Last Friday, the principal legal advisor of Immigration and Customs Enforcement (ICE) released new written guidance that many immigrants and their advocates have been waiting for.  This article focuses on the major changes that will affect immigrants.

Under the Trump administration, effectively anyone encountered by ICE was considered a priority for enforcement and removal. In February 2021 an ICE memorandum identified three categories of cases that should be enforcement and removal priorities for ICE personnel.

1. National Security – A noncitizen who has engaged in or is suspected of terrorism or espionage. 
2. Border Security – A noncitizen who was apprehended at the border or a port of entry while attempting to unlawfully enter the United States on or after November 1, 2020. 
3. Public Safety – A noncitizen who has been convicted of an “aggravated felon” as defined in the Immigration and Nationality Act (INA) section 101(a)(43), or who has been convicted of an offense for which an element was active participation in a criminal gang, as defined in 18 U.S.C. section 521(a), or who is not younger than 16 years of age and intentionally participated in an organized criminal gang and is determined to pose a threat to public safety. *
   
   

*This change regarding the third category is very significant.  Many immigrants have been convicted of crimes that were a long time ago, perhaps over 20 years ago, but are persons who have not been arrested thereafter.  The fact that persons can demonstrate that they are not a current threat to public safety despite the prior criminal history is a welcome and humane change from all prior practice.

One of the most exciting (and arguably, important) benefits of the Biden administration’s policy changes and this memoranda in particular comes in the form of reinstating Prosecutorial Discretion (PD). PD gives an agency official authority to decide how to enforce, and whether or not to enforce, the law against an individual. PD is beneficial not only for noncitizens but for the government as well because it allows ICE’s limited resources to be expended on priority cases.  PD is something that for all practical purposes was eliminated for the past four years.  However, PD has been expanded in 2021 beyond what it ever was.

PD is now expected to be exercised at all stages of the enforcement process. For example, ICE agents can now choose not to issue a Notice to Appear (NTA).  An NTA is the document that puts immigrants in removal proceedings before the Immigration Court. This memo indicates that, under the right circumstances, people who are not amongst the three priorities listed above (national security, border security, public security) should not be before an immigration judge. 

One of the most important ways that PD will benefit people before the Immigration Court is via administrative closure. Former President Trump’s Attorney General eliminated administrative closure.  This memorandum clearly states that administrative closure is lawful and will be utilized in a number of situations.  Perhaps most significantly, the memo notes that it should be used when a noncitizen qualifies for a provisional waiver of unlawful presence.

However, the memorandum notes that removal proceedings should be dismissed without prejudice for many people.  This includes people likely to be granted temporary or permanent relief.  An example of temporary relief is TPS (Temporary Protected Status).  Examples of permanent relief are those who clearly qualify for permanent residence via an approved family-based petition or Special Immigrant Juvenile (SIJ) application.  Administrative closure also allows for the dismissal of removal proceedings for “compelling humanitarian factors” in a variety of situations.  Two of many examples are for health reasons and having entered the United States as a young child.  Though there are other scenarios where ICE will dismiss removal proceedings, these are the most common scenarios.

Another welcome change is that ICE will now often agree to Joint Motions to Reopen.  Over my 25 years of practicing immigration law, this was a common practice in all prior Presidential administrations, though some administrations were stricter than others.  However, for all practical purposes, ICE refused to join in any motions to reopen under the Trump administration.  Joint Motions to Reopen are used for people with removal/deportation orders who now qualify for relief.  Our office has successfully reopened removal/deportation orders for countless clients after demonstrating not only that they qualify for relief, but that the immigrant is deserving of the relief in the exercise of discretion.

Similarly, if an immigrant with an outstanding removal (or deportation) order is apprehended by ICE, noncitizens can have their attorney ask for a stay of removal allowing the person to remain above by demonstrating that the immigrant is not amongst the three priorities listed above.  Our office has successfully helped many clients be released from ICE custody by demonstrating that the immigrant is deserving of the relief in the exercise of discretion.

It is important that you retain an attorney who specializes in immigration law to help guide you through this complex process, but this process now has more likelihood of success.  Speed in retaining an attorney will sometimes be important, particularly when someone has been apprehended and (a) ICE is deciding whether to place the immigrant before the Immigration Court or (b) when the immigrant has a final order of removal. 

Judge clears release of LI immigrant detained after stop for broken headlight

CENTRAL ISLIP, Long Island (WABC) — An undocumented immigrant jailed and separated from his wife and two children for several months will be reunited with his family after a judge agreed to release him on bail. [Read more…]

On June 21, 2018, the Supreme Court of the United States issued a decision that will allow many, if not most immigrants who were issued (deportation) removal orders by the Immigration Court to apply to have their removal orders reopened and to have proceedings before the court terminated.

For the past 21 years, every person who has been placed into proceedings before the Immigration Court has been placed into proceedings by being served a paper called a “Notice to Appear.”  (Previously the document was called an “Order to Show Cause.”)   The Notice to Appear (and the Order to Show Cause beforehand) is the document served by the Department of Homeland Security on the immigrant that will state why the person should be removed from the country.  It will allege, for example, the country of origin, that the person is not lawfully present in the United States, if the person entered with a visa or without inspection, and often the date of the person’s entry into the United States.   [Read more…]

This past Friday, U.S. Citizenship and Immigration Services (USCIS) announced a final rule expanding the existing provisional waiver process to allow all persons who statutorily qualify for the waiver to apply. This expansion of the rule will take place beginning on August 29, 2016.

The expansion of the provisional waiver process applies to anyone else who did not qualify for permanent residence in the United States because they are currently out of status and are not immediate relatives. Effective August 29, 2016 people will be eligible to apply so long as they have an application for relief where the priority date is current, such as a family based or employment based petition, and they have a qualifying family member for the purpose of filing for a waiver. A few common examples of people who qualify for waivers are as follows. (1) marriage to a lawful permanent resident (LPR). First, the LPR spouse is the petitioner. When the priority date is current, she can also be the qualifying relative for the waiver. (2) US Citizen sibling files petition. When the priority date of the petition becomes current, the immigrant will need a qualifying relative to be eligible to apply for the provisional waiver; a US Citizen or a lawful permanent resident who is either a parent or spouse. (3) Employer files labor certification and subsequently a petition with US Citizenship and Immigration Services. When the priority date becomes current, the immigrant will need a qualifying relative to be eligible to apply for the provisional waiver; a US Citizen or a lawful permanent resident who is either a parent or spouse.

The “Decision” of the Supreme Court and the Future of the Programs

On Thursday the Supreme Court finally decided, or failed to decide, the case U.S. v. Texas. Specifically, the eight justices were split four-four. Because the lower courts blocked the federal government from implementing the two programs [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA+)], the four-four deadlock means that, at least for the time being, the programs will remain blocked.

However, it is entirely possible, if not likely, the case will return to the Supreme Court in the fall of 2017 or, more likely, the spring of 2018. It is expected that a ninth justice will be added to the Supreme Court in the first half of 2017. If Hillary Clinton is the next President of the United States, she is expected to have her administration ask for a rehearing on the subject once the ninth justice is confirmed.

Please remember that this ruling does not affect those who are eligible for the DACA program that was announced on June 15, 2012. Anyone who has DACA currently will be able to maintain DACA, until the program is revoked either by the Supreme Court or a future President. (Donald Trump has said that if he is elected President he would cancel the program.)

Finally please be advised that this decision does not affect the enforcement priorities laid out by the Department of Homeland Security. Thus, if you qualify for DACA+ or DAPA, you are not an enforcement priority and you should not be targeted for enforcement.