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Motions To Reopen Requiring Exercise Of Prosecutorial Discretion - Should They Be Treated More Kindly Under Administration's New Policy? Filing I-130 Petitions Overseas With U.S.C.I.S. Now; Entry Without Inspection (EWI) With Inability To Immigrate May Have Solution

by Alan Lee, Esq.


On prosecutorial discretion and the Administration's August 18, 2011, decision to apply it to the 300,000 pending cases in immigration court proceedings regardless of the present stage of the cases, is this a signal that the Department of Homeland Security will now favorably entertain motions to reopen cases in which people have final orders of exclusion, deportation, or removal and new grounds of possible relief? We believe that it should be so, but that there are some real concerns that this will not happen.

Prosecutorial discretion to reopen cases has frequently been requested by aliens and their lawyers to DHS attorneys as there have been other DHS memoranda in the past encouraging its use,[1] but favorable use of discretion has generally been lacking. Responses from DHS attorneys opposing reopening almost invariably cite the long period of time the aliens took to file motions to reopen, that they presented no good reasons for ignoring the final orders in the past, and that DHS would not reopen cases just because the movants acquired new equities thereafter. But now the Administration's announcement of prosecutorial discretion standards for the nationwide 300,000 immigration court caseload gives much more importance to ICE Director John Morton's June 17, 2011, memorandum, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens." This latest memorandum spells out a set of factors to be considered by the agency's officers, agents, and attorneys, with Mr. Morton saying that the list is not exhaustive and no one factor is determinative. The list of factors is:

  1. the agency's civil immigration enforcement priorities;
  2. the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
  3. the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  4. the person's pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
  5. whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  6. the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  7. the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  8. whether the person poses a national security or public safety concern;
  9. the person's ties and contributions to the community, including family relationships;
  10. the person's ties to the home country and conditions in the country;
  11. the person's age, with particular consideration given to minors and .the elderly;
  12. whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  13. whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  14. whether the person or the person's spouse is pregnant or nursing;
  15. whether the person or the person's spouse suffers from severe mental or physical illness;
  16. whether the person's nationality renders removal unlikely;
  17. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  18. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  19. whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

There appear to be two major forces against taking the memo seriously in the reopening of cases:

A. DHS's stated position thus far.

1. DHS Secretary Janet Napolitano discouraged the immigrant communities in her talk on August 30, 2011, in a Christian Science Monitor breakfast by saying that the deportation numbers will be "very robust" under the new policy. If Secretary Napolitano was truly serious about applying the Morton memo to keep low priority cases out of the system and to review the 300,000 presently in proceedings to terminate cases of those falling within the Morton criteria, the deportation number should logically be expected to decline rather than being trumpeted as very robust in the future.

2. U.S.I.C.E. recently released an FAQ titled, "Frequently Asked Questions on the Administration's Announcement Regarding a New Process to Further Focus Immigration Enforcement Resources on High Priority Cases," in which ICE answered the question "Does the implementation of the process mean that only individuals with criminal convictions will be removed?" in the negative that "Many individuals who have violated civil immigration law but lack a criminal conviction are a DHS priority for removal from the United States ... DHS priorities include threats to public safety and national security, repeat violators of the immigration law, recently illegal border entrants, and immigration fugitives." Aliens who remain in the United States following a final order of removal are considered by ICE to be immigration fugitives. Also what is a repeat violator of the immigration law? - just the acts of entering the United States illegally or being in the United States illegally or working illegally or purchasing a false document to stay/ work are all separate violations, and these do not even include consideration of the violation of a final order of removal.

3. Recent anecdotal evidence indicates that local ICE officials are not taking the Morton memo seriously in their operations.

Here the Administration and specifically the White House must set the tone and keep its eye on the ball in ensuring that the August 18th announcement is not finally seen by immigrant communities as a grandstand play without substance. The tone of DHS on the importance and applicability of the Morton memo in recent days has turned unfavorable, and the Administration will have to do more to define the boundaries of the memo's applicability to those who have only immigration violations, and what serious immigration violations would preclude them from the August 18th proposed relief.

B. Motions to reopen may technically be seen as outside the scope of the 300,000.

1. Motions to reopen are instruments attempting to reopen final rulings. As such, the matters have generally been closed and are not within the 300,000 cases presently clogging the immigration court system. So although the Morton memo of prosecutorial discretion applies to motions to reopen, it may not do so with much force as it does not have the impetus of the Administration's August 18, 2011, commitment to having the memo's standards applied to the current deportation caseload. However, it should.

If the principal idea behind the Administration's announcement is to reduce immigration court backlogs, granting the motions of those qualifying within some of the memorandum's factors for prosecutorial discretion and then immediately terminating the court cases and sending the applications to U.S.C.I.S. to deal with the adjudications would have the effect of preventing those whose motions are denied from filing further motions and administrative/judicial appeals. Although this is not a perfect solution as some remanded cases will be denied by U.S.C.I.S. with the concomitant effect of the applicants being back in front of the immigration courts, most will not be, and the sending down of so many cases to U.S.C.I.S. within the short term would significantly reduce the immigration court backlog. In addition, remanded cases based on requests for adjustment of status to permanent residence would generate new revenues to U.S.C.I.S., which is funded by the fees that it collects.

Finally if the standards of the Morton memo are seriously applied to motions to reopen, it can be seen that many cases could be reopened and relief given. Applying the listed factors to our typical motion to reopen based on family ties, favorable factors are that the agency's civil immigration enforcement priorities are now to focus on criminal aliens rather than those with just immigration violations; that most persons filing motions to reopen will have been present in the U.S. for a lengthy period of time; do not pose a national security or public safety concern; will not have had a criminal history; will have ties to the community, including family relationships; have tenuous ties to the home country; conditions in the home country will generally be detrimental to them; they will have a U.S. citizen or permanent resident spouse, child, or parent; and be likely to be granted temporary or permanent status or other relief from removal, as a relative of a U.S. citizen or permanent resident. Unfavorable factors are that most with lengthy presence in the States will have been illegal for all or most of the period of residence; many will have sneaked in, entered with fraud, or with no documents; will not have been educated in the States; will not have served in the U.S. military or have an immediate relative in the military; will have had a final order, and may have other evidence of fraud associated with prior applications to U.S.C.I.S.

The choice is now up to the Administration as to how the August 18th announcement and Morton memo will play out. It cannot slow dance its initiative through interagency meetings and a few show samples of relief. It will have to do more, and it should realize that the slogging begins from here if it hopes to hold up a shining example of pro- immigrant accomplishment to the immigrant communities.


As you may know, the American consulates and embassies overseas no longer process I-130 petitions as of August 15, 2011, and the petitions can only be accepted at the Chicago lockbox unless there is a U.S.C.I.S. overseas office in the country of the petitioner's residence.[2] In the latter case, petitioners who reside outside the United States can either file at the Chicago lockbox or at the U.S.C.I.S. overseas office. The address of the Chicago lockbox is:

For U.S. Postal Service:

P.O. Box 804625
Chicago, Ill. 60680-4107

For Express Mail and courier deliveries:

131 South Dearborn-3rd Floor
Chicago, Ill. 60603-5517

Countries in which U.S.C.I.S. has offices are Austria, China, Cuba, Dominican Republic, El Salvador, Germany, Ghana, Greece, Guatemala, Haiti, Honduras, India, Italy, Jamaica, Jordan, Kenya, Mexico, Panama, Peru, Philippines, Russia, South Africa, South Korea, Thailand, and the United Kingdom.

A question to be determined will be the U.S.C.I.S. standard for judging who is residing overseas and eligible to submit an I-130 petition outside the U.S. The Department of State (DOS) standard was that, "To demonstrate residency in a consular district, American citizen petitioners must be able to show that they have permission to reside in the consular district and that they have been doing so continuously for least six months before filing the petition. Individuals who are in the country on a temporary basis, such as student or tourist, will not be considered to meet the residency standard."[3] It remains to be seen if U.S.C.I.S. will adhere to the DOS standard or announce another.

U.S.C.I.S. implemented the rule to stop charges by the DOS for services rendered in adjudicating I-130 forms at the embassies and consulates, pointing out that it was billed approximately $3 million by the DOS in fiscal year 2010 for its services in that regard.


A potentially more important development occasioned by the same concern of U.S.C.I.S. being billed by the DOS for services involves the filing of Form I-601s (Application for Waiver of Ground of Excludability) for aliens who are overseas. The waiver can excuse many grounds of excludability, including overstay in the States, upon a showing that the applicant's return to/remaining in the home country would cause extreme hardship to a U.S. citizen or permanent resident spouse or parent. Although overseas U.S.C.I.S. officers and not consular or embassy officers adjudicate I-601 applications, DOS charges U.S.C.I.S. to accept the filing of I-601s. In January 2011, U.S.C.I.S. began a pilot program which in April was rolled out to the locations where U.S.C.I.S. offices are co-located with consulates and embassies. Applicants now file directly with U.S.C.I.S. with the applicant first being given instructions on how to proceed after being found by a consular officer to be inadmissible including whether to submit the I-601 in person or by mail; U.S.C.I.S. performs an initial prima facie review for basics like whether the applicant was found inadmissible and were the proper boxes checked; and fees are paid locally through the Department of State. To further curtail Department of State involvement with I-601 applications, U.S.C.I.S.'s International Operations Division, Office of Policy and Strategy in a meeting in Rome on June 6, 2011, announced that beginning early in fiscal year 2012 (10/1/11-9/30/12), it will transition to having all I-601's filed in the U.S. in a lockbox, with no overseas adjudications. U.S.C.I.S. also said that it is looking at the possibility of having people file I-601's in the U.S. before the immigrant visa appointment when it transitions to the lockbox, but at this time, there has been no decision.

If U.S.C.I.S. not only allows I-601s to be filed but also adjudicated before immigrant visa appointments, such decision would allow persons who sneaked into the United States, and are eligible for immediate immigration, e.g. married to a U.S. citizen, except for that fact an opportunity to have a waiver adjudicated prior to making a decision whether to go overseas for an immigrant visa appointment. Presently the option of returning to the home country for interview for those who sneaked into the United States is unpalatable as the penalties for remaining in the U.S. illegally for 180 days and one year are 3 and 10 year bars against returning respectively. In the current process, an applicant who wishes to be processed overseas must first be denied an immigrant visa by the American consulate or embassy and then file a waiver application and hope that it will be approved so that the applicant does not have to spend 3 or 10 years overseas. In the event that U.S.C.I.S. adopts the policy and if the visa applicant's I-601 is granted, he/she would basically be in the same position as any other person having a consular interview as there would be no bar to returning to the U.S. assuming that he/she was not subject to other grounds of excludability.


1 See memoranda, "Exercising Prosecutorial Discretion", Doris Meissner, Commissioner, INS (11/17/00); "Prosecutorial Discretion", William J. Howard, Principal Legal Adviser (10/24/05); "Prosecutorial and Custody Discretion, Julie L. Myers, Assistant Secretary U.S. ICE (11/7/07).

2 The U.S.C.I.S. Field Office Director with jurisdiction over the consular or embassy location can, however, still authorize DOS to adjudicate an I-130 petition that is clearly approvable in exceptional circumstances such as military and medical emergencies, threats to personal safety, and where cases are close to aging out, the petitioner has recently naturalized, and involving the adoption of a child.

3 U.S. Department of State Media Note, "Consular Offices Abroad Resume Accepting I-130 Immigrant Visa Petitions," March 21, 2007.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. 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 Interpreter Releases, Immigration Daily, and 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 Bush Administration in the Intelligence Reform Act of 2004.

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