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.
- National Security – A noncitizen who has engaged in or is suspected of terrorism or espionage.
- 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.
- 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.
