Fox falsely reports that new ICE policy gives unauthorized immigrants “free pass” if they “don't have a criminal record”

Fox & Friends mischaracterizes new policy: "[T]hey're not going to" deport people “if you don't have a criminal record.” On the August 26 edition of Fox News' Fox & Friends, guest-host Alisyn Camarota falsely suggested that the new policy means “that if it is a noncriminal case, a nonfelony case,” the case will be dismissed “rather than moving forward with deportation.” Co-host Steve Doocy also falsely claimed that “if a person does not have a criminal record and has been in this country two years or longer, essentially they get to stay and are not deported.” Doocy also said:

DOOCY: It looks like this could be a backdoor way toward amnesty for thousands of people. But what is ultimately the message here? Hey come on in, come on in, live in the country illegally because even if you are arrested, and the threat of deportation -- they're not going to do it if you don't have a criminal record.

Gregg Jarrett falsely suggests “only illegals who are terrorists, or murderers, or criminals will be prosecuted and deported.” During the August 26 edition of Fox News' America Live, correspondent Gregg Jarrett falsely suggested that the new policy means “only illegals who are terrorists, or murderers, or criminals will be prosecuted and deported”:

JARRETT: Meg, there is allegedly this memo from an Assistant Secretary at ICE, which sets forth this brand new rule. If you're here illegally, but you haven't committed any serious crimes, well, your deportation case may be dismissed. We haven't confirmed it, and ICE won't deny it on the record. But if true, this would appear to be de facto amnesty. Now, the Department of Homeland Security is reviewing thousands of cases, and the Houston Chronicle and a television station in Houston both reporting that DHS is moving to dismiss some cases against illegals who have no serious criminal records. So, instead of deporting illegals, as the law demands, they would get to stay here, free and clear. An immigration lawyer says he's familiar with that memo.

CURTWRIGHT: (video clip) This is going to allow the Department of Homeland Security to focus upon people who we want them to focus upon; criminals, terrorists, not family members, not people who have been here for a very long period of time.

JARRETT: Yeah, but the law doesn't say that. It doesn't say that only illegals who are terrorists, or murderers, or criminals will be prosecuted and deported. So, critics are calling this a concerted effort by the feds to circumvent the law and create a back door amnesty program. US Senator John Cornyn thinks it's wrong.

The following day, Jarrett did another report on America Live after reading the memo, which he had suggested had been unavailable the day before, and noted that it is limited to those with pending applications with USCIS. According to the ICE website, the memo has been posted online since at least August 24.

Kelly forwards claim that government is “going to pursue only the criminals.” During the August 26 edition of Fox News' America Live, host Megyn Kelly stated: “There are brand new developments right now on claims that the Immigration and Customs Department is starting to grant amnesty--right now--to thousands of illegals who are currently facing possible deportation.” Kelly also said, “The allegation today, which is new, is those cases are now being dropped, because ICE has chosen not to pursue them and instead is going to pursue only the criminals, the so-called criminals who are in custody, right?” In a later segment, Kelly suggested that people are getting “a free pass” if they have “been here two years” and “didn't commit any crimes”:

KELLY: According to the Houston reports, all right, the Houston Chronicle and the other local TV reports down there, the deal is if you've been in the country illegally more than two years and you don't have a criminal record--these are folks who are already in custody, who had deportation cases against them--ICE is looking at it and saying, well that guy's been here two years and he didn't commit any crimes, so, he gets a free pass.

Dobbs: “This is a de facto surrender of national sovereignty.” Appearing on America Live to discuss the new policy, Lou Dobbs stated, “This is a de facto amnesty program. It is a refusal, just as John Morton, the Director of ICE said he would, to not enforce laws, immigration laws, but to do so only selectively and in his judgment as to what is appropriate. This is, I'm afraid, more than de facto amnesty, this is a de facto surrender of national sovereignty. It should be truly troubling to every American citizen.”

In fact, policy applies to those likely to have visa applications approved, not all non-criminal unauthorized immigrants

New policy designed to improve efficiency of removal system. An August 20 Immigrations and Customs Enforcement memo, outlines a new policy designed “to address a major inefficiency in present practice and thereby avoid unnecessary delay and expenditure of resources.” The memo states that when an unauthorized immigrant has a pending petition with U.S. Citizenship and Immigration Services for legal status, “this fact tended to promote delays in removal proceedings.” This is because immigration court judges will postpone court dates if USCIS has not made a decision on the pending application and once the visa is granted by U.S. Citizen and Immigration services (USCIS), the judge will rule against deportation, a DHS official contacted by Media Matters said. The policy is designed to help the government avoid spending extra resources on cases that were never going to end in deportation anyway and instead hasten the removal of those who could pose a danger to public safety, according to the official.

Policy directs ICE attorneys to dismiss cases for certain individuals who will probably be permitted to stay in the U.S. The memo states that cases should be dismissed if “there is an underlying application or petition” for legal status with USCIS and ICE determines that they “appear eligible for relief for removal.” The memo provides the following standards for dismissal:

Only removal cases that meet the following criteria will be considered for dismissal:

• The alien must be the subject of an application or petition filed with USCIS to include a current priority date, if required, for adjustment of status;

• The alien appears eligible for relief as a matter of law and in the exercise of discretion;

• The alien must present a completed Application 10 Register Permanent Residence or Adjust Status (Form 1-485), if required; and

• The alien beneficiary must be statutorily eligible for adjustment of status (a waiver must be available for any ground of inadmissibility).

An alien in removal proceedings may appear eligible for relief but for a variety of reasons, ICE may oppose relief on the basis of discretion. In those cases, ICE should continue prosecution of the ease before EOIR regardless of whether USCIS has approved the underlying application or petition.

Those who have committed serious crimes or entered the country illegally are not eligible for green cards and would therefore not have their cases dismissed under the new policy.

AILA president: The policy “affects only people who can immigrate legally under existing laws.” David Leopold, president of the American Immigration Lawyers Association, told Media Matters that the memo “affects only foreign nationals in deportation proceedings who are the beneficiaries of immigrant visa petitions, which, when processed, will give them an immediate right to file for a green card. Stated differently, the memo affects only people who can immigrate legally under existing laws--meaning they have otherwise played by the rules and waited their turn for a visa.”

DHS official: ICE will re-file deportation case if the visa is rejected. According to a DHS official contacted by Media Matters, immigrants with pending applications for legal status who have their removal proceedings dismissed by ICE will have their deportation cases re-filed if USCIS rejects their visa application. Indeed, the memo states that the dismissals will be made “without prejudice,” meaning that ICE is free to subsequently pursue the removal case.

Policy is part of effort to expedite removal of those with criminal records. The Houston Chronicle reported that DHS is reviewing cases with pending court dates for those that could be considered for dismissal. The article stated, “Richard Rocha, an Immigration and Customs Enforcement spokesman, said Tuesday that the review is part of the agency's broader, nationwide strategy to prioritize the deportations of illegal immigrants who pose a threat to national security and public safety.” The immigration courts are currently facing a massive backlog with around 250,000 pending cases in June and an average waiting time of 459 days, according to Syracuse University's Transactional Records Access Clearinghouse.

David Leopold of AILA also stated that “this memo, if implemented across the US, could go a long way toward reducing the tremendous backlogs that plague the immigration courts, and relieving overcrowding in the vast ICE detention system. The memo represents an attempted efficient use of scarce law enforcement resources so the government can target violent criminals and terrorists.”

NY Times: Policy applies to those with “active applications in the system to become legal residents.” The New York Times reported on August 26:

Mr. Morton's memorandum refers to a particular group of illegal immigrants: those who have been detained in ICE operations because they did not have legal status, but who have active applications in the system to become legal residents. The memo encourages ICE officers and lawyers to use their authority to dismiss those cases, canceling the deportation proceedings, if they determine that the immigrants have no criminal records and stand a strong chance of having their residence applications approved.

The policy is intended to address a “major inefficiency” that has led to an unnecessary pileup of cases in the immigration courts, Mr. Morton said. The courts have reported at least 17,000 cases that could be eliminated from their docket if ICE dismissed deportations of immigrants, like those married to United States citizens, who were very likely to win legal status, the memo says.

Dismissal does not grant legal status or “amnesty.” Immigration attorneys reportedly explained that these dismissals do not “grant any form of legal status,” contrary to the claim that the action represents “amnesty,” a term conservative media frequently use to describe legislative proposals that would grant legal status to unauthorized immigrants who meet certain conditions. USCIS, not ICE, determines whether to grant the visa. The Times reported that Mary Meg McCarthy, director of the National Immigrant Justice Center, stated: “This is for people who do have a path to legalize their status ... This does not create a new path to legalization for anyone.”

DHS deporting record numbers of unauthorized immigrants

Wash. Post: “Obama administration is deporting record numbers of illegal immigrants.” The Washington Post reported on July 26 that “removals reached a record high in 2009” and “the Immigration and Customs Enforcement agency expects to deport about 400,000 people this fiscal year, nearly 10 percent above the Bush administration's 2008 total and 25 percent more than were deported in 2007.” Data from ICE show that the agency has removed more criminal immigrants from the U.S. in 2010 than any previous year: