A RECENT USCIS memo has stirred up controversy over the last few weeks, with stakeholders on both sides of the immigration debate unclear as to what exactly the agency’s new stance toward removal proceedings will mean. On August 20, 2010, the USICE Assistant Director John Morton issued a memorandum directing USCIS to expedite visa petitions affecting Respondents in removal proceedings and dismiss proceedings against certain foreign nationals who appear to be eligible for relief from removal, such as adjustment of status to lawful permanent resident. The new policy should alleviate backlogs within the Executive Office for Immigration Review (EOIR) and lighten the Immigration Judges’ dockets throughout the US.
In removal or "deportation" proceedings, a foreign national or "Respondent" may challenge the grounds of removability asserted against him, or may apply for relief from removal once removability is conceded or established. For instance, a Respondent in removal proceedings may apply for cancellation of removal, asylum, or adjustment of status to green card, if otherwise eligible. Since an application for adjustment of status generally requires that a visa petition be approved making a visa available to the Respondent, a Respondent seeking adjustment of status in immigration court must pursue the visa petition with the USCIS, which has exclusive jurisdiction over the visa petition, in order to apply for that relief with the Immigration Judge.
The sharing of jurisdiction over the Respondent’s case between the USCIS and the Immigration Judge can contribute to delays in the court case, as USCIS may take many months to approve a visa petition. The USICE issued its August 20, 2010 memorandum in order to eliminate such delays and to provide fairness in proceedings. The USICE memo noted that last year, over 17,000 removal cases had been continued in order to await the approval of visa petitions with USCIS. The Memo instructs the USCIS to issue a complementary Memo of its own to achieve this directive and to expedite the approval of visa petitions and complete adjudication within 45 days for non-detained aliens and 30 days for those detained. This new time frame will be a dramatic improvement from the past, when individuals might wait one year or more for a visa petition to be adjudicated.
Additionally, the memo calls for USICE to move to dismiss removal proceedings against individuals who appear eligible for relief, as long as there are no serious adverse factors or any ongoing investigations involving these Respondents. In these cases, the USICE District Counsel will move to dismiss the proceedings if the Respondent is the beneficiary of an application or petition filed with USCIS with a current priority date; the Respondent appears eligible for adjustment and deserving of a favorable exercise of discretion; the Respondent files the appropriate application and the Respondent is statutorily eligible for adjustment of status or for a waiver of any grounds of inadmissibility that may apply. Finally, the Memo also suggests that the USICE may move to dismiss certain removal cases in their discretion, even if Respondents are not Beneficiaries of visa petitions with a current priority dates; however, further guidance from the USCIS may be required to determine how this provision will be implemented.
While some politicians have openly criticized the Obama administration as endorsing a "de facto amnesty" by utilizing administrative policy change to de-prioritize removal of non-criminal and non-dangerous foreign nationals, the new Memo will certainly add fuel to the fire. Just last month, an unknown source inside the Department of Homeland Security leaked an undated draft memorandum by USCIS Director Alejandro Mayorkas, encouraging the agency’s use of administrative and policy initiatives to promote family unity, foster economic growth and remove the unwarranted threat of removal against non-dangerous individuals present in the US without permission, in the absence of real legislative reform. The "kinder, gentler" USICE as portrayed in the memo may be just the spark needed to urge opponents of immigration reform to come to the table with meaningful solutions, as they cannot sit idly in Congress if they do not agree with the Department of Homeland Securities policy initiatives.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon Law Group, PC is a "full-service Immigration Law firm." E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlonlawgroup.com
( Published September 11, 2010 in Asian Journal Los Angeles p. C2 )
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