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Apparent Public Misunderstanding Of The Scope Of USICE Memorandum On Expediting Petitions And Applications And Dismissing Removal Proceedings

by Alan Lee, Esq.

From the volume of calls that we have received recently concerning Assistant U.S.I.C.E. Secretary John Morton's August 20, 2010, memorandum, "Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions", it is apparent that many people have the mistaken impression that U.S.I.C.E. (United States Immigration and Customs Enforcement or "ICE") is giving many previously non-adjustable aliens the ability to adjust status to permanent residence in the U.S.. Also that persons with prior orders of exclusion, deportation, or removal can benefit from the memo. These impressions unfortunately are not borne out from a close reading of the memo, which appears to address two major points.

The first is a move to expedite adjudications of applications or petitions for persons under removal proceedings which-when adjudicated-might make an alien eligible for adjustment of status. ICE states that it is ready to ask the U.S.C.I.S. (United States Citizenship and Immigration Services or "CIS") to expedite petitions and applications if the approval of such will allow an immediate basis for relief to the alien. The goal is to expedite adjudications for detained aliens referred by ICE to U.S.C.I.S. within 30 days, and for non-detained aliens to within 45 days. While some may believe that ICE is now showing concern to aliens, the agency itself attributes its wish to expedite based on its historical perspective that pending I-130 petitions before U.S.C.I.S. tend to promote delays in removal proceedings and that the new policy will promote increased docket efficiency. This of course means that ICE is hoping that immigration hearings will speed up and take much less time for all aliens.

The second purpose is to assist aliens who have such applications or petitions and are in removal proceedings from being further detained in immigration detention centers and to stop proceedings for aliens who are not detained. For detained aliens for whom such an application or petition exists, ICE Chief Counsels can "dismiss" removal proceedings without prejudice and then work with the ICE field office director to release the alien if ICE determines as a matter of law and in the exercise of discretion that the alien is eligible for relief from removal. Adverse factors will include criminal convictions, evidence of fraud or other criminal misconduct, national security and public safety considerations. For non-detained aliens where ICE determines in its exercise of discretion that the alien appears eligible for relief from removal, it should promptly move to "dismiss" the proceedings without prejudice. While this is a great boon to qualifying aliens, ICE appears to be more concerned with avoiding "expenditure of resources" and promoting "the efficient use of government resources." Release from detention or making a decision not to go forward with non-detained cases before the immigration court frees up more government attorneys and immigration judges for other cases along with more bedspace in immigration detention centers for other types of detainees.

The standard to qualify for this type of relief is that the alien is eligible to file an I-485 application to adjust status in the United States. It would not be available for individuals without the ability to adjust status, e.g -aliens who sneaked into the country and did not have Section 245(i) eligibility or those with non-waivable grounds of inadmissibility. The reference to I-130 relative petitions and I-485 adjustment of status applications in the memo seems to make it clear that the policy only applies to I-485 adjustment of status situations where a person is fully eligible at the present time once the petition or application is approved. Aliens who can submit political asylum, withholding of removal, cancellation of removal, or other types of applications are not covered under the memo's express language. Also by the memo's wording that where no investigations or serious adverse factors exist, the OCC (Office of the Chief Counsel) should move to "dismiss" the proceedings, it appears obvious that the memo was not intended to "reopen" proceedings in the past during which an alien received an unfavorable final order from an immigration court.

Although ICE can of course decide to expand the benefits of the memorandum beyond the above class, the memo at present seems fairly specific on who can benefit and under what circumstances. Readers are urged to see the memo for what it is - a step in the right direction regardless of ICE motive - and not the panacea for a multitude of other situations.

2010 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.