfortunately, ICE’s conduct in the field often is not consistent with the agency’snational priorities. See, e.g., Shoba Sivaprasad Wadhia, The Role of ProsecutorialDiscretion in Immigration Law, 9 Conn. Pub. Int. L.J., No. 2, 2010; Michele Waslin,“ICE’s Enforcement Priorities and the Forces that Undermine Them” (November 2010);Shoba Sivaprasad Wadhia, “Reading the Morton Memo: Federal Priorities andProsecutorial Discretion” (November 2010).6

exercised with respect to detainers, investigations, arrests, detention, parole, the initiationof removal proceedings, appeals, motions to reopen, and even the execution of finalremoval orders. See Morton, “Exercising Prosecutorial Discretion,” at 2-3 (listingexamples of when an officer can exercise prosecutorial discretion).The following provides examples of the types of prosecutorial discretion decisions that animmigration officer can make at three discrete stages of a case: (1) prior to filing an NTAwith the immigration court; (2) while the noncitizen is in removal proceedings; and (3)after a removal order has been issued. Note that this list is not exhaustive but intended toillustrate the range of decisions subject to discretionary action by agency personnel.1. Prior to filing an NTA. An officer can exercise prosecutorial discretion over:• Whether to focus enforcement resources on particular administrativeviolations or conduct;• Whether to stop, question, or arrest an individual for an administrativeviolation;• Whether to issue or cancel a notice of detainer;• Whether to place a person in expedited or other summary removalproceedings;• Whether to issue, serve, file, or cancel an NTA or refrain from doing so; 6• What charges to include in an NTA;• Whether to agree to cancel an NTA before it is filed with the court; 7• Whether to agree to pre-hearing voluntary departure;• Whether to parole under § 212(d)(5) a person in the U.S. who was neveradmitted or paroled (i.e., a grant of “parole-in-place”) but who otherwise iseligible to adjust so that she can pursue that relief;• Whether to parole an arriving alien into the United States, rather than detainthe alien under § 235(b);• Whether to detain a person or release him or her on bond, supervision,personal recognizance, or other condition;• Whether to grant a noncitizen deferred action;6See 8 C.F.R. §§ 239.1(a) and 1239.1(a) for a listing of officers who can issue anNTA.7Before an NTA is filed with the court, any officer with authority to issue an NTAalso has the authority to cancel the NTA as “improvidently issued,” due to changedcircumstances, or for other reasons. 8 C.F.R. § 239.2(a). Note that ICE attorneys (knownas Assistant Chief Counsels or trial attorneys) do not have authority to issue an NTA andthus do not have authority to cancel one. However, an ICE attorney can advise her clientto cancel the NTA. See William Howard, Principal Legal Advisor, ICE, “ProsecutorialDiscretion” (Oct. 24, 2005), at 4-5. Additionally, once the NTA is filed with theimmigration court, the trial attorney can move to dismiss proceedings. Id. at 5; see also 8C.F.R. § 1239.2(c); Morton, “Exercising Prosecutorial Discretion,” at 3.7

2. While the noncitizen is in removal proceedings. An officer can exerciseprosecutorial discretion over:• Whether to agree to join a motion to administratively close or terminate aremoval case;• Whether to agree to a continuance for the person to become eligible for reliefat a later date (i.e., while waiting for a family member to naturalize);• Whether to amend the NTA to change or remove certain charges;• Whether to agree not to oppose a grant of relief or voluntary departure;• Whether to agree to limit the issues to be heard or the evidence presented;• Whether to appeal an immigration judge decision that ruled in favor of anoncitizen;• Whether to grant deferred action or otherwise settle the case;3. After issuance of a removal order. An officer can exercise prosecutorialdiscretion over:• Whether to not oppose a motion to reopen;• Whether to join in a proposed joint motion to reopen;• Whether to stay the execution of a removal order;• Whether to place the individual on supervised release, rather than detain theindividual;• Whether to grant a noncitizen deferred action; and• Whether to agree to a remand if a case is before a court of appeals on apetition for review.What is deferred action status and is it a favorable grant of prosecutorialdiscretion?Deferred action is a DHS decision not to pursue enforcement against a person for aspecific period of time, in the exercise of the agency’s prosecutorial discretion. The grantof deferred action by USCIS does not confer lawful immigration status or alter theperson’s existing immigration status. See ICE, “Detention and Deportation Officer’sField Manual” (updated Mar. 27, 2006). While deferred action does not affect anyalready existing period of unlawful presence, periods of time in deferred action do qualifyas periods of stay authorized by the Secretary of DHS for purposes of INA §§212(a)(9)(B) and (C)(i)(I). See Donald Neufeld, Acting Assoc. Dir., USCIS,“Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act” (May 6, 2009). Note, however, thatdeferred action cannot be used to establish eligibility for any immigration benefit thatrequires maintenance of lawful status.An individual with deferred action may apply for an Employment AuthorizationDocument (EAD) if she can establish an economic necessity for employment. 8 C.F.R. §274(a).12(c)(14). Thus, it can be a significant benefit to a person without other optionsfor relief.8

For a full discussion of deferred action, including factors that are to be considered,suggestions for preparing and advancing a deferred action request, and sample requests,see “Private Bills and Deferred Action Toolkit,” prepared and issued by Maggio Kattar,Duane Morris and Penn State Law School.Who can make the decision to favorably exercise prosecutorial discretion in a givencase?The immigration officer or employee with the authority to exercise prosecutorialdiscretion will vary depending on the issue and stage of the proceeding involved.Generally, an immigration officer/employee has this authority over any prosecutorialdiscretion decision that falls within the scope of her duties, subject to his chain ofcommand. Meissner memo, at 1, 5.With respect to ICE officers, the Morton memorandum “Exercising ProsecutorialDiscretion” more specifically lists who has the authority to exercise prosecutorialdiscretion. These are:• Enforcement and Removal Operations (ERO) officers, agents, and theirsupervisors with authority to institute removal proceedings or otherwise engage inimmigration enforcement;• Homeland Security Investigations (HSI) officers, special agents, and theirsupervisors with the same authority;• Attorneys and their supervisors within the Office of the Principal Legal Advisory(OPLA) who have authority to represent ICE in removal proceedings; and• The Director, the Deputy Director, and their senior staff.As a practical matter, practitioners should become familiar with officers within their localDHS offices and learn who has authority over what types of decisions. It is alsoimportant to know who the supervisors are, as they may have the final say over adecision. While some DHS personnel may not have the authority to make the decision,they still could be influential. For example, Assistant Chief Counsels (also known as trialattorneys) are not authorized to cancel an NTA, or to grant deferred action or a stay ofremoval. See William Howard, Principal Legal Advisor, ICE, “Prosecutorial Discretion”(Oct. 24, 2005). Nonetheless, someone from the local Office of the Chief Counsel maybe able to help favorably resolve a case, and certainly ICE attorneys can advise theirclients, the agency, about steps to take in a case. Id. Moreover, ICE attorneys do haveauthority over other determinations, such as whether to consent to administratively closea removal case or whether to join a motion to reopen. Id; see also, Morton, “ExercisingProsecutorial Discretion” at (discussing ICE attorney’s exercise of prosecutorialdiscretion to “dismiss, suspend, or close” a case).Additionally, other immigration attorneys in the locale can assist greatly in guiding youon local policies and procedures.9

What policy memos or other guidance on the exercise of prosecutorial discretionexist and what authority do they provide for local officers to act?Over the years, both legacy INS and components within DHS have issued numerousmemoranda that discuss various aspects of prosecutorial discretion. At the end of thispractice advisory is a list of agency guidance that discusses prosecutorial discretion indifferent contexts, with a short description of each memorandum. This list may not beexhaustive, so be sure to look for additional policy or procedural guidance supporting theexercise of prosecutorial discretion, including guidance that does not explicitly mention“discretion."What factors will be considered in a prosecutorial discretion decision?The factors that will influence a decision on prosecutorial discretion will vary accordingto the nature of the case. However, there are some general guidelines about importantfactors that the agency will consider in most, if not all cases. This list of factors, takenfrom the June 17, 2011 memorandum, Morton, “Exercising Prosecutorial Discretion,” at4, includes:• The agency’s civil immigration enforcement priorities;• The person’s length of presence in the U.S., with particular consideration topresence in lawful status;• The circumstances of the individual’s arrival, particularly if arrival was as ayoung child;• Graduation from a U.S. high school and the pursuit of higher education in theU,S,;• U.S. military service of the individual or immediate relative, particularly combatservice;• Criminal history;• Immigration history;• Whether the person is a national security or public safety concern;• Ties and contributions to the community, including family ties;• Ties to and conditions in the home country;• Whether the person is elderly or a minor;• Whether a spouse, parent or child is a U.S. citizen or permanent resident;• Whether the person is the primary caretaker of any person with a disability orillness or a minor relative;• Whether the person or a spouse is pregnant or nursing, or suffers from a severemental or physical illness;• Likelihood of removal;• Likelihood of permanent or temporary immigration relief; and• Cooperation with federal, state or local law enforcement (including theDepartment of Labor and the National Labor Relations Board).10

The decision should be based upon the totality of the circumstances, with the goal ofconforming to ICE’s enforcement priorities. Id. 8Significantly, the 2011 Morton memos also identify certain classes or individualswarranting “particular care.” These include veterans and members of the U.S. armedforces; long-time permanent residents; minors and the elderly; those present in the U.S.since childhood; pregnant and nursing women; victims of domestic violence, trafficking,or other serious crimes; and those with serious health conditions or disabilities.Predictably, certain negative factors will warrant “particular care and consideration,”including: risks to national security; serious felons, repeat offenders, or those with alengthy criminal record; known gang members; and individuals with an egregious recordof immigration violations, including illegal reentry and immigration fraud. Morton,“Exercising Prosecutorial Discretion,” at 5.What role can an attorney play in influencing an immigration officer to exercisefavorable prosecutorial discretion?1. Ask that favorable prosecutorial discretion be exercised in yourclient’s case. Despite language in earlier memoranda encouragingimmigration officers to consider the favorable exercise of prosecutorialdiscretion on their own, this has not previously happened. See, e.g.,Meissner memo. 9 Thus, an attorney can play an important role inrequesting a specific type of favorable action in a case, and advocatingfor this result. It is not sufficient to simply ask for a favorable exerciseof prosecutorial discretion. Instead, ask specifically for what it is thatyou want the officer to do (e.g., grant deferred action; terminateproceedings; grant a stay of removal; etc.), and outline whyprosecutorial discretion is appropriate, with particular care to highlightthe positive factors and how the exercise of prosecutorial discretion inyour case would meet agency enforcement priorities.8The Meissner memo, at 7-8, makes clear that there also are factors that cannot beconsidered, including the individual’s race, religion, sex, ethnicity, national origin, orpolitical association, activities or beliefs (unless the above is relevant to the person’simmigration status or case in another way); the officer’s own personal feelings regardingthe individual; or the possible effect of the decision on the officer’s own professional orpersonal circumstances.9Moreover, be aware that despite its overall encouraging tone, the Meissner memoalso cautions against “attempts to exploit prosecutorial discretion as a delay tactic, as ameans merely to revisit matters that been thoroughly considered and decided, or for otherimproper tactical reasons.” Meissner Memo, at 10. For this reason, attorneys may wantto be judicious in selecting the cases in which they advocate for this relief. Asking for itin cases in which it clearly is not warranted could undermine your future efforts to getthis relief in meritorious cases.11

2. Put together a package of materials to support your request forprosecutorial discretion. To better make a record, make your requestin writing. Consider providing a detailed cover letter or brief,supported by material that will demonstrate that your client isdeserving of prosecutorial discretion. Include all the facts that animmigration officer will need to make an informed decision, but be asconcise as possible.3. Use the agency memoranda to support your request. The exerciseof favorable prosecutorial discretion is not mandatory in anycircumstance. However, the memoranda do provide authority for anofficer and/or local office to act favorably. For example, where a clientin removal proceedings has an adjustment application pending beforeUSCIS (because, e.g., she is an “arriving alien” and only USCIS hasjurisdiction over the application), argue that the removal case should beterminated pursuant to the August 20, 2010 Morton memo. See JohnMorton, Assistant Secretary, ICE, “Civil Enforcement: Priorities for theApprehension, Detention, and Removal of Aliens” (June 2010).Another example is found in the Howard memo, which contains thefollowing advice to local ICE counsel: "[w]here a motion to reopen foradjustment of status or cancellation of removal is filed on behalf of analien with substantial equities, no serious criminal or immigrationviolations, and who is eligible to be granted the relief except that themotion is beyond the 90-day limitation contained in 8 C.F.R. §1002.23, strongly consider exercising prosecutorial discretion."William Howard, Principal Legal Advisor, ICE, “ProsecutorialDiscretion” (Oct. 24, 2005) (emphasis added). The 2011 Mortonmemoranda contain similarly strong directives.4. Highlight the positive factors in your client’s case. Review thecriteria supporting favorable action that are listed in the relevantmemos and highlight the applicable criteria for the officer. Where aclient falls within a classification deserving “particular care,” be sure toemphasize and build upon this fact. Morton, “Exercising ProsecutorialDiscretion,” at 5. Develop other favorable equities, just as you wouldin a case seeking a discretionary benefit or relief from removal fromDHS.5. Address any problems or inadequacies in the case or the evidence.It is better to address such problems directly because otherwise it couldappear that you were trying to hide information from the officer, whichcould undercut the credibility of your other arguments. Moreover,when there is negative information, you should not only disclose it, butalso provide mitigating information. For example, when there is aconviction, provide evidence of completion of probation or parole.12

6. Provide the evidence that the officer needs to support the decision.A decision to exercise prosecutorial discretion in a given case requiresan individualized determination based upon the facts and the law.Meissner memo, at 6. The more developed the facts are with respect tothe factors favoring your client, the stronger the request will be. Thus,where time permits, an attorney can play an important role in providingthe immigration officer with evidence demonstrating why a favorableexercise of discretion is warranted in a case. Where there is a relevantmemo, review the criteria to be considered in support of favorableprosecutorial discretion and offer evidence demonstrating that thesecriteria are satisfied.7. If removal proceedings have been initiated, consider seeking acontinuance of the proceedings so that you can discussprosecutorial discretion options with ICE counsel. An immigrationjudge may be inclined to grant a continuance to allow—or evenencourage – the parties to discuss prosecutorial discretion options. Forexample, an attorney was granted a continuance after he argued that hisclient did not fall within the enforcement priorities outlined in the June30, 2010 Morton memo and that he wanted an opportunity to advocatefor ICE to favorably exercise prosecutorial discretion and join him in amotion to dismiss. 108. Ensure that all details of any plan for favorable action for yourclient are completely worked out and are committed to writing.For example, if deferred action will not benefit your client unless shealso is granted an EAD, be sure to include this in your advocacy foryour client, and if agreed to, in the written summary of the final grantof deferred action. 119. Consider having your client contact his or her Senator orCongressional representative for additional support. Your clientcan provide the elected official with a copy of the request for favorable10An ICE attorney has the authority under the regulations to move to dismiss a casefor all of the reasons that an NTA can be cancelled. See 8 C.F.R. § 1239.2(c) (citing 8C.F.R. § 239.2). These reasons include, among others, that the noncitizen is notdeportable or inadmissible; that the NTA was improvidently issued; and thatcircumstances have changed such that it is no longer in the best interest of thegovernment to continue the case. The motion, however, must be granted by the IJ inorder to terminate proceedings, and such termination is without prejudice to newproceedings at a later date. Counsel should consider whether termination is theappropriate resolution, as some matters might benefit from continuing with immigrationproceedings.11An EAD is not automatic with a grant of deferred action, but can be granted upona showing of economic necessity.13

prosecutorial discretion that you submitted to DHS. Some officials willbe receptive to this and their staff members will follow up with thelocal DHS office.How will I know if the officer decided to exercise prosecutorial discretion in myclient’s favor or not?The Meissner memo requires that when a decision is made to favorably exerciseprosecutorial discretion, it must be documented in the file, including the specific decisiontaken and its factual and legal basis. Meissner memo, at 11. Additionally, when thedecision is favorable, the officer must notify the individual in writing of the action to betaken in her case and the consequences. Normally, notice should be by letter to theindividual and the attorney of record. Id. Officers are cautioned to make clear in theletter that the favorable exercise of prosecutorial discretion does not confer anyimmigration status, ability to travel to the United States (unless the alien applies for andreceives advance parole), 12 immunity from future removal proceedings, or enforceableright or benefit. If, however, there is a potential benefit that is linked to the action (forexample, the availability of employment authorization for beneficiaries of deferredaction), this should be identified in the letter. Id. at 11-12. It is a good idea to remind theofficer of this notice requirement, since otherwise it may be overlooked.The Meissner memo, however, does not require notice to the individual if the officerdecides not to favorably exercise prosecutorial discretion. Id. Thus, an individual whohas requested the favorable action could be left hanging (or worse, arrested or deported) –not knowing if the request is still pending or if it has been denied. Practically, the onlyway to know definitively if a decision has been made is to periodically call the officer.If my client receives a favorable grant of prosecutorial discretion not to be placedinto removal proceedings or to stay execution of a final order, what impact does thishave on his or her encounters with DHS in the future?It is important to remember, and to fully explain to your client, that a favorable grant ofprosecutorial discretion does not confer lawful immigration status on the client. SeeMeissner memo, at 12. In many cases, all that such a grant will do is provide a reprieve –of indefinite duration – from adverse action. For example, if ICE agrees not to place aclient in removal proceedings, this does not give the individual any different status thanthat which she previously had. Additionally, there is always the chance that if thecircumstances that led ICE to refrain from initiating proceedings change, there is nothingto prevent ICE from initiating removal proceedings at a future date. Similarly, wherefavorable action is taken by the agency – for example a stay of execution of removal, agrant of deferred action, or parole – that action is not permanent and can be reversed ifthe circumstances change. However, the Meissner memo advises that where an12Although your client may be eligible for advance parole, be sure to check his orher vulnerability to the three or ten year inadmissibility bars before suggesting thisoption.14

individual granted favorable prosecutorial discretion comes to the attention of an agencyofficer at a future date, the officer should abide by the earlier decision as a matter ofagency policy, absent new facts or changed circumstances. Id.If DHS refuses to exercise prosecutorial discretion in my client’s favor, can I appealthis decision or otherwise challenge it?As noted earlier, none of the DHS guidance on prosecutorial discretion requires that animmigration officer favorably exercise his or her prosecutorial discretion in any particularcase, even the most compelling ones. Instead, the immigration officer has discretion tomake the decision, and this discretion is bounded only by his or her authority under thelaw, the DHS guidelines on the exercise of prosecutorial discretion, and any supervisoryreview to which the officer is subject.Unfortunately, there is no formal appeal process to challenge the denial of a request forthe exercise of favorable prosecutorial discretion. However, there are internalsupervisory channels through which to informally appeal a decision or seekreconsideration, so this is an avenue worth exploring in many cases. If your request isdenied, you need to learn the proper chain of command at ICE or USCIS and work yourway up the ladder. This also is information that your local AILA chapter may developthrough ongoing liaison efforts. (See below).Additionally, as a general matter, there is no federal court review over the exercise of (orthe failure to exercise) prosecutorial discretion. See e.g. Heckler v. Chaney, 470 U.S.821, 831 (1985) (finding that there is a rebuttable presumption under the AdministrativeProcedures Act that a decision not to prosecute is not reviewable by the courts); see alsoINA § 242(g); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)(finding that 8 U.S.C. § 1252(g) was directed against attempts to impose judicialconstraints on prosecutorial discretion). Thus, once an agency decides not to exerciseprosecutorial discretion, it generally will not be possible to challenge this decision infederal court.Are there other steps I can take in particularly compelling cases if DHS refuses tofavorably exercise prosecutorial discretion?In select cases you may want to consider less conventional tactics in an attempt toinfluence ICE in granting deferred action or other prosecutorial discretion. Use of themedia (both conventional and social), local and national advocacy organizations and yourclient’s congressional representative can be beneficial to the overall cause. In recentmonths, this sort of strategy has worked in select cases involving DREAM Act eligiblepersons. There is no specific procedure in employing this sort of strategy. However, it isrecommended that you consider this as a last resort and only in cases where your clienthas compelling facts to his or her case and understands the risks involved.15

Some suggested strategies include:• Set up a Facebook group titled “Stop the Deportation of ________” and inviteas many contacts as possible to help support the cause;• Contact local and national immigration advocacy groups to get them to postAction Alerts on their websites on where the public can call or fax ICEofficials in support of the client;• Speak to local or national media contacts about the case and try to get storieswritten;• Engage local human rights organizations or religious groups to assist inforwarding the cause; and• Hold local press conferences and have your client speak about his or herplight.How can I advocate for more consistent use of prosecutorial discretion?There are several ways that you, your local AILA chapter (or similar groups that engagein advocacy with local ICE and/or USCIS offices) can push for more consistent, regularand humane use of prosecutorial discretion locally. First, get information aboutprocedures that local offices follow with respect to these decisions, such as who withinthe office has the authority to make such decisions initially; who must sign off on them;and what procedures exist for an attorney to request the exercise of prosecutorialdiscretion. If it is not possible to get information through liaison channels, request thisinformation through Freedom of Information Act requests.In addition, efforts can be made to get the local DHS offices to adopt more favorablepolicies with respect to the exercise of discretion and to include consideration offavorable prosecutorial discretion as a matter of routine. Additionally, OPLA haspreviously indicated that it wants to know “if there is a pattern and practice” of an OCC notagreeing to exercise prosecutorial discretion such as by joining motions to reopen. “AILA-ICE Liaison Minutes” (Oct. 30, 2009) at § III. Thus, local AILA chapters and otheradvocates are encouraged to track the willingness of their local DHS offices to engage infavorable prosecutorial discretion. Where an office is out of compliance with nationalpolicies, consider contacting AILA National to report and remedy anomalies.Finally, AILA and the LAC are in the process of setting up reporting and monitoring oflocal compliance with the June 17, 2011 Morton memoranda in order to evaluate whetherthe policies and procedures are effectively being put into practice, as well as to identifyany issues which arise through their application. Assistance from local AILA chapters,AILA attorneys and other immigration legal services and advocacy organizations will beessential to the success of this effort.16

ATTACHMENTSUMMARY OF DHS GUIDANCE ON PROSECUTORIAL DISCRETIONDHS (or legacy INS) guidance:Doris Meissner, Commissioner, INS, “Exercising Prosecutorial Discretion” (Nov. 17,2000). Still followed by DHS, this is the most comprehensive of its memoranda onprosecutorial discretion. Importantly, this memo stresses that immigration officers notonly have the authority to favorably exercise prosecutorial discretion but that they shouldconsider doing so in cases that warrant it at the earliest point possible. Thus, this memoprovides general authority to support an argument that an immigration officer should actfavorably in your client’s case. The Meissner memo also sets forth the principles thatshould motivate prosecutorial discretion decisions; the process to be followed by agentsin exercising this discretion; and factors that can be considered in decision-making.Bo Cooper, General Counsel, INS, “INS Exercise of Prosecutorial Discretion”(undated). This memorandum sets forth the legal basis for legacy INS’s exercise ofprosecutorial discretion in its enforcement activities. The memo is not policy guidanceitself, but instead intended to lay the foundation for development of such guidance. Itsummarizes what prosecutorial discretion is; why law enforcement officers haveprosecutorial discretion; how it applies in the immigration context; the limits onprosecutorial discretion; practical difficulties relating to the exercise of prosecutorialdiscretion in immigration cases; and finally, how it relates to detention, includingmandatory detention.ICE guidance:John Morton, Assistant Secretary, ICE, “Guidance Regarding the Handling ofRemoval Proceedings of Aliens with Pending or Approved Applications orPetitions” (Aug. 20, 2010). This memo explains a new policy for handling removalcases in which there is a pending or approved application or petition with USCIS.Adopted “as a matter of prosecutorial discretion” and to promote efficient use ofresources, the policy allows for the dismissal of removal cases in which there is a pendingor approved application or petition with USCIS and ICE determines, as a matter of lawand in the exercise of discretion, that the individual is eligible for relief. Certain criteriamust be met in all cases. Additionally, in detained cases, the trial attorney must consultwith local ICE officers regarding adverse factors that may weigh against dismissal. Notethat all local Offices of Chief Counsel are instructed to adopt local standard operatingprocedures to implement this policy. If you do not already have a copy of your localoffice’s procedure, you could ask for one, seek a copy through your local AILA liaison,or file a FOIA request.John Morton, Assistant Secretary, ICE, “Civil Enforcement: Priorities for theApprehension, Detention, and Removal of Aliens” (March 2, 2011) (prior versionissued on June 30, 2010). This memorandum identifies priorities for the apprehension,detention and removal of noncitizens, which are to be applied in all ICE programs. It17

identifies and discusses the top three ICE priorities as 1) noncitizens who pose a dangerto national security or a risk to public safety; 2) recent illegal entrants; and 3) noncitizenswho are fugitives or otherwise obstruct immigration controls. 13 The memo indicates thatICE resources should primarily be committed to advancing these priorities and that, giventhe limited resources of the agency, ICE employees should exercise sound judgment anddiscretion consistent with these priorities in carrying out enforcement.Peter S. Vincent, Principal Legal Advisor, ICE, “Guidance Regarding UNonimmigrant Status (U visa) Applicants in Removal Proceedings or with FinalOrders of Deportation or Removal” (Sept. 25, 2009). This memo provides fieldguidance with respect to persons with pending U visa petitions who either are 1) subjectto a final administrative order of removal and request a stay of removal or 2) are inremoval proceedings. Explaining that ICE officers have discretion to stay removal wherean individual with a pending U visa petition demonstrates prima facie eligibility for thevisa, the memo explains how ICE is to coordinate with USCIS to obtain a prima faciedetermination of eligibility. The memo also discusses factors that ICE officers shouldconsider in exercising their discretion where prima facie eligibility is shown.Julie L. Myers, Assistant Secretary, ICE, “Prosecutorial and Custody Discretion”(Nov. 7, 2007). This memo concerns the exercise of prosecutorial discretion with respectto arrest and custody decisions related to nursing mothers.John P. Torres, Director, ICE, “Discretion in Cases of Extreme or Severe MedicalConcern” (Dec. 11, 2006). This memo reiterates the importance of ICE officersexercising prosecutorial discretion when making custody determinations with respect toadults and juveniles transferring from hospitals, social services or other law enforcementagencies who have severe medical conditions (including psychiatric). The memoexplains that officers have a responsibility to identify and respond to cases presentingmeritorious health claims in which detention may not be in ICE’s best interest. Thememo explains the procedures to be followed and provides guidance on how to make adetermination about the seriousness of the medical problem.ICE, “Detention and Deportation Officer’s Field Manual” (updated Mar. 27, 2006).-Chapter 20.8, “Deferred Action.” This chapter describes generally the standardand procedures for determining whether to grant deferred action.-Chapter 20.9, “Exercising Discretion.” This chapter describes generally thestandards and procedures for exercising prosecutorial discretion.William Howard, Principal Legal Advisor, ICE, “Prosecutorial Discretion” (Oct. 24,2005). This memo, which is still followed, focuses on when and how prosecutorialdiscretion can be used by trial attorneys. It explains how the exercise of prosecutorialdiscretion is critical to managing work overload and adhering to priorities. It also detailsvarious ways in which trial attorneys can and should consider exercising prosecutorial13According to the memo, numbers 2 and 3 are equal priorities to one another, butfall below number 1.18

discretion and provides numerous examples. The memo indicates that proceedingsshould not be instituted, or if instituted, should be dismissed where an adjustment ofstatus is clearly approvable based on an approvable I-130 or I-140 and the case isappropriate for adjudication by USCIS. Similarly, the memo also suggests that remandsshould be considered to allow a person to apply for naturalization; and that alternatives toremoval should be considered in cases in which there are compelling humanitarianfactors. Finally, among other types of discretionary action available to trial attorneys, thememo discusses motions to reopen and provides examples of when it would beappropriate for ICE to join these.William Howard, Principal Legal Advisor, ICE, “Exercising ProsecutorialDiscretion to Dismiss Adjustment Cases” (Oct. 6, 2005). This memo discusses whentrial attorneys can exercise prosecutorial discretion to file or join a motion to dismiss acase without prejudice to allow USCIS an opportunity to adjudicate an adjustment ofstatus application. It is not clear whether this memo has been superseded by the August20, 2010 memo by John Morton that covers a similar topic. This memo is intended topreserve ICE resources in cases in which it appears that an adjustment application wouldbe clearly approvable. The memo lays out the criteria that must be met before a trialattorney can exercise prosecutorial discretion and move to dismiss a case.Marcy M. Forman, Acting Director, Office of Investigations, ICE, “Issuance ofNotice to Appear, Administrative Orders of Removal, or Reinstatement of a FinalRemoval Order on Aliens with United States Military Service” (June 21, 2004). Thismemo explains that ICE officers can exercise prosecutorial discretion with respect to theissuance of an NTA, an administrative order of removal or a reinstatement of a finalremoval order when the noncitizen has military service with the U.S. The memostipulates that the Special Agent in Charge of each field office is required to sign off onany of these actions in these cases, after review of the A file. It also sets out generalguidelines for consideration of prosecutorial discretion in these cases, and emphasizesthat all such cases should be reviewed for eligibility for naturalization under INA § 328and 329 (special naturalization provisions for members of the military).USCIS GuidanceMichael Aytes, Assoc. Dir. for Domestic Operations, USCIS, “Disposition of CasesInvolving Removable Aliens” (July 11, 2006). This memo revises guidance to USCISofficers on how to process and prioritize cases in which the person appears to beremovable. The memo explains that deciding whether a person is removable and whetherto issue an NTA is an integral part of the adjudications process. Prosecutorial discretioncomes into play with respect to whether to issue an NTA in a case that does not involveegregious public safety, national security, a regulatory requirement to issue an NTA, orfraud (each of which is discussed in the memo). In all other cases, USCIS has discretionnot to issue an NTA in compelling cases, to recommend deferred action or to reinstate aperson’s nonimmigrant status.19

William R. Yates, Deputy Exec. Assoc. Comm’r, INS, “Procedures for HandlingNaturalization Applications of Aliens Who Voted Unlawfully or Falsely RepresentedThemselves as U.S. Citizens by Voting or Registering to Vote” (May 7, 2002). Thismemorandum provides guidance on handling naturalization applications of persons whohave unlawfully voted or falsely represented themselves as U.S. citizens in associationwith registering to vote or by voting. The memo lays out a six step process foradjudicating these cases. As part of this process, and after determining that a person isremovable for having unlawfully voted or for making a false claim to U.S. citizenshipwhen registering to vote, the officer is to determine whether the case merits the exerciseof prosecutorial discretion using the Meissner memo as guidance. Where a case doeswarrant this exercise, the officer is to proceed with the adjudication of the naturalizationapplication.20

1SCHOOL OF LAWTHE UNIVERSITY OF TEXAS AT AUSTINImmigration Clinic • 727 E. Dean Keeton St. • Austin, TX 78705-3299(512) 232-1292 / 232-1310 • FAX (512) 232-0800June 15, 2011We at the University of Texas School of Law Immigration Clinic provide youwith this sample packet for removal cases involving requests for prosecutorialdiscretion and deferred action.Please keep in mind that prosecutorial discretion and deferred action areonly one form of relief from removal. Each individual case is different and you mayqualify for other forms of relief from removal, such as asylum, non‐lawfulpermanent resident cancellation of removal, adjustment of status or have otherdefenses to removal, such as a motion to suppress information illegally taken fromyou at the time of your arrest or interrogation. This sample packet is not asubstitute for competent legal representation and advice. You should discussall your options with an attorney before choosing the appropriate legal actionin your case. You should also contact Dream organizations to determine whatpublic and organizing strategies you may adopt in your case.Prosecutorial discretion terminates removal proceedings if your case ispending. Deferred action is a discretionary relief that may be granted by DHS for afixed period of time, usually one year, and may be renewed. DHS can grant deferredaction at any time in your case, even after a final order of removal has been issued.With a grant of deferred action, you may also apply for employment authorization.For more detailed information about prosecutorial discretion and deferred action,see http://law.psu.edu/news/immigration_toolkit ;http://www.legalactioncenter.org/practice‐advisories/prosecutorial‐discretionhow‐get‐dhs‐act‐favor‐your‐clientandhttp://www.e4fc.org/images/E4FC_DeportationGuide.pdf

2In this toolkit you will find two samples of a formal request for prosecutorialdiscretion and deferred action, as well as a supporting index, sample affidavits andsupport letters. Please note that these requests for prosecutorial discretion anddeferred action were written before the defeat of the Dream Act in 2010. You shouldrevise that the portion of the request and instead reference the reintroduction of theDream Act by Senator Durbin and President Obama’s public statements in supportof the legislation in May, 2011. A substitute paragraph is included in the letter.The process might seem quite daunting and stressful. Nevertheless, as theDream movement has shown, all of you are engaged, high achieving members of oursociety. Thus, you should emphasize the positive aspects of your life in the U.S. Putsimply, this is an opportunity for you to demonstrate to the authorities just howcompelling your life and personal circumstances are, and more importantly, howvaluable your contribution to society has been and will be in the future. We hopethat our toolkit will provide you with a roadmap of how to best organize yournarrative. We offer suggestions in drafting the formal request, submittingsupporting documents and writing your affidavit, but ultimately you (and yourattorney) are in the best position to decide which details illustrate who you are andwhat you can contribute to our country.

3TOOLKIT FOR DREAMERSUniversity of Texas School of Law ImmigrationClinicMaterialsRedacted Formal Requests for ProsecutorialDiscretion and Deferred ActionSample Index of Supporting DocumentsSuggestions for AffidavitsRedacted Affidavit of Applicant and CareerStatementRequest for Letters of SupportRedacted Letters of SupportProsecutorial Discretion MemosICE 2010 enforcement memoSen. Lugar and Durbin letter requesting deferredaction for Dreamers

4SCHOOL OF LAWTHE UNIVERSITY OF TEXAS AT AUSTINImmigration Clinic • 727 E. Dean Keeton St. • Austin, TX 78705-3299(512) 232-1292 / 232-1310 • FAX (512) 232-0800December 7, 2010Ms. C HDeputy Chief CounselOffice of the Principal Legal AdvisorImmigrations and Customs EnforcementU.S. Department of Homeland SecurityCity, StateRe: E DA #Re: Request for Prosecutorial Discretion and Deferred ActionMaster Calendar Hearing: November XX, XXXXDear Ms. H:I am writing to respectfully request that you exercise favorable prosecutorialdiscretion and grant deferred action on behalf of E D, whose case is currently beforethe Immigration Court in XX. He was placed in proceedings after being detained in theXX airport for lack of identification, after traveling to XX for a SAGE (Students forthe Advancement of Global Entrepreneurship) competition. E ’s first court hearingwas on XX where he was granted a continuance in order to find legal representation.His next master calendar hearing is scheduled on XX in XX.E is an 18-year old young man who is a freshman at the University of C (TabD). He is a first generation college student in his family (Tabs B,C,D). Since arrivingin the United States at age four, he has demonstrated a strong commitment to both hiseducation and his community. Currently, E is pursuing his academic and professionalgoals of obtaining a master’s degree in Information Technology. He is also consideringthe possibility of obtaining a Ph.D. He obtained numerous awards for grades and

5attendance throughout elementary, middle and high school. In high school, Emaintained a 3.8 GPA throughout his four years and received numerous awards for hisentrepreneurial endeavors in starting up a small computer repair business as well as forhis networking design. Not only did he earn the title of Tech Prep Student of the Yearfrom the Greater C Tech Prep Consortium, but also became a leader in his local SAGEchapter (Tabs B,C,D). These multiple achievements and awards demonstrate that he isa valuable asset to our country and evidence his exemplary life.E is not eligible for any other form of relief from removal. His only chance tocontribute to the United States as an exemplary student, aspiring professional, andcommunity voice, is through a favorable exercise of prosecutorial discretion.Factors to be considered when exercising prosecutorial discretionIn a memo dated November 17, 2000 and redistributed in 2007, the immigrationagencies emphasized the importance of exercising prosecutorial discretion in appropriatecases to ensure that government resources were used efficiently and effectively. 1 In asimilar memo dated October 24, 2005, the United States Department of HomelandSecurity stated that the “universe of opportunities to exercise prosecutorial discretion islarge.” 2 The 2005 memo urged ICE attorneys to exercise prosecutorial discretion, in thepresence of “appealing humanitarian factors,” to ensure judicial economy and efficiencyof process as well as the promotion of justice. 3 The memos specifically provide for theexercise of prosecutorial discretion to withdraw a previously filed Notice to Appear orotherwise to resolve removal proceedings already underway (Tab K).These memos have laid out the factors to be considered when deciding whether toexercise prosecutorial discretion:1. Humanitarian Concerns: Relevant humanitarian concerns include, but are notlimited to, family ties in the United States; medical conditions affecting the alienor the alien’s family; the fact that an alien entered the United States at a veryyoung age; ties to one’s home country (e.g. whether the alien speaks the languageor has relatives in the home country; extreme youth or advanced age;; extremeyouth or advanced age; and home country conditions.2. Criminal History: When evaluating an individual’s criminal past, officers shouldtake into account the nature and severity of the crime, the time elapsed, evidenceof rehabilitation, whether the individual has been a repeat offender, and theseverity of the sentence imposed by the court. Id.1 Memorandum “Exercising Prosecutorial Discretion” Doris Meissner, Commissioner (November 17,2000) [Hereafter 2000 Prosecutorial Discretion Memo]; Memorandum: “Prosecutorial and CustodyDiscretion.” Julie L. Myers, Assistant Secretary (November 7, 2007) [Hereafter 2007 ProsecutorialDiscretion]2 Memorandum: “Prosecutorial Discretional” William J. Howard, Principal Legal Advisor (October 24,2005) [Hereafter 2005 Prosecutorial Discretion Memo]3 Id.

63. Eligible or likely to be eligible for relief: Although not determinative on its own,it is relevant to consider whether there is a legal avenue for the alien to regularizehis or her status if not removed from the United States. The fact that the Service(Now DHS) cannot confer complete or permanent relief, however, does not meanthat discretion should not be exercised favorably if warranted by other factors. Id.4. Community attention: Expressions of opinion, in favor of or in opposition toremoval, may be considered particularly for relevant facts or perspectives on thecase that may not have been known to or considered by the INS (Now DHS).Public opinion or publicity (including media or congressional attention) shouldnot, however, be used to justify a decision that cannot be supported on othergrounds. Public and professional responsibility will sometimes require the choiceof an unpopular course. Id.The 2007 memo also states that there may be other factors that are appropriate toconsider. The decision should be based on the totality of the circumstances, not on anyone factor considered in isolation. Id. Additionally, a recent ICE memo dated June 30,2010 does not list cases involving undocumented college students as priority removalcases (Tab K).I. E has strong humanitarian factors in his caseE has lived in the United States since he was four years old. His entireimmediate family including his mother, father, brother and sister reside in the UnitedStates. Furthermore, his brother and sister, as well as his uncle, aunt and their children,are American citizens (Tabs G,H). While growing up in H, O, E attended elementaryschool at M Elementary School. He received numerous awards for the honor roll andattendance, and was elected class student council representative during one year.Throughout elementary, middle, and high school, E received President’s Awards forEducational Excellence. While in middle school, he received an advanced score inmathematics on an O Achievement Test in 2005 (Tabs D,E,F). In high school, Econtinued to excel, receiving numerous awards for high honors and attendance (TabD). While E has received many awards for his academic performance in varioussubjects, his accomplishments in math and computer technology stand out (TabsD,E,F). This achievement in math and computer technology is not only demonstratedby the fact that awards in these subjects outnumber awards in all other subjects, butalso by the fact that he recently was honored for his role as math tutor at his university(Tab C,D). Furthermore, he has received numerous honors for his entrepreneurship andhigh scores in computer and information technology (Tabs C,D).At R High School, E did extremely well as both a student and communityleader. He maintained a 3.8 GPA throughout his four years while taking AP Calculusas well as college level courses in Computer and Information Technology. (Tab D). Ewas placed on honor rolls for his grades and school attendance. He served as presidentand technician of Support Tech, a small computer repair business that he helped foundin H, and won fifth place at a national entrepreneurship competition known as SAGE(Students for the Advancement of Global Entrepreneurship) (Tabs C,D). The goal of

7this competition is to motivate high school and college students to completecommunity service-learning projects related to business and economics. In addition, Eserved as an officer of the organization Business Professionals of America (BPA),leading a team of five to win second place at the state competition. As part of thisorganization, he was trained in social skills and public speaking, and went to severalBPA events as Ambassador. Furthermore, E was the team leader of his high schoolCollege Tech Prep program. (Tabs B,C,D).Now a freshman at the University of C, E is pursuing his long-held interest incomputers, working toward a master’s degree in Information Technology andconsidering the possibility of obtaining a Ph.D (Tabs B,D).E ’s family arrived in the United States in March of 1996 on a visitor’s visa anddid not depart. He has been living in the United States for the last fourteen years of hislife, having grown up both in M and O (Tabs B,D,E,F). E did not make this decision,and through no fault of his own, now considers the United States his home. A denial ofprosecutorial discretion would punish E for a decision that he did not consciouslymake.The consequences would be harsh if E were uprooted to Mexico. His entireeducation has been in the U.S. school system. Because he is not fluent in Spanish andis unfamiliar with the Mexican educational system, it is undeniable that his educationwould be detrimentally affected. E would not be able to effectively communicate withhis peers or teachers. Thus, he would probably have to be held back in order to learnSpanish (Tabs B, C). Furthermore, Mexico devotes insufficient resources to educationand consequently its educational system is deficient (Tab I). Funding for highereducationfellowships and student loan programs is very limited and only 5% of theundergraduate student population receives fellowships, while 2% receives studentloans. Although enrollment in institutions of higher education increased between 1995and 2006, spending per student only increased by 10% (Tab I). The lack of funding forschools has caused inequities in education across social groups and between differentstates (Tab I). The limited national expenditures on higher education benefit a smalland relatively wealthy segment of the population (Tab I). Experts have recognized thatMexico must spend more resources on education in order to promote long-termeconomic growth and structural change (Tab I).E ’s immediate family composed of his mother, father, and younger sister andbrother live in the United States. As previously mentioned, his siblings are both U.S.citizens (Tab G). E has had little to no contact with any of his relatives in Mexico andis not close to any of his extended family (Tab B). Furthermore, E would be in dangerif forced to return to Mexico because of the escalating and on-going drug violence.(Tabs B,C,I). E would be forced to live amidst the growing violence as Mexico facesan increasingly bloody battle with powerful drug cartels (Tab I). Not only would E beaffected, but so too would his parents and siblings. His mother, I R, has expressed thatif E is uprooted to Mexico, the entire family would leave with him as they do not wantto be separated nor leave E alone and unprotected in Mexico (Tab C). More than

828,000 people, including innocent civilians, have been killed in the nearly four yearssince President Felipe Calderón began his offensive against the nation’s drugorganizations (Tab I). In August of this year, a massacre of 72 migrants occurred nearReynosa, Tamaulipas, close to Ciudad Victoria, where E and his family originallycame from. A few days later, two car bombs exploded in Ciudad Victoria (Tab I).These are just two examples of the tremendous violence that Tamaulipas and otherborder states in Mexico have experienced. While Calderón has enlisted the militaryinto the fight against drugs, violence continues to soar and corruption among thenation’s police remains constant (Tab I). As reported in the 2009 Department of StateHuman Rights report on Mexico, more than 8000 persons were killed in drug-relatedviolence during 2009 (Tab I). The State Department issued an advisory on September10, 2010 that warns U.S. citizens of the dangers of travel to Mexico in light of thecountry’s security situation (Tab I).II. E has no criminal convictionsThe fact that E has no criminal convictions demonstrates his good moralcharacter.III. E is not eligible for any other type of relief from removal.A favorable exercise of prosecutorial discretion is the only form of reliefavailable to E . Although for E ’s father is the beneficiary of an approved visa petition,filed by E’s uncle, I D, E will age out before a priority date becomes available, due tothe backlog in visa numbers. (Tab H).IV. If E is removed to Mexico it is likely that his removal will receive communityattention.Because the DREAM Act was reintroduced as a stand-alone bill and placed ona calendar of business in the Senate, the fate of undocumented students will continue toreceive media attention (Tab J). As evidenced by recent news articles, this potentiallegislation has already been at the forefront of the national news and often discussedabout in conjunction with individual students’ stories (Tab J).V. Other cumulative factors warrant a favorable exercise of discretionPotential Passage of the DREAM ActAlthough the Development, Relief and Education for Alien Minors (DREAM)Act failed to advance as an amendment to the defense bill in September 2010, it was reintroducedas a stand-alone bill days after it was voted against in the Senate. PresidentBarack Obama has reiterated his support for the DREAM Act during the lame ducksession. Moreover, in April 2010, Senators Dick Durbin (D-IL) and Richard Lugar (R-IN) asked Department of Homeland Security Janet Napolitano to end to the deportationof DREAM Act-eligible students. Senators Durbin and Lugar specifically requested thatdeferred action be granted to individuals who would be eligible for cancellation of

9removal or a stay of removal under the DREAM Act (Tab J). Relying on the November17, 2000 ICE Memo, they urged that DREAM Act students are not, and should not, be anenforcement priority for DHS and that due to limited resources, deferred action for thispopulation would be more efficient than the current ad hoc system. They suggest that thisexercise of discretion should be granted as early in the removal process as possible (TabJ).The passage of the DREAM Act or comprehensive immigration reform is E ’sonly hope for viable relief. Although the passage of this bill is uncertain and will likelytake time, prosecutorial discretion for E , specifically in the form of deferred actionstatus, will allow him to remain in the United States pending the outcome of theDREAM legislation. A vote on this legislation is forthcoming within the next fewweeks. *VI. ConclusionIn sum, we request that you consider all the above-mentioned compellinghumanitarian grounds reflecting E ’s exemplary life and grant him prosecutorialdiscretion and deferred action. His dedication to school as well as the communityreveals that he is a valuable asset to the United States. He is already well on his way toobtaining a master’s degree in Information Technology, a pursuit that will surely be cutshort if he is uprooted to Mexico (Tabs B,C,D). If allowed to remain in the UnitedStates, and specifically to pursue his educational goals of obtaining both a masters andPh.D., he will surely continue to be an integral part of his community. In this way, hewill be a model for all students who aspire to obtain a higher education. E should notbe punished for a decision that he did not make nor should he be sent back to a countryhe does not know that is wracked with violence, crime and dire economic, educationaland social problems. Rather, he should be allowed to remain and contribute to acountry he considers his own.Thank you for your consideration. Please contact me if you need other information tomake your decision.Sincerely,XXXX*Note that this sample was prepared before the defeat of the Dream Act inDecember 2010. You can replace the lines about the defeat of the Dream Act with areference to the re‐introduction of the Dream Act on May 11, 2011 and PresidentObama’s speech in El Paso on May 10, 2011 in support of the legislation.http://www.youtube.com/watch?v=Pd60KCZ_Zl0http://durbin.senate.gov/public/index.cfm/videos?ID=ce408f96‐e2a0‐4228‐affb‐7f6a613d31fa

10S S SCHOOL OF LAWTHE UNIVERSITY OF TEXAS AT AUSTINImmigration Clinic • 727 E. Dean Keeton St. • Austin, TX 78705-3299(512) 232-1292 / 232-1310 • FAX (512) 232-0800October 17, 2010Ms. N VImmigration and Customs EnforcementOffice of the Chief CounselCity, StateRe: P­R­T,A 200­594­535Master Calendar Hearing: November XX, XXXXREQUEST FOR PROSECUTORIAL DISCRETION AND DEFERRED ACTIONDear Ms. V,We are writing to respectfully request that you exercise favorableprosecutorial discretion and deferred action on behalf of P R‐T, whose case iscurrently before the Immigration Court in XX, Texas.P is a 22‐year old young woman who is an undergraduate at the University ofTexas at XX, majoring in political science with a minor in Latin American Studies(Tab C). Since arriving in the United States at age ten, she has demonstrated a strongcommitment to both education and to her community. In high school, sheparticipated in the honors program and took AP courses (Tab C). P participatesactively in the S community and is a member of numerous organizations on campus(Tab B).P is not eligible for any other form of relief from removal. Her only chance tocontinue to contribute to the United States as a student, aspiring professional, andcommunity voice, is through an exercise of prosecutorial discretion.Factors to be considered when exercising prosecutorial discretion

11In a memo dated November 17, 2000 and redistributed in 2007, theimmigration agencies emphasized the importance of exercising prosecutorialdiscretion in appropriate cases to ensure that government resources were usedefficiently and effectively. 4 In a similar memo dated October 24, 2005, the UnitedStates Department of Homeland Security stated that the “universe of opportunitiesto exercise prosecutorial distraction is large.” 5 The 2005 memo urged ICE attorneysto exercise prosecutorial discretion, in the presence of “appealing humanitarianfactors,” to ensure judicial economy and efficiency of process as well as thepromotion of justice. 6 The memos specifically provide for the exercise ofprosecutorial discretion to withdraw a previously filed Notice to Appear orotherwise to resolve removal proceedings already underway (Tab N).These memos have laid out the factors to be considered when decidingwhether to exercise prosecutorial discretion:5. Humanitarian Concerns: Relevant humanitarian concerns include, but arenot limited to, family ties in the United States; medical conditions affectingthe alien or the alien’s family; the fact that an alien entered the United Statesat a very young age; ties to one’s home country (e.g. whether the alien speaksthe language or has relatives in the home country; extreme youth oradvanced age; ties to one’s home country (e.g. whether the alien speaks thelanguage or has relatives in the home country); extreme youth or advancedage; and home country conditions.6. Criminal History: When evaluating an individual’s criminal past, officersshould take into account the nature and severity of the crime, the timeelapsed, evidence of rehabilitation, whether the individual has been a repeatoffender, and the severity of the sentence imposed by the court. Id.7. Eligible or likely to be eligible for relief: Although not determinative on itsown, it is relevant to consider whether there is a legal avenue for the alien toregularize his or her status if not removed from the United States. The factthat the Service (Now DHS) cannot confer complete or permanent relief,however, does not mean that discretion should not be exercised favorably ifwarranted by other factors. Id.8. Community attention: Expressions of opinion, in favor of or in opposition toremoval, may be considered particularly for relevant facts or perspectives onthe case that may not have been known to or considered by the INS (NowDHS). Public opinion or publicity (including media or congressionalattention) should not, however, be used to justify a decision that cannot be4 Memorandum “Exercising Prosecutorial Discretion” Doris Meissner, Commissioner (November 17,2000) [Hereafter 2000 Prosecutorial Discretion Memo]; Memorandum: “Prosecutorial and CustodyDiscretion.” Julie L. Myers, Assistant Secretary (November 7, 2007) [Hereafter 2007 ProsecutorialDiscretion]5 Memorandum: “Prosecutorial Discretional” William J. Howard, Principal Legal Advisor (October 24,2005) [Hereafter 2005 Prosecutorial Discretion Memo]6 Id.

12supported on other grounds. Public and professional responsibility willsometimes require the choice of an unpopular course. Id.The 2007 memo also states that there may be other factors that are appropriateto consider. The decision should be based on the totality of the circumstances, noton any one factor considered in isolation. Id. Additionally, a recent ICE memo datedJune 30, 2010 does not list cases involving undocumented college students aspriority cases (Tab N).I. P has strong humanitarian factors in her case.P has lived in the United States since she was ten years old. Her entireimmediate family including her mother, father, sister, and brother reside in theUnited States. While growing up in the D area, she attended elementary school at HD Elementary School and R C Elementary School. She received many scholasticawards for the honor roll and attendance, as well as community awards forinvolvement in such projects as “Learning to be WaterWise” and “Doing our Best”club (Tab D). At R High School, P was in the honors program (Tabs B, C).P is currently a junior at the University of T. As a political science major witha minor in Latin American Studies, she hopes to attend law school after graduationfrom U. Outside of the classroom, P is an active member of the League of UnitedLatin American Citizens (LULAC) and the Young Democrats at U, and volunteers atthe Cesar Chavez Center, the S Peace Center, Girls Inc., and the RetirementCommunity (Tabs B, C).P’s family arrived in the United States in 1998 on a visitor’s visa and did notdepart. P did not make this decision, and through no fault of her own, now considersthe U.S. her home. A denial of prosecutorial discretion would punish P for a decisionthat she did not consciously make.The consequences would be harsh if P were uprooted to Mexico. She has nomemory of her life there and has never visited the country since arriving in theUnited States. Her immediate family resides in the U.S. Although much of hermother’s family remains in Mexico, P has had little or no contact with these familymembers. Her closest relative in Mexico, an aunt, lives in Mexico City, a crime anddrug ridden city.P’s entire education has been in the U.S. school systems. While she studiedprimarily in Spanish during the first one and half years of her schooling here in theU.S., her studies have been in English since the sixth grade. Because she lives inTexas, P is currently granted in‐state tuition, which has allowed her to attendcollege. In contrast, the educational system in Mexico is inferior to that of the U.S. asMexico faces a severe economic and financial crisis. Mexico devotes insufficientresources to education and consequently its educational system is deficient. (Tab K)Funding for higher‐education fellowships and student loan programs is very limited

13and only 5% of the undergraduate student population receives fellowships, while2% receive student loans. Although enrollment in institutions of higher educationincreased between 1995 and 2006, spending per student only increased by 10%(Tab K). The lack of funding for schools has caused inequalities in education acrosssocial groups and between different states. (Tab K). The limited nationalexpenditures on higher education benefit a small and relatively wealthy segment ofthe population (Tab K). Experts have recognized that Mexico must spend moreresources on education in order to promote long‐term economic growth andstructural change (Tab K).If removed to Mexico, P would also be forced to live amidst growing violenceas the country faces an increasingly bloody battle with powerful drug cartels. Morethan 28, 000 people, including innocent civilians, have been killed in the nearly fouryears since President Felipe Calderón began his offensive against the nation’s drugorganizations (Tab K). While Calderón has enlisted the military into the fight againstdrugs, violence continues to soar and corruption among the nation’s police remainsconstant (Tab K). As reported in the 2009 Department of State Human Rights reporton Mexico, more than 8000 persons were killed in drug‐related violence during2009 (Tab K). The State Department issued an advisory on September 10, 2010 thatwarns U.S. citizens of the dangers of travel to Mexico in light of the country’ssecurity situation (Tab K).II. P has no criminal convictions.Although P was arrested for a Class C misdemeanor offense of “pedestrian onthe roadway,” this charge was dismissed in June of 2010. She has never beenarrested nor charged with any other offenses. The fact that P has no other criminalrecord and that her arrest for a low level offense was dismissed demonstrates hergood moral character (Tab H).III. P is not eligible for any other type of relief from removal.P’s parents are the beneficiaries of a fourth preference visa petition with apriority date of April 23, 2001 filed by her uncle, L R, Jr., a United States citizen.Although P and her family are grandfathered under INA 245(i), there are no visanumbers currently available. In addition, P will most likely age out before visanumbers become available due to the backlog in F‐4 visas.IV. If P is removed to Mexico it is likely that her removal will receivecommunity attention.Because the DREAM Act was reintroduced as a stand‐alone bill and placed ona calendar of business in the Senate, the fate of undocumented students willcontinue to receive media attention (Tabs L, M). As evidenced by recent newsarticles, this potential legislation has already been at the forefront of the nationalnews and often discussed about in conjunction with individual students’ stories

14(Tabs L, M). One example is the S case of Harvard student E B, who receivedextensive nationwide media attention both on television and in newspaper articles.In XX’s case, the ICE S field office granted him prosecutorial discretion. (Tab L). *V. Other cumulative factors warrant a favorable exercise of discretionA. Potential Passage of DREAM ActAlthough the Development, Relief and Education for Alien Minors (DREAM)Act failed to advance as an amendment to the defense bill in September 2010, it wasre‐introduced as a stand‐alone bill days after it was voted against in the Senate.**Moreover, in April 2010, Senators Dick Durbin (D‐IL) and Richard Lugar (R‐IN)asked Department of Homeland Security Janet Napolitano to end to the deportationof DREAM Act‐eligible students. Senators Durbin and Lugar specifically requestedthat deferred action be granted to individuals who would be eligible for cancellationof removal or a stay of removal under the DREAM Act (Tab M). Relying on theNovember 17, 2000 ICE Memo, they urged that DREAM Act students are not, andshould not, be an enforcement priority for DHS and that due to limited resources,deferred action for this population would be more efficient than the current ad hocsystem. They suggest that this exercise of discretion should be granted as early inthe removal process as possible (Tab M).The passage of the DREAM Act or comprehensive immigration reform is P’sonly hope for viable relief. Although the passage of this bill is uncertain and willlikely take time, prosecutorial discretion for our client, specifically in the form ofdeferred action status, will allow her to remain in the United States pending theoutcome of the DREAM legislation.As discussed previously, the SA field office has granted prosecutorialdiscretion in other DREAM Act cases including the case of XX, a Harvard student(Tab L). Like XX, P has devoted her life to obtaining an American education andparticipating in our society, using her schooling to cultivate important ties withinher community.B. Cooperation with law enforcement officials throughout P’s removalproceedingsSince her release on March 22, 2010, from the T Detention Center on an orderof recognizance P has consistently complied with all ICE requirements (Tabs H, J).She has reported three times to ICE and has provided a fixed address. Recently, Pwas unexpectedly placed in the Intensive Supervision Appearance Program (ISAP),and is currently complying with heightened and cumbersome restrictions, such asunannounced home visits, random phone calls, and bi‐monthly reporting to ISAPwith documentation of proof of residence. Her compliance demonstrates her lawabidingcharacter (Tab J).

15VI. ConclusionIn sum, we request that you consider all the above‐mentioned compellinghumanitarian grounds reflecting P’s exemplary life and grant her prosecutorialdiscretion and deferred action. P leads a commendable life. Her dedication to schooland her strong community ties reveal that she is a valuable asset to the UnitedStates. She will surely continue to be an integral part of her community and tocontinue her higher education, as well as eventually pursue a professional career.More than anything, she is a model for all students who aspire to go to college. Pshould not be punished for a decision that she did not make nor should she be sentback to a country she does not know that is wracked with violence, crime and direeconomic, educational and social problems. Rather, she should be allowed to remainand contribute to a country she considers her own.Should you require further documentation, please do not hesitate to contactus at the number listed above.Thank you for your attention.Respectfully,___________________________Student AttorneyEnclosures* In this case, the local ICE office had recently granted prosecutorial discretion toanother Dreamer. If you know of similar cases in your jurisdiction, considerincluding this information in your request letter.**Note that this sample was prepared before the defeat of the Dream Act inDecember 2010. You can replace the lines about the defeat of the Dream Act with areference to the re‐introduction of the Dream Act on May 11, 2011 and PresidentObama’s speech in El Paso on May 10, 2011 in support of the legislation.http://www.youtube.com/watch?v=Pd60KCZ_Zl0http://durbin.senate.gov/public/index.cfm/videos?ID=ce408f96‐e2a0‐4228‐affb‐7f6a613d31fa

16DocumentIndex of Documents Submitted on Behalf ofE DA #Request for Prosecutorial Discretion and Deferred ActionTAB A: E D’s Personal Identity DocumentsTranslated Birth Certificate of E DCopy of Original Birth Certificate of E DMexican Passport of E DUniversity and High School Identification Cards of E DTAB B: E D’s Affidavit, Career Goals and PhotosAffidavit of E DCareer Statement of E DPhotos of E D and his awardsTAB C: Letters from Community Leaders, Professors, Friends and FamilyMembers in the United States outlining E D’s academic success andprofessional goalsLetter from Associate Professor Emerita and Director of Minority Programs andCommunity Outreach at the University of C, Dr. C A. DLetter from Director of Academics at the University of C, K SLetter from Academic Manager of the E3 Emerging Ethnic Engineers Program, J K. CLetter from Principal of R High School, L WLetter from High School College Tech Prep Instructor, T P. O’NLetter from E D’s mother, I RLetter from E D’s father, I D GLetter from E D’s uncle, G D G

17Letter from E D’s aunt. R DLetter from friend, R A MLetter from friend, M E S IIILetter from friend, J A YLetter from friend, Z T BLetter from friend, B PRecommendation Letter from high school teacher, Mrs. A B RRecommendation Letter from high school teacher, T P. O’ NTAB D: College and High School Records and AwardsLetter from Undergraduate Student Enrollment official at the University of C, B TE D’s ResumeReport Card from 2008‐2009Report Card from 2007‐2008Transcript from 2006‐2007Scholastic Progress SheetAward Certificate for 2010 President’s Education Awards ProgramAward Certificate for R High School Integrity AwardAward Certificate for Outstanding Accomplishment in Spanish IIIAward Certificate for Accomplishment in BiologyAward Certificate for Outstanding Accomplishment in Senior Mock InterviewAward Certificate for Outstanding AttendanceAward Certificate for Outstanding Accomplishment in Spanish IAward Certificate for Outstanding Accomplishment in Physical Science

18Certificate of Recognition for 2009 Congressional Student Leadership ConferenceAward Certificate for Outstanding Accomplishment in Computer and InformationTechnology ILetter from Career Specialist C C, thanking E D for participating in the 9 th annualCareer Passport Competition at Butler Tech and congratulating him for his goodwork as a bronze award winner.June 2010 Sinclair Tech Prep ScholarshipCertificate of Achievement for 2nd Place Video Production TeamAward Certificate for Outstanding Accomplishment in Computer and InformationTechnology ICertificate of Participation “LinkNet Thin Client Solution”Certificate of Achievement for 5 th Place Video Production TeamAward Certificate for Outstanding Accomplishment in Computer and InformationTechnology IIBronze Winner for Career Passport CompetitionCertificate of Completion for Information Support and ServicesCertificate of Participation in U.S. SAGE CompetitionCertificate of Achievement for Greater C Tech Prep Consortium Outstanding StudentFlyer for SupportTech companyTAB E: Middle School Records and Awards2006 President’s Education AwardMathematics Achievement CertificateMarch 2006 Honor RollJune 2006 Honor RollDecember 2005 Honor Roll

192005‐2006 Report CardCertificate of Award for Outstanding Achievement in MathematicsNovember 2004 Honor Roll2004‐2005 Report Card2003‐2004 Report CardMarch 2004 Honor Roll for High HonorsJune 2004 Honor Roll for All Year HonorsNovember 2003 Honor Roll for High HonorsJune 2004 Certificate of Achievement for Best Reader2004‐2005 O Achievement Test Results, demonstrating that E D received anadvanced score in mathematicsSixth Grade Proficiency TestJune 2005 Honor RollNovember 2002 Honor RollNational Physical Fitness AwardFifth Grade Scholastic Progress ReportNational Physical Fitness AwardCertificate of Award for Accelerated Reader 200 Point Club/Top Guy ReaderCertificate of Achievement for Superior Achievement in Language ArtsCertificate of Achievement for Social StudiesCertificate of Award for Excellence in HealthCertificate of Achievement E D’s completion in Drug Abuse Resistance Education(DARE) ProgramCertificates of Award for Type! Program

20Certificate of Excellence for Outstanding Performance in Language ArtsMarch 2005 Honor RollCertificate for Extreme Team Distinguished ScholarCertificate of Achievement for “Writing Beyond Award”Certificate of Recognition for 8 th Grade American HistoryTAB F: Elementary School Records and Awards“Success for all Reading” Wings Progress Report2002 President’s Education Awards ProgramCertificate of Award for Excellence in Second Grade MathCertificate of Achievement for Computer LabCertificate of Award for 1 st Place Academic Award in 3 rd GradeCertificate of Honor for Outstanding Recognition in High Honors“Kids in College” Certificate certifying that E was a successful participant in theContinuing Education Course “Science Sampler”Citizenship CertificateCertificate of Honor for Outstanding Recognition in HonorsCertificate of Honor for Outstanding Recognition in High HonorsCertificate of Award for Perfect AttendanceCertificate of Award for MusicCertificate of Honor for Outstanding Recognition in HonorsCertificate of Honor for Outstanding Recognition in High HonorsCertificate of Award for Perfect AttendanceCertificates of Award for MusicLetters from Elementary School Principal, D A

21Letter from Teacher, Mrs. K HCertificate for Fourth GradeCertificate for SuperTeamProgress ReportsTAB G: Identity Documents of Family Members in the United StatesVital Statistics for Sister, V DBirth Certificate for Brother, A DTAB H: Visa PetitionsCopies of Visa Petition from uncle, G DCertificate of Naturalization for uncle, G DTAB I: Reports and Articles on Mexico“Mexico’s Objective: Better Education=Better Jobs.” USA Today. May 01, 2008“Times Topics: Mexican Drug Trafficking.” The New York Times. September 22,2010Archbold, Randal. “Mexico Seeks to Unify Police To Fight Drugs.” The New YorkTimes. October 01, 2008“Mexican Mayor killed near migrant massacre site.” MSNBC News“Mexico Mayor killed as Tamaulipas violence escalates.” BBC News“Violence Displaces Communities in Tamaulipas.” El Paso TimesLacey, Mark. “Mexican Candidate for Governor is Assassinated.” The New YorkTimes. June 28, 2010“Car bomb rocks government offices in Tamaulipas, Mexico.” CNN WorldKaufmann, Katja Maria. “Understanding the Income Gradient in College Attendancein Mexico: The Role of Heterogeneity in Expected Returns to College.” January 2008“OECD Perspectives: Mexico Key Policies for Sustainable Development.” May 2010

222009 Department of State Human Rights Report on MexicoDepartment of State Travel Advisory for MexicoTAB J: DREAM Act Letters and ArticlesSummary of Significant Changes in the DREAM Act from S.729 to S.3992. NationalImmigration Law Center, December 2010“Just the Facts: Five Things You Should Know About the Dream Act.” NationalImmigration Law Center, November 2010Durbin, Lugar Ask Secretary Napolitano to Stop Deportations of Dream Act Students.April 21, 2010“Senators Durbin and Lugar Stand Up For Dreamers.” News Release from theNational Immigration Law Center, April 2010Vedantam, Shankar. “New Push Planned for DREAM Immigration Act.” TheWashington Post, November 27, 2010Yu, Xi. “Analysis: With Undocumented Status Revealed, Eric Balderas Faces LegalChallenges.” The Harvard Crimson, June 18, 2010Yu, Xi. “Breaking: Detained Harvard Sophomore Safe from Deportation.” June 19,2010“Dreaming of Reform.” The New York Times, November 29, 2010Jones, Maggie. “Coming Out Illegal. The New York Times Magazine, October 21, 2010TAB K: ICE MemosMemorandum: “Exercising Prosecutorial Discretion” Doris Meissner, Commissioner(November 17, 2000)Memorandum: “Prosecutorial Discretion” William J. Howard, Principal Legal Advisor(October 24, 2005)Memorandum: “Prosecutorial and Custody Discretion.” Julie L. Myers, AssistantSecretary (November 7, 2007)Memorandum: “Civil Immigration Enforcement: Priorities for the Apprehension,Detention and Removal of Aliens.” John Morton, Assistant Secretary (June 30, 2010)

23Suggestions for AffidavitsIntroduction: Your personal affidavit is a good place to present yourself in the best lightpossible, emphasizing your involvement in school and the community. You can bring upthe fact that you have been here for a long period of time, specifying the number of years,and stating that your only form of relief at this time is prosecutorial discretion anddeferred action, if that is the strategy that you had adopted in your case.Life and growing up in the US: You can explain what family members are here in theUnited States. If you have little to zero contact with family in your native country, youshould include this information. Stress important facets of your home and schoolenvironment; for example, strong familial motivation about education and/or educationalopportunities or a teacher or counselor that was an important influence in youreducational path. You can also mention that you have not been back to your homecountry in a long period of time, and have no familiarity with life there in general. If youare no longer fluent in the language of your country of birth, you should include this fact.Keep in mind that being conversant in a language doesn’t necessarily mean that you areable to read and write on a college level.Separation from family members in U.S.If you have family members who are in the U.S. legally, include this information anddescribe your relationship with them and the impact that possible separation would haveon both them and you. Think about whether these family members have the economicmeans to travel to your country of birth to visit you or whether it would be safe to do so.Explain any health problems that they may have and how your departure could affectnegatively affect their health or emotional well-being. Even if your family members arenot in the U.S. legally, you should discuss the effect of a forced separation.Education and community ties:Highlight your educational achievements and involvement with the community. Includeinformation about honors courses, GPA, scholarships, awards, and other academicrecognition in high school and college. Discuss any extracurricular activities, schoolorganizations and community groups that you have participated in and explain your rolein them.If you have any prior essays or resumes for college applications, they may serve as auseful guide or you may consider including these as separated exhibits in support of yourrequest to DHS.

24Conditions in your country of birthYou can write about the personal reasons why you don’t want to relocate to a country youmay hardly remember. Emphasize the lack of educational and economic opportunities ifthese are factors in your country of birth. If you fear certain conditions there, forexample, the increasingly violence in Mexico, or gang recruitment and crime in CentralAmerica, this is a good place to mention these factors. You can also highlight the fact, ifthis is applicable to your case, that you have little to no contact with family members inyour country of birth and may not have a place live if forced to return. If you have aparticular health condition that could not be treated or would become worse in yourcountry of birth, include that information.Lack of other means of immigration: Some of you may have no means to legallyimmigrate to the U.S. at this time. Others may be on waiting list for an immigrant visabut may age-out by the time a visa becomes available. Discuss this issue in your affidavit.These are just some ideas to help you develop your statement and is not intended to be anexhaustive list of factors. Thus, if there are any other special factors in your case, be sureand include them. Remember that the purpose of this affidavit is to make a strongargument as to why you should be granted prosecutorial discretion and deferred action inthe exercise of discretion.

25AffidavitI, E D, do solemnly swear that the following statements are true and correct to thebest of my knowledge and belief. The purpose of this affidavit is to make anargument in my own defense in the hopes it will help make a better informeddecision about my current situation. In doing so I will highlight key aspects of myown life to help readers better understand both my surrounding world and me.My name is E D. It is November 22, 2010 and I am eighteen years old. In the past fewmonths I have been detained, arrested and am now in court proceedings for being inthe United States illegally. This is my attempt at defending my continued stay here inthe United States. For the past fourteen years I have been living here with myparents. In that time I do believe my life demonstrates several factors that need tobe considered before any decision can be made. A closer look into my life revealscertain qualities many students of today lack. My intention is not to make otherstudents look bad for my own gain. I will simply tell you what I believe to be true,and show you that I am a good asset to this country. Through my struggles I haveseen the world from a different light, and from a differing perspective that fewpeople share.I have been living in the United States for the last fourteen years of my life. The mostimportant years of my life were spent here in America. My childhood was spent inSt. J , M, my teenage years in H O and now my college years here in C. I still have thesame great ambitions I had before being put into proceedings. The only differencenow is that there’s a bigger chance I might not get to realize them. ProsecutorialDiscretion is now the only form of relief available to me. Even though my uncle fileda Visa petition for my father, I would likely age out because of the backlog of visapetitions. I need a favorable exercise of prosecutorial discretion because I amdetermined to successfully fulfill my ambitions. Regardless of the situation thatpresents itself, I will continue my schooling to not waste my education, yet it willtake a tremendous hit if I am removed to Mexico.On the topic of my schooling, it is one area where I can’t help but not be modest. If Ihave any talent that has been with me all my life it is my academic excellence. Sincepreschool I have been either at the top of my class or pretty darn close. My parentswere, of course, very proud but never spoiled me because of my straight A’s. On thecontrary they challenged me always to do better. I didn’t really figure out this lessonuntil high school. While I found out that I needed to participate in after‐schoolactivities, I have never been one for convention when it comes to certain things. Idid not join organizations that most students participated in. People kept suggestingthe National Honor Society as the organization one simply had to belong in becauseit was for the “smart” kids, but I didn’t see it like that at all. The qualifications werenot very high. It seemed to me like it would look good on a transcript or maybe evena job application. In the real world it meant nothing; I saw no substantial workexperience to be had from such an organization.

26I find the best things are hidden, and this was true when it came to schoolorganizations. I found SAGE (Students for the Advancement of GlobalEntrepreneurship) and I knew it was going to be worth it to join. SAGE gave me reallife work experience in creating, managing and expanding a small business not justin theory but in real world practice as well. These are the kind of skills I realizedthat I would need in life. Through SAGE I became stronger in social networking, avery important asset, as I gained contacts of various students, professors andentrepreneurs all acR the country. I was able to do all that the National HonorSociety had to offer and a great deal more.There are plenty of opportunities everywhere these days. I found mine not just inschool but also in the real world. Through my business SupportTech, I’ve been doingvolunteer work for various organizations and agencies throughout my area. Forexample, two years ago my team and I helped repair the computer lab at the BookerT. Washington community center in H. More recently, however, I’ve been doingwork for the C Computer Cooperative, a computer recycling company. The scope ofmy interests does not end at technology and computers. I have also taken an interestin tutoring younger kids in mathematics, a subject I have always felt confident in.Through the Emerging Ethnic Engineers program at the University of C, I was namedrunner up for the best coach of that summer for tutoring in math. I owe my newlyfound interests in serving the community to my instructor Mr. O’N; he is a seasonedtechnologist and businessman in the Information Technology field. If anyone knowshow to succeed it’s him.Although school is very important it does not make up my entire life. I have myentire family here. My mother and father along with my little brother and sister arehere as well. They are all I’ve got. I have had little to no contact with any of myrelatives in Mexico. It would be difficult to even approach them at all. As far as myfamily, it ends at my immediate family. There is nobody else I know, or could cometo know as well as I do my mom and dad and siblings. As I said earlier, my educationwill continue no matter what the situation is. However, the hit my schooling wouldtake from my removal would be devastating. Not only am I not familiar with theeducational system in Mexico, but I also can’t speak proper Spanish. I would behumiliated trying to speak in front of peers my own age. I’d have to be held back inschool just to learn my own language. I have never been back to Mexico since theday we moved here. I have no intention of going back anytime soon. Perhaps I willgo back and visit one day‐ when and if the fear of going back is gone.I find it hard to believe someone like me has made as many great friends as I have. IfI can say good things about anybody, it is all my friends. Mike and I have beentogether since the sixth grade, and for the last three years we have both made newfriends with Mason, Joey, Ryan, Zach and Brandon. This is our group of friends, mygroup of friends. I’ve been through it all with these guys, and the hardest thing I hadto do was tell them what I really am. Each of them gave me their support and havepersonally told me they would hate to see me go. I would personally be crushed to

27have to leave my closest group of friends. It’s not just them either. I have very goodfriends that range from northern O all the way to California, all of whom have shownme their support.Let me make myself perfectly clear. I do believe it my removal from the UnitedStates would be an extraordinary waste of talents. I see kids here every day thatspend all of their time partying and drinking every day. This is one fact thatdepresses me because they simply have no idea how valuable United Statescitizenship is. Every opportunity is available to them but they waste it. There areonly limited options for me, yet I’m not giving up. If there is anyone who appreciateswhat it feels like to be accepted, to be a part of something you have wanted eversince you can remember, that would be me. I feel like a prisoner inside my house; itshome, there’s no doubt, but I’m shackled everywhere I go. Despite my clean record,I’m afraid of the police, the peace‐keepers of our society. I’m scared of them; Ialways have and always will be if I’m going to continue carrying the burden ofhaving no legal status. Mexico is not home for me and I fear going back. I need tostay here. This is E D, hoping for the best.Signed under pains and penalty of perjury,____________________________________________

28E DNovember 25, 2010Career PathWhat I want to do with the rest of my life isn’t a big secret. I’ve beeninterested in technology, computers and science for a long time. It’s why I chose tomajor in Information Technology in college and why I’ve decided to emphasize myfocus in security. I’ve done the research and studied the facts, realizing that theinformation technology field is growing quite fast and will continue to do so over thenext few years. The types of technology coming out are amazing and I will be a partof that, and perhaps even discover a few new ones on my own. I will get my Ph.D.one day. Right now I am on my way to my Master’s degree at the University of C.I am a first generation college student and have worked very hard all my lifefor the chance of going to a four‐year college. The decision to enroll in a four‐yearcollege was up to me, and ever since I was a child, I knew that excelling in schoolmeant a successful future for not only me, but also my parents and my little brotherand sister. I not only hold my own future in my hands but the futures of my wholefamily. My influences did not only come from family. The combination of influencesfrom friends and family, together with my own interests and ambitions, were thedriving forces behind my decision.I do have ambitions to make something of myself not just for the sake offamily but for the sake of everyone. I plan to pursue a career in InformationTechnology because I love working with technology, computers and electronics.This is another factor that has greatly influenced my decision. For several years Ihave been studying computers and technology in general and it has been the mainobject of my interest. The information technology field is very general and rangesfrom plain technicians to chief technology officers. Because I understand thebreadth of the information technology field, I can safely say that I will find my place.However I don’t want to limit myself. I hope to become an expert in the field ofcomputer and network security, perhaps even one day achieving the honor of beingCTO (Chief Technology Officer) of a major corporation or company. Whether peopleknow it or not, the world is changing rapidly, and the technological sophistication ofsociety will increase a hundred fold or more four years from now. During thoseyears I hope to double that amount. My world will be different than the one we arenow experiencing and I will be working with technology for the rest of my life. Oneday I will make a name for myself in the information technology field. I strive to bethe best, and that won’t be different when I start college. Challenges come and gobut my end goal is always the same. There’s no excuse. I just have to get it done.There is one more reason that I considered going to college to studyinformation technology: my friend S S. When I was in the seventh grade Seth was ajunior in high school at the time and, as I soon discovered, quite a bit of a geek. Atfirst I admired what he knew and what he could do, like build a custom computer. Iwas really into gaming and so was S but he was focusing on a different kind, a gameon the computer and on the internet. Instantly I loved the entire concept of theinternet and computers. I wanted to know more: how he built it, what each piece ofhardware did and of course where he learned it all. S opened the portal for me to

information technology, and as soon as I was able to, I joined the same class he wasin. I can honestly say that without S I might have never even considered informationtechnology as a career choice. Instead I might have chosen to enter the work forceout of high school.29

30Sample Letter Addressed to ProfessorsTo the professors of P T:We represent P in immigration proceedings. We are attempting to help P obtainprosecutorial discretion in her case, which would allow her to remain in the United Stateslonger and to continue pursuing her studies. In order to succeed in this type of case, Pmust prove to the Department of Homeland Security (DHS) that due to humanitarianfactors such as the young age at which she arrived to the United States; her educationalaccomplishments; and strong community ties, she should be able to remain in the UnitedStates.We are writing to ask you to write a letter of support on behalf of P. The stronger youcould make the letter, the more beneficial it will be for the case. It is important toemphasize P” s academic achievements and her commitment to the community. Inaddition, please discuss P’s school , extra-curricular and community service activities, ifyou have knowledge of them . If you can state an opinion as an educator as to thehardships, culturally, socially and/or educationally, that she would suffer if uprooted andsent to Mexico, please include this information as it would greatly help the case.We are enclosing sample letters prepared for other cases to assist you in writing yourletter. The letter does not need to be notarized, but it should end with the followingstatement: “I HEREBY CERTIFY THAT THE FOREGOING STATEMENTS ARETRUE AND CORRECT UNDER PAINS AND PENALTY OF PERJURY.” By signingthe statement in this manner, you do not have to have your letter notarized.Please include your education and employment background in the letter or attach aresume so that DHS may evaluate the credibility of your statements. We will be happy todiscuss this matter with you or review your letter, which you may mail or fax to theaddress listed above. Please feel free to contact us at the information listed above if youhave any questions. Thank you for your cooperation in this matter.Sincerely,Names of Attorneys

31[SCHOOL LETTERHEAD] (if possible)DateTo Whom It May Concern:This affidavit is sent to request your support in the continuation of a productive andpositive life in the United States for P T. As a university professor, I have known P sincethe start of the fall semester 2010. She is an excellent student and has outstandingpotential to make a great contribution to society. She is always pleasant and hasestablished positive school relationships both with me and with other students in herclass. Her academic performance has been superb and her behavior is clearly outstanding.When she has had to miss classes to deal with her immigration status, she has alwaysbrought me documentation showing where she has been, and has promptly requestedclass notes from fellow students. She has no other class absences except for thoseconcerning her immigration status. (I can also offer a record of emails and post she hasmade on Blackboard to other students, verifying her active participation in the class.)P has demonstrated personal initiative by her activism in favor of the Dream Act.She has volunteered to mentor an immigrant middle‐school student who is struggling toadjust to life in the U.S. Her zeal, honesty and hard work are a reminder that P is makingfavorable efforts to become a contributing member of society. Moreover, deporting Pwould be a significant loss to the United States because we would potentially lose anactive, committed participant in civil society. At a time where many of our leadersbemoan the apathy of young adults, P offers a valuable counter‐example to her fellowstudents and community members. I have seen how P’s passion for human rights hasmotivated her fellow students to become socially and politically aware. These U.S.students now seek out information in order to make informed decisions as U.S. citizens.From my personal and professional experience in education for 10 years as a professor, Iam keenly aware of the negative ramifications that uprooting P to Mexico can have uponher continued positive growth and success. I am convinced that the removal to Mexicowould not serve her best academic growth or personal development, nor would it benefitthe United States, Texas, or the San Antonio community. Finally, as a mother of twodaughters, aged 9 and 11, I make all major decisions for them. To deport P to Mexicobecause of a decision in which she clearly had no voice punishes the child—not thosewho brought her from Mexico. Punishing the victim contradicts the main values of theU.S. judicial system. For additional information, I can be reached at [ ]. Thank you sokindly for your support in this urgent matter.I hereby certify under pains and penalty of perjury under the laws of the United Statesthat the foregoing statements are true and correct.Professor NameTitle

33Date:SCHOOL LETTERHEAD (if possible)To Whom It May Concern:This affidavit is sent in support of (student’s name). I am the (principal, teacher,professor) of XXX I have known XXX for a (number of years/semesters/etc). Explainhow you know him/her (a student in your class, a student in a student organization, etc)I have observed that he/she possesses all the attributes of an outstanding student whowill one day make a great contribution to society. He/she is always pleasant and hasestablished positive school relationships. His/her academic performance has beenexcellent and his/her behavior is clearly exemplary. (describe in more detail)(Name of person) has demonstrated personal initiative by (describe extracurricularactivities). His/her zeal, honesty and hard work are a reminder that P is makingimpressive efforts to become a contributing member of our society. From my personaland professional experience in education for (#) years as a professor and administrator, Iam keenly aware of the negative ramifications that uprooting P to Mexico can have uponher continued positive growth and success. I am convinced that his/her removal toMexico would not serve his/her best academic growth or personal development. Foradditional information, I can be reached at (phone number). Thank you so kindly for yoursupport in this urgent matter.I hereby certify under pains and penalty of perjury under the laws of the UnitedStates that the foregoing statements are true and correct..(Signature)(Printed name of teacher)(title)(Date)

34SCHOOL LETTERHEAD (if possible)Date:To whom it may concern:My name is ________________________. I am currently employed by as a_____________________. I presently teach a class in ___________________. The class has alimited number of students and meets ___________ times a week. Because of the smallnumber of students in the class and the amount of classroom time, I am able tobecome better acquainted with my students, both socially and academically, thanthe average school teacher.I have been employed in my present position for ___________ years. Prior to that, Iworked as a ________________ for the _________________ School District for three years. Ihave a ____________ degree in education from __________________ University. I also have ateaching certificate in _______________ from __________and I have been certified by theState of ___________ in __________________.________________ was enrolled in my __________ class___________ years ago when he/shewas a student at ______________ School. I have rarely seen a student as highlymotivated as he/she was. Similarly, I was impressed with _______________ ‘sintegration into American Society. He/she is extremely well‐acclimated to life in thiscountry and has made his/her place in the ____________________ community.I believe that _______________ would have tremendous difficulty readjusting to Mexican_________________ society, since he/she has now resided in the United States for__________ years. It is my professional and personal opinion that a forced departure to___________ would be disastrous for him/her.I declare under penalty of perjury under the laws of the United States of Americathat the foregoing is true and correct.(Signature)(Printed Name)(Date)

PRIVATE BILLS &DEFERRED ACTION TOOLKIT

Table of ContentsAcknowledgements ............................................................................................................................... 1Disclaimer ................................................................................................................................................. 1Selected Readings .................................................................................................................................. 2Preface .........................................................................................................................................................I. Purpose ................................................................................................................................................... 3II. The Remedies ...................................................................................................................................... 3III. Know the Risks .................................................................................................................................. 4IV. About the Authors ............................................................................................................................ 4V. Methodology ........................................................................................................................................ 5Background: Private Bills.................................................................................................................... 7I. Introduction .......................................................................................................................................... 7II. History ................................................................................................................................................... 7III. Private Bills ........................................................................................................................................ 9IV. The Senate Rules ............................................................................................................................11V. Stays of Removal ..............................................................................................................................12VI. The House of Representatives Rules ......................................................................................14VII. Executive Approval ......................................................................................................................17VIII. Enactment of a Private Law ....................................................................................................17IX. Work Authorization .......................................................................................................................18Quick Guide: Private Bills ................................................................................................................. 20

Best Practices for Pursuing a Private Bill ................................................................................... 25I. Initial Considerations ......................................................................................................................25II. Choosing a Sponsor .........................................................................................................................26III. Composing a Request for Consideration ...............................................................................27IV. Community Support and Organizing ......................................................................................30V. Contacting the Media ......................................................................................................................31Background: Deferred Action ......................................................................................................... 33I. Introduction ........................................................................................................................................33II. History .................................................................................................................................................34III. ICE Detention and Removal Operations Policy and Procedure Manual ...................35IV. Stays of Removal and Prosecutorial Discretion .................................................................37V. The Cooper Memo (Legacy INS) .................................................................................................40VI. The Meissner Memo (Legacy INS) ...........................................................................................41VII. The Howard Memo (ICE) ...........................................................................................................44VIII. The Myers Memo (ICE) .............................................................................................................46IX. The Morton Memos (ICE)............................................................................................................47X. The CIR Alternatives Memo (USCIS).........................................................................................48XI. Work Authorization .......................................................................................................................49Quick Guide: Deferred Action ......................................................................................................... 50Best Practices for Pursuing Deferred Action ............................................................................. 54I. Initial Considerations ......................................................................................................................54II. Choosing an Agency ........................................................................................................................55III. Composing a Request for Consideration ...............................................................................56

IV. Community Support and Organizing ......................................................................................57V. Contacting the Media ......................................................................................................................59Case Summaries and Supporting DocumentsClient A (Private Bill) ...........................................................................................................................61Client B (Deferred Action) .................................................................................................................63Client C (Deferred Action) .................................................................................................................65Client D (Deferred Action and Private Bill) ...............................................................................66Client E (Private Bill) ...........................................................................................................................68Brothers F (Private Bill) .....................................................................................................................70Client G (Deferred Action) .................................................................................................................72Client H (Private Bill) ..........................................................................................................................74AppendicesA. U.S. House of Representatives Subcommittee on Immigration, Citizenship,Refugees, Border Security, and International Law Rules of Procedure forPrivate ImmigrationB. U.S. Senate Subcommittee on Immigration, Border Security, and CitizenshipRules of Procedure for Private Immigration BillsC. Bill-to-Law Flow ChartD. Steps of Legislative ProcedureE. List of Recent and Pending Private BillsF. INS Operations Instructions on Private BillsG. ICE Detention and Removal Operations Policy and Procedure Manual

H. Memorandum from Bo Cooper, General Counsel of Immigration andNaturalization Service, on INS Exercise of Prosecutorial Discretion (INS andDOJ Legal Opinions §99-5 MB 2006)I. Memorandum from Doris Meissner, Commissioner of Immigration andNaturalization Service, on Exercising Prosecutorial Discretion(Nov. 17, 2000)J. Memorandum from William J. Howard, Principal Legal Advisor of U.S.Immigration and Customs Enforcement, on Prosecutorial Discretion(Oct. 24, 2005)K. Memorandum from Julie Myers, Assistant Secretary of U.S. Immigration andCustoms Enforcement, on Prosecutorial and Custody Discretion(Nov. 7, 2007)L. Memorandum from John Morton, Assistant Secretary of U.S. Immigration andCustoms Enforcement to All ICE Employees, on Civil ImmigrationEnforcement: Priorities for the Apprehension, Detention and Removal ofAliens (Jun. 30, 2010)M. Memorandum from John Morton, Assistant Secretary of U.S. Immigration andCustoms Enforcement, on Guidance Regarding the Handling of RemovalProceedings of Aliens with Pending or Approved Applications or Petitions(Aug. 20, 2010)N. Memorandum from Denise A. Vanison, et al, to Alejandro Mayorkas, on Administrative Alternatives to Comprehensive Immigration ReformO. Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)P. Form I-485, Application to Register Permanent Residence or Adjust Statusand InstructionsQ. Form I-765, Application for Employment Authorization and InstructionsR. I-212, Application for Permission to Reapply for Admission into the UnitedStates After Deportation or Removal and Instructions

AcknowledgementsThis toolkit was produced by Penn State Law students Nicole Comstock and LinneaIgnatius under the supervision of Shoba Sivaprasad Wadhia and in collaborationwith Anna Gallagher of Maggio + Kattar, and Denyse Sabagh of Duane Morris. Thistoolkit would not have been possible without the input of the following attorneys:Andres Benach, David Bennion, Randall Caudle, Christopher Nugent, ShannonUnderwood, and Disna Weerasinghe. Their continuing work in the field ofimmigration law and the remarkable efforts they put forth on the behalf of theirclients is truly inspirational. We would like to extend our gratitude to them fortaking the time to share their experiences and knowledge with us.DisclaimerThis toolkit is designed to provide information about the law and to help userspursue private bills and deferred action. Legal information is not the same as legaladvice—the application of law to an individual's specific circumstances. Althoughwe have gone to great lengths to make sure our information is accurate and useful,we recommend you consult a lawyer if you want professional assurance that ourinformation, and your interpretation of it, is appropriate to your particular situation.1

Selected ReadingsFor more information on Private Bills:• Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration(American Immigration Lawyers Associations, 2008).• Margaret Mikyung Lee, Private Immigration Legislation (Aug. 9, 2005), CRSReport for Congress No. RL33024.• R. Beth, Private Bills: Procedure in the House (Oct. 21, 2004), CRS Report forCongress No. 98-628, available at www.rules.house.gov/archives/98-628.pdf.• Bernadette Maguire, Immigration: Public Legislation and Private Bills(University Press of America, 1997).For more information on Deferred Action:• Mary Kenney, Practice Advisory: Prosecutorial Discretion: How to Get DHS toAct in Favor of Your Client, (American Immigration Council Legal ActionCenter, 2010).• Immigration Policy Center, Executive Action: A Resource Pageavailable at http://www.immigrationpolicy.org/just-facts/executive-actionresource-page• Ira J. Kurzban, Immigration Law Sourcebook (12 th ed., 2010).• Shoba Sivaprasad Wadhia, Reading the Morton Memo: Federal Priorities andProsecutorial Discretion, Immigration Policy Center, American ImmigrationCouncil (2010) available at http://ssrn.com/abstract=1723165.• Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in ImmigrationLaw, 9 CONN. PUB. INT. L.J. 243 (2010).• Leon Wildes, The Deferred Action Program of the Bureau of Citizenship andImmigration Services: A Possible Remedy for Impossible Cases, 41 SAN DIEGO L.REV. 819 (2004).• Leon Wildes, The Nonpriority Program of the Immigration and NaturalizationService Goes Public: The Litigative Use of the Freedom of Information Act, 14SAN DIEGO L. REV. 42 (1977).• Leon Wildes, The United States Immigration Service v. John Lennon: TheCultural Lag, 40 BROOK L. REV. 279 (1974).2

PrefaceI. PURPOSEThe purpose of this toolkit is to provide an instrument to aid practitioners inproducing compelling arguments for extraordinary relief on behalf of their clients,while also appealing to Congress to address the human dimensions of theimmigration laws. This toolkit delves into two forms of relief: private bills anddeferred action. The goal of this toolkit is to provide concise and helpfulinformation for practitioners representing clients’ whose last possible options forrelief are deferred action or private bills. Both forms of relief are tricky and difficult,at best. This toolkit includes background information on deferred action andprivate bills, best practices, sources of law, case summaries, and other resources, toaid individuals in their pursuit of relief.II. THE REMEDIESA private bill is a bill for the relief of one or several specified persons,corporations, institutions, etc. It is distinguishable from a public bill, which relatesto public matters and covers the entire population or specified classes within thepopulation. A private immigration bill is an extraordinary remedy that can assistnoncitizens with unusual problems rising from atypical hardships. At its core, aprivate immigration bill is an exception to the general law and should not be viewedas a method for evading the general law.Deferred action is when the Department of Homeland Security (DHS), orany of the immigration agencies under its umbrella, agrees not to place an individualin removal (deportation) proceedings or not to execute an order of removal. Adecision to grant or deny a request is solely a discretionary administrative act and isnot subject to administrative or federal court review. Deferred action is not anentitlement. The decision to grant deferred action is made at the agency level and issubject only to agency guidance through manuals and internal agency memoranda.3

There are no official forms to fill out or formal procedures to request deferredaction.III. KNOW THE RISKSIt is extremely important to understand the risks of attempting to obtaineither form of relief. Both a private bill and deferred action often mark the point atwhich an individual seeking to avoid removal is left with no other option. Inattempting to obtain either form of relief, the prospective beneficiary mustunderstand that they are shedding light on their situation and informing thegovernment of their current status, which is likely in violation of the immigrationlaws. There is also potential for an increased risk to members of the prospectivebeneficiary’s family, as the family members’ immigration statuses may come to theattention of the authorities. If the private bill or deferred action is unsuccessful, thebeneficiary is usually left with no other options, and may be forced to leave thecountry.IV. ABOUT THE AUTHORSLaunched in 2008, the Center for Immigrants’ Rights 1 is an immigration clinicwhere students work on innovative advocacy and policy projects relating to UnitedStates (“U.S.”) immigration primarily through representation of immigrationorganizations. The Center promotes a modernized immigration system that legallyrecognizes and affords due process to individuals entering or living in the U.S. towork, study, reunite with family, or acquire refuge from danger in their homecountries. The mission of the Center is to represent immigrants’ interests throughlegal excellence, advocacy, education, and collaboration with key stakeholders andthe community.Maggio+Kattar 2 and Duane Morris LLP 3 are leading law firms in theimmigration field. Both firms practice and have expertise in all areas of immigration1 http://law.psu.edu/academics/clinics_and_externships/center_for_immigrants_rights.2 http://www.maggio-kattar.com.3 http://www.duanemorris.com.4

law, representing individuals, families, corporations, non-profits, and universities.They are committed to protecting immigrants’ rights and advancing the legalopportunities for immigrants in the U.S. Maggio+Kattar and the immigration groupat Duane Morris take a serious approach to developing a more just and humaneimmigration law.V. METHODOLOGYThis toolkit is primarily based on the experiences of practitioners in the field.In order to create a compilation, the research was conducted in phases. The firstphase was an examination of laws, policy memoranda, and related authorities inorder to identify the foundational precepts of the law. This information wascollected, organized, and streamlined into the Background sections of this toolkit.The second phase involved soliciting practical knowledge and advice frompractitioners who have sought private bills and/or deferred action on behalf of theirclients. An initial electronic request for information was sent out to listservstargeting attorneys in the immigration field. We followed up with practitioners whovoluntarily replied to our request, and interviewed them about their experiences viatelephone. The interviews were conducted with prepared questions designed to fillin the gaps in the background research. Specifically, practitioners were askedabout: the details of their respective cases; the culture and procedures of their localcongressional offices and immigration agency field offices; the processes they usedwhen preparing their requests for relief; the techniques and resources theyimplemented when building outside support for their clients; the resources andinformation they found most helpful when preparing their cases; and whatinformation, not readily available to them, would have been useful when theyundertook their respective cases. We also attempted to contact immigrationofficials and activist organizations that participated in private bill or deferred actioncases. In both instances, concrete information was not made available in time for5

the publication of this toolkit. 4 The facts gathered from the interviews weresynthesized into the information and advice provided in the Background and BestPractices section.In the third phase of the research, we asked practitioners to volunteerredacted documents and notes from their case files. These documents includedrequests for relief composed by the practitioners, exhibit lists and documentationfor their claims, letters of support from the community or activist organizations, andexamples of news coverage. Samples from these materials are included in the CaseSummaries section of this toolkit. The samples are intended to provide users withreferences for comparison to their own cases, as well as ideas for new approaches.4 However, a conversation with Immigration and Customs Enforcement (“ICE”) Headquartersrevealed that they are in the process of creating internal guidance for ICE officers in order to ensuremore consistent processing of deferred action requests.6

Background: Private BillsI. INTRODUCTIONA private bill is an individual discretionary exception to the general law. Itprovides relief for one or a number of people, a corporation, or an institution. 5Private bills differ from public bills in that public bills are far reaching, relate topublic issues, and deal with the individual only indirectly. 6 The underlying principleof any private bill is to correct a personal injustice that cannot be remedied underthe general law. 7 They are a rare form of relief from immigration laws and areusually reserved for the most compelling cases. Private bills serve a two-foldpurpose: they provide individual relief for those individuals pursuing the bill; andas the numbers of private bills on a particular issue increase, they act as a red flageducating and warning Congress and other decision-makers that flaws andinequities exist in the current laws. 8II. HISTORYPrivate bills have been a part of our nation’s history and legislation since thefirst Congress, when the first private bill was passed on September 24, 1789 andsigned into law by George Washington. 9 The First Amendment to the Constitution ofthe United States provides that, “Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercise thereof; or abridging thefreedom of speech, or of the press; or the right of the people peaceably to assemble,5 A. Hinds, Hinds’ Precedents of the House of Representatives of the United States, Washington, D.C.U.S. Govt. Print. Off., 1907, vol. IV, at 247.6 Id.7 Bernadette Maguire, Immigration: Public Legislation and Private Bills 4 (University Press of America,1997).8 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 1 (American ImmigrationLawyers Association) (2008).9 “An Act to Allow the Baron de Glaubeck the Pay of a Captain in the Army of the United States,” ch.26,6 Stat. 1 (1789). This first private law “gave seventeen months back pay at the rank of captain to theBaron de Glaubeck, a foreign officer in the service of the United States.” 1 Guide to Congress 526 (5thed. 2000).7

and to petition the Government for redress of grievances.” 10 The last phrase of theFirst Amendment has often been cited as the source of authority for private bills. 11The power to enact private laws is exclusively within the authority vested inCongress under Article I of the Constitution relating to the responsibilities of thelegislature to pay the debts of the United States. Courts have interpreted “debts” toinclude both moral and honorary debts. 12While the absolute number of private bills submitted by individual Membersof Congress has remained relatively steady, the numbers that have become privatelaws has shown a sharp decline. Five of the 108 laws the first Congress passed in1789 were private bills. 13 This number grew over the years and from 1817 to 1971;most Congresses enacted hundreds of private bills. 14 The highest number of privatebills during one Congress occurred during the 59th Congress (1905-06) whenCongress approved 6,249 bills. 15 In the area of immigration, Congress has enactedover 7,000 private immigration bills since its first session in 1789. 16 Though thissounds quite positive, the following information puts the number into perspective:from the 77th Congress in 1942 until the 107th Congress in 2003, 60,601 privateimmigration-related bills were introduced but only 6,761 of them were enacted. 17The 109th Congress (2005-07), introduced 77 private immigration bills but not oneof them became law. 18 The reduction in the number of private bills over the lastforty years comes from a combination of both the expansion of discretionaryadministrative relief, and the fallout from scandals involving congresspersons10 Emphasis added.11 Bernadette Maguire, Immigration: Public Legislation and Private Bills 2 (University Press ofAmerica, 1997).12 Id. at 3.13 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 7 (American ImmigrationLawyers Association) (2008).14 R. Beth, Private Bills: Procedure in the House (Oct. 21, 2004), CRS Report for Congress No. 98-628,available at www.rules.house.gov/archives/98-628.pdf.15 A History of the Committee of the Judiciary 1813-2006, H. Doc. 109-158, p. 143 (2006).16 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 8 (American ImmigrationLawyers Association) (2008).17 U.S. Department of Homeland Security, Yearbook on Immigration Statistics, 2003 (U.S. GovernmentPrinting Office 2004), Table 51.18 Report on the Activities of the Committee of the Judiciary of the House of Representatives duringthe One Hundredth and Ninth Congress, 107-08, H. Rep. 109-749.8

pressured to introduce private bills, or who did so in bad faith. 19 Notably, the 111 thCongress passed two private bills granting permanent resident status on December22, 2010. 20III. PRIVATE BILLSA private bill is drafted on behalf of the individual seeking relief andintroduced by a Member of Congress. Typically, the attorney representing theindividual will play a large role in the drafting although the Congressperson or amember of his or her staff may draft the bill. Hardship is the principle factor inprivate immigration bills. 21 The case must be extraordinary to justify an exceptionto the general law. 22 On the subject of private immigration bills, Peter Rodino, whowould later become chair of the House Committee on the Judiciary from 1973 to1989, said: “A private immigration bill is an extraordinary remedy available toassist aliens with unusual problems resulting in unusual hardship. The privateimmigration bill is, in essence, an exception to the general law and should be viewedas such and not as a method to circumvent the general law.” 23In addition to the hardship criteria, Congressional precedents act as keyplayer in the passage of a private bill. 24 When confronted with a particular case,Congress often looks to past decisions and actions to determine whether a billshould be enacted into law. 25 Executive Branch opposition, veto by the President, orfailure of passage in either the Senate or the House of Representatives of similar19 Arguably the most famous and devastating abuse of private bills was the Abscam scandal of the1970s and 1980s. The scandal involved FBI agents posing as rich Middle Eastern sheiks who offeredMembers of Congress money in exchange for introducing private bills that would allow the wealthyMiddle Easterners to immigrate. The sting operation ultimately led to the conviction of one Senator,five members of the House of Representatives, and an INS inspector, among others.20 An Act for the Relief of Shigeru Yamada, Private Law No: 111-1 (2010); An Act for the Relief ofHotaru Nakama Ferschke, Private Law No: 111-2 (2010).21 Bernadette Maguire, Immigration: Public Legislation and Private Bills 4 (University Press ofAmerica, 1997).22 Id. at 5.23 117 Cong. Rec. 10143 (1971).24 Bernadette Maguire, Immigration: Public Legislation and Private Bills 8 (University Press ofAmerica, 1997).25 Id. at 18.9

ills could suggest the potential failure of a pending private bill. 26 On the otherhand, if a private bill contains facts that are similar to a past case where a private billhad a positive outcome, success is more likely. For example, a large number ofprecedent cases suggest that applicants who can show strong relationships toUnited States citizen relatives may be able to achieve a favorable disposition.Under the rules of both the Senate Subcommittee on Immigration, BorderSecurity and Citizenship and the House Subcommittee on Immigration, BorderSecurity and Claims, no private bill shall be considered or acted upon by theseSubcommittees until all avenues for administrative and judicial relief have beenexhausted. 27 In most situations, this exhaustion requirement is not too difficult toovercome, as there is often no law that applies to, or provides a remedy for, aprivate bill-seeker’s extraordinary circumstances.Once drafted, a private bill is moved through congressional procedure in thesame way as a public bill, including introduction and referral to a committee. 28 AnyMember of Congress may introduce a bill at any time that Congress is in session.The “sponsor” is the congressperson introducing the bill. Once the bill is printed inthe Congressional Record, it is assigned a legislative number. Copies of the bill arethen sent to the respective judiciary committees of each house, which havejurisdiction over private bills. 29The House of Representatives and the Senate each have their own rules thatguide consideration of all legislation in Congress. 30 The judiciary committees ineach house have jurisdiction over private bills, including those involvingimmigration matters. 31 However, the Senate Subcommittee on Immigration,Refugees and Border Security (hereinafter Senate Subcommittee), and the HouseSubcommittee on Immigration, Citizenship, Refugees, Border Security and26 Id.27 Senate Subcomm. Rules, no. 3; House Subcomm. Rules, no. 3.28 See Appendix C for flow chart on how a public bill is introduced and referred.29 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 14 (American ImmigrationLawyers Association) (2008).30 Bernadette Maguire, Immigration: Public Legislation and Private Bills 9 (University Press ofAmerica, 1997).31 Id.10

International Law (hereinafter House Subcommittee) within their respectivejudiciary committees actually initiate any action on the bill through hearings and thepreparation of background reports. The “Rules of Procedure” are adopted by thesubcommittees on immigration and then affirmed by the judiciary committees. 32From here, the rules of each house of Congress differ.IV. THE SENATE RULESThere are fewer rules guiding the drafting and introduction of private bills inthe Senate than there are in of the House of Representatives. After consideration bythe Senate Committee on the Judiciary, bills are placed on a Calendar of Business foraction. 33 Generally, the bills are taken up by unanimous consent on the Senate floorat a time that is convenient for the majority leader. Hence, there are no designateddays or time limitations on the consideration of private bills, as there may be forpublic bills. The Senator endorsing the private bills must sign and deliver them.Prior to the introduction of a private bill, the Senate Subcommittee asksSenators who want to introduce a private bill to send a letter, copying the rankingmember, explaining his or her request and attaching a copy of the private bill. 34Most Senators comply with and are familiar with this procedure even though it isnot listed in the formal rules. 35 At this point, the Senate Subcommittee takes noposition on the bill and moves it forward.In accordance with the Senate Subcommittee rules, supporting informationfor private bills is capped at three to four typewritten pages. This informationshould contain:A detailed statement by the sponsor establishing the equities of thecase and explaining why adequate remedy is not otherwise available;The alien registration number of the potential beneficiary;32 Id.33 The Legislative Process of the Senate Floor: An Introduction, CRS Report for Congress No. 96-548,available at www.senate.gov/reference/resources/pdf/96-548.pdf.34 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 8 (American ImmigrationLawyers Association) (2008).35 Id,11

The Senate bill number and copy of the bill; andA request that the chair of the Senate Subcommittee obtain adepartmental report on the beneficiary (this is usually from ICE). 36The sponsor may also submit background material, such as character references andemployment or school records, in conjunction with the aforementioned materials. 37Consideration of a private bill will not occur until the relevant governmentagency has submitted a report as requested. The agency is supposed to generate thereport within 60 days, but it typically takes much longer. 38After the report isreceived, the private bill may then be placed on the Calendar for the SenateSubcommittee’s consideration. 39V. STAYS OF REMOVALA stay of removal serves to prevent DHS from executing an order ofdeportation, removal, or exclusion. 40 In those cases where a subcommittee requestsa report from DHS on a beneficiary of a private bill, the subcommittee has the powerto ask DHS to stay the removal of the beneficiary until final action is taken on theprivate bill. 41 Traditionally, an individual’s chances of obtaining a stay of removalare much stronger in the Senate than in the House, as each house has distinctprocedures and habits for granting stays of removal to potential beneficiaries. 42The process for obtaining a stay in the Senate begins with the SenateSubcommittee requesting a background report from the relevant governmentagency (generally from ICE) regarding the individual for whom the bill is written.The chair of the Senate Subcommittee writes a sponsor’s request for a report and36 Id. at 28.37 Id.38 Telephone interview with Anna Gallagher, Shareholder and Head of Litigation and Global VisasPractice, Maggio + Kattar, P.C. (Oct. 28, 2010).39 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 29 (American ImmigrationLawyers Association) (2008).40 See U.S. DOJ EOIR, Fact Sheet: Forms of Relief from Removal (Aug. 3, 2004), available athttp://www.justice.gov/eoir/press/04/ReliefFromRemoval.htm.41 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 29 (American ImmigrationLawyers Association) (2008).42 Telephone interview with Christopher Nugent, former Senior Counsel, Holland & Knight, LLP.(Sept. 23, 2010).12

sends it to ICE. 43 Once the ICE Office of Congressional Affairs receives the request, itdetermines which of its field offices will prepare the response. 44 The selected fieldoffice will conduct an investigation that includes a review of the A-file andinterviews with various people, including the intended beneficiary and their familymembers. 45 At this point, a criminal background check is also done. 46 Once ICEreceives a report request, it will institute a stay of removal for the intendedbeneficiary of the private bill for the entire session of the Congress, during which thebill was introduced, including a grace period up to the month of March following theend of the session. 47Under the House Subcommittee rules, however, the House Subcommitteewill not intervene in removal proceedings or institute a stay by requesting a reportfrom ICE unless the bill is designed to prevent “extreme hardship” to the beneficiaryor a U.S. citizen spouse, child or parent. 48 A determination of whether the extremehardship requirement has been met must be made during a formal meeting of theHouse Subcommittee. 49 The Senate Subcommittee, on the other hand, will generallyrequest a report from ICE at the behest of the sponsor of the bill without initialconsideration of the merits of the case. 50 The Senate Subcommittee requires ashowing of hardship only for certain disfavored categories. 51 Given the differencesin these processes, an advantage of introducing a private bill through the Senate isthe increased potential for a stay of removal.43 This procedure is simpler than that of the House where there is a need for subcommittee approval(i.e., the members of the subcommittee must approve a request for a report by vote). Anna Gallagher,AILA’s Focus on Private Bills & Pardons in Immigration 29 (American Immigration LawyersAssociation) (2008).44 Anna Gallagher, Brent Renison, and Daniel Weiss, Out in the Cold: People With No Options Under OurCurrent Immigration System, AILA Immigration Practice Pointers (11th ed. 2010).45 Id.46 Id.47 Id.48 House Subcomm. Rules, no. 4, 5.49 CRS Report for Congress RL33024, at 4 (February 28, 2007), available athttp://www.ilw.com/immigrationdaily/news/2007,1010-crs.pdf.50 Id.51 Id.13

VI. THE HOUSE OF REPRESENTATIVES RULESA. Introducing a bill in the House of RepresentativesThe House of Representatives has very detailed rules with regard to theprocedure for a private bill. A request for consideration of a private immigration billbegins with a letter from the sponsor of the bill to the chairperson of the HouseSubcommittee. The letter should contain all of the relevant facts in the case and allsupporting documents. The House Subcommittee will only review cases that are ofan extraordinary nature and that require an exception to the current law. 52Generally, the House Subcommittee will only act favorably on those private bills thatmeet certain precedents. 53 Precedents, in the arena of private bills, are regarded assimilar to case law in their effect. House members will cite to precedents to supporttheir point and benefit their bill, just as practitioners would make use of certaincases in their arguments or briefs. 54 Note that all precedents, however, do notnecessarily carry equal weight. 55 For example, recent precedents are morepowerful than earlier ones, and a precedent that is part of an evolved pattern maycarry more weight than an isolated one. 56The House Subcommittee will not accept documents in support of a privatebill unless they are filed directly by the sponsor of the bill. Supportingdocumentation must be submitted in triplicate and should contain: 57• The date and place of birth of each beneficiary 5852 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 22 (American ImmigrationLawyers Association) (2008).53 Id.54 Id.55 T. Carr, Parliamentary Reference Sources: House of Representatives, CRS Report to CongressRL30787, at 4 (Mar. 16, 2004), available at www.rules.house.gov/archives/r130787.pdf.56 Id.57 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 23 (American ImmigrationLawyers Association) (2008).58 In this instance, “beneficiary” refers to the individual who will benefit from the passage of theprivate bill.14

• The addresses and telephone numbers of each beneficiary presentlyin the United States• The dates of all entries (legal and illegal) and departures from theUnited States, along with the type of visa used for admission; thename of the consulate where the beneficiary obtained a visa forentry; the name of the consulate where the beneficiary will beseeking a visa if one is used• The status of all petitions and immigration proceedings, includingimmigrant and nonimmigrant petitions that have been filed by thebeneficiary or on his or her behalf• Copies of all immigration-related letters between agencies in theUnited States and the beneficiary• Copies of all administrative and judicial decisions involving thebeneficiary’s case• The names, addresses, and telephone numbers of interested partiesin the United States• The names, addresses, dates and places of birth, and immigration orcitizenship status of all close relatives• The occupations, recent employment records, and salaries of allbeneficiaries• A signed statement by each beneficiary, or the beneficiary’s guardian,that he or she wants the relief requested in the private bill 59• Information on how failure to obtain the relief sought in the privatebill will result in extreme hardship to the beneficiary or eachbeneficiary’s U.S. citizen spouse, parent, or child• A signed statement by the sponsor of the bill confirming that he orshe has personally met with the beneficiary or with members of thebeneficiary’s family 6059 See Client A Case Summary and following redacted documents for an example.60 See Id.15

B. Voting in the House of RepresentativesOnce a private bill has gone through the House Subcommittee and the HouseCommittee on the Judiciary, it moves to the floor of the House of Representatives fordebate. 61 The calendar for private bills, the “Private Calendar,” is called on the firstand third Tuesday of each month. 62 The consideration of the Private Calendar billson the first Tuesday is mandatory unless it discarded by a two-thirds vote. 63 On thefirst Tuesday of each month, the Speaker directs the call of the Private Calendar. 64If two or more Members object to a bill called from the Private Calendar, thebill is automatically recommitted to the committee reporting it. 65 If, on the otherhand, there are no objections to a private bill the entire House of Representativeswill considers it. 66 The Majority Leader and the Minority Leader each appoint threecongresspersons to serve as “Private Calendar Objectors” during a Congress. 67 The“Private Calendar Objectors” are present on the Floor of the House in order to objectto any private bill they find unacceptable for any reason. 68Although more unusual than requests from the Senate, the HouseSubcommittee may also request a report from DHS or ICE. The HouseSubcommittee may request that ICE stay the removal of the beneficiary until finalactions are taken on the private bill. 69 Note that according to the HouseSubcommittee rules, this stay is only granted in those cases designed to preventextreme hardship to the beneficiary or to the U.S. citizen spouse, parent, or child. 70The House Subcommittee can only request this report after a voice vote of its61 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 22 (American ImmigrationLawyers Association) (2008).62 Honorable F. James Sensenbrenner, Jr. of Wisconsin, Extension of Remarks in The House ofRepresentatives: The History of the Private Calendar and the Consideration of Private Bills (April 21,1999) (available at http://www.rules.house.gov/archives/consid_priv_bill.htm).63 Id.64 Id.65 Id.66 Id.67 Id.68 Id.69 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 24 (American ImmigrationLawyers Association) (2008).70 Id.16

members indicating their support. 71 Once the House Subcommittee requests thereport, ICE follows the same procedures as they do when the Senate makes such arequest.VII. EXECUTIVE APPROVALWhen both houses of Congress have passed a private bill in identical forms, acopy of the private bill is enrolled for presentation to the President. 72 Under the U.S.Constitution, the President must approve every bill passed by the House ofRepresentatives and the Senate before it becomes a law. Once a bill is delivered tothe White House, the bill commences the ten-day constitutional period forpresidential action. If the President approves the bill, he or she will sign it into law.A private bill may also become a private law without the President’s signature if thePresident does not object to the bill and returns it within the ten days after itspresentation. 73 The private bill becomes a private law on the date of the President’sapproval or passage over the President’s veto. 74 If Congress prevents the privatebill’s return by adjourning, the private bill does not become a law and must bereintroduced, starting the congressional process over.Once the President approves a bill or permits it to become law withoutsigning it, the White House sends the original enrolled bill to the archivist of theUnited States for publication. At this point, the bill is assigned a private billnumber. 75 Published individually as slip laws, private bills are includedchronologically in The United States Statutes at Large.VIII.ENACTMENT OF A PRIVATE LAWUpon enactment of a private bill, ICE and relevant offices of the StateDepartment will take appropriate action in accordance with the terms of the privatelaw and ICE shall not subsequently institute removal proceedings against the71 Id. .72 Id. at 15.73 U.S. Constitution art. I, §7.74 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 15 (American ImmigrationLawyers Association) (2008).75 Id.17

eneficiary on grounds based solely on information developed and contained in thejudiciary committee’s reports on the legislation. 76DHS will notify the appropriate ICE field office of the enactment of a privateimmigration bill. 77 When a private bill provides the beneficiary with LawfulPermanent Resident (LPR) status, the beneficiary must pay the appropriate visa fee.Thereafter, the field office will prepare a Form I-181 to be placed in the A-file. Atthis point, the beneficiary will receive the relevant notification and documents fromthe field office. 78 When a private bill authorizes the grant of immediate relative orpreference status, in order to obtain an immigrant visa, the field office will sendForm G-388 to the appropriate party. 79 This will include a notice that a visa petitionshould be filed, if necessary. 80 In the event that the private bill directs that pendingremoval proceedings should be terminated, the field office will notify the beneficiarythat proceedings have indeed been terminated as a result of the bill. Also, if aprivate bill grants some other form of benefit or waiver, the field office will notifythe beneficiary and offer the appropriate instructions as to how to proceed. 81IX. WORK AUTHORIZATIONThe regulations do not specifically provide for work authorization to apotential beneficiary of a private bill. However, a potential beneficiary of a privatebill may be able to obtain a work permit, if the beneficiary first acquires deferredaction. 82 A successful private bill may lead to LPR status for the potentialbeneficiary, which would not require the individual to obtain work authorization.However, obtaining a private bill may take years. In the meantime, it may help thebeneficiary to try to receive work authorization while the private bill is pending. In76 Legacy OI 107.1(h)(2).77 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 36 (American ImmigrationLawyers Association) (2008).78 Legacy OI 107.1(h)(2).79 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 36 (American ImmigrationLawyers Association) (2008).80 Legacy OI 107.1(h)(2).81 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 36 (American ImmigrationLawyers Association) (2008); See also Legacy OI 107.1(h)(2).82 Anna Gallagher, Brent Renison, and Daniel Weiss, Out in the Cold: People With No Options Under OurCurrent Immigration System, AILA Immigration Practice Pointers (11th ed. 2010).18

order to obtain work authorization, counsel must request deferred action for thetime that the private bill is pending. If deferred action is granted, counsel can file forwork authorization under 8 CFR § 274a.12.USCIS is responsible for adjudicating requests for employment authorizationunder 8 CFR § 274a.12. 83 To apply for employment authorization one must fileForm I-765. 84 If deferred action is granted as a result of the introduction of a privatebill, and the beneficiary receives notice of such a decision, he or she should submit acopy of that notice with the application for work authorization. 85 On the other hand,if the beneficiary has not received a notice of deferred action, but a report has beenrequested from ICE and removal stayed, USCIS will have to review the beneficiary’sfile to confirm that a stay has been granted in order to issue an employmentauthorization document. 8683 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 33 (American ImmigrationLawyers Association) (2008).84 Id.85 Id.86 Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration 33 (American ImmigrationLawyers Association) (2008), citing Electronic correspondence with David G. Gulick, DomesticOperations Chief of Staff, USCIS, dated Sept. 10, 2007.19

Quick Guide: Private BillsWhat is a private bill?o A private bill is an individual discretionary exception to the generallaw in the form of legislationWhere does the authority for a private bill come from?o The First Amendment to the Constitution of the United States says,“Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedom ofspeech, or of the press; or the right of the people peaceably toassemble, and to petition the Government for redress of grievances.”Who is eligible for a private immigration bill?o Individuals with extraordinary circumstances and hardship for whichthe law does not provide a just remedyWhen should a private bill be sought?o When all other forms of relief have been denied/exhausted, but theindividual has a valid and compelling reason to remain in the UnitedStatesHow do I get a private bill introduced?o Find a congressperson to be a sponsor for the private billo Gather relevant information required under House or Senate ruleso Draft the billo The sponsor will then start the legislative processIs there a difference between introducing the bill and obtaining a stayof removal in the House or Senate?o Introduction of a private bill in the House does NOT result in anautomatic stay of removal while the bill is pending; the chance ofobtaining a stay of removal is much stronger in the Senateo There are different procedures for the passage of laws in the Houseand the Senate; the rules of procedure in the House are more stringentthan those in the SenateWhat factors do Congresspersons take into consideration whendeciding to sponsor a private bill?o How sympathetic the individual iso Whether the individual has a criminal record20

o Whether the Congressperson is up for re-election and how sponsoringthe bill could positively or negatively affect his or her campaignWhat information should I include in, or in support of, the private billrequested from the Senate?o Typically, the attorney representing the individual will play a largerole in the drafting of the private billo Hardship is the principle factor in private immigration billso Cite to precedento The bill itself should give the name of the individual and the specificimmigration status that is being requested (usually LPR status)o Supporting information for private bills is capped at three to fourtypewritten pageso This information should contain:• A detailed statement by the sponsor establishing the equitiesof the case and explaining why adequate remedy is nototherwise available• The alien registration number of the potential beneficiary• The Senate bill number and copy of the bill• A request that the chair of the immigration subcommitteerequest a departmental report on the individual (this is usuallyfrom ICE)o The sponsor is also allowed to submit background material, such ascharacter references, employment or school records, etc., inconjunction with the aforementioned materialsWhat information should I include in, or in support of, the private billrequested from the House?o Typically, the attorney representing the individual will play a largerole in the drafting of the private billo Hardship is the principle factor in private immigration billso Cite to precedent, where possibleo The bill itself should give the name of the individual and the specificimmigration status that is being requested (usually LPR status)o The following supporting documentation and information must besubmitted in triplicate form with the private bill:• The date and place of birth of each beneficiary• The addresses and telephone numbers of each beneficiarypresently in the United States• The dates of all entries (legal and illegal) and departures fromthe United States, along with the type of visa used foradmission; the name of the consulate where the beneficiaryobtained a visa for entry; the name of the consulate where thebeneficiary will be seeking a visa if one is used21

• The status of all petitions and immigration proceedings,including immigrant and nonimmigrant petitions that havebeen filed by the beneficiary or on his or her behalf• Copies of all immigration-related letters between agencies inthe United States and the beneficiary• Copies of all administrative and judicial decisions involving thebeneficiary’s case• The names, addresses, and telephone numbers of interestedparties in the United States• The names, addresses, dates and places of birth, andimmigration or citizenship status of all close relatives• The occupations, recent employment records, and salaries ofall beneficiaries• A signed statement by each beneficiary, or the beneficiary’sguardian, that he or she wants the relief requested in theprivate bill• Information on how failure to obtain the relief sought in theprivate bill will result in extreme hardship to the beneficiary oreach beneficiary’s U.S. citizen spouse, parent, or child• A signed statement by the sponsor of the bill confirming thathe or she has personally met the beneficiary or with membersof the beneficiary’s familyHow does a private bill move through Congress?o The movement of a private bill through congressional procedureoccurs in the same way as a public bill, including introduction andreferral to a committeeIs getting the bill introduced the only thing I need to do?o Introduction of the bill is just the beginningo You must also build public support for the individual and passage ofthe billHow do I build support?o Contact family and friends of the individualo Contact organizations that the individual is involved witho Contact non-profit organizationso Begin internet and social networking campaignso Contact the mediaHow can supporters help the individual’s effort?o Write letter of support to be submitted with the billo Fax letter of support to the Congressional offices of the sponsor,committee and subcommittee chairs, and DHS22

o Write letters to the editors of local newspapers, drawing attention tothe individual’s caseo Knock on doors to garner further support of the individualo Use their own contacts within DHS, Congresspersons, and localgovernmento Organize a march or rally on Capitol Hillo Use the power of the electorate to encourage Congresspersons to passthe billHow do I make use of the media?o Talk to local reporters to try and get them to cover the storyo On camera interviewso Local interest showso Start a blog or Facebook campaign on behalf of the individualWhat happens after a private bill becomes a private law?o DHS will notify the appropriate district office of its enactmento When a private bill provides the beneficiary with lawful permanentresident status, the appropriate visa fee will be paid and the fieldoffice will prepare a Form I-181 to be placed in the “A” fileo The beneficiary will receive relevant documents or forms from thefield office once process is completeCan I get a work permit while my private bill request is pending?o There is no independent basis under the regulations for a workpermit while the bill is pendingo The individual must qualify for authorization under 8 CFR§274a.12(c)(14) which authorizes a work permit for those who aregranted deferred statuso Only known vehicle is through deferred action; counsel should applyfor deferred action in conjunction with the private billo The individual must file Form I-765What happens if my private bill does not become a law?o The individual may be removed or detained until removal can beeffectuatedHow long does it take for a bill to pass?o Just as with public laws, the length of time required to pass a lawvarieso The bill is active until a new Congress is electedo If the private bill is not passed during the Congress it was introducedin, it must be re-introducedAdditional resources:23

o Anna Gallagher, AILA’s Focus on Private Bills & Pardons in Immigration(AILA Lawyers Association, 2008)o Margaret Mikyung Lee, Private Immigration Legislation (Feb. 28,2007), CRS Report for Congress No. RL 33024 (available athttp://www.ilw.com/immigrationdaily/news/2007,1010-crs.pdf)o R. Beth, Private Bills: Procedure in the House (Oct. 21, 2004) CRSReport for Congress No. 98-628 (available at www. rules. house. gov/archives/98-628.pdf)24

Best Practices for Pursuing a Private BillThis information constitutes recommendations gathered from theexperiences of practitioners who have made requests for private bills on behalf oftheir clients. As the decision to introduce a private bill is wholly discretionary, thereis no precise formula for success. In addition, because there are only looseguidelines as to procedures for requests, a practitioner must use care when makingdecisions on which actions they should take and when they should take them.Please use caution when employing the methods described below and be aware ofthe risks involved, both to your client and to yourself.I. INITIAL CONSIDERATIONSA. How sympathetic is my client?—Evaluate all of the humanitarian andsympathetic factors of your client’s history. These factors include, but are notlimited to: age; age at time of entry to the U.S.; family ties to the U.S.; health ormedical concerns; ties to the community; involvement with charitable work or achurch; qualities of an upstanding citizen; work history; ties to home country; andconditions in home country. 87B. Is there anything in my client’s history that may negatively affect his/hercase?—Evaluate anything that may be viewed negatively. When considering thesefactors, be very mindful of the current political climate. These factors may include,but are not limited to criminal history; previous violations of immigration law;history of involvement with drugs or gangs; and allegations of material support forterrorism for client or family members.C. Should I pursue a private bill, deferred action, or both?—Evaluate which optionwill likely produce a more favorable outcome. You may wish to pursue bothavenues. Even though favorable outcomes are rare with both forms of relief, it isimportant to keep in mind that: 1. These options represent the last chance for your87 Any advice given in this section, not credited to a specific individual, was a suggestion frequentlygiven by a number of practitioners interviewed for this toolkit.25

client to obtain relief; and 2. Even though you may not be successful, pursuing theseoptions will help bring attention to the systems failure to provide relief to deservingindividuals. Additionally, since the process of creating a request and preparation ofthe record are similar, it may be more efficient to request both at the same time.Consideration by the sponsor to introduce the private bill will involve factorssuch as the political climate in the locality; the political party/stance of the Membersof Congress; the relationship the attorney has with local agencies; how sympatheticyour client is; whether or not you feel you and your client will be able to garnercommunity support; etc. It is also important to keep in mind that if an attempt toobtain one of these forms of relief is unsuccessful, it will not preclude you fromseeking the other. 88II. CHOOSING A SPONSORA. Choosing a congressional sponsor for your private billWhen contemplating a private bill, the first step is to find a Member of Congress tosponsor it.—In most cases, it will be the Congressional representative from thenoncitizen’s district or state. Hopefully, this representative will be sympathetic tothe plight of your client, or will at least not have political motivation to avoidsponsorship (for example, a need to appear tough on immigration enforcement).Certain regions of the country have a reputation of being more sympathetic toimmigrants’ rights than others (e.g., Seattle versus Miami), so it may be desirable tofind sponsorship from a Member of Congress outside of your client’s home state.However, this is again dependent on the existing political climate. Also, be awarethat many congressional offices have “no private bills” policies. Otherconsiderations include: your own relationship with a Congressperson or member ofhis or her staff; your client’s relationship with a Member of Congress; whether theMember of Congress is up for reelection; the availability of members of the client’scommunity who may contact their Congressperson personally or as a group; etc.88 See, e.g., Case Summary of Client D.26

In general, it seems to be more difficult, although not impossible, to getSenate sponsorship (mainly because Senators represent a larger constituency than aRepresentative from the House). However, there are definite procedural advantagesto having a private bill introduced through the Senate. The Senate Subcommitteereviewing the private bill has the power to request a report from ICE, which willtrigger an automatic stay of removal for the duration of the entire Congressionalsession. This stay can typically last between two to four years. Note, the decision torequest the report is a political one and will not be made in all cases.The procedures of the House of Representatives requires that a request for areport, and the subsequent stay, can only come after a voice vote in the Committeeon the Judiciary, and therefore is very rare. Instead, if a stay is desired, the Housemay negotiate with the administration for a grant of deferred action until the billweaves its way through the House procedures and is introduced. This process canresult in temporary relief for the noncitizen that can last for quite awhile, but thestay is not triggered automatically, as it may be in the Senate.III. COMPOSING A REQUEST FOR CONSIDERATIONA request for a private bill will focus largely on the humanitarian factorsaffecting the individual and the reasons why enforcement against the individualwould result in an injustice. It is often up to the attorney to develop a record insupport of these factors. The submission, including both the letter and thedocumentary support, will likely be voluminous (for example, the submission forClient A was roughly 500 pages). 89 Since Members of Congress have the discretionto introduce a private bill, one should pursue all avenues to ensure thethoroughness of the record and to show your client in the best and most humanizinglight.89 See Client A, in Case Summary and Redacted Documents.27

A. Composing a letter for a private bill1. The Senate Rules 90 require a Senator seeking to introduce a private billto submit a letter explaining his or her request. Generally, the Senator’s office willseek the aid of the noncitizen’s counsel when composing this letter.In accordance with the Senate Subcommittee rules, the letter may be no morethan three or four typewritten pages. This letter will contain a detailed descriptionof the favorable factors of the case. The letter will also explain why an adequateremedy is not otherwise available. In addition, the letter must contain identifyinginformation including: the alien registration number of your client; the Senate billnumber and copy of the bill. Finally, the letter should include a request that thechair of the Senate Subcommittee obtain a departmental report on your client. Thisis extremely important because it is this request that could prompt the stay ofremoval proceedings for your client. The letter should also include attachments ofevidentiary support of your client’s favorable equities.character references, employment or school records, medical records, etc.These may include:2. A request for consideration of a private immigration bill in the House ofRepresentatives begins with a letter from the sponsor of the bill to the chairpersonof the House Subcommittee. Generally, the Representative’s office will seek the aidof the noncitizen’s counsel when composing this letter.The House has far more specific rules than the Senate with regard to thesubmission and content of this letter. 91 The letter and supporting documents willnot be accepted if they are filed by anyone other than the sponsor of the bill. Theletter must contain all of the relevant facts in the case and include all supportingdocuments. The House also provides a list of documentation that must be submittedin triplicate in support of a private bill request:The date and place of birth of each noncitizen seeking reliefThe addresses and telephone numbers of each noncitizen seeking reliefpresently in the United States90 See Appendix B for complete Senate Rules.91 See Appendix A for complete House Rules.28

The dates of all entries (legal and illegal) and departures from the UnitedStates, along with the type of visa used for admission; the name of theconsulate where a visa for entry was obtained; the name of the consulatewhere a visa will be soughtThe status of all petitions and immigration proceedings, including immigrantand nonimmigrant petitions that have been filed by the noncitizen or on hisor her behalfCopies of all immigration-related letters between agencies in the UnitedStates and the noncitizenCopies of all administrative and judicial decisions involving the noncitizen’scaseThe names, addresses, and telephone numbers of interested parties in theUnited StatesThe names, addresses, dates and places of birth, and immigration orcitizenship status of all close relatives (This requirement can be difficultwhen dealing with undocumented relatives. Confine your list to qualifyingUS citizens or LPR relatives) 92The occupations, recent employment records, and salaries of each noncitizenseeking reliefA signed statement by each noncitizen, or the noncitizen’s guardian, that heor she wants the relief requested in the private billInformation on how failure to obtain the relief sought in the private bill willresult in extreme hardship to the noncitizen or each noncitizen’s U.S. citizenspouse, parent, or childA signed statement by the sponsor of the bill confirming that he or she haspersonally met the beneficiary or with members of the beneficiary’s family92 Note: it is important to remember that applying for either form of relief may shed light on othernoncitizen family members’ statuses. When applying for either form of relief, one must take theillumination of other family members’ statuses into consideration.29

IV. COMMUNITY SUPPORT AND ORGANIZINGIn the case of private bills, applying pressure through organized communitysupport is very important. Members of Congress tend to be more willing to takeaction when their constituency effectively expresses support for an issue. This iswhere attorneys become activists on behalf of their clients, but it is also anopportunity for the individual seeking relief to take an active role on his or her ownbehalf. 93 It should be noted that it is much easier to garner support for your clientwhen his or her case is both sympathetic and credible. It is crucial, especially inareas where immigration issues are more hotly contested, to put a human face onyour client for individuals who may not know the client personally. Although it maybe difficult for your client to open up about the hardships he or she has faced or willface if forced to leave the country, it is important to counsel your client that this ishis or her last chance. He or she may have to make tough decisions and bevulnerable, in order to obtain relief.Starting what is essentially a campaign on behalf of your client may seemdaunting at first, but one can take very simple steps to begin.Contact family and friends of your client. 94 —Family and friendsmay be willing to show support in small ways like signing a petition orproviding a letter of support. They may also offer to get organizationslike churches or clubs in which they are members involved in theeffort to aid your client’s request.Drum up support through organizations with which your client isalready involved.—Churches or religious organizations in particularare usually a good resource for community organizing. In addition,your client’s employer or labor union 95 may be willing to offersupport. Pre-existing groups like these are helpful in organizingevents like fax campaigns, letter-writing campaigns, petitions,marches, etc.93 See Client D Case Summary.94 Be careful if individuals offering support are also vulnerable to immigration enforcement. Whiletheir support is helpful, one should make them aware of the risks involved in making themselvesknown to authorities.95 SEIU is a particularly active union in this arena.30

Reach out to non-profit or activist organizations (e.g., Asian LawCaucus, American-Arab Anti-Discrimination Committee, America’sVoice, American Civil Liberties Union, Campus Progress, Associationof International Educators, etc.)—These organizations already have asolid base that they may be able to call on to act on behalf of yourclient. They will also often let you post a piece about your case ontheir website or in a newsletter.Begin internet and social networking media campaigns.—Facebook campaigns, blogs, comments to pertinent websites are alleffective ways to expand your client’s support group.Community outreach is not limited to these options. Any initiative that may lead topositive support of your client is well worth the effort, as you never know what willget the attention of a particular Member of Congress. A congressperson can onlyreact to the known opinions of their constituents to Congress.V. CONTACTING THE MEDIAWhen there is a chance that a Member of Congress will experience negativepublicity if they fail to respond to compelling case, he or she may be more willing totake action. Once again, it is important to consider whether the public will trulyview your client in a sympathetic light before you contact the media about yourcase. Since media usage is a double-edged sword, one should handle it carefully.Find a proper balance to show the government that you are serious about yourefforts but are not attempting to strong-arm them into a decision, as this could havenegative repercussions against your client.In the beginning, it may beadvantageous to use the media to demonstrate that your client’s case represents animportant issue that you are bringing to the government’s attention in an effort toallow them to make a good decision. Additional pressure may become necessary,but it is usually best to apply pressure gently at first.Reaching out to the media may begin with contacts that you already have.Other places to start include:Letters to the editor and local newspaper coverage—if possibletry to get a featured story including a picture of your client.31

(Obviously front page is preferable, or any place where the story iseasily found.)Local news channels, or local interest shows—on camerainterviews with your client focusing on your client’s importance to thecommunity or to his or her family; produced pieces or interviewsfeaturing testimonials from family, friends, community leaders, etc.Radio stations—consider doing interviews with talk radio shows,even those that may not seem to have a sympathetic view onimmigration issues. The point is to effectively communicate yourclient’s story, and build support from all possible avenues.National coverage—contact national news services about picking upyour local article; if your case has a large base of support, contactnational news outlets about doing a story. (As deferred action andprivate bills become more common, the chances of getting coverageincrease.)Internet presence—Facebook groups and blogging increasesawareness beyond your client’s initial network and will alsosometimes be picked up by traditional news sources.32

Background: Deferred ActionI. INTRODUCTIONDeferred action is a discretionary decision, made at the agency level, not toprosecute or to remove a noncitizen. 96 One can make a request for deferred actionat any stage of the administrative process; administrative exhaustion is not requiredbefore making the request. 97 The agency may grant deferred action on an individualbasis, or the agency may decide that deferred action is applicable to a class ofindividuals. 98 Deferred action falls under the umbrella of prosecutorial discretionand is not a grant of immigration status, nor is it an entitlement. However, if anoncitizen’s request for deferred action is granted it may be the basis for anentitlement (e.g., noncitizens granted deferred action are considered “lawfullypresent” for purposes of determining eligibility for Social Security benefits or foremployment authorization). 99 Periods of time in deferred action qualify as periodsof stay authorized by the Secretary of the Department of Homeland Security (DHS)for purposes of determining inadmissibility of noncitizens who are unlawfullypresent under INA §§ 212(a)(9)(B) and (C), and may be extended indefinitely. 100Deferred action is a limited remedy in that the agency can alternativelychoose to terminate it at any time. The agency may also terminate employmentauthorization based on deferred action. An immigration court cannot grantdeferred action and the decision either to grant or to deny a request for deferred96 Ira J. Kurzban, Immigration Law Sourcebook 1141 (12th Ed. 2010).97 Anna Gallagher, Brent Renison, and Daniel Weiss, Out in the Cold: People With No Options Under OurCurrent Immigration System, AILA Immigration Practice Pointers (11th ed. 2010).98 Current and potential classes of noncitizens include, but are not limited to, DREAM Act eligiblestudents, widows of U.S. citizens who were married for less than 2 years and their children, LPRswho have served in the U.S. military, Haitian nationals and victims of natural disaster, foreignstudents in the U.S. who were displaced by Hurricane Katrina.99 See Memorandum from Bo Cooper, General Counsel of Immigration and Naturalization Service, onINS Exercise of Prosecutorial Discretion (INS and DOJ Legal Opinions §99-5 MB 2006). See also 8C.F.R. §274a.12(c)(14).100 See Memorandum from Denise A. Vanison, et al, to Alejandro Mayorkas, on AdministrativeAlternatives to Comprehensive Immigration Reform.33

action is not subject to judicial review. 101 There are no official forms to fill out orspecified procedures to request deferred action. Moreover, because it is adiscretionary decision, internal agency memoranda and guidance govern thedecision-making process. 102 The wholly discretionary nature of deferred action alsomeans that agency decisions to grant or deny deferred action are inconsistent andunpredictable. All of these factors contribute to the hazy nature of deferred actionand the difficulties facing an individual seeking this form of relief.II. HISTORYDeferred action was preceded by the “nonpriority” program, which existedunder the now-defunct Immigration and Naturalization Service (INS). There was nopublic knowledge of this program until 1974, when the U.S. ordered John Lennondeported and he challenged his removal order. 103 Lennon’s attorney, Leon Wildes,obtained information about the nonpriority program through a Freedom ofInformation Act (FOIA) request and revealed its existence and operation. 104 Foundin the unpublished INS Operations Instructions, the Instructions describednonpriority as, “an act of administrative choice to give some cases lower priority.” 105Nonpriority was renamed “deferred action” in 1975 under new and publiclyreleased Operations Instructions, which stated, “In every case where the districtdirector determines that adverse action would be unconscionable because of theexistence of appealing humanitarian factors, he shall recommend consideration fordeferred action category.” 106 The Operations Instructions went on to say:When determining whether a case should be recommended fordeferred action category, consideration should include the following:101 See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).102 Ira J. Kurzban, Immigration Law Sourcebook 1141 (12th Ed. 2010).103 Lennon v. Richardson, 378 F. Supp. 39 (1974).104 See Leon Wildes, The United States Immigration Service v. John Lennon: The Cultural Lag, 40 BROOKL. REV. 279 (1974); Leon Wildes, The Nonpriority Program of the Immigration and NaturalizationService Goes Public: The Litigative Use of the Freedom of Information Act, 14 SAN DIEGO L. REV. 42(1977); Leon Wildes, The Operations Instructions of the Immigration Service: Internal Guides orBinding Rules?, 17 SAN DIEGO L. REV. 99 (1980).105 Kurzban, supra note 79, at 1141 (citing Immigration and Naturalization Service, OperationsInstructions, Former O.I. § 242.1(a)(22)(1974)).106 (Legacy) Immigration and Naturalization Service, Operations Instructions, O.I. §103.1(a)(1)(ii)(1975).34

(1) advanced or tender age; (2) many years’ presence in the UnitedStates; (3) physical or mental condition requiring care or treatment inthe United States; (4) family situation in the United States- effect ofexpulsion; (5) criminal, immoral or subversive activities oraffiliations- recent conduct. 107Although these Operations Instructions have since been rescinded, deferred actionis still available as a form of relief and these factors remain important, reappearingin agency policy statements and directives.Deferred action, as a sanctionedexercise of prosecutorial discretion, is now primarily outlined through internalmanuals and memoranda. ICE has recently published a manual for federal and stateprosecutors. 108Contained in this manual is a brief section on deferred actionrequests and related prosecutorial discretion tools. While the section in the manualitself is by no means comprehensive, it does provide the most detailed informationthat ICE has ever shared on how it processes deferred action requests.III. ICE DETENTION AND REMOVAL OPERATIONS POLICY AND PROCEDUREMANUALThe Immigration and Customs Enforcement (ICE) Detention and RemovalOperations Policy and Procedure Manual (The ICE Manual), formerly the Detentionand Deportation Officer’s Field Guide, is one resource for information on how theagency makes deferred action determinations. 109This manual was created asinternal guidance for the Deportation and Removal Offices (DRO) personnel, 110 andits public release is only available in redacted form. The relevant portions include adescription of what deferred action is, its limitations as a remedy, and factorsconsidered by the agency when deciding whether to grant deferred action. Thereare also sections describing the procedures for granting, rejecting and reviewingdeferred action. The manual contains a disclaimer stating that, “[n]othing in thismanual may be construed to create any substantive or procedural right or benefit107 Id.108 U.S. Immigration and Customs Enforcement, Protecting the Homeland: Tool Kit for Prosecutors(2011)109 ICE Detention and Removal Operations Policy and Procedure §1.2 (2006). To see the availablerelevant portions of the manual in its entirety, please see Appendix G.110 Name has since been changed to Enforcement and Removal Offices (ERO).35

that is legally enforceable by any party against the United States, its agencies orofficers, or any other person.” 111Section 20.8 of the ICE Manual authorizes deferred action saying, “A DistrictDirector may, in his or her discretion, recommend deferral of (removal) action, anact of administrative choice to give some cases lower priority.” 112 It goes on to statethe following justification for the policy: “The deferred action category recognizesthat the Service has limited enforcement resources and that every attempt should bemade administratively to utilize these resources in a manner which will achieve thegreatest impact under the immigration laws.” 113The ICE Manual lists factors that may influence a decision to grant or denydeferred action. This list includes:1) The Likelihood That the Service Will Ultimately Removethe Alien Based on Factors Including: likelihood that thealien will depart without formal proceedings (e.g., minor childwho will accompany deportable parents); age or physicalcondition affecting ability to travel; the likelihood that anothercountry will accept the alien; the likelihood that the alien willbe able to qualify for some form of relief which would preventor indefinitely delay removal.2) Sympathetic Factors: The presence of sympathetic factorswhich, because of a desire on the part of administrative orjudicial authorities to reach a favorable decision, could resultin a distortion of the law with unfavorable implications forfuture cases.3) Priority Given to a Class of Deportable Aliens: Whether ornot the individual is a member of a class of deportable alienswhose removal has been given a high enforcement priority(e.g., dangerous criminals, alien smugglers, drug traffickers,terrorists, war criminals, habitual immigration violators).4) Service Cooperation with Other Agencies: Whether thealien's continued presence in the U.S. is desired by local, state,111 ICE Detention and Removal Operations Policy and Procedure §1.2 (2006).112 ICE Detention and Removal Operations Policy and Procedure §20.8(a) (2006).113 Id.36

or federal law enforcement authorities for purposes of ongoingcriminal or civil investigation or prosecution. 114In addition, the ICE Manual calls for periodic reviews of cases where deferred actionhas been granted to determine if circumstances have changed and the individualshould be removed or if the individual should remain in the deferred actioncategory. 115 Finally, the ICE Manual makes it clear that the decision-maker canterminate the deferred action at any time the decision-maker “determines thatcircumstances no longer warrant deferred action.” 116IV. STAYS OF REMOVAL & PROSECUTORIAL DISCRETIONA grant of deferred action acts to stay the removal of an applicant. Generally,a formal application requesting a stay is not required to be filed when an applicantrequests deferred action. However, some practitioners note that it may be easier toobtain a stay of removal rather than deferred action from DHS. Thus, when seekingdeferred action, it may be wise to also file a formal request for a stay of removal,offering DHS an alternative where it may be hesitant to grant deferred action status.Under 8 C.F.R. § 241.6, DHS can grant a stay of removal to a noncitizen whohas been ordered deported or removed from the United States. The decision togrant a stay of removal is solely within the discretionary authority of DHS and thereis no administrative or judicial appeal from a denial of a request for a stay. Wherean entire family has been ordered removed, separate applications must be filed foreach family member seeking a stay of removal. The request must be made on ICEForm I-246, available on the ICE website, and the application package shouldcontain supporting documentation.An application for a stay must be filed in person with the Enforcement andRemoval Operations (ERO) office of ICE with jurisdiction over the applicant’sresidence. In order to identify the correct ERO office, visit the ICE website at114 Id. at §20.8(b)115 ICE Detention and Removal Operations Policy and Procedure §20.8(e) (2006).116 ICE Detention and Removal Operations Policy and Procedure §20.8(f) (2006).37

http://www.ice.gov/contact/ero/index.htm.submitted along with the application:The following documents must beCurrent original passport which is valid for a minimum of six months;Copy of birth certificate and/or other identifying documents;If the applicant has been involved in the criminal justice system, policereports, dispositions of all arrest, etc.; andSupporting documentation.In order to obtain a stay of removal, proof must also be provided to demonstrate acompelling reason or reasons to justify the stay. Thus, it is important to providesupporting documentation, including the following, where relevant:Medical documentation from the client’s doctor(s)-- Letters from medicalpersonnel which clearly and concisely explain the condition of your client ortheir immediate family members should be obtained and submitted.Psychological reports which document any psychological condition(s)suffered by relevant family members and the effect that a separation willhave on the condition(s)Birth certificates/marriage certificates establishing the client’s relationshipto U.S. citizen or lawful permanent resident family membersEvidence to support the client’s claim that he or she cannot leave the UnitedStates-- This can be in the form of supporting letters from other family,members of the community, teachers, etc. An affidavit from the applicantclearly explaining the reasons why they must remain in the United Statesshould also be submitted.Any additional documentation, including letters of support, employmentletter, etc., in support of the request-- This should include any documentsthat attest to the good character of the applicant, the fact that they pose nodanger to the community, evidence of their employment, etc.A fee of $ 155.00 must be paid for each application. Payment must be made out to“Department of Homeland Security” or “Immigration and Customs Enforcement.”In addition to the documentation discussed above, a cover letter, whichclearly explains why a stay of removal should be granted should be submitted. Indrafting this letter, the following factors should be addressed:38

the likelihood of ultimately removing the individual;the presence of sympathetic factors;the likelihood that, because of the sympathetic factors, a large amount ofadverse publicity will be generated; andwhether the individual is among a class of deportable aliens whose removalhas been given high enforcement priority (e.g. terrorists, drug traffickers). 117If ICE grants a stay of removal, the following will occur:The client will be issued an Order of Supervision (OSUP) and will be requiredto comply with any conditions as set forth in the order;The client may be granted employment authorization at the discretion of theField Office Director;The client may be required to post a Delivery or Order of Supervision bond,the minimum amount being $ 1,500;The client may be required to submit to any other conditions required by theField Office Director; andThe client will be required to update ICE with any change of address.ICE may revoke a stay of removal based on any of the following:Execution of an order of deportation or removal;An arrest by any law enforcement agency;Conviction of any crime(s);A violation of the Order of Supervision;A violation of the terms of any immigration bond; and/orSafety or security concerns117 See Standard Operating Procedures for Enforcement Officer: Arrest, Detention Processing andRemoval, Part X, Doris Meissner, Comm., HQOPP 50/4 (Nov. 17, 2000).39

A stay of removal is generally granted in one-year increments. In order to maintainemployment authorization, it is important to begin the process of gathering thematerials to support an extension request at least ninety days before its expiration,and to file the request itself 30 days before the stay expires.V. THE COOPER MEMO [LEGACY INS]Agency memoranda are also instructive when considering a request fordeferred action. One such memo is the Cooper Memo, written by then-GeneralCounsel for INS, Bo Cooper, to then-Commissioner Doris Meissner. 118The CooperMemo provides information on the legal basis for prosecutorial discretion in theadministrative context, as well as proposed limits and examples of proper uses ofthis power. The Memo’s introductory summary explains its purpose, stating:The memorandum is intended to be the first step in the INS'examination of its use of prosecutorial discretion. As such, theanalysis is confined to laying out the legal basis for guidelines or otherpolicy action that may be considered or undertaken in the future. It isnot intended to serve as policy guidance itself on the use ofprosecutorial discretion. Instead, this memorandum will provide theagency with a foundation to develop such guidance after consultationamong the appropriate INS components. 119The Cooper Memo also discusses the underlying policy justification for exercisingdiscretion by stating:Because . . . the INS does not have the resources fully and completelyto enforce the immigration laws against every violator, it exercisesprosecutorial discretion thousands of times every day. INSenforcement priorities, including the removal of criminal aliens andthe deterrence of alien smuggling, are examples of discretionaryenforcement decisions on the broad, general level that focus INSenforcement resources in the areas of greatest need. 120The Cooper Memo also describes the discretionary use of deferred action:118 Memorandum from Bo Cooper, General Counsel of Immigration and Naturalization Service, on INSExercise of Prosecutorial Discretion (INS and DOJ Legal Opinions §99-5 MB 2006). To view in itsentirety, please see Appendix H.119 Id.120 Memorandum from Bo Cooper, General Counsel of Immigration and Naturalization Service, on INSExercise of Prosecutorial Discretion (INS and DOJ Legal Opinions §99-5 MB 2006). To view in itsentirety, please see Appendix H.40

Agencies may exercise enforcement discretion in individual casesbased on the particular facts or on enforcement priorities orprosecutorial discretion may be more formalized and generalizedthrough agency regulations or procedures, such as those that governdecisions to place aliens in deferred action status or to grant themvoluntary departure. 121VI. THE MEISSNER MEMO [LEGACY INS]Another primary source for information regarding deferred action is a memoproviding guidance on the exercise of prosecutorial discretion written by DorisMeissner and distributed on her last day as INS Commissioner. 122 Although writtenfor the now legacy INS, this memo is still good “law” and remains influential evenafter the restructuring of the immigration agencies under the Department ofHomeland Security. The Meissner Memo states:Service officers are not only authorized by law but expected toexercise discretion in a judicious manner at all stages of theenforcement process–from planning investigations to enforcing finalorders–subject to their chains of command and to the particularresponsibilities and authority applicable to their specific position. Inexercising this discretion, officers must take into account theprinciples described below in order to promote the efficient andeffective enforcement of the immigration laws and the interests ofjustice. 123The Meissner Memo continues:The “favorable exercise of prosecutorial discretion” means adiscretionary decision not to assert the full scope of the INS’enforcement authority as permitted under the law. Such decisionswill take different forms . . . but include decisions such as not issuingan NTA . . . not detaining an alien placed in proceedings . . . andapproving deferred action. 124Because the agency has an obligation to enforce the immigration laws, the MeissnerMemo warns that prosecutorial discretion is not “an invitation to violate or ignore121 Id.122 Memorandum from Doris Meissner, Commissioner of Immigration and Naturalization Service, onExercising Prosecutorial Discretion (Nov. 17, 2000) [hereinafter The Meissner Memo]. To read TheMeissner Memo in its entirety, please refer to the Appendix I.123 Id.124 Id.41

the law.” 125 Instead, the use of prosecutorial discretion is a means by which theagency makes the best use of its limited resources in order to achieve its primarygoals of “protecting public safety, promoting the integrity of the legal immigrationsystem, and deterring violations of the immigration law.” 126 The followingstatement offers one rationale for deferred action, “An agency’s focus on maximizingits impact under appropriate principles, rather than devoting resources to cases thatwill do less to advance these overall interests, is a crucial element in effective lawenforcement management.” 127Maybe most importantly, the Meissner Memo provides a list of factorsenforcement officers should consider when making their decision. These factorsform the basis for a request for deferred action:Immigration status: Lawful permanent residents generallywarrant greater consideration. However, other removablealiens may also warrant the favorable exercise of discretion,depending on all the relevant circumstances.Length of residence in the United States: The longer an alienhas lived in the United States, particularly in legal status, themore this factor may be considered a positive equity.Criminal history: Officers should take into account the natureand severity of any criminal conduct, as well as the timeelapsed since the offense occurred and evidence ofrehabilitation. It is appropriate to take into account the actualsentence or fine that was imposed, as an indicator of theseriousness attributed to the conduct by the court. Otherfactors relevant to assessing criminal history include thealien’s age at the time the crime was committed and whetheror not he or she is a repeat offender.Humanitarian concerns: Relevant humanitarian concernsinclude, but are not limited to, family ties in the United States;medical conditions affecting the alien or the alien’s family; thefact that an alien entered the United States at a very young age;125 Id.126 Id.127 Id.42

ties to one’s home country (e.g., whether the alien speaks thelanguage or has relatives in the home country); extreme youthor advanced age; and home country conditions.Immigration history: Aliens without a history of violating theimmigration laws (particularly violations such as reenteringafter removal, failing to appear at a hearing, or resisting arrestthat show heightened disregard for the legal process) warrantfavorable consideration to a greater extent than those withsuch a history. The seriousness of any such violations shouldalso be taken into account.Likelihood of ultimately removing the alien: Whether aremoval proceeding would have a reasonable likelihood ofultimately achieving its intended effect, in light of the casecircumstances such as the alien’s nationality, is a factor thatshould be considered.Likelihood of achieving enforcement goal by other means:In many cases, the alien’s departure from the United Statesmay be achieved more expeditiously and economically bymeans other than removal, such as voluntary return,withdrawal of an application for admission, or voluntarydeparture.Whether the alien is eligible or is likely to become eligiblefor other relief: Although not determinative on its own, it isrelevant to consider whether there is a legal avenue for thealien to regularize his or her status if not removed from theUnited States. The fact that the Service cannot confer completeor permanent relief, however, does not mean that discretionshould not be exercised favorably if warranted by otherfactors.Effect of action on future admissibility: The effect an actionsuch as removal may have on an alien can vary–for example, atime-limited as opposed to an indefinite bar to futureadmissibility–and these effects may be considered.Current or past cooperation with law enforcementauthorities: Current or past cooperation with the [theimmigration authorities] or other law enforcement authorities,such as the U.S. Attorneys, the Department of Labor, orNational Labor Relations Board, among others, weighs in favorof discretion.43

Honorable U.S. military service: Military service with anhonorable discharge should be considered as a favorablefactor.Community attention: Expressions of opinion, in favor of orin opposition to removal, may be considered, particularly forrelevant facts or perspectives on the case that may not havebeen known to or considered by the [government]. Publicopinion or publicity (including media or congressionalattention) should not, however, be used to justify a decisionthat cannot be supported on other grounds. Public andprofessional responsibility will sometimes require the choiceof an unpopular course.Resources available to the [government]: As in planningoperations, the resources available to the [agency] to takeenforcement action in the case, compared with other uses ofthe resources to fulfill national or regional priorities, are anappropriate factor to consider, but it should not bedeterminative. For example, when prosecutorial discretionshould be favorably exercised under these factors in aparticular case, that decision should prevail even if there isdetention space available. 128The Meissner Memo points out that this list of factors is not exhaustive and when anofficer is considering the use of prosecutorial discretion the decision “should bebased on the totality of the circumstances, not on any one factor considered inisolation. General guidance such as this [list of factors] cannot provide a ‘bright line’test that may easily be applied to determine the ‘right’ answer in every case.” 129 Theoverriding question for an officer deciding whether to exercise discretion, theMeissner Memo notes, is, “How important is the Federal interest in the case, ascompared to other cases and priorities?” 130VII.THE HOWARD MEMO [ICE]128 Id.129 Id.130 Id.44

Another useful document in the chronicling of the agency view ofprosecutorial discretion is a memo written by then-Principal Legal Advisor, WilliamJ. Howard in 2005. 131 Although written narrowly as guidance for the Office ofPrincipal Legal Advisor (OPLA) attorneys, the Howard Memo confirms agency policyin favor of the exercise of prosecutorial discretion, and reiterates the principlesdescribed in the Meissner Memo. When preparing a deferred action request, onecan and should use the Howard Memo as persuasive authority. The Howard Memogoes even farther than the Meissner Memo when pointing out the dearth of agencyresources.As a result of this limitation, prosecutorial discretion becomes animportant tool in assuring that those cases which both demonstrate the bestchances of success and further agency goals, are prioritized. The Howard Memosuggests:Prosecutorial discretion is a very significant tool that sometimes enables youto deal with the difficult, complex and contradictory provisions of theimmigration laws and cases involving human suffering and hardship. It isclearly DHS policy that national security violators, human rights abusers,spies, traffickers both in narcotics and people, sexual predators and othercriminals are removal priorities. It is wise to remember that cases that donot fall within these categories sometimes require that we balance the cost ofaction versus the value of the result. Our reasoned determination in makingprosecutorial discretion decisions can be a significant benefit to theefficiency and fairness of the removal process. 132This memo was written as guidance for agency attorneys and in that regard states,“Attorney discretion doesn’t cease after a final order. We may be consulted onwhether a stay of removal should be granted . . . . In addition, circumstances maydevelop whether the proper and just course of action would be to move to reopenthe proceeding for purposes of terminating the NTA.” 133131 Memorandum from William J. Howard, Principal Legal Advisor of U.S. Immigration and CustomsEnforcement, on Prosecutorial Discretion (Oct. 24, 2005)[hereinafter The Howard Memo]. To viewThe Howard Memo in its entirety, see Appendix J.132 Memorandum from William J. Howard, Principal Legal Advisor of U.S. Immigration and CustomsEnforcement, on Prosecutorial Discretion (Oct. 24, 2005)[hereinafter The Howard Memo]. To viewThe Howard Memo in its entirety, see Appendix J.133 Id.45

VIII. THE MYERS MEMO [ICE]In 2007 Julie Myers, then-Assistant Secretary of ICE, released a memoaddressing prosecutorial and custody discretion. 134 This memo is limited in scopeto arrest and custody determinations for nursing mothers; however, it is asignificant piece of the prosecutorial discretion puzzle. The Myers Memo urges thefavorable use of discretion for nursing mothers in all stages of the enforcementprocess, and bases this position on the guidance and underlying rationale of theMeissner Memo. 135 In fact, the Meissner Memo is provided as an attachment to theMyers Memo, reaffirming that the guidance provided in the Meissner Memo remainsactive. 136 The Myers Memo encourages the favorable use of discretion for nursingmothers to avoid detention or, if detention is unavoidable, to secure them in afacility which is able to accommodate their child. 137IX. THE MORTON MEMOS [ICE]John Morton, the current Assistant Secretary of ICE, composed two influentialmemos within months of each other: one entitled Civil Immigration Enforcement:Priorities for the Apprehension, Detention and Removal of Aliens; 138 and the othercalled, Guidance Regarding the Handling of Removal Proceedings of Aliens withPending or Approved Applications or Petitions. 139 Both of these memos were134 Memorandum from Julie Myers, Assistant Secretary of U.S. Immigration and CustomsEnforcement, on Prosecutorial and Custody Discretion (Nov. 7, 2007)[hereinafter The Myers Memo].To read The Myers Memo in full, please see Appendix K.135 Id.136 Id.137 Id.138 Memorandum from John Morton, Assistant Secretary of U.S. Immigration and CustomsEnforcement to All ICE Employees, on Civil Immigration Enforcement: Priorities for theApprehension, Detention and Removal of Aliens (Jun. 30, 2010). To read The June Morton Memo infull, please see Appendix L.139 Memorandum from John Morton, Assistant Secretary of U.S. Immigration and CustomsEnforcement, on Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending orApproved Applications or Petitions (Aug. 20, 2010). To read The August Morton Memo in full, pleasesee Appendix M.46

“leaked” and met with controversy due to the existing political climate. 140 However,these memos are instructive for purposes of constructing a case for deferred action.The first Morton Memo from June 2010 “outlines the civil immigrationenforcement priorities of U.S. Immigration and Customs Enforcement (ICE) as theyrelate to the apprehension, detention, and removal of aliens.” The June MortonMemo contains an estimate that ICE’s limited resources allow for removal of only400,000 aliens per year, less than 4% of the estimated illegal alien population in theU.S. 141 Although considered controversial at the time of its release, the June MortonMemo is largely a restatement of the practical considerations that have historicallyformed the basis for immigration officers’ use of discretion. The June Morton Memoestablishes priorities that “shall apply across all ICE programs and shall informenforcement activity, detention decisions, budget requests and execution andstrategic planning.” The June Morton Memo breaks down the enforcement prioritiesby ranking them from the highest to the lowest priority. 142In a section entitled, “Prosecutorial Discretion” the June Morton Memoencourages ICE officers to use their discretion at every level of decision-making insupport of the listed priorities. In addition, the June Morton Memo specifies that“particular care” should be used in cases of lawful permanent residents, juveniles,and the immediate family of U.S. citizens. 143 The June Morton Memo then states thatuntil new guidance is issued on the use of prosecutorial discretion, ICE officers andattorneys should use the Meissner Memo and the Howard Memo as guidance. 144A second memo written by John Morton and released in August of 2010provides guidance for the handling of removal proceedings. This document is a140 See, e.g., Susan Carroll & Stewart Powell, Immigration Dismissals Draw Senate Scrutiny, HoustonChronicle, Oct. 22, 2010 (available at, http://www.chron.com/disp/story.mpl/special/immigration/7248528.html; Sivaprasad Wadhia, Reading the Morton Memo: Federal Priorities and ProsecutorialDiscretion, Immigration Policy Center, American Immigration Council (2010) (available athttp://ssrn.com/abstract=1723165).141 Memorandum from John Morton, Assistant Secretary of U.S. Immigration and CustomsEnforcement to All ICE Employees, on Civil Immigration Enforcement: Priorities for theApprehension, Detention and Removal of Aliens (Jun. 30, 2010). To read The June Morton Memo infull, please see Appendix L.142 Id.143 Id.144 Id.47

good indicator of how ICE intends to use policy changes to manage limitedresources and backlog. 145 The August Morton Memo was written in recognition ofthe 17,000 cases subject to delay in 2009 that ultimately resulted in relief for thenoncitizen. 146 The purpose of the August Morton Memo is to establish a policy forICE personnel, to be followed up later by additional guidance for USCS personnel,which will “ensure that all applications and petitions are adjudicated quickly torealize our shared goal of efficiently resolving cases in removal proceedings.” 147In support of that goal, the August Morton Memo encourages ICE agents toexercise their powers of prosecutorial discretion to either aid in expeditedadjudication procedures where possible, or to seek outright dismissal of removalproceedings where the noncitizen appears eligible for relief and no investigations orserious adverse factors exist. 148 The August Morton Memo can be interpreted as anoverriding policy supporting the favorable exercise of prosecutorial discretion andit may be persuasive in preparing an argument for deferred action.X. “THE COMPREHENSIVE IMMIGRATION REFORM [CIR] ALTERNATIVESMEMO”[USCIS]A memo leaked in July 2010 from the DHS Office of Policy to AlejandroMayorkas, the Director of USCIS, arguably reflects DHS’ current thinking about howagency actions can further the goals of immigration reform without waiting for thestatutory scheme to be revamped. 149 The purpose of the CIR Alternatives Memo isto provide “administrative relief options to promote family unity, foster economicgrowth, achieve significant process improvements and reduce the threat of removalfor certain individuals present in the United States without authorization” 150 in the145 Memorandum from John Morton, Assistant Secretary of U.S. Immigration and CustomsEnforcement, on Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending orApproved Applications or Petitions (Aug. 20, 2010). To read The August Morton Memo in full, pleasesee Appendix M.146 Id.147 Id.148 Id.149 Memorandum from Denise A. Vanison, et al, to Alejandro Mayorkas, on AdministrativeAlternatives to Comprehensive Immigration Reform.150 Id.48

absence of comprehensive reform of the immigration laws. With these goals inmind, the CIR Alternatives Memo specifically encourages USCIS to grant deferredaction for cases where “no relief appears available based on an applicant'semployment and/or family circumstances, but removal is not in the public interest.”In addition to preventing removal, “[t]his would permit individuals for whom reliefmay become available in the future to live and work in the U.S. without fear ofremoval.” 151The CIR Alternatives Memo has an entire section devoted to increasing theuse of deferred action to protect specific individuals or groups from the threat ofremoval. Although the CIR Alternatives Memo warns that providing unlimitedgrants of deferred action would be controversial and expensive, administrativereforms, such as a dedicated form for requesters and a filing fee, could resolve theseissues. 152 In addition, the CIR Alternatives Memo suggests that rather than simplyopening the floodgates and granting deferred action in all circumstances, blanketgrants of deferred action may be tailored for particular groups of noncitizens (e.g.,individuals who would be eligible for relief under the DREAM Act). 153 Althoughthese reforms have not yet occurred, the underlying support for the use of deferredaction to prevent injustice and promote public policy interests are instructive whenpreparing a request.X. WORK AUTHORIZATIONUSCIS is responsible for adjudicating requests for employment authorizationunder 8 CFR § 274a.12. This provision contains a category that provides foremployment authorization for individuals who have been granted deferredaction. 154 To apply for employment authorization one must file Form I-765 and paythe appropriate fees. 155151 Id.152 Id.153 Id.154 8 CFR § 274a.12(c)(14).155 Form is available in Appendix Q of this toolkit.49

Quick Guide: Deferred ActionWhat is deferred action?o Deferred action is a discretionary decision not to prosecute or removea noncitizen made at the agency levelWhere does the authority for deferred action come from?o Deferred action is form of prosecutorial discretion that the agencymay exerciseo There are no statutes or case law, rather authority and directivescomes from agency manuals and internal memorandaWhat internal guidance is available? 156o ICE Detention and Removal Operations Policy and Procedure Manual(http://www.ice.gov/doclib/foia/dro_policy_memos/09684drofieldpolicymanual.pdf)o The Cooper Memo, INS Exercise of Prosecutorial Discretion(www.shusterman.com/pdf/cooper.pdf)o The Meissner Memo, Exercising Prosecutorial Discretion(http://www.scribd.com/doc/22092970/INS-Guidance-MemoProsecutorial-Discretion-Doris-Meissner-11-7-00)o The Howard Memo, Prosecutorial Discretion (http://www.scribid.Com/doc/22092975/ICE-Guidance-Memo Prosecutorial-Discretion-William-J-Howard-10-24-05)o The Myers Memo, Prosecutorial and Custody Discretion(http://www.scribd.com/doc/22092973/ICE-Guidance-Memo-Prosecutorial-Discretion-Julie-Myers-11-7-07)o The June Morton Memo, Civil Immigration Enforcement: Priorities forthe Apprehension, Detention and Removal of Aliens (www.ilw.com/Immigration/daily/news/2010,0630-ice.pdf)o The August Morton Memo, Guidance Regarding the Handling ofRemoval Proceedings of Aliens with Pending or ApprovedApplications or Petitions (http://scribid.com/doc/36524371/John-Morton-Memo)156 Copies of internal guidance and agency memoranda are available in Appendices G-N.50

o The USCIS CIR Alternatives Memo, Administrative Alternatives toComprehensive Immigration Reform (http://www.abcnews.go.com/images/Politics/memo-on-alternatives-tocomprehensive-immigration-reform.pdf)What factors are considered compelling in the eyes of the agencies?o Immigration statuso Length of residency in the U.S.o Criminal historyo Humanitarian concerns (e.g., family ties to the U.S., medical condition,age, or condition in home country)o Immigration historyo Likelihood of ultimately removing the noncitizeno Likelihood of achieving enforcement through other meanso Likelihood that noncitizen will become eligible for other reliefo Effect of deferred action on future admissibilityo Cooperation with law enforcemento Honorable US military serviceo Community support or media attentiono Resources available to the agencyWhere do these factors come from?o Factors are included in internal agency guidance 157Should I request deferred action on behalf of my client?o If there are no other administrative remedies available to your client,ando Client is sympathetic and has a compelling reason to remain in theUnited States.How do I request deferred action?o There is no form to fileo You must send a letter or brief requesting deferred action to one ormore of the following:• Your local ICE Field Office;• The local CIS office, if there is one; and/or• Any individual who you feel might be able exert some influenceon your clients behalf (within DHS, ICE, or USCIS)What should my request letter contain?o The main goal of the letter is to humanize the individualo The request should:• Identify the individual157 See Appendices H-M for internal agency memoranda51

• Highlight all favorable factors• Explain any negative factors• Provide a statement requesting deferred action• Provide a description of what hardships would ensue if relief isnot granted• Include a procedural summary of the individual’s entire case• Include the individual’s immigration history• Include supporting documentsWhat supporting documents should I include with my request?o Supporting documents should be provided to:• Identify the client• Detail client’s immigration history• Detail client’s contact with law enforcement• Highlight all favorable factors (e.g., length of residence in theU.S., family and community ties, activities, awards, education,hardships, etc.)Is preparing the request letter and supporting documentation the onlything I need to do?o In most cases, the letter will not be enougho You must also find or build community support for the individualo You might also seek political support or media attentionHow do I build support?o Contact family and friends of the individualo Contact organizations that the individual is involved witho Contact non-profit organizationso Begin internet and social networking campaignso Contact the mediaHow can supporters help the individual’s effort?o Write letter of support to be submitted with the requesto Fax letter of support to the local ICE Field Officeo Write letters to the editors of local newspapers, drawing attention tothe individual’s caseo Knock on doors to garner further support of the individualo Use their own contacts within DHS, USCIS, or ICEo Pressure local officials to take interest in the individual’s caseHow do I make use of the media?o Talk to local reporters to try and get them to cover the storyo On camera interviewso Local interest showso Start a blog or Facebook campaign on behalf of the individual52

How is deferred action granted?o It is unclear how the decision within the agency is made and it mayvary from Field Office to Field OfficeHow is an individual notified that deferred action has been granted ordenied?o There is no standard procedure for notificationo In some cases, individuals receive a letter or call granting or denyingdeferred actiono In other cases, individuals never receive notification of a decisionWhat happens after deferred action is granted?o The individual will not be removedo The individual will not have an immigration status, but will beconsidered “lawfully present”o The individual has the option to file for work authorizationHow do I file for work authorization?o You must submit an I-765 Form to USCISo On the I-765, you will cite 8 CFR 274a.12(c)(14), the regulation fordeferred action, for question 17. 158What happens if my deferred action request is denied?o The individual may be removed or detained until removal can beeffectuatedHow long does it take for a decision to be made?o There is no required time limit for making a decisiono On average, a decision is made in three monthsLinks to additional resources:o See the internal agency guidance listed aboveo Ira J. Kurzban, Immigration Law Sourcebook (12th ed., 2010)o Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion inImmigration Law, 9 Conn. Pub. Int. L.J. 243 (2010) (available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476341)158 Question 17 on the I-765 asks for the eligibility category of the applicant.53

Best Practices for Pursuing Deferred ActionThis information constitutes recommendations gathered from theexperiences of practitioners who have made requests for deferred action on behalfof their clients. As the decision to grant deferred action is wholly discretionary,there is no precise formula for success. Also, because there are only loose guidelinesas to procedures for requests, a practitioner must make many careful decisions as towhich actions to take and when to take them. Please take caution when using themethods described below and be aware of the risks involved, both to your client andto yourself.I. INITIAL CONSIDERATIONSA. How sympathetic is my client?—Evaluate all of the humanitarian andsympathetic factors of your client’s history. These factors include, but are notlimited to: age; age at time of entry to the U.S.; family ties to the U.S.; health ormedical concerns; ties to the community; involvement with charitable work or achurch; qualities of an upstanding citizen; work history; ties to home country; andconditions in home country. 159 Your client may also qualify as a member of a classthat the government has granted, or may grant deferred action to. Current andpotential classes of noncitizens include, but are not limited to, DREAM Act eligiblestudents, widows of U.S. citizens who were married for less than 2 years, LPRs whohave served in the U.S. military, Haitian nationals and victims of natural disaster.B. Is there anything in my client’s history that may negatively affect his/hercase?—Evaluate anything that may be viewed negatively. When considering thesefactors, be very mindful of the political climate. These factors may include, but arenot limited to: criminal history; previous violations of immigration law; history of159 Any advice given in this section that is not specifically credited to an individual was frequentlysuggested by practitioners interviewed for this toolkit.54

involvement with drugs or gangs; and allegations of material support for terrorismfor client or family members.C. Should I pursue a private bill, deferred action, or both?—Evaluate whichoption will likely produce a more favorable outcome. You may wish to pursue bothavenues. Even though favorable outcomes are rare with both of these options, it isimportant to keep in mind that: 1. These options represent the last chance for yourclient to obtain relief; and 2. Even though you may not be successful, pursuing theseoptions will bring attention to the fact that the system provides no relief fordeserving individuals.In making a decision, you should look at the following factors: the politicalclimate of the locality; the political party/stance of the Members of Congress; therelationship you as an attorney have with the local agencies; how sympathetic yourclient is; whether or not you feel you and your client will be able to garnercommunity support; etc. It is also important to keep in mind that if an attempt toobtain one of form of relief is unsuccessful, it does not preclude you from seekingthe other. Additionally, since the process of creating a request and preparation ofthe record are similar, it might make sense to do both at the same time.II. CHOOSING AN AGENCYWhen contemplating a request for deferred action, one will need to decidewhich agency to apply to. In general, requests for deferred action go to the local ICEfield office. Unfortunately, the method by which ICE handles deferred actionrequests is wholly unclear. It may be helpful to send additional requests to officialsin USCIS or DHS. If there is someone with supervisory authority with whom youhave a relationship, submitting a copy of the request to that person may beparticularly useful as he or she may be able to put pressure on the field office onbehalf of your client. 160160 See Client G Case Summary. A favorable outcome was obtained when the practitioner submitted arequest for deferred action, both to the local field office, and to a high-ranking official of DHS, withwhom the practitioner had an established professional relationship.55

III. COMPOSING A REQUEST FOR CONSIDERATIONAn established set of rules do not govern the request to an agency for a grantof deferred action. The submission may take the form of a letter or a brief. Becausethere are no formal requirements, it is important to remember to include all of theinformation that is most likely to assist your client. The goal is to humanize yourclient. This is where the agency guidance, such as the Meissner Memo factors, 161 isinstructive. The request should highlight all favorable factors and provide anexplanation for any negative factors that may weigh against your client. The requestshould also provide a statement requesting deferred action from the agency and adescription of what hardships would ensue if relief were not granted.Practitioners have expressed two schools of thought regarding the bestapproach to composing a request. The first approach is to focus the request on themost compelling factor (e.g., extreme hardship on a U.S. citizen child) and includeonly short descriptions of other favorable factors. With this method, you avoidwatering down what is most important, but there is a risk that you are notpresenting a complete case. It is also possible that the agency will not find the mainfactor compelling enough to use it as the basis for granting relief. The secondapproach is to put as many favorable factors as possible into the request for relief.This approach may provide many grounds for which the agency may grant deferredaction. However, it risks diluting the compelling narrative. It is likely that yourparticular case will lend itself more fully to one approach over the other.The request for deferred action should also include supporting documentsattached to the letter or brief. Make sure to provide supporting documents to proveyour client’s identity and his or her immigration history (e.g., passport, I-94 card,state issued identification card, driver’s license, etc.). Supporting documents shouldalso include evidence in support of the favorable factors discussed in the request,including: medical records, psychological records, school records, family and161 See Appendix I; see also the Deferred Action Background section.56

employment histories, character references, letters of support from communityleaders and politicians, faxes from fax campaigns, signed petitions in support of thenoncitizen, copies of any media coverage, etc. In addition, you must includeinformation regarding your client’s involvement in any criminal proceedings.However, make sure to do so in a way that highlights rehabilitation or mitigatingfactors (e.g., copies of the completion of any sentence, community or public serviceprograms; participation in programs such as anger management, AA, etc.; where theclient has been given probation or parole, obtain a letter from their supervisingofficer). The submission, including both the letter and the supporting documents,will likely be voluminous (for example, the submission for Client A was roughly 500pages). 162 It is helpful to include an annotated Table of Contents with the package tomake it user friendly.IV. COMMUNITY SUPPORT AND ORGANIZINGEven though immigration agencies are not true political organizations, astheir employees are not elected, community action still can influence them. In fact,one of the factors for consideration listed in the Meissner Memo is “communityattention.” 163 This is where attorneys become activists on behalf of their clients. Itis also an opportunity for the individual seeking relief to take an active role on his orher own behalf. 164 Please note that it is much easier to garner support for yourclient when his or her case is both sympathetic and credible. It is crucial, especiallyin areas where immigration issues are contested, to put a human face on your clientfor individuals who may not know your client personally.Although it may bedifficult for your client to open up about the hardships he or she endured or willendure, it is important to counsel your client that this is their last chance. He or shemay have to make tough decisions, and make him or herself vulnerable in order toobtain relief.162 See Client A Case Summary and redacted documents. Even though this submission was made for aprivate bill, the submission for a deferred action request may be comparable in size.163 Appendix I (“Community attention: Expressions of opinion, in favor of or in opposition to removal,may be considered, particularly for relevant facts or perspectives on the case that may not have beenknown to or considered by the [agency].”)164 See Client D Case Summary.57

Representing a client in a deferred action request requires quite a bit ofstrategizing. This includes deciding whether to engage in a public campaign or topursue a more subtle approach. Although there have been successful casesinvolving large public campaigns, there are instances where a quiet approach maybe more effective. It is possible that a field office or agency official, previouslybesieged by a public campaign, will be resistant to the technique. The locale wherethe action takes place may not be amenable to such civic engagement. It isimportant to recognize which approach better serves your client’s needs.Should you decide that a public approach is necessary, there are very simplesteps that you can take to begin your campaign.Contact family and friends of your client.—Family members andfriends may be willing to show support in small ways like signing apetition or providing a letter of support. They may also offer to getorganizations like churches or clubs to which they belong involved inthe effort to aid your client’s request. Keep in mind though that somefamily members may be vulnerable to immigration enforcement.While their support may be helpful, they should be made aware of therisk involved in making themselves known to authorities.Drum up support through organizations with which your client isalready involved.—Churches or religious organizations in particularare usually a good resource for community organizing. In addition,your client’s employer or labor union may be willing to offer support.Pre-existing groups like these are helpful in organizing events like faxcampaigns, letter-writing campaigns, petitions, marches, etc.Reach out to non-profit or activist organizations (e.g., Asian LawCaucus, American-Arab Anti-Discrimination Committee, America’sVoice, American Civil Liberties Union, Campus Progress, Associationof International Educators, etc.) —These organizations already have asolid base that they may be able to call on to act on behalf of yourclient. They will often also let you post a piece about your case ontheir website or in a newsletter.Begin internet and social networking media campaigns.—Facebook campaigns, blog posts, comments to pertinent websites areall effective ways to expand your client’s support group.58

V. CONTACTING THE MEDIAAgencies are not immune to the effects of bad publicity. The MeissnerMemo’s “community attention” factor includes media publicity. 165 Although theMeissner Memo includes a warning that negative media attention alone is notenough for the agency to grant a favorable outcome, it is clear that the immigrationagencies do not want to create a public outcry over their actions. The agency is alsoinstructed to consider any new facts, perspectives, or opinions that may not haveotherwise become known. 166 Once again, it is important to consider whether thepublic will truly view your client in a sympathetic light before contacting the mediaabout your case. Media attention is a double-edged sword and you should use itcarefully. Try to maintain a proper balance in order to show the government thatyou are serious about your efforts, but that you are not attempting to strong-armthem into a decision, as strong-arm techniques could have negative repercussionsagainst your client. Begin by using the media to demonstrate that your client’s caserepresents an issue that you are calling to the government’s attention. You shouldalways give the agency the opportunity to make a good decision.Reaching out to the media may begin with contacts that you already have.Other places to start include:165 See Appendix I.166 See Id.Letters to the editor and local newspaper coverage—if possibletry to get a featured story including a picture of your client (frontpagestories, or any place where the story is clearly visible, arepreferable.)Local news channels or local interest shows—participate in oncamerainterviews with your client, focusing on your client’simportance to the community, or to his or her family; produce piecesor interviews featuring testimonials from family, friends, communityleaders, etc.Radio stations—consider doing interviews with talk radio shows59

National coverage—contact national news services about picking upyour local article; if your case has a large base of support, contactnational news outlets about doing a story. (As deferred action andprivate bills become more common, the chances of getting coverageincrease).Internet presence—Facebook groups and blogging increasesawareness beyond your client’s initial network and will alsosometimes be picked up by traditional news sources. 167167 See Client D Case Summary.60

Client AType of Case: Private billLocation: Northeastern United StatesOutcome: On October 22, 2007, an immigration judge concluded that Client A hadmet his burden of proof for asylum eligibility (based on a vast amount of lay andexpert testimony on his behalf).Source: Chris NugentFacts:In 1998, Client A, a mentally handicapped individual, and his older brotherfled Guinea to live with their aunt and uncle in the Ivory Coast, because their parentsfelt it was unsafe for the children to remain in their village. Soon after Client A andhis brother left Guinea, their father was killed for political reasons during amassacre in their village. Their mother died soon after, leaving them orphans. In2000, Client A moved with his aunt and uncle to France for six months. During thisperiod, Client A’s uncle traveled to Guinea to see if it was safe for the family toreturn, however, his uncle never came back from Guinea. Client A’s aunt, nowdestitute, moved to Belgium and left Client A with a family friend. At this point,Client A’s brother and uncle were presumed dead.In January 2001, the family friend put Client A on a plane bound for theUnited States, gave him fraudulent identification, and instructed him to tell U.S.authorities that he was from Congo and seeking asylum.Immigration agentsarrested Client A at Dulles Airport and placed him in a Virginia jail. An INS dentalassessment suggested that Client A was about 18 years old upon arrival in the U.S.an attorney.In August 2001, Client A appeared in front of an Immigration Judge withoutOn June 24, 2002, an Immigration Judge ordered Client A to beremoved Guinea. On December 23, 2003, Client A was released to the InternationalFriendship House in York, PA and an Immigration Judge ordered that his asylumcase be re-opened. In December 2004, the same Immigration Judge denied ClientA’s asylum request for a second time.When his pro bono attorneys took up the case, they obtained both his birthcertificate and his parents’ death certificates, which showed that he was in fact61

sixteen-years-old when he entered the United States, and had therefore spentroughly three years in an adult prison while still a minor. Additionally, Client A’sattorney discovered that he had the mental capacity of an average ten-year-old.While pursuing asylum, Client A’s attorney also sought to introduce a privatebill on his behalf. Seventy-three Members of Congress, numerous public interestorganizations, and the international media responded to Client A’s plight. Therewas also outcry from the general public. Congressman Chris Van Hollen (D-MD)introduced two private bills on Client A’s behalf during the 108 th and 109 th sessionsof Congress, however, neither bill passed.62

Client BLocation: PennsylvaniaType of Case: Deferred ActionOutcome: The initial request for deferred action was denied. However, Client B hassince been released from custody. Ms. Weerasinghe has received no furtherinformation from ICE regarding the status of her client.Source: Disna WeerasingheFacts:Client B is a forty-eight=year-old woman from Jamaica who had been in theU.S. since she was five-years-old. She received her green card at age nine. While inthe U.S., she worked as a nurse and gave birth to five U.S. citizen children. Client B’sentire family resides in the U.S. When she was sixteen, Client B was raped, andafterwards, began using drugs. Client B was convicted of thirteen counts ofpossession of drugs and drug paraphernalia (all class A misdemeanors). She wasalso charged with one count of prostitution. She was sentenced and served her time.Client B is also HIV positive.Sometime after Client B’s sentence was completed, ICE picked up anddetained Client B. A Notice to Appear was issued and she was charged under INA§§237(a)(2)(B)(i) and 237(a)(2)(A)(iii). The Immigration Judge ruled that her drugconvictions qualified as aggravated felonies and made her ineligible for cancellationof removal. Despite issuing a final order of removal, the Immigration Judge notedthat consideration should be given for Client B to receive deferred action status.Client B’s case was taken by Pennsylvania Immigration Resource Center (PIRC), whoreferred the case to Ms. Weerasinghe. Ms. Weerasinghe took the case on August 21,2008.During her detention, Client B was told that she had to be cooperative ingetting her travel documents. This proved difficult because Jamaica does not acceptHIV positive individuals since it does not have proper medication for them. Thispolicy is not in writing, but the Jamaican Embassy gave Ms. Weerasinghe thisinformation when she called. Ms. Weerasinghe requested deferred action through63

the ICE DRO in the correctional facility where Client B was detained. Ms.Weerasinghe addressed the letter requesting Client B’s deferred action to the FieldOffice Director in Philadelphia. While helpful and responsive at first, the DROeventually stopped taking calls from Ms. Weerasinghe.The request for deferred action was initially denied, due to Client B’s statusas an aggravated felon. A letter was sent notifying Client B and Ms. Weerasinghe ofthe denial, and pointing out that she was subject to mandatory detention based onINA § 241. Ms. Weerasinghe asked for reconsideration at the first custody hearingand Client B was released from custody on October 31, 2008. It unclear what ClientB’s current immigration status is; ICE has never fully informed Ms. Weerasinghe orClient B of Client B’s status.64

Client CType of Case: Deferred ActionLocation: CaliforniaOutcome: Deferred action was denied. Client C was deported to France where hiswife has since joined him.Source: Randall CaudleFacts:Client C was a well-known food vendor in San Francisco, California, where heoperated a popular food cart, selling quiches and tarts near a Mission Districtsubway station. Client C was a citizen of France who entered the U.S. on a visawaiver, which allowed him to be in the U.S. for ninety days, but he overstayed.While in the U.S., Client C married his U.S. citizen wife. Client C retained RandallCaudle to discuss an adjustment of status based on Client C and his wife’s marriage.On October 28, 2009, a few months after the initial client meeting, ICE picked upClient C for overstaying his visa waiver and held him in detention. Client C had beenin the U. S. for a total of seven months (overstaying his visa by four months). ClientC had no criminal history and was a likely candidate for a green card. An ICE officialtold Mr. Caudle that ICE had begun prioritizing enforcement against visa overstays,and ICE swept up Client C in this process.In response to Client C’s detention, Mr. Caudle filed a request for deferredaction with ICE. The request quickly moved through the decision making process,probably due in large part to the amount of press attention that the case received.Client C, his wife, and Mr. Caudle gained the support of Client C’s community byusing blogs, social networking sites, and local news coverage to tell Client C’s story.At the time, however, there was another high profile case for deferred actionoccurring in the same area. The other case drew more community and local mediaattention than Client C's case did. The other high profile case was successful, butClient C’s request was denied on November 3, 2009, and Client C was removed toFrance.65

Client DType of Case: Deferred action and private billLocation: Seattle, WashingtonOutcome: Deferred action granted.Source: Shannon UnderwoodFacts:Client D is a twenty-three year old Peruvian national who resides inWashington State. He has lived in the U.S. since he was fourteen, when his familyentered on tourist visas and overstayed. Client D has no criminal history, graduatedwith honors from high school, and recently received a bachelor’s degree in BusinessAdministration from the University of Washington, without the assistance of federalstudent aid. ICE detained Client D after he missed an exit on the highway andaccidently ended up at the U.S.-Canada border. He was initially detained, and anImmigration Judge granted him voluntary departure.In an effort to stay in the U.S., Client D retained pro bono representation byattorneys Karol Brown and Shannon Underwood of Global Justice Law Group. Ms.Underwood and Ms. Brown requested deferred action through the Seattle DRO. Therequest included an online petition with roughly 4,000 signatures and a 17-inchstack of faxed support letters. In addition, while the deferred action request wasbeing considered, Congressman Jim McDermott introduced private bill H.R. 3638 togrant permanent resident status to Client D. The Seattle DRO denied the deferredaction request and ICE issued a letter demanding that Client D turn in his parentsand two younger siblings.Ms. Underwood and Client D made heavy use of the media to support hiscase, by taking interviews with local TV and radio stations. One local televisionnetwork did an entire piece on Client D’s life and struggle, demonstrating how hewas a beneficial and caring member of the community. Client D took his case intohis own hands and literally went out in his community, knocking on doors to gainsupport. He made strong use of social networking cites and set up various “e-66

petitions” to call attention to his situation and gain further support. He also securedaid from nonprofit organizations and groups who organized on his behalf.Client D’s case improved when an attorney for the Governor’s office, who wasfriends with the Secretary of Homeland Security, Janet Napolitano, got involved.This additional influence put high-level pressure on the local ICE office. Soon afterthis added involvement, Ms. Underwood received a call that ICE was ordered to backoff Client D’s case. Ms. Underwood never received any written confirmation as towhat had happened or whether a final decision had been made. Ms. Underwoodconsiders the decision a grant of deferred action. Ms. Underwood currentlyrepresents Client D’s family in their individual cases, as they have not been granteddeferred action, and their removal cases are still pending.67

Family EType of Case: Private BillLocation: New JerseyOutcome: Private Bill signed into law in October of 2004.Source: Various news sourcesFacts:Mr. E was a Pakistani national who lived in Milltown, New Jersey. He cameto the United States in 1993 and settled in New Jersey where he ran a number of gasstations in the area. Mr. E temporarily relocated to Dallas, Texas to help his brotherrun a convenience store. Mr. E was shot and killed in Dallas in 2001 by a whitesupremacist. Mr. E’s killer said that he had murdered Mr. E in response to the 9/11terrorist attacks to “retaliate on local Arab-Americans or whatever you want to callthem.”Prior to his death, Mr. E had filed an application with INS for permanentresidency for himself, his wife, and his four daughters based on his employment.Because Mr. E was the principal applicant, his application for himself and his familybecame invalid upon his death.Representative Rush Holt (D-NJ) introduced a private bill to the House ofRepresentatives on February 13, 2003. Holt also assisted the family in obtainingtemporary work permits that allow them to stay in the U.S. for one year whilewaiting for the bill to go up for a vote. In September of 2003, sixteen national,religious, and civil liberties leaders 168 sent letters to Rep. John Hostettler (R-IN),Chairman of the Subcommittee on Immigration, Border Security, and Claims, askinghim to immediately take action on H.R. 867. The House finally passed the bill in Julyof 2004 and by the Senate in October of 2004. Presented to the President that168 The letter was signed by leaders at the United Methodist Church, Hebrew Immigrant Aid Society,Anti-Defamation League, Arab American Institute, American-Arab Anti-Discrimination Committee,B'nai B'rith International, American Immigration Lawyers Association, American Jewish Committee,National Council of Churches, Evangelical Lutheran Church of America, Muslim Public Affairs Council,Social Commission of Reform Judaism, Society of Friends, Workmen's Circle, and the NationalConference of Pakistani Americans.68

month, the bill became a private law on October 30, 2004, and granted the fivemembers of the Family E Legal Permanent Resident status.69

Brothers FType of Case: Private BillLocation: FloridaOutcome: Legislation for permanent relief is still pending and the brothers do notknow how long they will be able to remain in the United States. As of March 2009,the brothers were given at least eighteen more months to remain in the UnitedStates.Source: Various new sourcesFacts:In 1990, two brothers entered the United States (New York) from their nativeColombia with their parents on tourist visas. The F Brothers’ visas expired after sixmonths but they remained in the United States and moved to Florida. Soon aftermoving to Florida, the family filed for political asylum. The petition for asylumclaimed that the father’s brother, niece, and nephew were murdered for politicalreasons. The father has since received threats from a guerrilla group in Columbia.While their request for asylum was pending, the family members were able to filefor and received work permits annually. In 1999, the family was summoned to aMiami Immigration Court hearing and the judge denied their application for asylum.All subsequent appeals were denied. On November 25, 2003, the government madeits final decision and notified the entire family that they must leave the countrywithin thirty days. The family ignored the notice and remained in Florida. In July2007, ICE picked up the family and took them into custody.While the family was in custody, a friend of one of the brothers began acampaign in support of the family and for passage of the DREAM Act. The FBrothers became representatives for those the DREAM Act was designed to protect.Had the DREAM Act been enacted it would have allowed the brothers to remain inthe U.S. Both brothers were students in good standing who intended to go tocollege, and who were in violation of the immigration laws as minors due only totheir parents’ decisions. Neither brother had any criminal violations.70

A Facebook group was created and over 2,600 people joined. The friend alsoorganized blitzes of the emails and voicemails of Senators and Representatives ofFlorida. Six days after the family’s arrest, this friend, nine other classmates, and oneteacher flew to Washington, D.C. and started knocking on doors on Capitol Hill.The family was released days later after Rep. Lincoln Diaz-Balart (R-FL) fileda private bill to reopen asylum proceedings for the family, however this bill nevermade it to a vote. Senator Christopher Dodd (D-CT) filed another private bill onbehalf of the F Brothers. Dodd’s bill allowed the brothers to stay in the United Statesfor an additional two years. Nothing further could be done for the brothers’ parentsor grandparents, however, and in October 2007, the brothers’ parents andgrandparents were deported to Colombia.The F Brothers have since enrolled in college. One brother attended Miami-Dade College. Georgetown University accepted the other brother, and gave him aninternational student scholarship, thanks to his excellent grades in high school andcompelling essay describing his family’s ordeal.71

Client GType of Case: Deferred ActionLocation: FloridaOutcome: Deferred action granted on July 3, 2009.Source: Andres BenachFacts:Client G moved to the United State from Argentina with his family at the ageof three. Client G grew up in Florida and graduated from high school with a 4.7 GPA.After high school, Client G attended Miami Dade Honors College, as the collegeallows students to attend regardless of their immigration status, and obtained hisAssociates Degree in Computer Animation. After exhausting his educationalopportunities, Client G began working to help provide for his family.One day on the way to work, ICE picked up Client G, cuffed him, and took himto a detention center where he remained for twenty days. An immigration judgegranted him a voluntary departure order and he was released on bond. Client G wasgiven four months to depart for Argentina with July 6, 2009 was his designateddeportation date. When he agreed to voluntary departure however, he wasunaware that he would not be able to return to the United States for ten years.A variety of organizations, such as First Focus and Service EmployeesInternational Union (SEIU), rallied around Client G’s cause. These groups and othersgarnered support from the community. Countless calls were made on Client G’sbehalf to the Department of Homeland Security and signatures of support werecollected. DHS headquarters received over five hundred calls in support of Client G.Client G also made use of social networking sites, creating support groups, and toldhis story via YouTube videos, encouraging individuals to sign petitions in support ofhis efforts to remain in the United States.SEIU also brought Client G’s case to the attention of Andres Benach, animmigration attorney. At the point that Client G retained Benach as his attorney,Benach learned that ICE was willing to grant Client G deferred action, but no one72

had yet requested that relief on his behalf. Benach sent a request for deferred actionto both the ICE Field Office in Miami and to the DHS Undersecretary, with whomBenach had a preexisting professional relationship.The request was largely because Client G matched all of the qualificationslisted in the DREAM Act. (Note: At this point, it was believed to be a certainty thatthe DREAM Act would be passed.) Concerning his request to the Field Office, Benachreceived a phone call from an employee in the Field Office who told him that thedeferred action would be granted. While the deferred action request was pending,Rep. Corrine Brown (D-FL) also introduced a private bill on Client G’s behalf.Two weeks prior to his deportation date, Client G traveled to Washington,D.C. to attend a Dream Act “Mock Graduation.” Hundreds of students from all overthe U. S. in situations similar to Client G’s attended the event. Before the eventconcluded, Client G met with Senator Bill Nelson (D-FL), who also wrote a letter toDHS asking for a stay Client G’s deportation.Thanks to the efforts of his immigration attorney, and the organized supportof organizations and individuals, on July 3, 2009, Client G was granted deferredaction.73

Client HType of Case: Private billLocation: CaliforniaOutcome: Sen. Dianne Feinstein (D-Calif.), who also requested a stay of deportationwhile the bill is pending, introduced the private bill. As a result, Client H wasreleased from detention on November 19, 2010.Source: Various News SourcesFacts:Client H was born in Peru to Chinese parents who had moved to Peru toescape China’s one-child policy. Client H’s parents then brought Client H to the U.S.when he was eleven- years-old, on a visa that allowed them to remain until 2002.His parents then filed for asylum, but their request was denied. At age twenty,Client H and his parents were arrested in their San Francisco home because of animmigration raid, and detained in Arizona. Only because of the raid, Client Hlearned he had been ordered removed five years earlier. His parents were givensupervised release from detention and fitted with electronic ankle bracelets whilethey await deportation to China. Client H however, would be deported separately toPeru, where he has no friends or family, and remain in detention until hisdeportation.Client H was an honors student and working toward a degree in nursingwhen ICE picked him up. He was also very active in the community, on his collegecampus, and in his church. In addition, he was working to help support his familyfinancially. Client H would have been eligible for relief under the DREAM Act if itwould have passed.His case was referred to the Asian Law Caucus and with the support of othergroups and the media; a campaign was launched on his behalf. Student groups heldrallies in support of Client H. Letters of support were also sent to the offices of Sen.Feinstein, Sen. Barbara Boxer, and Rep. Nancy Pelosi. Sen. Feinstein introduced aprivate bill for relief for Client H that remains pending.74

Education Not Deportation:A Guide for Undocumented Youth in Removal ProceedingsAsian Law Caucus, Educators for Fair Consideration, DreamActivist.org andNational Immigrant Youth Alliance

About Our OrganizationsASIAN LAW CAUCUS (ALC) - The mission of the Asian Law Caucus is to promote,advance, and represent the legal and civil rights of the Asian and Pacific Islandercommunities. Recognizing that social, economic, political and racial inequalities continueto exist in the United States, the Asian Law Caucus is committed to the pursuit of equalityand justice for all sectors of our society with a specific focus directed toward addressingthe needs of low-income and Asian and Pacific Islanders. Visit: asianlawcaucus.orgEDUCATORS FOR FAIR CONSIDERATION (E4FC) – The mission of Educators for FairConsideration is to help immigrant students realize the American dream of college andcitizenship. E4FC provides scholarships, legal services, mentoring, and professionalinternships to immigrant students who have grown up in the United States but facechallenges due to financial need and immigration status. We also lead presentations atschools and organizations throughout California, train and empower students to tell theirstories, and create educational materials that are used nationwide. Visit: e4fc.orgDREAMACTIVIST.ORG - DreamActivist.org is a multicultural, migrant youth-led,social media hub for the movement to pass the DREAM Act and pursue the enactmentof other forms of legislation that aim to mend the broken immigration system. Visit:dreamactivist.orgNATIONAL IMMIGRANT YOUTH ALLIANCE (NIYA) - The National Immigrant YouthAlliance (NIYA) is an undocumented youth-LED network of grassroots organizations,campus-based student groups and individuals committed to achieving equality for allimmigrant youth, regardless of their legal status. Visit: theniya.orgEDUCATION NOT DEPORTATION (END) - Education Not Deportation is a programunder National Immigrant Youth Alliance (NIYA). It is a national campaign to prevent thedeportations of young people, thereby allowing immigrant youth to continue their lives inthe United States, pursue higher education and achieve their dreams. Visit: endnow.org2

AcknowledgementsThis guide was produced by the Asian Law Caucus staff (Lisa Chen, Anoop Prasad andSin Yen Ling), E4FC staff (Krsna Avila and Katharine Gin), and DreamActivist.org/NIYAstaff (Mohammad Abdollahi). This guide would not have been possible without the inputof the following individuals: Shoba Wadhia Sivaprasad, Nancy Morawetz, David Bennion,Dan Berger, Mark Silverman, Greg Chen, Holly Cooper, Bill Ong Hing, Jayashri Srikantiah,Melissa Crow, Marilia Zellner, Francisco Gonzalez, Barbara Hines, Paromita Shah, JonRodney, and Tiffany Long.ResourcesAsian Law Caucus: Founded in 1972, we provide free legal advice and directrepresentation to immigrants, including DREAM Act students, in removal proceedingsbefore the Immigration Court, the Board of Immigration Appeals and the Ninth CircuitCourt of Appeals. In addition, ALC houses an immigrant youth group called ASPIRE:Asian Students Promoting Immigrants Rights Through Education. ASPIRE is the firstundocumented Asian youth group in Northern California that provides support andleadership training to API DREAM Act students. ASPIRE is a membership driven youthgroup. ALC will provide legal support and campaign support to DREAM Act students inNorthern California.Educators for Fair Consideration: E4FC’s Case Analysis Service provides free analysisof possible immigration remedies and forms of deportation relief to immigrant studentsnationwide. Students can go online and submit a comprehensive intake form, which isreviewed by our team of attorneys, legal experts, and immigrant student team memberswho work together to guarantee that clients receive a thorough analysis of their possibleoptions. This confidential and anonymous service is intended for immigrant students whodo not yet have legal residency or citizenship in the United States. Students should beunder 35 years old and enrolled (or intending to enroll) in college. Visit: http://e4fc.org/legalservices.html.DreamActivist.org: Since the summer of 2009, we have worked to stop the deportationof countless DREAM-eligible youth. Currently we are able to provide online support foryour individual deportation campaign. This support includes working with you 1:1 to createan online petition, organizational sign-on letter etc. as well as providing you tips abouthow to gain national attention. DreamActivist.org currently maintains the largest onlinepresence amongst both pro and even anti-immigration groups. For support, reach out toend@dreamactivist.orgNational Immigrant Youth Alliance (“NIYA”) via project Education not Deportation,“END”: If you find yourself in any of the following states: AL, CA, GA, IL, IN, MI, NC, NY,OH, OR, PA, SC, TX, VA and WA, please contact us. We can provide direct, one-on-onesupport, including media support, legal support, and legislative support in addition totraditional organizing support. Visit: http://theniya.org/. For direct support, send an emailto help@endnow.org.3

DisclaimerThis guide is intended to provide general information about legal strategies that is notspecific to any DREAM Act student’s case. Therefore, it is not intended to constitutelegal advice for everyone. We recommend that you consult an immigration attorney withexpertise in removal defense to ensure that this information and your interpretation isappropriate to your particular situation.4

TABLE OF CONTENTSI. General Introduction ................................................................................................6LEGAL SECTIONI. Introduction to the Legal Section ............................................................................. 8II. Historical Account ...................................................................................................9III. What is a Removal Proceeding? ............................................................................14IV. Do you have a way to avoid a removal order? .......................................................16CAMPAIGNING STRATEGIES SECTIONI. Introduction to the Campaigning Portion ................................................................24II. Stage One: Advocating for Your Case Without Going Public ................................26A. Gathering Letters of Support ...........................................................................26B. Talking to Your Teachers ...................................................................................27C. Getting Your Friends To Make Phone Calls ......................................................29D. Set Up a Meeting With Your Senator or Representative’s LegislativeAide OR Case Manager ................................................................................... 31III. Stage Two: Best Practices on Going Public With Your Case .................................32A. What Does it Mean to Go Public? ....................................................................32B. Targets: What is a Target?................................................................................ 33C. Creating a Profile: Why People Should Care about You ..................................34D. Why Go Public? .................................................................................................36E. Creating a Petition .............................................................................................37F. Creating a Buzz ..................................................................................................39G. Media 101 ..........................................................................................................40How to Make a Pitch Call ................................................................................40Media Talk: Speaking the Language of Reporters .........................................40H. Tips & Tricks ......................................................................................................43ADDENDUMSI. Glossary of Legal Terms ...........................................................................................45II. Sample Deferred Action Applications ....................................................................47III. Sample Media Advisories and Press Statements .................................................55IV. Sample Resolutions ................................................................................................625

I. General IntroductionIn January 2010, four brave undocumented students embarked on a 1,500-mile journeyfrom Miami, FL to Washington, D.C. called “The Trail of Dreams.” Carrying with them thedreams of undocumented students nationwide, they inspired students to take action insupport of immigration reform. From the East Coast to the West Coast, undocumentedstudents came out of the shadows and demanded that their voices and stories be heard.Students’ actions succeeded in igniting a heated national debate about immigration policy.Unfortunately, however, 2010 ended with the Senate’s failure to pass the Development,Relief and Education for Alien Minors Act (DREAM Act), proposed legalization that wouldhave provided a path towards legalization for many undocumented students. The failureof the DREAM Act inspired us to create this guide.This guide is intended to aid certain undocumented students and their lawyers to fighteffectively throughout a removal (deportation) proceeding. We have written this guidespecifically for students who have already sought all other options to avoid deportation,but we believe the information in this guide should be valuable to all undocumentedstudents and their attorneys.Although this process can seem daunting to many students, we want to ensure studentsthat hope is not lost. As reference points we use previous cases where students andtheir attorneys have successfully maneuvered through their removal proceedings. Usingthese victories, this removal manual provides important instructions that can aid in thiscomplicated process.Throughout the manual we briefly describe the current and past struggles to changeimmigration policy, explain the different remedies that might be available to certainundocumented students, and include templates that students and attorneys can useto gain community and public support. While we try to include as much information aspossible, this process will undoubtedly require tremendous dedication from the studentand his/her attorney. In fact, being placed in a removal proceeding will likely challengestudents in numerous ways. At the same time, however, we hope that students and theirattorneys exhaust all possibilities and realize that hope is far from lost.6

Legal Section

I. Introduction to theLegal SectionThis section will briefly summarize current strugglesto pursue federal and administrative relief forundocumented students. This includes the Development,Relief and Education for Alien Minors Act (DREAMAct) and administrative relief known as the DREAM ActMoratorium.This section will also allow you to become familiarwith removal (deportation) proceedings and someof the possible legal options that may be available toDREAM Act students who are in this situation. To fullycomprehend this information, it is important that youread every portion of this section from beginning to end.In order to make you more knowledgeable and familiarwith some of the immigration processes, we haveunderlined immigration terms and defined them in theglossary at the end of the guide. We strongly encourageyou to work with an immigration attorney on your legalcase, as we expect that he/she will be best equipped tounderstand the legal aspects and terms described in thissection.8

II. Historical AccountThe DREAM ActThe Development, Relief and Education for Alien MinorsAct, otherwise known as the DREAM Act, is a bipartisanbill that seeks to address the situation faced by manyyoung students who were brought to the United States,often as young infants. These students have grown up inthe United States and now dream of obtaining a highereducation in order to contribute to the society that hasaided them in their life struggles. This bill has beenpresented several times but has not become law yet.Under the current version of the DREAM Act 1 , studentswith good moral character who came to the UnitedStates at age 15 or younger at least five years beforethe date of the legislation’s enactment would qualifyfor “conditional permanent resident status” uponacceptance to college, graduation from a U.S. high schoolor being awarded a GED in the U.S. or serving in thearmed forces. In order to be eligible, students must showgood moral character at the initial application stage andthe adjustment stage 2 . A student found not to have goodmoral character may have his/her application denied. Alist of conduct is provided by the statute in defining a lackof good moral character 3 . Despite many unsuccessfulattempts at passage, the DREAM Act continues to enjoythe support of President Obama, former Secretary ofState General Colin Powell, leadership in the House andSenate and all relevant committee chairs. A recent surveyfound that 70% of the American public would supportthe passage of the DREAM Act.Is it a priority to deport DREAM Actstudents?Recently, in 2011, Secretary Janet Napolitano said thatDREAM Act students were “not the priority” when itcame to enforcing immigration laws. However, thatstatement stops short of a commitment not to placeDREAM Act students in removal proceedings.In 2010, Immigration & Customs Enforcement’s(ICE) director John Morton issued a memorandumcalled, “Civil Immigration Enforcement: Priorities forApprehension, Detention, and Removal of Aliens 4 .” Alsoknown as the “Morton Memo,” the instruction identifiedindividuals who “pose a danger to the national security ora risk to public safety” as ICE’s priority for removal fromthe United States.While the “Morton Memo” never explicitly discussedDREAM Act students, Morton himself has offered theidea that with limited resources, ICE’s enforcementpolicies should not include the deportation of DREAMAct students. John Morton was later quoted in theNew York Times as stating, “In a world of limitedresources, our time is better spent on someone whois here unlawfully and is committing crimes in theneighborhood… as opposed to someone who came tothis country as a juvenile and spent the vast majority oftheir life here. 5 ”While clearly ICE Director John Morton believes thatICE’s resources should be better spent on individualswith criminal convictions, his memo stops short of callingfor an outright moratorium of the deportation of allDREAM Act students.Durbin and the DREAMAct Moratorium1Introduced by Rep. Howard Berman (D-CA) and Rep. Lincoln Diaz-Balart, (R-FL), the House of Representatives passed the DREAM Act,by 218-198, by a historic vote for H.R. 6497. The DREAM Act wasadded as an amendment to H.R. 5281. On December 9, 2010, theSenate decided to focus on the House version of the DREAM Act andwithdrew consideration of S. 3992. On December 18, 2010, the Senatefailed to gather sufficient votes to invoke cloture o the House versionof the DREAM Act by 55-41. On May 11, 2012, Senators Harry Reid(D-Nev) and Dick Durbin (D-Ill) reintroduced the DREAM Act2The adjustment stage occurs after the application has been acceptedand the individual can obtain a lawful status3A list of conduct defining a lack of good moral character is foundunder INA § 101(f)Mobilization by DREAM Act students in the past yearshas created momentum and support on both sides of theHouse and Senate, between Democrats and Republicans,at educational institutions, amongst state and localleaders and in the general American public. Even so,Congress has failed to fix the immigration problemsthat currently exist. With the failure of the DREAM Act,4New ICE Memo on Detention Priorities, No Deportation Blogspot(June 30, 2010) http://nodeportation.blogspot.com/2010/06/ailajust-posted-new-memorandum-from.html5\Julia Preston, Students Spared Amid An Increase in Deportations,New York Times Online Edition (Aug. 8, 2010) http://www.nytimes.com/2010/08/09/us/09students.html?_r=1&scp=1&sq=John%20Morton%20DREAM&st=cse9

eligible students need a temporary solution, which iswhat the moratorium seeks to create.A moratorium is a legally authorized postponement ofcertain actions. In April 2010, Assistant Senate MajorityLeader Dick Durbin (D-IL) and Senator Richard Lugar(R-IN) sent a letter to Janet Napolitano, Secretary of theU.S. Department of Homeland Security (DHS), to askfor a moratorium on the deportation of all DREAM Acteligible students. Temporarily halting the deportation ofDREAM Act students is an administrative fix before a lawis passed that would allow students a pathway to a greencard (i.e. the Dream Act).A moratorium would not provide a pathway to a greencard or any immigration benefits since it would onlybe a temporary fix. It would merely give a DREAM Actstudent the ability to stay in this country until Congresscan find a solution to the problem (i.e. passing theDREAM Act). For DREAM Act students placed inremoval (deportation) proceedings, a moratorium wouldhalt their deportation immediately. Only students whoare eligible under the DREAM Act would be subjectto this moratorium, including: (1) students with goodmoral character who came into the United States whenthey were 15-years old or younger; (2) students whograduated from high school or received a GED; and (3)students who have been accepted into a two-year orfour-year college or (4) have served in the armed forceswith an honorable discharge. DREAM Act students mustmeet all of these requirements.Bellow is the letter from Durbin/Lugar to Napolitanoseeking a moratorium.Does a moratorium actually exist?The Department of Homeland Security (DHS) neverresponded to Senator Durbin’s call for a moratorium ofthe deportation of DREAM Act students. That request isconsidered pending by Senator Durbin’s office. Currently,DREAM Act students who come into contact withImmigration and Customs Enforcement (ICE) continue tobe placed in removal proceedings.Until ICE prioritizes whom it wants to remove andrecognizes that it is not in the Government’s best interestto deport DREAM Act students, immigration advocatesand attorneys should collectively call for a moratoriumuntil Congress can introduce the DREAM Act or otherforms of immigration reform again. At the time of writingthis guide, Senator Durbin re-introduced the DREAM Acton May 11, 2011. His re-introduction of the DREAM Actthis year is not expected to gain any traction.10

April 21, 2010The Honorable Janet NapolitanoSecretary of Homeland SecurityDepartment of Homeland SecurityWashington, DC 20528Dear Secretary Napolitano:We respectfully request that you grant deferred action to individuals who would beeligible for cancellation of removal or a stay of removal under S. 729, the DREAM Act,bipartisan immigration reform legislation that we have introduced.As you know, the DREAM Act would provide immigration relief to a select group ofstudents who arrived in the U.S. when they were 15 or under, have lived in the U.S. for atleast five years, have good moral character, are not inadmissible or removable under anumber of specified grounds, have graduated from high school or obtained a GED, andattend college or serve in the military for two years.At a hearing of the Senate Judiciary Committee on May 6, 2009, you testified, “the DreamAct is a good piece of legislation and a good idea.” We greatly appreciate your support forthe DREAM Act. However, pending enactment, individuals who would be eligible for theDREAM Act are subject to removal, and such cases are currently handled on an ad hocbasis.Though they are technically out of status, DREAM Act students should not be removedfrom the United States. The DREAM Act is narrowly tailored to assist only a select groupof young people, many of whom came here with their parents at an age when they weretoo young to understand the consequences of their actions.Deferred action for DREAM Act students would conserve limited enforcement resources.DREAM Act students are not, and should not be, an enforcement priority for DHS. Asthen-INS Commissioner Doris Meissner explained in a November 17, 2000 memorandumon “Exercising Prosecutorial Discretion”:Like all law enforcement agencies, the INS has finite resources, and it is not possible toinvestigate and prosecute all immigration violations. … As a general matter, INS officersmay decline to prosecute a legally sufficient immigration case if the Federal immigrationenforcement interest that would be served by prosecution is not substantial.The Meissner memorandum suggests developing a list of “triggers” to “identify cases atan early stage that may be suitable for the exercise of prosecutorial discretion.” A numberof these factors apply to DREAM Act students, including “Juveniles,” “Aliens with lengthypresence in United States,” and “Aliens present in the United States since childhood.”Deferred action for DREAM Act students would not apply to a large number of individuals.Based on information gathered by Senator Durbin’s office over the last several years,only a small number of DREAM Act students are placed in removal proceedings. This isprobably because these students are well integrated into American society and do nottypically engage in behavior that makes them an enforcement priority for DHS.11

The current leadership at Immigration and Customs Enforcement has been very helpfulin addressing individual DREAM Act cases that have come to our attention. However,deferred action for DREAM Act students would be more efficient than the existing ad hocsystem. The decision to grant deferred removal in a DREAM Act case is frequently madeshortly before the removal date. This is an inefficient use of limited resources. As theMeissner memorandum states:As a general matter, it is better to exercise favorable discretion as early in the processas possible, once the relevant facts have been determined, in order to conserve theService’s resources and in recognition of the alien’s interest in avoiding unnecessary legalproceedings.There is a recent precedent for deferred action for DREAM Act students. In June 2009,DHS granted deferred action to widows of U.S. citizens who were married for less thantwo years prior to their spouses’ death. As you said at the time, “Smart immigrationpolicy balances strong enforcement practices with common-sense, practical solutionsto complicated issues.” The situation of DREAM Act students is just such a complicatedissue which requires the common-sense, practical solution of deferred action.Thank you for your support of the DREAM Act and for considering our request that yougrant deferred action to individuals who would be eligible for the DREAM Act.Sincerely,Senator Dick DurbinSenator Richard Lugar12

Why should we have a moratorium tohalt the deportation of DREAM Actstudents?Immigration and Customs Enforcement (ICE)’s priorityconcerning who they should or should not deport hasripple effects on the entire immigration system. ICE isdeporting more people under the Obama Administrationthan ever before. Because ICE has a removal goal of400,000 noncitizens a year, the Immigration Courts haveexperienced tremendous delays in deciding the outcomeof deportation cases 6 . The worst wait times happen tobe in California with pending cases waiting about 639days on average 7 . More deportation cases means thatImmigration Courts bear the effect of ICE’s inability toprioritize who they want to remove from the UnitedStates. Immigration Judges are stressed when they arestrapped with limited resources to complete cases.Delays result in long-term detention for detainees at theexpense of taxpayers and inefficient systems. ICE shouldhave a system that explicitly instructs its enforcementpriorities for all agencies and local ICE offices tasked withissuing Notice to Appear(s) 8 .Temporary protected status (TPS), also known asExtended Voluntary Departure, is available only tocitizens from El Salvador, Haiti, Honduras, Nicaragua,Somalia and Sudan. It allows the Attorney General totemporarily suspend the deportation of citizens fromthese countries because of armed conflict, environmentaldisaster or other crises9. Parole in place allows a personto be paroled into the United States for humanitarianreasons, otherwise known as humanitarian parole. Unlikedeferred action, a grant of parole does provide lawfulimmigration status.At the time of the writing of this guide, temporaryprotected status and parole in place is not currentlyavailable for DREAM Act students.Are there are any other formsof administrative fixes besides amoratorium?This guide focuses primarily on the US Departmentof Homeland Security (DHS)’s ability to exerciseprosecutorial discretion by granting deferred action tostudents who are facing removal from the United States(prosecutorial discretion and deferred action are bothdescribed later in this section).Other suggestions for administrative fixes have includedtemporary protected status and parole in place. Theseadministrative fixes do not currently exist for DREAMAct students, but advocates are working hard to makethem a reality.6Sharon Cohen, ‘Massive Crisis’ Snarls Immigration Courts, MSNBC.Com (April 10, 2011) http://today.msnbc.msn.com/id/42521399/ns/us_news-crime_and_courts/7Immigration Court Outcomes Tool: Completed Cases andCompletion Time in Immigration Courts, Transactional RecordsAccess Clearinghouse, Immigration Project (Sep. 27, 2010) (http://trac.syr.edu/phptools/immigration/court_backlog/8A Notice to Appear is a document that is issued to individuals tobegin deportation against a person.9You must meet all of the eligibility requirements for TPS registrationfor a specific country and not trigger any grounds of inadmissibility13

III. What is a removalproceeding?A removal proceeding is also known as a deportationhearing. A removal proceeding is a hearing presentedbefore an Immigration Judge to determine whethersomeone should be deported from the United States. Inorder for a student to be placed in a removal proceeding,Immigration and Customs Enforcement (ICE) has topresent a document called the “Notice to Appear.” Thisdocument is typically given to the student and a copy isfiled with the Immigration Court. The Notice to Appear(NTA) is to notify you of the immigration charges andthe reasons why ICE believes that an Order of Removal(Deportation order) should be entered in your case.What happens after you are placed inremoval proceedings?After being served with the Notice to Appear, you will bescheduled for a court date. Sometimes, your first courtdate is listed on the Notice to Appear. More often, thecourt will mail you a separate notice, informing you of thetime and date of your hearing. You can also check yourcourt date by calling the immigration court’s automatedhotline at 1-800-898-7180, and entering your alienregistration number or “A-number” which is a 8 or 9 digitnumber starting with an “A”.If you miss your hearing, the immigration judge mayorder you deported in your absence. So, it is critical thatyou keep your address up to date with the court. Youcan update your address by mailing Form EOIR-33 tothe court. You must also mail a copy of the form to theDepartment of Homeland Security. A copy of the formshould be attached to your Notice to Appear.hearing will be a master hearing. Typically, there aretwenty to thirty cases set for a master hearing for amorning or afternoon, so these hearings only last a fewminutes. For most cases, a decision is not reached at thefirst master hearing and a new date is scheduled to beginyour individual hearings.Do you need a lawyer for a removalproceeding?You should most definitely have an attorney to representyou in Court. Immigration Court is a civil proceeding,which means that you have a right to an attorney, but notone paid for by the government. Immigration Court is anadversarial proceeding where the Office of Chief Counsel(ICE attorney) represents the government. This meansthat throughout the proceeding, you have a chance toargue against your deportation. Given the complexities ofimmigration law, you are at a disadvantage if you do nothave an attorney to represent your legal interests.What if you do not have an attorney at yourfirst court hearing?You still must appear in court. You should not answerany questions, particularly questions about your foreignbirth or how you entered the United States. If you needmore time to hire an attorney or talk to attorneys aboutyour options, you can ask the immigration judge for acontinuance. To make your request stronger, you shoulddocument your efforts to obtain an attorney before thehearing. Keep track of the names and dates when youtalked to attorneys. If you want to give any documentsto the judge, you must also make a copy to give to theImmigration and Customs Enforcement (ICE) attorney.An immigration judge will grant you a continuance togive you time to find an attorney the first time you makethis request.What is going to happen at your courthearings?There are two types of hearings in immigration court:master calendar hearings and individual hearings. Yourfirst hearing is a master calendar hearing. At masterhearing dates, the immigration judge typically dealswith scheduling court dates, takes pleadings, andhandles administrative matters. At individual hearings,the immigration judge listens to testimony and makesdecisions on applications for relief. Your first court14

Where can you find an attorney?You can find a list of legal service providers throughthe Immigration Court at http://www.justice.gov/eoir/probono/states.htm. However, individuals andorganizations on this list may only handle certain typesof cases (i.e. asylum only) or require a fee for their legalservices. You can also contact the American ImmigrationLawyers Association at http://www.ailalawyer.com/. 1010As of the writing of this guide, the American Immigration LawyersAssociation and the National Immigration Project are in the process oftrying to establish pro bono help for DREAM Act students in removalproceedings.15

IV. Do you have a way toavoid a removal order?It depends on your situation so it varies from person toperson. You should consult an immigration attorney,specifically a removal defense attorney. A removaldefense attorney is an immigration attorney whospecializes in representing people in deportation hearingsbefore an Immigration Judge, the Board of ImmigrationAppeals (BIA), and sometimes the Circuit Court ofAppeals. There are very limited options once you areplaced in removal proceedings. General legal options forDREAM Act students in a removal hearing include, butare not limited to:(a) Adjustment of Status,(b) Cancellation of Removal for Non LawfulPermanent Residents,(c) Political Asylum,(d) Withholding of Removal,(e) U.N. Convention Against Torture,(f) Cancellation of Removal for Abused ImmigrantWomen and Children,(g) U Nonimmigrant Visas,(h) Temporary Protected Status(i) Motions to Suppress Evidence of Alienage;(j) Derivative or Acquisition of U.S. CitizenshipClaims;(k) Motions to Terminate Based on How a Personwas Placed in Removal ProceedingsIf you are eligible for one or more of the forms ofimmigration relief listed above, then the law has providedan opportunity for you to fight your removal case. Thislist is not exhaustive of all forms of immigration reliefavailable to a person in removal proceedings. However,this guide is intended for DREAM Act students who maynot be eligible for any relief or who were denied any ofthese reliefs.What if you don’t qualify for any of theabove forms of immigration relief?If you do not qualify for any of the above forms ofimmigration relief, you should request that the Office ofChief Counsel (ICE attorney) dismiss the proceedingsand ask that they exercise “prosecutorial discretion” bycanceling the Notice to Appear (NTA).How do I choose between one of the formsof relief above and prosecutorial discretion/deferred action?You should not have to choose between one of theforms of relief and prosecutorial discretion/deferredaction. If you are eligible to pursue any of the aboveforms of immigration relief, ie. Cancellation of removalor Motion to Suppress, you should do so with the adviceof an immigration attorney. If you are granted one ofthe above forms of immigration relief, you may be ableto pursue lawful permanent resident status at a laterdate. However, not all forms of immigration relief listedabove leads to lawful permanent resident status. Youmust consult an immigration attorney. For example, ifyou believe that ICE violated your constitutional rightswhen they arrested you, you might want to think abouta Motion to Suppress evidence of alienage. If evidenceof alienage is suppressed, an Immigration Judge mustterminate removal proceedings. Terminating proceedingsonly puts you back in a position of where you were beforeyou were arrested by ICE which is an undocumentedDREAM Act student. Bringing a motion to suppress claimis extremely complex, and you should only do so at theadvice of an immigration attorney.What is Prosecutorial Discretion?The term prosecutorial discretion is simply a term usedin immigration enforcement. “Prosecutorial discretion” isthe authority of an agency charged with enforcing a lawto decide whether to enforce, or not to enforce, the lawagainst someone. Immigration and Customs Enforcement(ICE) has the authority to exercise prosecutorialdiscretion all at stages of enforcement starting fromthe arrest to the issuance of a Notice to Appear to theexecution of the actual removal order. For the purpose ofthis manual, we are limited to discussing prosecutorialdiscretion when a DREAM Act student has a final Orderof Removal or are in Removal Proceedings with no otherlegal options.16

What does Immigration and CustomsEnforcement (ICE) consider in exercisingProsecutorial Discretion?ICE considers the following factors 11 :»»Immigration status – green card holders merit afavorable exercise of discretion;»»Length of residence in the United States – the longeryou lived in the U.S, the better;»»Criminal history – ICE will factor in the severity of thecriminal conduct including evidence of rehabilitation;»»Humanitarian concerns – these factors includemedical conditions affecting the DREAM Act studentor his family member, the fact that the DREAM Actstudent entered the U.S. at a very young age, whetherthe DREAM Act student has any family ties in thehome country, extreme youth or advanced age, andhome country conditions;»»Immigration history – these factors will includewhether a DREAM Act student may have reenteredthe U.S. after a recent removal order, failed to appearat an immigration court hearing, and the seriousnessof the immigration violation;»»Likelihood of Removing the Person – for example,some home countries are not willing to repatriate allof their nationals;»»Whether the Person is Likely To Become Eligiblefor Immigration Relief – ICE will consider whetherthere is a legal avenue for a person to adjust theirimmigration status at a later date, i.e. an immigrantvisa will be available at a later date and that personcan adjust while they’re living in the United States;»»Likelihood of Achieving Enforcement Goal by OtherMeans – ICE will consider other options of departingthe U.S. other than a removal order such as: voluntaryreturn, withdrawal of an application for admission orvoluntary departure;»»Cooperation with Law Enforcement Authorities– any law enforcement authority including the U.S.Department of Labor and National Labor RelationsBoard;»»Military Service – military service in the United Stateswith honorable discharge;»»Effect of the exercise of prosecutorial discretion on11These factors are outlined in the “Meissner Memo” which relatesto all requests under prosecutorial discretion. See Doris Meissner,Commissioner, “Exercising Prosecutorial Discretion” (November 17,2000)the individual’s future admissibility 12 ;»»Community Support – letters of supportfrom community members, ie., congressionalrepresentative, expressing an opinion concerning oropposing removal may be considered. There is also aquestion of whether publicity or media advocacy willassist a request for a deferred action (defined later inthis section) and that is to be determined on a case bycase basis;»»Resources Available to ICE – whether ICE has theresources to carry out the enforcement action in thiscase.Not all of the factors will be applicable to each case,and in any particular case, one factor may deserve moreweight than it might in another case. There may be otherfactors, not on the list above, that are appropriate toconsider. The decision should be based on the totality ofthe circumstances, not on any one factor considered inisolation.Can Immigration and Customs Enforcement(ICE) exercise prosecutorial discretionbefore you’re placed in RemovalProceedings?Yes, you can ask ICE to exercise prosecutorial discretionand not issue a Notice to Appear. Once a Notice ToAppear has been served on the DREAM Act studentand filed with the Immigration Court, the Court hasjurisdiction over removing that person. However, thedifficulty is being able to intervene in the enforcementprocess when ICE conducts an arrest and before the ICEofficer files the Notice to Appear with the ImmigrationCourt. Often times, attorneys and advocates are notifiedafter a person has been arrested and a Notice To Appear12Under INA § 212 certain individuals are not eligible to receive visasto be admitted to the United States, for example, individuals withcriminal convictions or health related grounds17

has already been served on them and filed with theImmigration Court.Is Prosecutorial Discretion available afterthe Notice to Appear has been filed?Yes, an Immigration and Customs Enforcement (ICE)attorney may file to dismiss the hearing (with theImmigration Court) even after the initiation of removalproceedings. 13 However, they cannot cancel the NoticeTo Appear, because under the regulations, they don’thave the authority to issue a Notice To Appear. 14 An ICEattorney may file a motion to dismiss in the followingcircumstances:(a.) |The person is not deportable or inadmissible; 15(b.) The person is deceased; 16(c.) The person is no longer in the United States; 17(d.) The Notice to Appear was carelessly issued; 18(e.) Circumstances in the case have changed thatit is no longer in the Government’s interest tocontinue removal proceedings; 19Once proceedings have been initiated, only anImmigration Judge can terminate proceedings. 20Procedurally, the respondent’s (student’s) lawyer wouldhave to file a motion to dismiss and request for time todiscuss prosecutorial discretion with the Office of ChiefCounsel (ICE attorney).In cases involving DREAM Act students, terminationwould likely fall under 8 C.F.R. § 239.2(a)(7) based onan argument that circumstances have changed where itis no longer in the Government’s interest to continue todeport someone. The respondent’s (student’s) lawyercan point to the October 24, 2005 Memorandum fromICE Principal Legal Advisor 21 William J. Howard stating“[that] there may be ample justification to move theCourt to terminate the case and to thereafter cancelthe [Notice to Appear] as improvidently issued or dueto a change in circumstances such that continuation isno longer in the government interest. In a footnote, the138 C.F.R. § 239.2(c)148 C.F.R. § 239.1158 C.F.R. § 239.2(a)(2)168 C.F.R. § 239.2(a)(3)178 C.F.R. § 239.2(a)(4)188 C.F.R. § 239.2(a)(6)198 C.F.R. § 239.2(a)(7)20Matter of G-N-C, 22 I&N Dec. 281 (BIA 1998)21The Office of the Principal Legal Advisor is the largest legal programthat advises and represents the U.S. Department of HomelandSecurity.memo also states, “We must be sensitive, particularlygiven our need to prioritize our national security andcriminal alien cases, to whether prosecuting a particularcase has little law enforcement value to the cost and timerequired.”This statement from the Principal Legal Advisor iscommensurate with the 2010 Morton Memo on ICEdirectives indicating that ICE will continue to prioritizedeporting individuals who are threats to public safety andnational security. DREAM Act students are not threats toour national security or public safety. It would constitute“bad policy” to deport young people who were broughtinto the United States by their parents as a minor. Itwould not be in the government’s interest to continueremoval proceedings against young people who haveobtained high school degrees and are currently enrolledin higher education or have plans to enroll in a two orfour-year college or have served in the armed forces.How will the Immigration Courts respond totermination requests involving DREAM Actstudents?There is no current policy set forth by the ExecutiveOffice for Immigration Review (EOIR) directingImmigration Judges to terminate removal proceedingsinvolving DREAM Act students. However, it would be inthe immigration court’s interest to dismiss these removalcases provided that the Office of Chief Counsel (ICEattorney) agrees to terminate proceedingsIn 2010, the number of immigration cases reached an alltimehigh of 267,752 by December 2010 and the averagetime these pending cases were waiting was 467 days22.The severe backlog of cases in Immigration Court meansthat it is taking Judges longer to complete cases. WithImmigration and Customs Enforcement (ICE)’s removalcapacity at 400,000 noncitizens a year, the Courts willcontinue to experience a delay in adjudicating removalcases. Executive Office for Immigration Review (EOIR)has responded to the backlogs with a hiring initiativein 2010 by placing 28 new Immigration Judges on thebench 23 .22Growing Backlog of Pending Cases in Immigration Court,Transactional Records Access Clearinghouse (2011) http://trac.syr.edu/immigration/reports/246/23Executive Office for Immigration Review Immigration Judge HiringInitiative, Executive Office for Immigration Review, Department ofJustice (March 11, 2010) http://www.justice.gov/eoir/press/2010/EOIR_IJHiring_FactSheet.pdf18

Given the severe court backlogs, it is “good policy” todetermine whether deporting DREAM Act studentsserves the best interests of the Government at this time.What Legal Strategies are available afteryou have been ordered removed?With DREAM Act students at the forefront of theDREAM Act movement and students “coming out”risking their deportation to encourage the passage of theDREAM Act, we have seen more and more discussionaround “deferred action” and “private bills.” This manualis intended to clarify what a deferred action and a privatebill is and when s/he should consider it as a legal option.Deferred Action: What is deferred action?Deferred Action is a discretionary decision byImmigration and Customs Enforcement (ICE) not toarrest or deport a person for immigration purposes. Itis one type of prosecutorial discretion. Only ICE has theauthority to grant deferred action. Even if you receivedeferred action, it is not for an indefinite period of time.Under current practice, ICE will not grant deferred actionin a DREAM Act case until a student receives a finalorder of removal (order of deportation). Though nothingin previous memos 24 providing guidance on deferredaction require that a removal order be taken beforedeferred action is granted. Therefore, deferred actionshould be granted at any stage of a removal proceeding.In DREAM Activist.org’s experience, there have beencases in the past year where deferred action has beengranted prior to a final order.What does Immigration and CustomsEnforcement (ICE) consider in grantingdeferred action?The factors for consideration in a deferred actionapplication are the same as the above factors indetermining “prosecutorial discretion.” See Section on“What Does Immigration and Customs Enforcement(ICE) consider in exercising Prosecutorial Discretion?”24See Doris Meissner, Commissioner, “Exercising ProsecutorialDiscretion” (November 17, 2000)Do you obtain any benefits with deferredaction like a green card?Deferred action does not provide a DREAM Act studentwith immigration status in the United States. It onlyconfers a “limbo” status and in the meantime, a DREAMAct student can apply for an Employment AuthorizationDocument (EAD) aka “work permit” if s/he can establishan economic necessity for employment 25 . Immigrationand Customs Enforcement (ICE) does not issueEmployment Authorization Documents. These are issuedby a separate agency within the U.S. Department ofHomeland Security, Citizenship and Immigration Services(CIS). Without a grant of deferred action, a DREAM Actstudent with a removal order will not be eligible for anEAD 26 . In other words, you won’t be able to apply for awork permit unless ICE gives you deferred action.How often has Immigration and CustomsEnforcement (ICE) granted deferred action?According to the Spanish-language newspaper, LaOpinion, deferred action was granted to 542 individualsin the past year 27 . In 2008, the Bush Administrationissued 1,029 grants of deferred action compared to thecurrent administration. The Obama Administration hasgranted deferred action in only 780 cases (2009) and542 cases (2010) which is a lower number than previousyears. These statistics do not represent a breakdown ofdeferred action by issue, age or ethnicity.What is the downside to asking fordeferred action if Immigration and CustomsEnforcement (ICE) will only consider it afteran order of removal is taken?While many DREAM Act students may desire a workpermit, it should not be the sole reason to put yourselfin removal proceedings. Requesting deferred action,which can only be done once removal proceedings havebeen initiated, should only be a strategy of last resortfor a DREAM Act student when s/he does not haveany other options left. For example, if s/he is eligible258 C.F.R. § 274a.12(c)(14)26INA § 241(a)(7).27La Opinion does not cite to a source for their data on deferredaction grants.Dara Lind, La Opinion : Obama Has Granted a Record Low Number ofDeferred Action to Immigrants, America’s Voice Online Blog (April 28,2011) http://americasvoiceonline.org/blog/entry/la_opinion_obama_has_granted_a_record_low_number_of_deferred_actions/19

for immigration relief in the form of political asylum 28or cancellation of removal for non-lawful permanentresidents 29 , s/he should exhaust those forms of relieffirst after speaking with an immigration attorney whospecializes in removal defense. Deferred action should bepursued when a DREAM Act student has no immigrationrelief left and is facing an order of removal by anImmigration Judge. In some jurisdictions, ICE may onlyconsider a deferred action request when there is an orderof removal.Accepting an order of removal has serious consequencesif ICE denies deferred action. The consequences includeimmediate removal within 90 days of a Judge signing anorder of removal; receiving a “bag and baggage” letterordering a DREAM Act student to report to ICE; andupon removal, a 10-year ban from returning to the UnitedStates which would force a DREAM Act student to beseparated from his family in the United States.gets in touch with the local chapter of the AmericanImmigration and Lawyers Association, specifically, theirICE liaison attorney. www.aila.org.Is there a form that you can use for deferredaction?No, there is no form specific to deferred action requests.Be sure to make your request in a letter articulatingthe strengths and weaknesses of your case. You mustinclude evidence in support of your request to bolsteryour claim that you are deserving of a favorable grantof prosecutorial discretion. The evidence must addressall of the factors listed under “What does Immigrationand Customs (ICE) consider in exercising ProsecutorialDiscretion?” Each DREAM Act student’s case will bedifferent, but this guide includes samples of deferredaction requests.Do you need an attorney to represent you ina deferred action request?Yes, you should have an attorney represent you in adeferred action request. Aside from drafting the requestand compiling the evidence in support, an attorney isgoing to play an important role in getting the applicationconsidered by the local Immigration and CustomsEnforcement (ICE) office. Unlike the Immigration Court,ICE has been known to not respond to a request fordeferred action. They may think that you’re trying todelay your removal or in some cases, trying to flee. Anattorney can help to facilitate communications with theappropriate ICE officer or Field Office Director (FOD)in your jurisdiction and minimally, make sure that theytake a look at the application and consider the favorableexercise of discretion. If possible, it is important to hire aremoval defense attorney who already has a relationshipwith ICE officers. If your attorney does not practiceremoval defense, then make sure that your attorney28INA § 208(a)(1) authorizes a person who is physically present inthe United States or who arrives in the United States to apply forasylum. S/he must show that s/he has been persecuted or has a wellfoundedfear of persecution on account of race, religion, nationality,membership in a social group or political opinion. INA § 101(a)(42)29INA § 240A(b)(1) states that the Attorney General may cancel theremoval and adjust the status of a non-lawful permanent resident ifs/he (a) has been physically present in the U.S. for a period not lessthan 10 years; (b) s/he has been a person of good moral characterfor 10 years; (c) s/he has not been convicted of an offense under INA§ 212(a), 237(a)(2) or 237(a)(3); (d) and s/he proves that removalwould result in exceptional and extremely unusual hardship to his orher U.S.C or LPR spouse, parent or childWhere should you file the deferred actionrequest?You should file the deferred action application with yourlocal Immigration and Customs Enforcement (ICE) officewith the attention to the Field Office Director (FOD).However, in order to get it to the right person, you shouldcall the local ICE office and find out which ICE officer isin charge of the DREAM Act student’s case. Call the ICEofficer and inform him/her that you would like to file anapplication for deferred action. The ICE officer shouldinstruct you as to the best way to file the application.What happens after you file the deferredaction request?If you are granted deferred action, Immigration andCustoms Enforcement (ICE) must inform you andyour attorney in writing stating the decision and itsconsequences. However, if you do not receive a favorableexercise of discretion, ICE is not required to give notice tothe DREAM Act student or his/her attorney. Often times,ICE will not respond to you, and in some jurisdictions,they may not necessarily confirm receipt of a requestfor deferred action. In the meantime, the DREAM Actstudent could be deported from the United States.20

What if you receive a “bag and baggageletter” from Immigration and CustomsEnforcement (ICE) during the pendency ofthe deferred action?A “bag and baggage letter” is a letter issued by ICE onceICE has determined that no further administrative reliefis available to a person subject to removal. 30 The letterdirects that person to report to ICE at a specific timeand location for removal. Typically, a “bag and baggage”letter is sent within 90 days of the issuance of an orderof removal. If you live in a jurisdiction where ICE willonly consider a deferred action request once you havebeen ordered removed by an immigration judge, youhave 90 days or less for ICE to review the applicationand adjudicate a deferred action request. If you receive a“bag and baggage letter” before ICE issues a decision onthe deferred action, you may have to file an applicationfor stay of removal with ICE on Form I-24631. A stay ofremoval, if granted, allows you to stay your deportationuntil ICE issues a decision on the deferred action request.What happens if Immigration and CustomsEnforcement (ICE) grants my deferredaction request?If ICE grants deferred action, it simply means thatremoval is temporarily stayed. ICE’s notification shouldinform you when the deferred action expires. Uponits expiration date, you must file a request to renewthe deferred action grant with ICE. It is important tounderstand that a grant of deferred action does notprovide legal status in the United States. It does notchange or reverse the order of removal. There is always apossibility that ICE will enforce the deportation order at afuture date, particularly, if the deferred action expires.What if Immigration and CustomsEnforcement (ICE) denies the deferredaction request or simply does not respondto it?If ICE does not respond to the deferred actionapplication, it is possible that ICE does not intend togrant the request. Under the “Meissner memo”, theguidelines state that an ICE officer is not required30Singh v. Gonzales, 494 F.3d 1170 (9th Cir. 2007)31You can find the form at http://www.ice.gov/doclib/news/library/forms/pdf/i246.pdfto even consider a person’s request for the exerciseof prosecutorial discretion. You may want to considerreaching out to your local Senator or CongressionalRepresentative and ask him/her to contact ICE toadjudicate the application or reconsider the denial.Is deferred action the only option if youhave a removal order?Obtaining a grant of deferred action is extremelydifficult. It is often reserved for the most compelling ofimmigration cases. Thus, you should not rely on anyone single strategy alone. A private immigration billis another option to consider if you are a DREAM Actstudent facing removal from the United States.What is a private immigration bill?A private immigration bill is legislation introduced bya Senator or a Congressional Representative for anindividual who is deserving of some form of relief afterthey have exhausted all administrative and judicialremedies.Any member of Congress can introduce privatelegislation for a specific individual if there are compellingequities in a case. This should be done only when thereare no other legal options left and the DREAM Actstudent is facing immediate removal from the UnitedStates. A private immigration bill can confer lawfulpermanent resident status or provide for citizenship.However, bills conferring any status are extremelyrare in recent years. Still, introducing legislation alonewithout passage would cause Immigration and CustomsEnforcement (ICE) to stay someone’s removal, andperhaps, release them from immigration custody.It is very difficult to convince a Representative orCongressperson to introduce a private immigration bill,especially without strong public support.In general, very few private immigration bills are actuallypassed in Congress. If a bill does not pass and ICE hasnot deported that person, the bill can be reintroduced inthe first session of the next Congress.In order to determine which member of Congress youshould approach, you should identify the Senator orRepresentative that represents the district you live in.You can locate the appropriate Member of Congress atwww.congress.org. In addition, you should also researchwhether that Member of Congress has ever passedprivate bills in the past. If your member of Congress has a21

policy of introducing private bills, you have a good chanceof making some strong arguments particularly if there arecompelling reasons in your case. Then, you should makethe request in a formal written notice to your Member ofCongress and follow up to confirm receipt with the staffperson who deals with constituent services.22

CampaigningStrategies Section

I. Introduction to the Campaigning PortionThe previous section of this manual focused on the legal strategies for youth facing removalproceedings. It outlined some possible legal courses of action to defend against one’s removalfrom the United States. This section will focus on the other aspect of a campaign to help preventyour deportation.We call this section the ‘public campaign’ because it requires you, in addition to the legal options,to enlist the help of the public to speed up or just simply get a favorable result in your case. Publicsupport is almost always needed in order to increase your chances of getting deferred action or toencourage your local Senator or Congressperson to take the steps necessary to introduce a privatebill.While going public is not required we have found that it almost always results in faster resolutionto the case. We understand going public may be an extremely difficult thing to consider for youand your family, however, we urge you to consider the benefits and reach out for support throughthe process. You are not alone.This section was built off of previous Dream Act student cases in seeking a successful deferredaction.24

Table of ContentsII. Stage One: Advocating for Your Case Without Going Public ................................26If you are not ready to “go public” with your case, these are some helpful steps for you to makeyour case more compelling. However, once a friend posts something on Facebook, there’s notelling where it will go. In this stage, you should be clear about your boundaries with the peopleyou are seeking support from.A. Gathering Letters of Support ...........................................................................................26B. Talking to Your Teachers ....................................................................................................27C. Get Your Friends To Make Phone Calls .........................................................................29D. Set Up A Meeting With a Senator or Representative’s Legislative AideOR Case Manager ............................................................................................................ 31III. Stage Two: Best Practices on Going Public With Your Case .................................32A. What does it Mean to Go Public? ..................................................................................32B. Targets: What is a Target? .................................................................................................33C. Creating a Profile – Why People Should Care About You? ......................................34D. Why Go Public? ...................................................................................................................36E. Creating a Petition ...............................................................................................................37F. Creating a Buzz .....................................................................................................................39G. Media 101 ..............................................................................................................................40How to Make a Pitch Call ..................................................................................................40Media Talk: Speaking the Language of Reporters .......................................................40H. Tips & Tricks .........................................................................................................................4325

Gathering Letters of SupportBackground for Sample Client, Jane Doe:Jane Doe is a 20 year old student at UC Berkeley who immigrated to the United States from SouthKorea when she was only 5 years old. She is currently studying Ethnic Studies and wants to be ateacher after she graduates. She and her family overstayed their tourist visa. Last year, there was aroutine check point in Jane’s neighborhood. She was sitting in the passenger’s seat and one of herfriends was driving. Everyone was asked for their identification. She was quickly questioned abouther legal status when she couldn’t provide an ID, arrested and transferred to ICE custody. Shehas exhausted all legal options; the only relief for her is for DHS to grant a deferred action or forSenator Feinstein or Boxer to intervene with a private bill.Sample Letter of Support TemplateDear Honorable _______________ (name of Senator),Hi, my name is ____________, and I am writing to urge you to intervene in the deportation of20-years old South Korean immigrant student, Jane Doe, by intervening* in her deportation.Jane Doe is a 20 year old student at UC Berkeley who immigrated to the United States from SouthKorea when she was only 5 years old. She is currently studying Ethnic Studies and wants to be ateacher after she graduates, so she can become a contributing member of American society andassist the low income, underserved communities in the Bay area. She and her family overstayedtheir tourist visa. Last year, there was a routine check point in Jane’s neighborhood. She was sittingin the passenger’s seat and her friends were driving. Everyone was asked for their identification.She was quickly questioned about her immigration status, arrested and transferred to ICE custody.She has been detained for over 40 days now, and could be deported any day now.America is Jane’s home. Jane wants nothing more than to serve her community here in the UnitedStates, so please help Jane stay here in Berkeley with her family, friends and community. We urgeyou to please intervene* in the deportation of Jane Doe.We thank you for your support, and we hope we can count on your effort to stop this tragedy fromhappening.Sincerely 3232*Letters of Supports can be hand-written or emailed directly to Senators offices. This is another way to reach themaside from a generic postcard. It is helpful for these letters of supports to be personalized from the author i.e. (“I’veknown Jane since middle school…”).Copies of these emails or handwritten letters can also be attached to the deferredaction packet that the attorney is filing.26

Talking To Your TeachersThe following was based on a first-year university student who was placed in removal proceedings.His former high school’s involvement was key in helping the student gain community support forthe student’s case. In this section, we include the e-mail that was sent to all of the high school’sfaculty and alumni asking them to support the student; the letter sent to ICE asking them touse prosecutorial discretion; and a Q&A section where we went back to ask educators for theirsuggestions on how other schools can become involved.Sample Email Asking for Faculty/Alumni SupportHi everyone,Many of you have already heard that [STUDENT] was detained by immigration authorities overthe Thanksgiving weekend in New York and is facing deportation to Mexico. We’re very gratefulto [TEACHER’S HUSBAND], whose law firm has offered to represent [STUDENT] pro bono.The immigration specialist with whom they’re working has asked us to collect as many letters ofsupport as possible, so we’d like to ask you to send the attached template to friends and familywho would be willing to sign a letter on [STUDENT’S] behalf. There are two versions of the sametemplate: one goes to the Office of the Chief Counsel for Immigration and Customs Enforcement,the other goes to the U.S. Department of Homeland Security. People can simply print outthe letters, sign and print their names, and send them to [SCHOOL] so that we can forward themtogether. It’s our understanding that these identical letters will essentially serve as a petition.We’d also like to ask everyone at [SCHOOL] to either sign the templates or, still better,to tailor them to reflect your own experience as a member of the [SCHOOL] staff or with[STUDENT] personally. You can leave the signed letters in my box and we’ll forward these as well.Finally, we hope to have every student sign a letter, and we’ll ask several of you to facilitate thisin your classes this week. [TEACHER] will also be working with our alumni to get as many signedletters as possible. Our goal is to get 500 letters of support for [STUDENT].Please let me know if you have any questions, and thanks very much for your help.[PRINCIPAL]Q&A WITH TEACHERS AT SCHOOL1. How/why did this student reach out to your school? What did he ask you to do? How openabout his immigration status was he before this incident?The student was very open about his citizenship status throughout high school, which mayhave made it easier for him to contact his former teachers/administrators about his detentionand removal proceedings. I also think his family (parents) felt comfortable approaching us forassistance since they did not know how best to proceed.27

2. How did your school hope to help him? How much did your school know about thedeportation process beforehand?I can only speak for myself on this question. I wasn’t sure what to expect - I was hoping that hewould be allowed to remain in the country and not deported to a country he left when he wasan infant. Personally, I knew little about the deportation process and even now, I’m not certainI understand it fully. Even though his case might have come to a resolution, it doesn’t feel like acomplete resolution.3. Was there much discussion about how/whether to get involved? Was there a school-widedecision to get involved? Were there any reasons not to get involved?We’re a family at our school. We were going to get involved; we just needed to seek out the bestresources to assist us in the process.There wasn’t much discussion about whether or not to get involved, but more about how we couldhelp. We did not know much about what “help” looked like, and we had a few meetings to makesure everyone was informed, and moved forward w/ our letter writing campaign.4. Whom did you turn to for help? Who ended up being the most helpful?Since this was completely new for us, the support and expertise of legal counsel was invaluable.They walked us through a lot of the strategies and worked closely with the student and his familyas well.Students and teachers are the most helpful because they knew the student well.5. Would you get involved to help another student in deportation? If so, what would you dodifferently?Yes, definitely. I can’t think of anything we could do differently, since our experience is so limited.It would have been good to follow up with people who wrote letters. People were confused aboutthe outcome of this student’s case. We were too -- there didn’t seem to be a resolution to his case.6. Any other suggestions to other schools/educators with students in deportation?I am not sure what the outcomes have looked like for other students, but I think it’s importantfor students to come up with a plan in case they are removed. I have been impressed with oneof our students, in the deportation process, who is making plans in case she returns to her homecountry. She has identified a few schools she may be able to transfer to, and has begun mentallypreparing herself for a return to her home country. We all hope she is able to stay here and willsupport any efforts to help keep her here, but always good to prepare for all outcomes.28

Getting Your Friends to Make Phone CallsPHONE BANKING CHECKLISTQuick Things to Consider:Why is it Important to Host a Phone Banking Party?These events are an easy way to get a committed number of calls/petitions signed. It’s mucheasier to make a phone call if you’re in a group and others around you are as well.Time/Date:Just pick a few hours (ex. 11AM-2PM) and a convenient location (multicultural center, church)where people can come and sign a petition/make a call.Materials:Make sure to print enough copies of the call in script, and have at least one or two laptopsavailable so that people can sign the online letter and forward it to their friends.Set a Goal:It really motivates people to make calls/faxes if they are working towards something. Have peopletrack the number of calls/faxes they make each hour and set a goal, 50 in an hour, 200 for theparty? People can make more than 1 call to the same number!29

SAMPLE CALL-IN SCRIPT FOR PHONEBANKING:TARGETS:Senator Feinstein: (000) 000-0000 Senator Boxer: (000) 000-0000Script:“Hi I’m calling to urge Senator Feinstein/Senator Boxer to please stop the deportation of JaneDoe. She is an asset to our community. I ask that Senator Feinstein/Senator Boxer intervene today.Thank you.”Optional Talking Points:1. Jane immigrated here when she was just 5 years old. She is an honors student and anactive volunteer at multiple non-profit organizations. Please don’t take her away from hercommunity.2. Jane dreams of becoming a teacher and teaching here in San Francisco3. America is Jane’s home. She has no friends or family in South Korea and would be homelessupon arrival.Tally the Number of Calls You Make Here:TARGET:Immigration and Customs Enforcement (ICE) Director, John MortonICE Office: (202) 282-8495, if voicemail box full, call live line (202) 732-3000Script:“Hi I’m calling to leave a message of support for Jane Doe, Alien Registration Number A# 123 -456 - 789 who is going to be deported any day know. Jane Doe dreams of becoming a teacherone day. She is an asset to our community. I ask that John Morton please step in and defer herdeportation. Thank you.”Tally the Number of Calls You Make Here:30

Set Up a Meeting With Your Senator orRepresentative’s Legislative AideOR Case ManagerThings to Consider:1. Every Representative or Senator’s website is different, but each of them have a variationof a list of key staff or case managers that can be contacted regarding your case. If youcan’t find anything on your Representative or Senator’s website, simply call the localoffice near year and ask who the person that deals with immigration is and jot downtheir email and phone number.Here is an example:http://feinstein.senate.gov/public/index.cfm?FuseAction=ServicesForCalifornians.Casework2. Reach out to the case manager and provide detailed information about your case. Alsogive the background information to who YOU are (see How to Create a Profile).3. Set up a meeting by writing a letter to the case manager via email requesting a meeting,if you have a few local organizations working on your case it would be helpful to includethem in the email.4. Case managers get lots of requests so you should follow up with them, especially sinceDREAM cases are so fast pace, it’s important that you are on the case manager’s radar.So if you don’t hear from them in a few days have your teacher or pastor make a callto follow up, this shows that it’s just not you but your community that cares about thiscase. Remember to keep it friendly though, you want this case manager to advocate foryou.5. If meeting in person is not possible, then push to have a phone meeting with themincluding you and your attorney. Then provide a list of leaders (teacher, counselors) thatthe case manager can talk to as well.Once you have a meeting set up:1. Decide who will be at the meeting? Keep it small (no more than 4 to 5 people). Is therea community leader that has a relationship with this office? Is your teacher available?Someone that can speak to your involvement in the community?2. Make copies of your deferred action packet (see addendum) and your profile (newsclippings, college transcripts, letters of support), etc. Make sure they receive a copy ofall these documents in email and a hard copy when you meet with them.3. When you meet with them, focus on the community support that you have and whatcontributions/accomplishments you have made.31

What Does it Mean to Go Public?Depending on your situation this can mean a variety of things. Typically, when advocating forstudents, we request that they be willing to speak to media. This includes print, television aswell as radio. Not all cases will have opportunities for all sorts of media, but it is better to goin prepared to handle all of it.By going public you are willing to share your name as well as pictures of yourself. You arewilling to create short 2-3 minute video clips with your story or an update on your situation.Going public for the most part has to do with being available to media. In cases wherestudents are unwilling to go this route, we have found it to be difficult to get wide-spreadpublic support. If the public does not have access to you and your story it is hard to buildmomentum for your case.Oftentimes, for students, the biggest issue with being public is concern over its affecton other undocumented relatives. If this is your main concern, we advise you to limit theinformation you share.For example: John Doe is 19, lives in Miami Florida but goes to college in Orlando. His familyall lives in Miami. When asked questions by a reporter instead of talking about life in Miami,John would focus on life in Orlando. “I have grown up in this state since I was 4, I don’t know anyother home. If I were to be deported from Orlando I do not know what I would do. All of my friendsand family are in this state.”What does running a public campaign entail?Think of a public campaign to stop your deportation as a puzzle. Each step of this manual is apiece in that puzzle. You solve the puzzle when you stop your own deportation.Immigration Customs and Enforcement (“ICE”) has the power to stop anyone’s deportationat any moment, however they only use this ‘discretion’ for cases that are very compelling.Your job is to show ICE that your case is compelling and worthy of discretion, i.e. deferredaction.There are several pieces in this puzzle; you do not need all of them to succeed, however it isrecommended for best results. These pieces include:Targets: Who has the power to help you?Creating a profile: Who are you and why should people care about you?Creating a buzz: How can you use Facebook / Twitter / Blogs to get your targets attention?Phone banking: How to make sure your targets know people care about you!Petitioning: Let’s make sure you can show your target you have a lot of support.Traditional Media: Who can get your story out into public light?The act of putting all of these pieces together is called ‘running a public campaign’. Think of itas “how do I put all these pieces together to create an effective, solid puzzle.” This may entailfocusing on one or two of the pieces first and then giving attention to some of the others.Or maybe you do it all at the same time. It all depends on your level of support and personalcomfort.Below we expand on what each of these can look like as well as samples for you to take onand make your own.32

Targets: What is a Target?In this instance, a target is a person who can directly give you what you want or a person whocan get in touch with the person who can give you what you want. Targets are specific people andnot entities or bodies, like Congress, but rather individuals that can be moved and ultimately heldaccountable, like Senator Reid.Who is your target to grant deferred action?TARGET: John Morton, ICE Director of Immigration Customs and Enforcement (ICE)Other possible target: The Field Office Director of the Regional Office in which you were detainedin or is handling your deportation case. This information is not easily accessible and this personshould only be the target if you or your attorney have their name.Who else should be a target?TARGET: Your two U.S. Senators, can be found here: http://www.senate.gov/Your U.S. Representative, can be found here: http://www.house.gov/ by typing your zip codeWhat can your Member of Congress do?1. Introduce a private bill on your behalf. If a senator it will automatically stay your deportation. Ifa Representative it will not stay your deportation, however it looks good in showing your case iscompelling.2. Regardless of their willingness to introduce a private bill all members should be asked to“contact ICE and ask that my deportation be deferred.” Members are open to making this askand will often times do it much more readily than considering a private bill.Total Targets: 4 People (John Morton, Two U.S. Senators and one U.S. Representative)Additional Targeting tips:If you know your member of congress is particularly anti-immigrant you may want to stay awayfrom targeting this individual. If you feel the individual will not advocate on your behalf it may besmart to search for an alternative target who can make ‘an ask’ of ICE. This might include gettingthe local Mayor involved. Maybe there is a specific state legislator who will be receptive to yoursituation. If you do not have a federal target, get creative and think of a local target. For examplea recent Chicago case was able to gain the support of the city council; a resolution was passed inthe students favor. This was something that went a great length in showing that the student’s casewas “compelling.”33

Creating a Profile – Why People ShouldCare About You?Guide to sharing your story — Created by Tolu OlubunmiYour story told in your own voice is by far the most powerful tool you have.We all have a compelling story to tell and the story you choose to share with others isyour “public narrative.” Public narratives are stories told to inspire others to act. Theycommunicate our values through the language of the heart and translate those values intoaction. While telling your story, try not to explicitly state your values but let your storylead us to them (for example, instead of saying you are a hard-worker, talk about stayingup late to complete assignments.)To help your audience feel connected to you, your experiences and your challenges,include specifics like time, place, mood, sound, color, texture, taste, and feeling in yourstory. Adding these details also distracts from the specifics that you may not wish toinclude, like your last name or the name of your university. End your story with the urgentchallenge we are called to face at this moment and include a description of how youraudience can help change the lives of thousands of youth just like you.Key points to include in your story:Your name – Your first and last name should be used, stay consistent with your name assupporters who do not know you will use this to identify who they are supporting if theycall legislators on your behalf.Your age – It’s important to give your audience an idea of how long you’ve been in the US.How old were you when you were brought to the US and/or the year? What were you firstmemories of the US? How did you feel when you moved here?Where you live – City and state should be included so that you legislator knows you area constituent and your community feels connected to you. Please do not include yourcomplete home address in a public letter.Your education – Share you experience of growing up and going to school. Are youcurrently in school, high school/college? What are you studying? What do you want to dowith your degree? What are the limitations imposed on your educations because of yourstatus?Community activities – How are you involved with you community? Do you play sports ortried to but was rejected because of your status? Do you volunteer or participate in afterschoolprograms or tried to but was rejected because of your status?Immigration status - When and how did you find out you were undocumented. Howdid that make you feel? How did it change you image of yourself, and your hopes anddreams? How has your status affected you and your family? How has it limited yourambitions? How has it enhanced your involvement in social justice issues? How havethese experiences changed you as a person and your aspirations?DREAM Act – What is the DREAM Act? How did you learn about the bill and why is it soimportant to you, your family, your community and this nation?34

Your future - What are your hopes for the future? What is your desired career? Whatkeeps you motivated to achieve your goals? Why is the US were you want to build a life?The Ask – How can your audience support you? What do you need them to do? Whatdoes their involvement in this movement mean? What is the payoff?Video:Now that you have your story out of the way grab a video camera and make a short 2 to3 minute video of yourself. Avoid reading off of your story; rather make it as natural aspossible. Towards the end of the video you make a clear ask, “I am asking that you takeaction, call Sen. McCain and ask that he step in to stop my deportation. I dream of beingnothing else than a nurse and giving back to my community. Thank you.”Check out a sample video here: http://youtu.be/kMU_DZofuWQPictures:Search your facebook profile, old albums and find some pictures that define you. By usingpictures you intend to show the public that you are just like them, or maybe get themto feel as if you are like a friend they know and how could they sit back while a friend isgoing through this situation? Be creative. The goal of your story and picture is to make apersonal connection.During a recent case a DREAM student focused a lot on their love for animals, as a resultmany stepped up to help just because they too were animal lovers.35

Why Go Public?A Personal Narrative from a DREAMer in DeportationFour days before my scheduled deportation, I had been forced to purchase a one-way ticket toMexico. Not knowing where I would live or who I would stay with, I knew that I had no choice butto fight. In doing so, I had to prove that I deserved to remain in this country. Although uncommonnow, the fight to stop my deportation would last a whole year. In the beginning, attorney afterattorney told me that they would not pick-up my case, because my case was simple: there wasnothing they could, and my best option was to go back. But to go ‘back’ implied that I had startedsomething in Mexico, which was not the case. I had been brought to the United States at the ageof 6. Having started the first grade in Chicago, most of my memories had been formed in thiscountry.I could not believe that it had taken me facing deportation to finally deal with the fact that Iwas undocumented. Previously, I had ignored the issue, put aside and pretend like it would goaway. I had hoped that by the time I graduated high school, the DREAM Act or comprehensiveimmigration reform would have passed. That somebody else, but myself would fix mysituation. Facing deportation was a stark realization that change had to start with me takingaction. Through the help of various undocumented youth, faculty and numerous organizations, Iwas able to fight a public campaign.It would not be until I met other undocumented youth like myself, that I found the support that Ihad been looking for. Unlike the lawyers, they agreed that I deserved to remain in this country, thatthis was my home. Shortly thereafter, we came together to formalize a campaign. The messagewas simple: I had been a contributing member to my community, and someone that would benefitthe United States. It would take - 25,000 faxes sent to the Department of Homeland Security(DHS), over 1,000 faculty signing a petition, thousands of calls to DHS, 5 Congress people, 2 cityresolutions (City of Chicago, Berwyn), one private bill, and several rallies to stop my deportation.The halting of my deportation came with the realization that I owed it to myself, to all the peoplethat contributed to my campaign, and to the immigrant rights movement to continue to fight. Wetherefore must all come to the self-realization that we are the only ones that can change oursituation and living in the shadows is no longer an option.**Rigo Padilla is the co-founder of the Immigrant Youth Justice League in Chicago and currently ispursuing a Masters’ Degree at the University of Illinois at Chicago36

Creating a PetitionThis is by far the most important action oriented part of this entire process. Up until now,you probably have support from your friends, some teachers you are in touch with andothers in your community. However, you have not been able to articulate just how manypeople support you.We create petitions for two main reasons:»»It allows for us to be able to say “Over 3,000 people have joined us in asking that ICEdefer Pedro’s deportation.”»»A petition created with the right software will email the target each time it is signed.So 3,000 petition signatures means that 3,000 emails have gone out to each targetshowing support.The process of creating a petition is very simple, especially if you have completed the taskof finalizing your story, pictures and video. Follow these easy steps:1. You need to know who your targets are. Check out the “Targets” section of thisguide2. You need a title, keep it short, simple and relevant. If you have other descriptiveinformation like future dreams etc., then be sure to include that. If the date ofdeportation is within the month put in a date to build urgency.Sample Petition Titles:“Stop the deportation of Herta Llusho”“Stop the May 14th deportation of Herta Llusho”“Stop the deportation of aspiring engineer, Herta Llusho”3. Incorporate your story into a letter written in third person. Here is a sample from acase we supported in Arizona:I write to humbly request that you take action to immediately stop the deportation ofPedro Guttierez (A#88 769 334).Pedro Gutierrez is about to be deported to Mexico, after growing up in the UnitedStates since the age of 7, surmounting numerous obstacles, and committing to servethis country by joining the US Marine Corps.Pedro is an amazingly resilient and promising young person. His parents bothsuffered from substance abuse issues, and Pedro was taken in and raised by his lovinggrandmother, who brought him to Arizona for a brighter future. His grandmotherdied when Pedro was kid, and he was abandoned by his grandfather, leaving Pedrohomeless and with no family either in Arizona or in Mexico.In the face of incredible adversity, Pedro has managed to not only survive, but to thrive,and he attributes much of that to the opportunities afforded to him in the UnitedStates. Pedro is admired by many for his spirit and tenacity, and, perhaps most of allfor his desire to give back to his country by joining the US Marine Corps. The localrecruiting officer, who Pedro has been in constant communication with, considers himthe perfect candidate.Pedro would qualify for the DREAM Act, a narrowly tailored bill that majorities of37

oth the House and the Senate voted to support this past December. The bill would allow forundocumented youth who, like Pedro, were brought here at a young age, to earn legal statusupon completion of two years of military service or two years of college.Pedro exemplifies what it means to be an American, what it means to stand up to adversitywith dignity, strength and a passion for serving others. He should be allowed to live theAmerican dream and serve our country. Let Pedro serve and let our country enjoy the talentsand contributions of this young man.If deported, Pedro would be returned to a country where he has no family or friends. This futureMarine needs your help. Please take action to stop his deportation.4. If you have followed the above steps, you are almost done. If you are doing this process onyour own, then we recommend you use http://www.change.org/start-a-petition. If youwould like additional guidance and 1:1 support please contact us and we can assist you witheverything from wording your petition to who you should pick as a target. For support youcan send an email to Maria@dreamactivist.org5. If you want to take a stab at it yourself use www.change.org. Once on the petition page plugin the title you want to use and the targets you identified.It will ask you for a “description”, in that area put a brief outline of what you are doing andhow people can help:On Saturday April 30th my friend Luis was detained, he will be deported by Monday May 23rd.Please take action to help stop his deportation.1. Sign his petition here 2. Join his support group here Look at “creating buzz” sectionof this manual.3. Please call X and Y person asking that his deportation be deferred. Check out phonebankingsection of this manual for tips.Please send this out to as many friends and family as you can!!4. Finally, copy and paste the third person letter you created into the bottom of the form, thiswill serve as the ‘petition text’, i.e. each time someone signs your petition your targets willreceive this letter via email.5. Click “Create Your Petition” and you are done. Copy and paste the link for your petition toeveryone you know and ask that they share it with everyone they know. Follow the nextsection of this manual to creatively get your audience engaged.38

Creating a BuzzOkay, so you have your story, pictures and now yourpetition / action alert out of the way, now it is time to getyourself out into the social media world. The neat thingabout social media is you can do it all on your own, youdo not need to wait for a reporter to care about your caseand cover it.In the past students have done all of the follow, beloweach we’ll include some tips:Facebook Page: You are probably a part of an email list,whether for a school project, a sports league or someother organization you are a part of. Consider yourfacebook page to be your email list. It is an easy way tokeep supporters up to date with what is going on withyour case and, more importantly, it allows for your storyto reach hundreds of people from across the nation.When making a facebook page we recommend you:1. Keep the title simple, to the point. The more descriptiveyou can be the better. “Stop Pedro Alvarez’s May 12thDeportation!”send them messages asking them to support your effortsand ask their followers to support your efforts. Themore people get your message out the more petitionsignatures and calls you can generate.Digg: Not familiar with it, that’s okay. It is easy to use.We use digg often to drive online traffic to a specific linkor website. You can drive folks to your facebook groupor, as we recommend, to your petition page. Register anaccount and submit an article. You then ask friends togo to Digg and give a ‘thumbs up’ or in other words Diggyour story. The more Diggs you get the more traffic isdriven to your link. The more traffic that is driven to youraction alert the more likely you are to find supporters.It is recommended that you coordinate your use of Diggwith friends so that within an hour or two of submittingan article you can receive at least 25 Diggs. The fasteryou get diggs the sooner your article moves intoprominence.2. Include a brief description of what is going on and anumbered list of actions people can take part in. Besure you provide a link to any actions, or if an articlehas been published you can direct folks to that.3. Include a picture of yourself.Update the group with anything new that is happening,it is especially helpful if your case is on a shorter timeframeand everyone is on edge. Each update to the groupshould accompany and action or ask.i.e. ‘Today we will deliver 500 petitions to local ICE,please keep those calls in support of Pedro coming404-543-4454”Twitter: Do you use twitter already? If not, then youshould register for an account www.twitter.com. Not allof the cases we have worked on have an active twitteraccount, but it is just another helpful tool to reach anew audience and get the word out. Many politicians,journalists, professors etc. are on twitter and you can39

Media 101Media is critical to a public campaign. Please see theAppendix Section for helpful samples of media advisories andpress statements. Once you have written those, you needto make sure media actually come to your event and roleplaywhat you want to say to the media. If you would like 1:1media support for your campaign or a list of press contacts,please contact juan@dreamactivist.orgHow to Make a Pitch CallThe idea of a pitch call is to quickly and confidently “sell”the story. You might have about 30 seconds to get theidea across, and see if folks have time to hear more.Some TV stations might just say, “Got it” and cut you offpretty soon, don’t take it personally. Think of it this way:they are as busy as we are the hour before an action.Writing out the pitch can be helpful, and practicing it toyourself a few times will make it feel more natural.An example:“Hi, this is Jessica from the San Francisco DREAM Team.Today at 11 AM, students will rally at Senator Feinstein’soffice to urge her to stop the deportation of 20 year old UCBerkeley student, Jane Doe. The San Francisco Mayor JohnDoe will be there to support Jane and her family. Can I tellyou more?”Do not lead the pitch with “did you get our pressrelease” they receive tons of them and can’t confirmreceipt.Pitch calls should be made twice, once when you sendout the media advisory (3-5 days before your event)and once again the day of your event before the morningassignments are given (8AM-9AM is ideal)*adapted from California Immigrant Policy CenterMedia Talk: Speaking the Languageof the ReportersBy: Juan, Director of Communications ofdreamactivist.orgTalking to the media isn’t exactly a walk through the park,nor is it one of the most satisfactory things you’ll ever dowithin your career.It won’t take long until you come face to face with theenormous responsibilities that come when dealing withboth media and communications. Everything from pressreleases to media advisories become your responsibility.The position your organization takes on an issue, yourresponsibility. Securing media interviews to cover yourevents, also your responsibility. And this is only a briefglimpse as there is obviously a great deal of skill neededin order to become a true professional.Can you write? Can you speak in a clear and concisemanner? Do you know how to implement both traditionaland new media into your work? If the answer is YES toat least two of these questions then you might just beon your way to be the next media Coordinator of yourgroup! (Take it from me, I was assigned this role almost 3years ago and my writing as you can tell is certainly notimpeccable whatsoever; yet, I manage to do the job in anOK fashion. With that said I am not a professional andall of the following is my interpretation of the job fromfirsthand experience.).Here are some very, very basic points on the Do’s andDont’s of Media:Reporters are not your friends:Granted that this may seem a bit harsh, but youcome talk to me when the reporter you thought youwere helping writes about you in a very negative orcontroversial light. Not too long ago this was the casewith USA Today when they painted undocumentedstudents as “illegal students”, imagine the clean up wehad to do for that one!Be conscious of what youre telling the reporter, speakclearly, and stay on message because remember they arethe ones writing the story, not you. It goes without saythat you should not make it your mission to antagonizethem either, just as there are good reporters there arealso bad ones and it’s in your best interest to make sureyou rub their bellies so that your coverage is favorable.40

Stick to your talking points:Do you know what the purpose of your action is?Memorizing your talking point and sticking to them ispossibly one of the single most important of your action.It becomes very easy for reporters or media to come andask you questions and if what you’re saying does notmatch what I’m saying on the back end, then Houstonwe have a problem! Messaging is the key to success andin the great scheme of things it is what binds the actiontogether.You wouldn’t want the press to think you’re saving thewhales when in reality your advocating for immigrantrights would you? Look at your talking points andmessaging, learn them, memorize them, and digest them.Never go off the record:The words “off the record” should never spill out ofyour mouth. This is a red flag to reporters who maydraw conclusions that you or other activists are hiding abigger scoop from them which could prompt more andmore questions for you. Avoid this at all cause if youwant to avoid any messaging pitfalls or risk looking like acomplete imbecile by tripping over your own words.Delegate:Now, we all know you want to be the next American Idol,I mean really, who wouldn’t?!Keep in mind that the action doesn’t involve just you;thus, you are no means here to hog the spotlight.Delegate amongst your peers: who will be speaking towhom. You wouldn’t believe what a world of a differenceit makes for reporters to find a student that is well versedin their medium (and even more on their messaging).Case and point if you can’t speak to a camera, don’t. Findanother activist/representative who may be able to doso. Remember, everyone is different and while you’reunable to talk to a camera that doesn’t mean you can’tspeak to print/radio/blogs/etc. Find your niche andstick with it and eventually you’ll be savvy enough tointerchange between mediums.Stage fright? No Problem!Were you the kid in class that umm’d? You know theuh…, um… ah…. sounds you make when you find yourselfstuck on a question. Yeah, they suck at both the givingand receiving ends. Avoid this by practicing with a buddy.Have mock questions if you know you get the jitters orbecome nervous when interviewing, after all you don’twant to look bad on your 15 seconds of fame do you?Be mindful that this happens to everyone and that whenpanic overcomes you all you have to do is take a deepbreath, repeat your last sentence and continue to spit outhot fire.Can’t take the fire? Look for the answers in your friends,tell a story, or ask for help. Obviously this doesn’t workon live feeds like television, but when you’re on the sceneand all there is in front of you is a reporter with a pen andpaper it becomes fairly easy to phone a friend.Never lie:Now, we all have our fair share of white lies here andthere but when it comes to activism you better wash yourmouth with toothpaste and soap. Remember that youaction speaks for the moment, but your words speak foryour organization, the movement, yourself which all leadback to the action.Nobody likes liars; moreover, nobody likes people whostretch the truth either. You know how we ridicule or callout anti-immigrants on their bluff? Well this is a two waystreet kiddo!Don get called out or make up a fantastical story onhow you hope this action may catapult your career as aRussian ballerina, because quite frankly it’s destructiveto the end product/purpose of the action. A lie can twistour action and all it takes is for you to tell it to a reporteryou’re not familiar with and then SURPRISE! It made it tothe front page of the NYT. DO NOT LIE. EVER.Hablas Español?This is very direct. Do you speak the language that thereporter will write the story in? If yes then go aheadand speak with accents and whatever speed you’recomfortable with! No? Then hold back, you may wantto delegate (see above) and let fluent or knowledgeablespeakers take the lead on this story.Be personable:You and your story and the single most important pieceof marketing that our movement possesses. Do not bea grumpy old hag or have a nasty attitude. Go out there,have fun, and speak to as many people as possible.Chances are that if you are good enough to the pressyou’ll be able to send a picture of yourself from a local or41

national newspaper to your mommy. Who knows, maybeyou could be the next big thing on TV as well. Don’t letyour attitude be the reason you lose any opportunities.Take every opportunity available:Can you speak to the radio, TV, print and have time toparticipate in you action? Maybe not, delegate or ensurethat you follow up with reporters. Even if you’re not ableto make every request you get, it is your responsibility tofollow up with reporters and see if their deadlines can beextended for you to get your story in. Remember, eachpiece of media out there caters to a specific audience andin turn those are donors, supporters, new allies, or otherundocumented youth who may be inspired by you! Thereis no reason why reporters should be left unattendedbefore or after your action.Bring it back to basics:Remember to always bring the narrative back to youraction. Reporters might want to know everything aboutyou and your doggies back home, however, keep at theforefront of your mind that you are here with a purposeand it’s that purpose what should take priority messagingwise over how much you want to buy the new iPad 2 orany other unnecessary comment.Example:“My name is ___________, I’m from _______. I came heretoday to state that I am Undocumented and Unafraidand I stand here today to give Senator Sessions this eaterbasket in order for him to support the Dream Act!”See how you were able to cover basic details as to whereyou’re from, where you are and your name and yet youbrought it back to you action? You can use this trickwhenever an unrelated question comes up.Granted that the example above would action wouldprobably never happen, but your words coupled withyour action is what makes the interview shine. No action= No interviews. It’s that simple. Always come back toyour taking points!42

Tips & TricksConclusion1. Are you really active but not in deportationproceedings? Consider putting together a profileand copies of important documents relevantto your immigration case to be prepared at amoment’s notice. Make copies of awards, letters ofrecommendations, scholarships you’ve received,honors, news clippings and keep it in a folder andconsider having a trusted ally keep a copy as well.2. Don’t just think about support from federalofficials, it’s important to have local and stateofficials to support you too.3. Look up who your state and local officials are andreach out to them. Can you get your city to passa resolution (see addendum for examples)? Canyour mayor sign a letter of support? Who elsecan be included? Even though they can’t makea decision on your case it’s important to show abroad community supports you.4. Be clear with your friends how public you want thecase to go. If you are clear about your boundaries,they will respect it and you won’t have anysurprises down the line (facebook links)We hope this guide has been helpful to you. In thebeginning, our main goal has always been to equipDREAMers and their allies with the necessary tools toadvocate for their right to stay in this country. DREAMAct students have been told "NO" more times that theycan count. We want to tell you, "Yes, it can be done. Yes,it can be done. Here is what we have learned from doingit." DREAMers are resilient, brave and champions in theirown right. Yet, when faced with imminent deportation,we see they must push even further and fight to stay inthe place they've called home for so many years. Wehope that you know you're not alone in this, that thereare many young people in the exact same situation asyou, and that together you will overcome our brokenimmigration system.For the lawyers who thought nothing could be done, wehope you will reconsider. Attorneys from all over theUnited States have represented DREAMers in removalproceedings and have been successful. The collaborationof legal and organizing strategies are critical for a case.All legal options should be exhausted before pursuingdeferred action or prosecutorial discretion and weencourage you to reach out to us if you have moretechnical questions or concerns.5. Don’t be afraid to ask for help43

Addendum

AppendixI. Glossary of Legal TermsAdjudicateAdjudicate refers to making a formal judgment ordecision about a problem or disputed matter.Adversarial ProceedingAn adversarial proceeding is a legal system where twoadvocates represent their parties’ positions before ajudge, who acts as a neutral decision maker. In removal(deportation) proceedings, the U.S. Department ofHomeland Security is represented by an attorney fromthe Office of Chief Counsel. Individuals have a right torepresentation, but an attorney will not be provided forthem if they cannot afford one.Board of Immigration Appeals (BIA)The Board of Immigration is the highest administrativebody for interpreting and applying immigration laws.Generally, an individual can appeal a final decision madein removal proceedings by an immigration judge to theBIA. The BIA usually decides appeals by conductinga “paper review” of cases instead of hearing oralarguments.Circuit Court of AppealsCircuit Court of Appeals are federal courts that hearappeals of some decisions issued by the Board ofImmigration Appeals (BIA). There are currently thirteenUnited States Circuit Courts of Appeals.Conditional Permanent Resident StatusUnder previous DREAM Act proposals, individuals wouldbe placed on a conditional permanent residence statusfor a certain time period before it can be removed. Thisis to ensure that individuals fulfill all requirements thatare set forth by the DREAM Act before they could gain apermanent resident status. Individuals with conditionalpermanent resident status would be eligible for workstudy and student loans except for public benefits.ConsulateA consulate is a government office charged withrepresenting the country’s interests overseas andproviding services to citizens living abroad. Consulatesare responsible for issuing passports and traveldocuments to its citizens living abroad.ContinuanceA continuance is the postponement of a hearing for alater date. This is requested by either or both parties indispute.Deferred ActionDeferred action is a discretionary act by the U.S.Department of Homeland Security to not pursue aremoval order against or physically deport a particularperson. It cannot be granted by the immigration judge.U.S. Department of Homeland Security (DHS)The U.S. Department of Homeland Security (DHS) is acabinet department of the federal government engagedin areas involving counterterrorism, border security,immigration enforcement, and disaster preparedness.On March 1, 2003, DHS absorbed former immigrationand naturalization services and provides immigrationrelatedservices. DHS houses the Immigration & CustomsEnforcement (ICE) , Citizenship and Immigration Services(CIS) and Border and Customs Protection (CBP).U.S. Department of LaborThe United States Department of Labor is a departmentresponsible for occupational safety, wage and hourstandards, unemployment insurance benefits, reemploymentservices, and some economic statistics.Discretionary DecisionA discretionary decision refers to the power or rightto make official decisions using reason and judgmentto choose from among acceptable alternatives. Lawenforcement officers, the president, immigration judges,and administrative agencies are among those who oftencarry out these types of decisions. Not all decisions aresubject to discretion.Form EOIR-33Known as a Change of Address form, EOIR-33 is filedwhen an individual changes address during a removalproceeding. This form can be found at www.justice.gov.Executive Office for Immigration Review (EOIR)The Executive Office for Immigration Review (EOIR)serves the purpose of deciding immigration cases. TheEOIR is comprised of Immigration Courts and the Boardof Immigration Appeals.Green CardA green card is used to informally refer to an individual’spermanent residence immigration status. An individualwith a green card gives a person the right to live and workin the United States provided that they maintain lawfulpermanent resident status.45

Immigrant VisaAn immigrant visa is a type of visa which permits anindividual to become a lawful permanent resident or agreen card holder. Some people must obtain immigrantvisas overseas at a United States consulate while othersare eligible to apply for adjustment of status in the UnitedStates.Immigration CourtsImmigration courts are administrative courts thatconduct removal (deportation) proceedings. Animmigration judge conducts removal proceedings.Immigration and Customs Enforcement (ICE)The Immigration & Customs Enforcement (ICE) isa federal law enforcement agency under the U.S.Department of Homeland Security (DHS), responsiblefor investigating and enforcing U.S. immigration law.Immigration JudgeImmigration judges conduct formal removal(deportation) proceedings to determine whether anindividual should be allowed to remain in the UnitedStates or should be removed (deported). Their decisionsare final unless appealed or certified to the Board ofImmigration Appeals.JurisdictionIn removal proceedings, immigration courts havejurisdiction over an individual. This means that they havethe official power to make legal decisions and judgments.LimboA legal limbo may occur when laws or court rulings leavean individual without any form of remedy. For example,when an individual is granted deferred action, s/he willnot be removed but s/he will also not have a lawfulstatus in the United States.Motion to Dismiss or TerminateA motion to dismiss is a party’s request to a court todismiss a case.National Labor Relations BoardThe National Labor Relations Board is an agency ofthe United States whose responsibility is to conductelections for labor union representation and investigatingand remedying unfair labor practices.Principal Legal AdvisorThe Office of the Principal Legal Advisor is the part ofthe Department of Homeland Security (DHS) whichrepresents its interests before the Executive Office forImmigration Review. The Office of the Principal LegalAdvisor serves a role in removal proceedings similar tothat of a prosecutor in criminal matters.Order of RemovalAn order of removal is an administrative order whichallows the government to deport a person. Removalorders can be issued following a removal hearing beforean immigration judge or in some cases without a formalhearing before an immigration judge.PleadingsAt some point during removal proceedings, theimmigration judge will ask the individual to plead to theallegations and charges listed on the Notice to Appear.An individual has the right to deny all allegations andcharges. Denying an allegation or charge does not meanthat you are claiming that it is untrue, it means thatyou are asking the government to submit proof of theimmigration charges. The government must prove thecharges and allegations by clear and convincing evidence.Removal (Deportation) ProceedingA removal (deportation) proceeding is comprised ofseveral court hearings, which determine whether or notan individual will be deported from the United States. Anindividual, if eligible, may apply for immigration benefitsand if granted, provide relief from removal.Citizenship and Immigration Services (USCIS)USCIS is a part of the U.S. Department of HomelandSecurity tasked with adjudicating applicationsfor immigration benefits including work permits,naturalization certificates, and lawful permanentresidence cards, ie., green cards.Voluntary Return (Departure)A Voluntary Return/Departure allows an individual todepart the United States without receiving a final orderof removal. This allows an individual to leave at his/her own expense. However, failing to depart within theperiod granted can result in severe penalties. Even iftimely departing, individuals may still face lengthy bars toreturning to the United States.46

II. SAMPLE #1 DEFERRED ACTION APPLICATIONOctober 20, 2010Katrina S. Kane, Field Office DirectorU.S. Department of Homeland SecurityDetention and Removal1100 Bowling RoadFlorence, Arizona 85132RE:Shing Ma “Steve” LiARequest for Deferred Action in Lieu of DeportationDear FOD Katrina S. Kane,This is a request pursuant to Operations Instruction (OI) 242.1a(22) that youexercise discretion to recommend approval of deferred action status for Mr. Shing Ma“Steve” Li. He is a non-criminal alien. He is also a native and citizen of Peru, but he isethnically Chinese. As discussed below, Mr. Li should be considered for the privilege ofdeferred action because: (1) of humanitarian concerns based on DREAM Act eligibility;(2) he should not be punished for his parents’actions that led to a final order; (3) he is aperson of good moral character; (4) lengthy residence in the United States, (5) he hasstrong community support and (6) providing safe harbor for applicant would be in the“public interest.”STATEMENT OF FACTSShing Ma “Steve” Li is a 20-year old native and citizen of Peru. He was born on???? in Lima, Peru. (See Copy of his Peruvian passport). He is ethnically Chinese andhis parents are Chinese citizens. Mr. Li was admitted to the United States as a B2 visitorfor pleasure on July 1, 2002 when he was only 12-years old. (See Copy of the Notice toAppear). He came to the United States with his father, Xing Guang Li, when he was aminor. His mother, Ma Li, arrived shortly thereafter. He came to the United States becausehis parents made the decision to leave Peru and apply for political asylum in the U.S. Hewas not part of that decision-making process, because he was only 12-years old at thetime.He is currently a student at City College of San Francisco studying nursing.(See Copy of City College Transcript). He is scheduled to graduate in June 2011 andintends to work in the health care industry. He graduated from George Washington HighSchoolSchool in San Francisco, CA. (See Copy of High School Degree).His mother applied for an affirmative application for political asylum in NewYork City. Counsel believes that Mr. Li and his father were derivative beneficiaries of herapplication. On March 28, 2003, the New York Asylum Office sent a referral notice to hismother, Ma Li. (See Copy of Asylum Referral Notice). Subsequently, Mr. Li and his parentswere issued Notice to Appear(s) and placed in removal proceedings in New York City onApril 7, 2003. (See Copy of Notice to Appear). All three cases were consolidated before47

the Immigration Court: ???? (A ); ???? (A ) and Shing Ma Li ( ). The family retained theassistance of Ming Yang, Esq. A merits hearing was scheduled for April 28, 2004 andImmigration Judge George Chew denied the asylum application on the same day. (SeeCopy of Judge’s oral decision). Mr. Li was only 14-years old when he was ordered removedfrom the United States. Because he was a minor, his presence was waived.Mr. Li and his parents appealed to the Board of Immigration Appeals. The Boarddismissed the appeal on November 30, 2005. Mr. Li was only 15-years old. He was notaware that he was ordered deported. His family did not share that information with him,and on the contrary, hid that fact from him. To the best of Counsel’s knowledge, they didnot appeal to the Second Circuit Court of Appeals.Shortly after the removal order, Mr. Li moved with his parents to San Francisco,California where he graduated from George Washington High SchoolSchool and enrolledin the Phelan campus at City College of San Francisco. He was still not aware that he wasordered deported from the United States.On September 15, 2010, several ICE agents arrived at Mr. Li’s home in SanFrancisco where he lived with his mother. His parents had divorced several years earlier.Needless to say, Mr. Li discovered that he was a subject to the absconder / fugitiveoperations initiative. He was detained at Sacramento County Jail and involuntarilytransferred to Florence, Arizona. His parents were also detained, but they were releasedand placed on the ISAP program. They have since been reporting regularly with ICE in SanFrancisco, California.Counsel at the Asian Law Caucus in San Francisco, California was retained inmid-October. The Asian Law Caucus is a non-profit organization providing free legalrepresentation to individuals facing detention and deportation.LEGAL STANDARD FOR EXCERISING PROSECUTORIAL DISCRETION“Prosecutorial discretion” is the authority of an agency charged with enforcinga law to decide whether to enforce, or not to enforce, the law against someone. 33 A“favorable exercise of prosecutorial discretion” means a discretionary decision not toassert the full scope of the former INS’ enforcement authority under law. 34 Such decisionswill take different forms, depending on the status of a particular matter, but includedecision such as not issuing an NTA, not detaining an alien placed in removal proceedings,and approving deferred action. 35There is no precise formula for identifying which cases warrant a favorableexercise of discretion. Factors include: immigration status, length of residence in theUnited States, criminal history, humanitarian concerns, immigration history, likelihood ofultimately removing the alien, likelihood of achieving enforcement goal by other means,whether alien is eligible for relief, effect of action on future of admissibility, cooperationwith law enforcement authorities, honorable U.S. military service, community attention,resources available to the INS.36SHING MA “STEVE” LI IS DESERVING OF DEFERED ACTION BECAUSE:A. HE WAS A MINOR WHEN HE WAS ORDERED REMOVED AND HE WOULD BEDREAM ACT ELIGIBLE.33See Doris Meissner Memorandum to Regional Directors, District Directors, etc. U.S. Department of Justice,Immigration and Naturalization Service, Exercising Prosecutorial Discretion, November 17, 2000.34Id. at 2.35Id.36Id. at 7-8.48

Mr. Li was only 14-years old when he was ordered removed from the UnitedStates. He came to the United States when he was only 12-years old after his parentsmade the decision to relocate from Peru. Since arriving in the United States, he hasattended and graduated from George Washington High School in San Francisco,California. He was enrolled in the Honors Program at George Washington High Schoolhe was a participant at the school’s Wellness Center. Through their Wellness Program,he provided presentations to fellow students on the dangers of drinking and driving andsexually transmitted diseases. He was Washington High’s reporter, editor and cameramanfor the school newspaper called Eagle News. He was also on the cross country and trackteam at George Washington High School.After graduating from George Washington High School in 2008, he enrolledin higher education at City College of San Francisco. He has been a student at CityCollege since the Spring of 2008 working towards a nursing career. He was awardedthe Goldmans Scholarship to attend City College on a full ride. He received $500.00per semester for each year he attends City College. At City College, he was a memberof several student associations including APASS and the Stem Program. APASS standsfor Asian American Students Success Center. STEM (Science, Technology, Engineering,Mathematics) is a 2-year outreach and educational support program. During college, heinterned at the San Francisco State University Summer Science Institute. It was a yearlonginternship that would provide him with the experience and skills to enter the healthcare industry upon graduation in 2011.Mr. Li is the perfect candidate for the DREAM Act. DREAM is the Development,Relief and Education for Alien Minors Act. It is a bipartisan legislation that addresses thesituation faced by young people who were brought the to the United States years ago asundocumented immigrant children and who have since grown up in the United States,stayed in school and kept out of trouble.Under the DREAM Act, students with good moral character who came tothe United States at age 15 or younger at least five years before the date of the bill’senactment would qualify for “conditional permanent resident status” upon acceptance tocollege, graduation from a U.S. high school, or being awarded a GED in the United States.Previous DREAM Act bills contained an additional requirement that the student be underage 35. In this case, Mr. Li entered the United States when he was 12-years old, graduatedfrom George Washington High School, and is currently matriculated at City College of SanFrancisco. He is scheduled to graduate in Spring 2011.The DREAM Act includes students who are on the honor roll, star athletes,talented artists, homecoming queens, aspiring teachers, doctors and U.S. soldiers. Theyare young people who have lived in the U.S. for most of their lives and desire only tocall the United States as their home. Mr. Li was a former editor and writer for his schoolnewspaper. He was on the track and cross country at George Washington High School.He aspires to be a health care worker one day and work alongside doctors using hismultilingual language skills to assist patients in need.Recently, the DREAM Act came close to passing in the Senate. On September 14,2010, Senate majority Leader Harry Reid (D-NV) announced plans to add the DREAMAct as an amendment to the Department of Defense authorization bill. The DREAMAct currently has 39 cosponsors in the Senate and 128 cosponsors in the House ofRepresentatives. In September 2010, it was voted 57-43. Thus, it was short by three votes.But it was a vote for the entire Defense Authorization Bill, not necessarily just the DREAMAct.49

The DREAM Act has a long history and support in both the House and Senate.It was reintroduced on March 26, 2009, by Senators Richard Durbin (D-IL) and RichardLugar (R-IN) in the Senate and in the House by Representatives Howard Berman (D-CA),Lincoln Diaz-Balart (R-FL), and Lucille Roybal-Allard (D-CA).Support for the DREAM Act has grown each year since it was first introducedin 2001 by Senators Durbin and Orrin Hatch (R-UT). The DREAM Act has twice passedthe Senate Judiciary committee in bi-partisan fashion, by a 16-3 vote in the 108thCongress and again in 2006 by a voice vote without dissent as an amendment to thecomprehensive immigration reform bill. On October 24, 2007, in a 52-44 vote in theSenate, the DREAM Act fell just 8 votes shy of the 60 votes necessary to proceed withdebate on the bill.The DREAM Act has enjoyed the support of President Obama, former Secretary ofstate General Colin Powell, leadership in the House and Senate and all relevant committeechairs. Over 70% of the American public would support the passage of the DREAM Act.(See DREAM Act Poll). Mr. Li would stand to benefit if the DREAM Act were to passtomorrow.B. MR. LI IS A PERSON OF GOOD MORAL CHARACTER.Since he came to the United States in 2002, he has been law-abiding. He hasnever been arrested in the United States or abroad. He came to the United States when hewas a minor. When he overstayed his visa, he was only about 13-years old. The decisionto come to the United States and overstay their visa was not his decision at all. He wasordered removed when he was only 14-years old. He was about 15-years old when theBoard of Immigration Appeals dismissed his and his family’s appeal. He was not awarethat he was placed in deportation proceedings. Neither his mother or his father informedhim that he had a final order of removal. He did not realize that he was a fugitive until ICEofficers came to his home on September 15, 2010. As such, he should not be punishedfor his parent’s wrongdoing as he was an unwilling participant in all of his immigrationmatters. Because he has no criminal past or immigration violations that are attributable tohim, he is not likely to violate the laws of the United States.C. LENGTHY RESIDENCE IN THE UNITED STATES.Mr. Li has been living in the United States for the past eight years. Since hisdeparture from Peru, in 2002, he has not returned to Peru. He does not have permanentresidence or citizenship in a third country. While Peru considers him to be their citizenand/or national, he does not consider Peru to be his “home.” He has no immediate orextended family members in Peru. His mother and father are Chinese citizens. If hisparents are eventually deported, the United States would deport them back to the countrythey came from which is China. His parents at one time had temporary residence in Peru,but that is no longer the case. Mr. Li’s paternal grandparents had at one time lived in Peru,but his grandmother has returned to China and his grandfather died in Lima. He left Peruwhen he was only 12-years old. While he speaks fluent Spanish, he does not believe thathe has a future in Peru. He would be homeless upon arrival. His family cannot immigrateto Peru without the proper legal documents. Currently, his parents cannot go to Peru inanticipation of his deportation, because they are on the ISAP program.D. HE HAS STRONG COMMUNITY SUPPORT.Since news of his ICE detention went public, his former professors and classmateshave been emailing letters of support to the Asian Law Caucus. Counsel has attached allof these letters to the application for deferred action.50

E. PROVIDNG SAFE HARBOR FOR MR. LI WOULD BE IN THE PUBLIC INTEREST.It is in the interest of justice not to deport Mr. Li. He is only 20-years old, and heshould not be penalized for his parents’ decisions to come to the United States, overstaytheir visa and remain in the United States despite their deportation order. Mr. Li is a brightand intelligent young man with strong community support. Mr. Li is DREAM Act eligible,and is one of many DREAM Act students who came to the United States as a minor.These young people have garnered wide spread support from individuals including U.C.Berkeley Chancellor Robert Birgeneau; Stanford University President John L. Hennessy;and a small group of University Presidents including Eastern Washington University;Northern Virginia Community College; the University of California at Berkeley, and theUniversity of Houston-Downtown. (See copies of DREAM Act Supporters and Lettersfrom University Presidents). Arne Duncan, the Secretary of Education, have openlysupported the DREAM Act. It would be in the public interest to grant Mr. Li his deferredaction request.Date: October 21, 2010San Francisco, CASincerely,________________________Sin Yen Ling, Esq.Asian Law Caucus55 Columbus AvenueSan Francisco, CA 94111Phone: 415-896-1701 x110Fax: 415-896-1702Email: sinyenL@asianlawcaucus.orgEVIDENCE IN SUPPORT OF SHING MA “STEVE” LI’SAPPLICATION FOR DEFERRED ACTION(1) Copy of Shing Ma Li’s Peruvian passport and U.S. visa;(pgs.1-9)(2) Copy of Shing Ma Li’s City College of San Francisco Transcript;(pgs.10-11)(3) Copy of Asylum Referral Notice, March 28, 2003;(pgs.12-13)(4) Copy of Notice to Appear(s) for Shing Ma Li, ???, and ????;(pgs.14-19)(5) Copy of Immigration Judge’s Oral Decision;(pgs.20-25)(6)Copy of Board of Immigration Appeals’ Decision;(pg.26)(7) Copy of Shing Ma Li’s Diploma from George Washington High School;(pg.27)(8) Declaration of Shing Ma “Steve” Li;(pgs.28-29)(9) Letters of Support from Shing Ma Li’s classmates, professors and facultymembers;(pgs.30-74)(10) DREAM Act Poll;(pgs.75-77)(11) DREAM Act Supporters from Arne Duncan, Secretary of Education and UniversityPresidents;(pgs.78-119)51

Sample #2 Deferred Action ApplicationANDRES C. BENACHDIRECT DIAL: 202-776-7812PERSONAL FAX: 202.478.1799E-MAIL: acbenach@duanemorris.comwww.duanemorris.comDUANE MORR IS LLP505 9TH STREET, N.W., SUITE 1000 WASHINGTON, D.C. 20004-2166 PHONE:202.776.7800 FAX: 202.776.7801June 30, 2009VIA FEDEXMr. Michael D. RozosField Office DirectorImmigration & Customs EnforcementKrome SPC18201 SW 12th StMiami, FL 33194Re: Walter LARA, A88-848-500Dear Director Rozos:We write to request that Immigration & Customs Enforcement agree to grant ourclient, Mr. Walter Lara, deferred action in the United States. Mr. Lara is a twenty-threeyear old Argentine national who has resided in the United States since the age of three.On March 6, 2009, Immigration Judge Rex Ford granted Mr. Lara 120 days of voluntarydeparture in lieu of an order of removal. He must depart the U.S. on or before July 6, 2009.Unaware that he would become inadmissible for a period of ten years upon his departurefrom the United States, Walter accepted the voluntary departure, believing he could easilyreturn with a visa to the only country he has ever known. Mr. Lara has achieved so muchso young and his plight has drawn the attention of political leaders, such as Senator BillNelson, who has written ICE in support of this request, and Congresswoman CorrineBrown, who has introduced a private bill on his behalf. Mr. Lara has been featured in themedia as emblematic of the need for the DREAM Act, which would allow the U.S. to reapthe benefits of so many high -achieving foreign students like Walter by allowing them tonormalize their status in the U.S.As Senator Nelson stated in his letter, Walter Lara “came here at a very youngage, possesses a solid record of academic achievement, has a strong work ethic, andis of good character.” Walter graduated fourth in his high school class and attendedMiami Dade Honors College, where he earned a degree in computer animation in 2006.Walter has logged over 1,000 hours of community service in the Miami area. There areno negative factors in his background. Enclosed with this request is a portfolio of Walter52

Lara’s achievements and the words of his supporters. School officials, political figuresand hundreds of everyday Americans have come forward to ask that this remarkableyoung man be given the chance to fulfill his promise in the U.S. and offer his talents to thecountry that has supported him.Deferred action has long been available to ICE to remedy unduly harsh resultscaused bystrict enforcement of the immigration law. It vests the Field Office Directorwith the power not to seek the removal of removable aliens. Historically, the Director isto take into account the following factors: (1) the likelihood of removal; (2) the presenceof sympathetic factors; (3) the likelihood that because of sympathetic factors, a largeamount of adverse publicity will be generated; (4) whether the person’s presence in theU.S. is desired by law enforcem ent; and (5) whether the individual is a member of aclass of deportable aliens whose removal has been given high enforcement priority. SeeStandard Operating Procedures for Enforcement Officers: Arrest,Detention, Processingand Removal (Standard Operating Procedures), Part X.; Meissner, Comm., Memo, HQOPP50/4 (November 17, 2000).Mr. Lara seeks deferred action for a limited period of time to give Congress timeto acton the DREAM Act. If such relief is not forthcoming, Mr. Lara will depart the U.S.,so ICE can be assured that Mr. Lara will either receive immigration benefits or will departthe U.S. Second, there are significant sympathetic factors present in this case. Mr. Laracame to the U.S. as a child, with no input into whether he should enter or not. He hasremained here and excelled in school and as a young man. He has hopes and ambitions, astrong work ethic and a solid character and desires nothing more than to be a productiveand contributing member of our society. He has no ties to his native Argentina and wouldbe cast adrift to lose the opportunity that he has made so much of in the U.S. Thesesympathetic factors are what have inspired the DREAM Act and the outpouring of publicand official support for Walter Lara. The Miami Herald, the Orlando Sentinel and variousother traditional media, notwithstanding the extensive activity in social networking sitessuch as Facebook and Twitter, have all shone a light on the injustice of removing WalterLara. Congresswoman Corrine Brown has submit ted a request for a private bill. Thispublicity could very well turn adverse if ICE were to ignore this groundswell of supportand the request of a U.S. Senator. Finally, it cannot be argued that Mr. Lara is a priority forICE. With no criminal record, no history of fraud and an entry that occurred when he wasthree years old, Mr. Lara is not among any of the classes of individuals ICE has focusedenforcement efforts on. Under the traditional criteria for deferred action, Mr. Lara presentsan undeniably compelling case for a favorable exercise of discretion.Recently, the use of deferred action for sympathetic classes of removablealiens, such as certain widows of U.S. citizens has demonstrated that the Departmentof Homeland Security recognizes that deferred action is an appropriate tool to remedyunjust situations and to give Congress an opportunity to act. DHS’s recent directivegrants widows and children of U.S. citizens two years of deferred action, with minimalindividualized evaluation. See Memorandum, “Guidance Regarding Surviving Spouses ofDeceased U.S. Citizens and Their Children,” Donald Neufeld, Acting Associate Director,Office of Domestic Operations, June 15, 2009. This reprieve emphasizes the Department’sefforts to balance “strong enforcement practices with common - sense, practical solutionsto complicated issues.” See “DHS Establishes Interim Relief for Widows of U.S. Citizens,”June 9, 2009. Without interim relief, these widows would be denied the opportunity toremain in the U.S. while a solution to the gap in the law is addressed. It is important tonote that at the time that deferred action was offered to the widows, no legislation hadbeen introduced to amend the law that permits their removal. In addition, the widow53

policy acknowledges and responds to humanitarian concerns raised in the complicatedcases of those living in the U.S. for a long time U.S. and whose removal would be certainwithout an interim relief to resolve their legal status.The case for prosecutorial discretion for Walter Lara is at least as compellingas the new policy for widows. Without deferred action, Mr. Lara faces the same fatethat Secretary Napolitano’s policy for widows attempts to address. He will be denied anopportunity to remain in the country that has become his home. Moreover, Congressis certainly aware of and in the process of seeking to remedy the situation faced byindividuals like Mr. Lara through the DREAM Act. In the Senate, the DREAM Act has 22cosponsors and the House version has 70 cosponsors.The DREAM Act would provide a form of relief for students like Walter Lara, whowould be eligible for the DREAM Act in its legislative form. His removal would have tragicconsequences by making him ineligible for the benefits of this legislation, which has a verygood possibility of being enacted in this session of Congress. In addition, Walter’s removalwould cause America to lose a vital asset: an educated and promising student whohas demonstrated a commitment to hard work and a strong desire to be a contributingmember of society. Walter Lara’s case illustrates the compelling need for DHS to exercisefavorable prosecutorial discretion and grant him deferred action. Senator Nelson, acosponsor of the DREAM Act, explains that Mr. Lara is exactly the type of student thatthe sponsors of the legislation had in mind when proposing the DREAM Act. Stating that“Walter is exactly the kind of person the DREAM Act is intended to help,” Senator Nelsonhas asked ICE to defer any action against Mr. Lara until the DREAM Act is considered byCongress.A grant of deferred action for Walter Lara would be consistent with theadministration’s support for the DREAM Act. President Obama voted for the DREAMAct as a Senator and supported it on the campaign trail. In confirmation hearings,Secretary Napolitano re iterated her support for the legislation. Their support recognizesthat ICE can better serve its mission of protecting the homeland from security and lawenforcement threats if it did not need to remove young people like Walter Lara.It is likely that the Congress will act on the DREAM Act in this legislative session,which runs through October 2010. A grant of deferred action for this period will allowMr. Lara to participate in the debate and serve as an example of what this legislation wasmeant to ac hieve. If Congress passes, the DREAM Act, Mr. Lara would be eligible to seekbenefits. If not, Mr. Lara will have been given the opportunity to complete his bachelor’sdegree and will voluntarily depart the U.S.We thank you for your attention to this matter. Please let us know if you have anyquestions.Sincerely yours,Andres C. BenachPartnerACBcc: Walter LaraSenator Bill NelsonCongresswoman Corrine BrownAssistant Secretary for Homeland Security John T. Morton54

Sample Media Advisories/StatementsSample Media Advisory:Media advisories should be sent ideally 3-5 business days prior to your event, they are differentfrom a press statement which is usually sent after an event or important announcement.MEDIA ADVISORYFor Immediate Release, Wednesday Nov. 3Contact: Your Name, Organization, Cell PhoneCCSF STUDENT SET FOR DEPORTATION; FRIENDS, EDUCATORS URGE CASENATORS TO INTERVENESupporters of Jane Doe gather to mark her 50th day in detention, plea for Senator Boxer andFeinstein to take immediate action to halt her deportation and enact lasting reformWhat: News conference and rally to urge Senator Boxer and Feinstein to interveneand halt the deportation of Jane Doe, a 20 year old CCSF student set for immediatedeportation to Peru any day now. As community members and educators mark Jane’s50th day in detention, they are calling upon the Senators to introduce a “private bill”so that Jane can stay in San Francisco and continue to pursue her dream of becoming anurse.When: Noon, Friday, November 5th 2010Where: Ram Plaza (by Student Union) CCSF Ocean Campus, 50 Phelan Ave. SanFrancisco, CA 94112Who: Confirmed speakers are Educational Board of Trustee, Co-director of SummerScience Institute at SFSU, Jane’s teacher and mentor, and Jane’s friend; more speakers tobe confirmed.Media Visuals: Students holding colorful signs and bannersBackground: Supporters throughout the state are mobilizing to stop the deportationof Jane Doe, a 20 year old CCSF student who has lived in California since 2002. “I wasstudying to be a nurse so that one day I can work in the San Francisco community andnow I’m in an immigration detention center in Arizona, it’s unreal how fast things change”,says Jane. There has been a broad coalition of educators and students advocating to halther deportation. In less than a week, over 2,000 people have sent letters to both SenatorFeinstein and Boxer but neither have stepped in to help Jane.On September 15, Immigration Customs and Enforcement (ICE) raided Jane’s SanFrancisco home and arrested her. Jane is ethnically Chinese but was born in Peru as herparents fled political persecution from China. Five years ago, Jane’s family was deniedpolitical asylum from China and issued a removal order. However, Jane was not aware ofher immigration situation until her home was raided. Advocates and community memberssee Jane’s case as a prime example of how the nation’s dysfunctional immigration systemtears up families and targets contributing members of society.Her arrest was just a week before Congress failed to vote on the DREAM Act, awidely supported common sense bill that would provide a pathway to legalization toundocumented students who’ve grown up in the US and attend two years of college or55

serve two years of the military in which Jane and thousands of other Bay Area studentswould directly benefit from. “It’s critical to pass the DREAM Act before the newCongressional session, but Jane literally cannot wait and is set for deportation any daynow. That’s why we need our Senators’ leadership today,” says Sin Yen Ling, senior staffattorney at the Asian Law Caucus and also Jane’s legal representation.###56

Sample Media Advisory (2)Media AdvisoryFor Immediate ReleaseContact: Your Name, Organization, Cell Phone20-year Old CCSF Nursing Student Scheduled for Deportation MondayAnguished family and friends plea for 11th-hour interventionWhat: Lawyer Sin Yen Ling has learned from credible source that ICE plans to deportJane Doe, a 20 year old nursing student on Monday November 15, 2010. In response,supporters will stage a news conference and rally to urge Senator Boxer to sponsor a“private bill”, a last ditch effort to halt Jane’s deportation.When: Noon, Friday, November 12th 2010Where: Senator Boxer’s Office, 1700 Montgomery St, San Francisco 94111Who: Jane’s mother, District Supervisor, Jane’s teacher and mentor, Jane’s friend, and SinYen Ling, Jane’s legal counsel. More speakers to be confirmed.Media Visuals: Students holding colorful posters and banners, dressed in nursing scrubsand caps and gownsBackground: After weeks of statewide mobilization efforts to stop the deportation of JaneDoe, her legal counsel, Sin Yen Ling has learned from a credible source that ICE plans todeport Jane on Monday November 15, 2010.“Despite the possibility of a DREAM Act vote in the lame-duck session, ICE is once againacting as a rogue institution and plans to deport a young bright student,” says Ling.“Jane was the type of student teachers love having in their classroom, she aspired tobe a nurse and serve low income communities in San Francisco,” says Jane’s teacherand mentor. Before Jane’s arrest, she was preparing to transfer to San Francisco StateUniversity and finish her nursing degree in order to pursue her dreams in health education.“Jane is just as American as I am, we listen to the same music, eat the same food, speakthe same language,” says Jane’s friend. “It’s senseless to deport her back to Peru whereshe will be homeless upon arrival”, continues Jane’s friend.On September 15, Immigration Customs and Enforcement (ICE) raided Jane Doe’s SanFrancisco home and arrested her. Jane is ethnically Chinese but was born in Peru as herparents fled political persecution from China. Five years ago, Jane’s family was deniedpolitical asylum from China and issued a removal order. However, Jane was not aware ofher immigration situation until her home was raided. Advocates and community memberssee Jane’s case as a prime example of how the nation’s dysfunctional immigration systemtears up families and targets contributing members of society.Her arrest was just a week before Congress failed to vote on the DREAM Act, awidely supported common sense bill that would provide a pathway to legalization toundocumented students who’ve grown up in the US and attend two years of college orserve two years of the military in which Jane and thousands of other Bay Area studentswould directly benefit from.###57

Sample Press Statement:Press Statements should be sent after an important rally or used to make an importantannoucementFor Immediate ReleaseNovember 10, 2010Contact: Your Name, Organization, Cell PhoneSF Board of Supes, Board of Education Both Decry Immigration Detainment of CCSFStudentAs popular student still faces devastating deportation to Peru, Anguished supporters plan vigilnext weekSAN FRANCISCO – Yesterday, the San Francisco Board of Supervisors and Board ofEducation overwhelmingly passed resolutions denouncing the planned deportation ofJane Doe, a 20 year old City College nursing student who has been living in the U.S. since2002. Both Boards called for the immediate release of Jane and urged California SenatorsFeinstein and Boxer to intervene and halt her deportation.“Jane’s detention deprives our community of the best and the brightest and serves as anexample of why we need to pass the federal DREAM Act immediately,” said SupervisorMar, the sponsor of Tuesday’s resolution. After hearing from friends and teachers of Jane,the San Francisco Board of Supervisors unanimously denounced her deportation. A groupof twenty five of Jane’s supporters enthusiastically cheered after the Board vote of 11-0.“The deportation of Jane is fundamentally an issue about equal access to education;our ICE officials would rather deport young smart students then let them pursue highereducation,” said a teacher and mentor of Jane at the Board of Education vote.“These resolutions send a clear message that there is broad support for Jane,” noted SinYen Ling, senior staff attorney at the Asian Law Caucus and Jane’s legal counsel. “We haveyet to get a response from either Senator Feinstein or Boxer and it’s actions like these thatwill make sure our voices are heard,” added Ling.Organizers around Jane’s case are gearing up towards a candlelight vigil on WednesdayNovember 17th at 4:30PM in front of Senator Feinstein’s office.DREAM Act is a bi-partisan legislation that would allow undocumented students thatarrived before the age of 16 a pathway to legalization if they either attend two years ofcommunity college or serve two years of the military.Text of resolutions available upon request.58

MAXIMIZING YOUR MEDIA IMPACT:Lessons from the Steve Li CaseBy Jon Rodney, California Immigrant Policy Center and Lisa Chen,Asian Law CaucusA. Thinking strategically»»Always take some time to think through your GAME (Goals, Audience, Messages,Engagement) Plan.»»Goals: What concrete, measurable outcomes are you fighting for? Your overall planshould guide your media work, not the other way around.»»Audiences: Who do you need to influence to get what you what? What motivates thosedecision-makers and their constituents? What values do you share with them?»»Messages: Appeal to common values (eg: community, common humanity), emphasizesolutions, and highlight how this directly impacts the audience (eg, the tremendouscontributions DREAMers can make to society)»»Sharing DREAMers’ stories: Why are you called to speak out? How have the challengesyou’ve faced shaped your life? What are your dreams for the future?B. Framing your story for maximum impact: what can we learn from the Steve Licampaign?1. What happened? This fall, community groups in San Francisco stopped thedeportation of Steve Li, a 20-year old DREAMer and nursing student who has livedin the US for nearly 10 years. Along with legal advocacy and community organizing, acommunications strategy was an essential component to this victory. The Asian LawCaucus, with media relations assistance from the California Immigrant Policy Center,worked in partnership with Steve’s friends, educators, and other community groups toshare Steve’s powerful story with Bay Area audiences. (Social media also helped get theword out - a Facebook page set up by Steve’s friends reached 7,000 supporters.) Afteran outpouring of sympathetic news coverage, California Senator Dianne Feinstein wasmoved to action and introduced a private bill on Steve’s behalf. Steve has since becomeone of the area’s leading voices for immigrant rights.2. “Solutions, values, community” narrative. Once private legal and political avenuesappeared to be exhausted, advocates and supporters decided to “go public” withSteve’s case. Advocates worked closely with community supporters to craft a narrativethat focused on Steve’s values and his desire to contribute to society, and that pointedto systematic reforms like the DREAM Act as important solutions to a dysfunctionalimmigration system. Advocates made a conscious decision to keep the story away froma “personal responsibility, it’s not Steve’s fault” narrative. The chart below highlightssome key framing decisions.59

Ingredients tosuccessPromote positivecharacterizationsActivate values:contributions and serviceto communityActivate values: deepconnection to this countryExpose the harmfulconsequences ofdeportation, on societyand the individual.Promote solutionsWhat did Steve’s supporters do?Rather than let Steve be characterized as an“illegal” (sic) immigrant, supporters repeatedlyreferred to Steve as a “20-year old nursingstudent.”Advocates highlighted Steve’s talent anddesire to contribute back to society byidentifying and repeating a specific example- Steve’s dream of opening a clinic for lowincomeSan Franciscans.As seen above, supporters also emphasizedthat Steve had grown up in the US, and wasAmerican in all but paperwork.Supporters cast Steve’s deportation as apainful loss for society as a whole.Friends and family also used vivid languageto drive home the devastating impact ofdeportation to country where Steve knew noone.In addition to advocating for immediate relieffor Steve, supporters also used the case toemphasize the need for larger solutions. Keyelected officials echoed this approach.What did the press report?“Li is a 20-year-old nursing student atCity College..” (NPR affiliate KQED Radio,11/12/10)“Li, who speaks Cantonese, English,French, and Spanish, grew up recitingthe Pledge of Allegiance and dreamsof opening a clinic to serve low-incomeSan Franciscans.” (SF Bay Guardian,11/30/10.)“Steve is just as American as I am, welisten to the same music, eat the samefood, speak the same language,” (FriendM. Luu in wire piece featured by 5 TVstations.)I think it’s really upsetting that someonewho is goal-oriented and an asset to thecommunity is going to be taken from hisfamily and flown to Peru” (Friend T. Coneyto the AP, 11/12/10)“He has no suitcase, no clothes, justthe clothes on his back the day he wasarrested. No relatives, no friends,” (Steve’slawyer Sin Yen Ling to Contra Costa Times,re-run by Yahoo! News, 11/12/10).“Speaker Pelosi believes that SteveLi’s case is a textbook example ofthe pressing need for comprehensiveimmigration reform and passage of theDREAM Act.” (Spokesperson DrewHammil to Associated Press, 11/12/10.)60

3. Managing interviews: Don’t be afraid to “pivot”away from tough questions. When Steve’s supporterslearned that they did not need to directly answer allof a reporter’s questions, but rather could essentiallyrespond with our message, many felt empowered. Thishelped keep quotes “on message.” Useful phrases:»»Before we continue, let me emphasize that…»»If there’s one thing the public needs to understand…»»What really matters is…4. Look for spokespeople who will move your audience.»»Steve managed to give several moving interviews fromprison.»»Educators, friends, elected officials: Steve’s educatorsand close friends gave moving testimony; local electedofficials’ interest help draw more attention to the case»»Family members can be powerful spokespeople,but advocates also served as a buffer to respectthe wishes of the family to not speak to multiplepress outlets. Additionally, note that parents mayface difficult questions like “why did you come hereillegally?”5. Pitching a “story with legs.” Supporters used anescalating series of events - each with a different newshook - to raise media attention. This approach caughtthe attention of local reporters and news editors, whowere drawn to Steve’s “developing” story. “Hooks” thathelped keep Steve’s case in the news included:»»Breaking stereotypes: October. The unexpected/unusual situation of a young man of Chinese heritagefacing deportation to his native Peru helped drum upinitial press interest.»»Commemorating a key date: November 5. Rally held oncampus to mark the 50th day of Steve’s detention»»Local government action: November 9: City’s Board ofSupervisors passes unanimous resolution in supportof Steve, DREAM Act»»Urgency/Human impact: November 12. After Steve’sattorney learned he was to be deported the followingMonday, supporters announced an emergency actionwith this dramatic headline: “20-year Old CCSFNursing Student Scheduled for Deportation Monday;Stunned supporters plea for 11th-hour intervention.”6. Results. With 22 media outlets attending theemergency action, the case began to reverberate“all over the news,” in the words of one blogger. Thatevening, Senators Feinstein and Boxer, and SpeakerPelosi all issued sympathetic press statements onSteve’s case for the first time. By Sunday morning,Senator Feinstein announced to an SF Chroniclereporter that she would pursue a private bill. Within aweek, Steve was home.As Steve later told the SF Chronicle: “I will never forgetthose people that I met inside [the prison] … Theirstories and faces will be with me for the rest of my life asI’m fighting for people who are law abiding, tax payingbut are currently undocumented.” Since returning to SanFrancisco, Steve has become a leading spokesperson andactivist for the DREAM Act and immigrant rights, givingdozens of media interviews to advance the cause ofimmigrant justice.61

Sample ResolutionsSample Resolution 1: Board ofSupervisors[Denouncing the Deportation of STUDENT and UrgingCongress to Pass the DREAM Act]Resolution denouncing the deportation of [STUDENT],a DREAM Act student at [SCHOOL], calling forImmigration and Customs Enforcement to grant thestudent deferred action status, and urging Congress topass the DREAM Act.WHEREAS, The Development, Relief, and Education forAlien Minors (DREAM) Act is bipartisan legislation thataddresses the situation faced by young people who werebrought to the United States years ago as undocumentedimmigrant children and who have since grown up here,stayed in school, and kept out of trouble; and,WHEREAS, Each year 65,000 United States-raisedstudents who qualify for the DREAM Act’s benefitsgraduate from high school; and,WHEREAS, ON April 21, 2010, Assistant SenateMajority Leader Dick Durbin (D-IL) and Senator RichardLugar (R-IN), asked the U.S. Department of HomelandSecurity Secretary Janet Napolitano, to halt thedeportation of immigrant students who could earn legalstatus under the DREAM Act; and,WHEREAS, The DREAM Act has the support ofthe House and Senate leadership, all of the relevantcommittee chairs, as well as our nation’s military leadersincluding the former secretary of state, General ColinPowell; and,WHEREAS, On September 15, 2010, President BarackObama, before the Congressional Hispanic Caucus,expressed his full support of the DREAM Act stating, “Iwill do whatever it takes to support the efforts to passthis bill so that I can sign it into law on behalf of studentsseeking a college education and those who wish to servein our country’s uniform. It’s the right thing to do.”; and,WHEREAS, [STUDENT] is a student at [SCHOOL] andaspires to be a teacher serving the local under-resourcedschools in her community. She graduated from [HIGHSCHOOL] where she was an [LIST ACHIEVEMENTS].She is scheduled to graduate from [SCHOOL] in Spring[YEAR]; and,WHEREAS, [STUDENT] entered the United States withher family when she was 5 years old. She and her familyoverstayed their tourist visa.WHEREAS, Last year, there was a routine check pointin Jane’s neighborhood. She was in the passenger’s seatand one of her friends was driving. Everyone was askedfor their identification. She was quickly questioned abouther legal status when she couldn’t provide an ID, thenarrested and transferred to ICE custody.WHEREAS, [STUDENT] is DREAM Act eligible, and herdeportation to South Korea should be halted; and,WHEREAS, Immigration and Customs Enforcementshould grant her application for deferred action and allowher to remain in the United States; andWHEREAS, Deporting DREAM Act children is unfairand a violation of their constitutional rights. While theimmigration system is broken, deporting immigrantchildren is not the answer; and,WHEREAS, the [DISTRICT] Board of Supervisorsrecognizes the support of the [SCHOOL] including hermentors, classmates and professors, the [COMMUNITYORGANIZATION /IMMIGRATION GROUPS]. In lessthan one week, the community has called, emailed, andwritten over 500 letters to Senator Dianne Feinstein andSpeaker Nancy Pelosi asking that they speak out againstthe deportation of [STUDENT]; now, therefore, be itRESOLVED, That unless the DREAM Act is passed inCongress, all deportation of immigrant children should bestopped; and, be itRESOLVED, That unless the DREAM Act is passed,[STUDENT] should be released from ICE custody,returned to her family, and be allowed to remain in theUnited States under the deferred action plan; and, be itFURTHER RESOLVED, that the [DISTRICT] Board ofSupervisors urges that until Congress passes the DREAMAct, and that Senator Feinstein or Senator Boxer issue aprivate bill on behalf of [STUDENT].62

Sample Resolution 2: Board ofEducationWHEREAS, The Development, Relief, and Education forAlien Minors (DREAM) Act is bipartisan legislation thataddresses the situation faced by young people who werebrought to the United States years ago as undocumentedimmigrant children and who have since grown up here,stayed in school, and kept out of trouble; and,WHEREAS, Each year 65,000 United States-raisedstudents who qualify for the DREAM Act’s benefitsgraduate from high school; and,WHEREAS, ON April 21, 2010, Assistant SenateMajority Leader Dick Durbin (D-IL) and Senator RichardLugar (R-IN), asked the U.S. Department of HomelandSecurity Secretary Janet Napolitano, to halt thedeportation of immigrant students who could earn legalstatus under the DREAM Act; and,WHEREAS, The DREAM Act has the support ofthe House and Senate leadership, all of the relevantcommittee chairs, as well as our nation’s military leadersincluding the former secretary of state, General ColinPowell; and,WHEREAS, On September 15, 2010, President BarackObama, before the Congressional Hispanic Caucus,expressed his full support of the DREAM Act stating, “Iwill do whatever it takes to support the efforts to passthis bill so that I can sign it into law on behalf of studentsseeking a college education and those who wish to servein our country’s uniform. It’s the right thing to do.”; and,WHEREAS, [STUDENT] is a student at [SCHOOL] andaspires to be a teacher serving the local under-resourcedschools in her community. She graduated from [HIGHSCHOOL] where she was an [LIST ACHIEVEMENTS].She is scheduled to graduate from [SCHOOL] in Spring[YEAR]; and,WHEREAS, [STUDENT] entered the United States withher family when she was 5 years old. She and her familyoverstayed their tourist visa.WHEREAS, Last year, there was a routine check pointin Jane’s neighborhood. She was in the passenger’s seatand one of her friends was driving. Everyone was askedfor their identification. She was quickly questioned abouther legal status when she couldn’t provide an ID, thenarrested and transferred to ICE custody.WHEREAS, [STUDENT] is DREAM Act eligible, and herdeportation to South Korea should be halted; and,WHEREAS, Immigration and Customs Enforcementshould grant her application for deferred action and allowher to remain in the United States; andWHEREAS, Deporting DREAM Act children is unfairand a violation of their constitutional rights. While theimmigration system is broken, deporting immigrantchildren is not the answer; and,WHEREAS, The community at [SCHOOL] including herformer classmates and professors, the [COMMUNITYORGANIZATION /IMMIGRATION GROUPS called,emailed, and wrote over 500 letters to Senator DianneFeinstein and Speaker Nancy Pelosi asking that theyspeak out against the deportation of [STUDENT]; now,therefore, be itRESOLVED, That until the DREAM Act is passed inCongress, all deportation of immigrant children should bestopped; and, be itRESOLVED, That until the DREAM Act is passed,[STUDENT] should be released from ICE custody,returned to her family, and be allowed to remain in theUnited States under the deferred action plan.THEREFORE, BE IT RESOLVED, that until Congresspasses the DREAM Act, and that the [STUDENT] isreleased from ICE custody and that Senator Feinsteinor Senator Boxer issue a private bill on behalf of[STUDENT].Originators: Trustee [NAME]63