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5 Unexpected Immigration Problems From DWIs

DWI is not a deportable offense. Please allow me to repeat that: in and of itself, a DWI conviction will not cause your client to be deported. Not one, not two, not even three DWIs. It just isn’t an offense listed under the Immigration and Nationality Act as one that will make your client removable.

Nonetheless, there are serious reasons to worry about your non-citizen defendant’s DWI conviction. Here are five.

First, a DWI conviction can make it harder for an undocumented defendant to get an immigration bond. Indeed, Dallas ICE — where most defendants with ICE holds are headed — will automatically set high bond amounts for defendants with DWI convictions, from $14,000 for one DWI, all the way up to $23,000 for three DWIs. While an immigration judge sometimes has the power to reduce the bond amount, they often will not exercise it if they consider the non-citizen a danger to the community.

Second, a DWI conviction can make it harder for the defendant to qualify for discretionary relief from deportation. Let’s say that your client is undocumented, in which case he’s probably removable from the United States, regardless of his criminal history. Even then, he or she may be qualify to apply for relief from deportation, like cancellation of removal for non-permanent residents: he has 10 years of physical presence, and his deportation would cause exceptional hardship to a U.S. citizen immediate relative. Well that 2nd or 3rd DWI may be just enough to tip the balance of discretionary factors against him, and the judge may decide to deport him anyways. Thus, criminal lawyers should be concerned with removability, as well as a client’s ability to prove himself worthy of discretionary relief from removal.

Third, a DWI conviction — combined with DWLS (driving with license suspended) — can make your client removable. A few courts have noted that a DWI “Plus” (plus some aggravating factor) can turn that DWI into a dreaded “crime involving moral turpitude.” The idea is that a crime involving moral turpitude is one that involves bad intent. DWI alone is a crime of recklessness, where bad intent need not be present. However, when the defendant’s license was suspended due to a prior DWI, and he or she is later arrested for DWI, then some immigration judges may be inclined to presume bad intent: he intentionally decided to drive despite the license suspension. Thus, there are some cases where a DWI “Plus” can — in an of itself — render a non-citizen removable from the United States.

Fourth, recent DWI convictions can disqualify an undocumented non-citizen from receiving the benefit of prosecutorial discretion. That’s right — just like criminal prosecutors, ICE prosecutors retain the discretion not to deport persons based on their positive factors, like strong family ties, long presence in the United States, etc. But ICE prosecutors — at least the ones in Dallas — have informally decided that a “recent DWI conviction” will disqualify the non-citizen from prosecutorial discretion.

For example, I had a client once who lived in the United States for 17 years, and a strong history of employment and community service. He also had a clean criminal record, except for a 2011 conviction for DWI. In this case, ICE probably would have exercised prosecutorial discretion and not pursued removal, but for the recent DWI.

While obtaining an outright dismissal of the DWI was probably not easy, it may have been worth it given the likelihood of obtaining prosecutorial discretion. The upshot: where a non-citizen defendant has strong equities — and is a strong candidate for prosecutorial discretion — you should strongly consider avoiding a recent DWI conviction.

Fifth, even though immigration reform is still stuck in Congress, it doesn’t hurt to speculate about the immigration consequences of DWIs under prospective legislation. The Senate Bill, passed earlier this year, created a new bar of inadmissibility for repeat DWI offenders. Specifically, it said that non-citizens with three or more DWIs would be removable. More generally, I would think that the more DWIs on your client’s record, the less likely it is that he or she would qualify for broader relief from deportation in the form of amnesty, or some other pathway to citizenship.

In summary, DWI is not currently listed as a crime of inadmissibility or deportability. Nonetheless, a DWI conviction, especially a recent one, can have immigration consequences on his chances to get (1) affordable immigration bond, (2) discretionary relief from deportation, (3) a finding of admissibility (in case it’s a DWI “Plus,” (4) prosecutorial discretion, and (5) the prospective benefits of immigration reform.

If you have any questions or comments about this article, feel free to email me at vinesh@vpatellaw.com.

Update: Policy Guidance On ICE Detainers Under The Dec. 21 Morton Memo

ICE has issued an important update to its policy on ICE holds/detainers that will affect hundreds of non-citizens in the Dallas-Fort Worth Area.  Below is a summary of arrestees that are subject to ICE holds.

Who is subject to ICE holds/detainers?

On December 21, 2012, ICE Director John Morton issued a memorandum providing new guidance to ICE officers on when to issue detainers against non-citizens charged with crimes.

The list of persons subject to ICE holds is still lengthy.  It includes:

  • persons charged with felonies
  • persons with three or more prior misdemeanor convictions
  • persons charged with assault, DWI, unlawful flight from the scene of an accident
  • drug distribution or trafficking
  • sexual abuse of exploitation

In addition, an ICE hold can only be placed on a person who appears subject to removal or deportation.  There are others who may be subject to ICE holds, including persons who have been previously deported or convicted of illegal entry.

There are, however, some notable exceptions to the list of persons subject to ICE holds.

Notable exceptions: Persons not subject to ICE detainers

First, ICE may not place holds or detainers on persons charged with minor misdemeanors or traffic violations, as long as they have a clean immigration history.  Thus, a person arrested for littering, with no previous deportation order, is not subject to an ICE hold.

Second, a person charged with misdemeanor drug possession, with no allegation of distribution or trafficking, is also not subject to an ICE detainer.  This category will include thousands of non-citizens charged every day for possession of small amounts of marijuana.

What to do if your relative has an ICE hold

Your best bet is to immediately consult with an immigration attorney to find out your options.  The recent ICE memorandum clarifies that ICE detainers may be lifted as a matter of prosecutorial discretion, on a case-by-case basis.  That means that, in some cases, aggressive, early intervention by an experienced immigration lawyer can prevent a loved one from being transferred to ICE custody and placed in removal proceedings.

If your relative is in Lew Sterrett Jail or Euless County Jail, and may have an ICE hold, contact a Dallas immigration law firm like The Vinesh Patel Law Firm.  Our lawyers are available at any time to assist non-citizens charged with a range of criminal offenses.  Call us at (855) 278-2943 for help.

 

ICE Holds / Detainers in Texas county jails

You may have found this page because your relative was arrested for a criminal offense, and is being held in a county jail in Texas (or any other state for that matter).  And when you tried to bond him out, you were told by a bondsman or the sheriff’s office that your relative has something in the system called an “ICE hold.”

Though this should be cause for concern, and good reason to contact an immigration attorney experienced in deportation defense, you shouldn’t assume that your relative will be deported, and that all is lost.  The point of this post is to give you some quick advice on what to do if your relative has an ICE hold.  Let’s start by discussing what exactly an ICE hold is.

What is an ICE hold or ICE detainer?

A hold placed by Immigration or Customs Enforcement is simply a request by ICE to a law enforcement agency, for it to continue detaining a person in its custody after his normal release date, so that ICE can take over custody.

It should be emphasized that ICE hold is simply a request, and it is up to the law enforcement agency to decide whether to comply with it.

By law, an ICE detainer lapses after 48 hours, excluding holidays and weekends, after the detainee is supposed to be released by the law enforcement agency.  So, a county jail is not allowed to hold the person for more than 48 hours after his release date.  If the county jail holds the person for longer than 48 hours, an attorney should consider requesting his release via a petition of habeas corpus.

The most important thing for a layperson to understand about ICE detainers is that they are not orders of deportation or removal.  I repeat: having an ICE hold does not mean that you will automatically be deported.  

Should I post bond for a person with an ICE hold?

In some cases, a person can be issued a bond amount by a county judge, even though there he has an ICE detainer.  Whether to post the bond is a very tough question that should be decided on a case-by-case basis with the help of a deportation lawyer.

Conventional wisdom suggests that you shouldn’t post bond, because you will lose your money.  Once the person is transferred to ICE custody, ICE may not let him go back for his criminal court hearings.  And if he doesn’t show up for criminal court, the bond money will be lost!

However, there may be good reason to post a criminal bond, and accelerate the person’s transfer to immigration detention.  For one, if the person bonds out of state custody, he likely will do so before his criminal case is resolved.  So while he may have been arrested for a crime, he will not have been convicted for it.  This is important because the outcome of the immigration case may turn on whether he has a criminal conviction already on his record.  In other word, bonding out of criminal detention will improve his chance of fighting deportation, because he will enter ICE custody with a cleaner record.  (It should be noted that if he is able to leave ICE custody, he may have to return to state custody because he has an outstanding warrant for failing to show up to criminal court.  That will have to be dealt with separately.)

Second, a person may be able to get out of ICE custody on a reasonably-sized immigration bond.  If so, it may make sense to bond out of criminal custody, and then seek an immigration bond from ICE or an immigration judge.  This requires a lot of educated guesswork, however, and our Firm recommends that you consult with an experienced immigration attorney before making any drastic decisions.

What should I do if my relative has an ICE hold on him?

Go ahead and contact a deportation or immigration lawyer.  Early intervention by an immigration lawyer — before your relative is transferred to immigration detention — can be critical.  For example, an immigration attorney can in some rare cases can negotiate with a county official to ignore the detainer.  (Recall that ICE detainers are optional for law enforcement agencies; they are not mandatory.)  In addition, if more than 48 hours elapse after your relative is supposed to be released from county jail, a lawyer can threaten to, or actually file, a lawsuit against the state for constitutional violations.  Also, an attorney can directly contact ICE and request that it lift a detainer if there is no real basis for deporting the person from the United States.  It is squarely within ICE’s prosecutorial discretion to cancel an ICE detainer.

Contact The Vinesh Patel Law Firm for help dealing with ICE holds

Our attorneys are ready to act quickly if your relative is in county jail in Texas and is subject to an ICE hold.  Early intervention is often the key to stopping deportation.  Don’t hesitate to call us at (855) 278-2943.

5th Circuit Case Update: Escudero-Arciniega v. Holder

The Fifth Circuit held that burglary under New Mexico law is an aggravate felony under the Immigration and Nationality Act, because it counts as a “crime of violence.”  Previously the Fifth Circuit held that a Texas burglary conviction is also a crime of violence.

I’m not convinced that either holding is correct.

Crime of Violence under Immigration and Nationality Act

The INA adopts the definition under 18 U.S.C. § 16:

The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Why the Fifth Circuit thinks New Mexico burglary is a crime of violence

The Fifth Circuit held that New Mexico burglary meets the definition under 16(b).  The Court posited that the crime “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The burglary statute reads:

B. Any person who, without authorization, enters any
vehicle, watercraft, aircraft or other structure, movable or
immovable, with intent to commit any felony or theft therein
is guilty of a fourth degree felony.
N.M. STAT. § 30-16-3(B).

Oddly, the Court analogized this statute to the provision under Texas law — which, by contrast, defines burglary as “break[ing] into or enter[ing].  The Court then held that burglary of a vehicle under New Mexico’s statute entails a significant likelihood that force will be used against another’s property.

Problems with the Court’s analysis

First, how did the Court conclude that there is a “significant likelihood” that force would be used against another’s property?  I’m no criminologist, but it doesn’t seem obvious to me that unauthorized entry of a motor vehicle in most instances involves use of force.  Can it be done without force?  If so, how often?  Does picking a car door lock count as force, simply because it is an unauthorized entry?

It seems that the Fifth Circuit based its decision on an empirical observation, but forgot to cite any evidence for it.  If it is so obvious that unauthorized entry of a vehicle usually involves force, it should not have been difficult to gather empirical proof to support this conclusion.

If citing statistics in an immigration decision seems silly, take a look at Matter of Singh, 25 I&N Dec. 670 (BIA 2012).  It’s chock-full of statistics that either support or refute the notion that the crime of stalking entails a likelihood of force.

Second, although the Court states specifically that there is “no, principled, significant distinction” between the Texas and New Mexico statutes of conviction, it’s worth noting that the Texas law explicitly includes an act of physical force — “break[ing] into — while the New Mexico law does not.  That seems like a significant distinction, especially when the entire question is one of use of force.

Third, the New Mexico law is much broader in scope than the Texas law.  It includes unauthorized entry into any “structure, movable or immovable.”  The Texas crime is only for burglary of a motor vehicle.  Thus, the New Mexico provision includes conduct like opening unlocked house windows and doors.  This should have given the Fifth Circuit even more reason to pause before reaching sweeping conclusions about the statistical likelihood of force being used.

In any case, we have to deal with Escudero as it’s written.  If you or a loved one is in deportation proceedings based on a burglary conviction, feel free to call The Vinesh Patel Law Firm at 855-278-2943.

 

When Does An Lawful Permanent Resident Abandon His or Her Residence?

A finding of “abandonment of residence” is, or should be, a lawful permanent resident’s worst nightmare.  This happens when a green card holder arrives in the United States at a port of entry — think, airport or border crossing point — and asks to be let back into the country.  The Customs and Border Protection officer looks at the person’s file and makes the vague determination that the person has “abandoned residence,”and is thus inadmissible to the United States.  Customs will issue the person a Notice to Appear in immigration court for deportation proceedings.  Even worse, Customs can decide to detain the person in an immigration detention facility while removal proceedings are ongoing.

Given the disastrous consequences of abandoning residence, every green card holder should know how to keep it from happening.

Green Card Holders should fear abandoning residence

I want to live abroad for a while.  How can I avoid abandoning my residence in the US?

The first thing to realize is that 6-month rule you heard about will not prevent a finding of abandonment.  Many green card holders believe that as long as they return the US once every 6 months, they can live anywhere in the world and keep their green card.  This is false.

The rule against abandoning residence is separate from the rule against absences longer than 6 months.  It is quite possible to be deemed to have abandoned your residence even if you have complied with the 6-month rule.

Indeed, CPB has stated that “CBP officers are less focused on the length of time abroad and more on where does the person actually live.”

The key to maintaining your residence is being able to prove that you still intend to make the United States your home.  You have to show that you have strong ties to the United States, and you don’t wish to live anywhere else.

What are indicators of abandonment?

The CBP Inspector’s Field Manual explains that length of time abroad is just one factor that goes into abandonment.  Other factors include:

  • employment abroad
  • lack of a fixed address in the United States
  • frequent prolonged absences from the United States
  • many immediate family members who are not lawful permanent residents

What documents can I use to show I have not abandoned residence?

Bring proof of a fixed address, like utility bills, or apartment leases.  You should also bring proof of employment in the United States, like pay stubs or W-2s.  Bring documents demonstrating your purpose abroad.  Were you there for a wedding?  Show the invitation. Prove that your purpose abroad was only temporary.

By no means is this an exclusive list of documents to prove you have maintained your residence here.  Anything goes, as long as it shows that the United States is still your home, and that your stay abroad is for a limited purpose.

We sincerely hope that you or a loved one never ends up in deportation proceedings based on a finding of abandonment of residence.  To that end, call The Vinesh Patel Law Firm to discuss your case.  If by any chance a relative is held at an airport for secondary inspection, or even worse, an immigration detention facility, call us immediately at 855-278-2943.  Our Firm will do our best to see that your loved one is released quickly and can keep his or her green card.

Will Advance Parole Allow Me to Re-Enter the US Without Any Issues?

Each day, thousands of non-citizens attempt to enter the United States at ports of entry, on a grant of advance parole.  Clutching their Forms I-512, they are anxious to know whether they will be able to successfully re-enter the United States.  The following post aims to clarify if advance parole is what it purports to be — a promise by USCIS to authorize a person’s reentry into the United States.  Can you count on this promise?  How often?

Before delving into more complicated issues, allow me to cover a few basic ones.

What is Parole?

Parole is authorization by the Department of Homeland Security for a person to temporarily enter the United States for urgent humanitarian reasons or where it brings a significant public benefit.  Notably, parole is not considered an “admission,” and therefore — in theory — someone reentering the country on parole should not be subject to grounds of inadmissibility.

What is Advance Parole?

Advance parole is essentially an advance promise by USCIS to parole someone into the country at a port of entry.  A request for parole is made on Form I-131.  The Adjudicators Field Manual lists several classes of persons who are eligible to apply for advance parole.  The largest classes are:

  1. Applicants for adjustment of status who had a visa number available but lost it after filing their pending application, and who have a good faith personal or business reason for leaving the country temporarily.
  2. Applicants for adjustment of status whose application is still pending, and who “find it necessary” to depart temporarily for “emergent” personal or business reasons.

Although the second class listed says “emergent,” the standard is applied leniently.  When advance parole is granted, USCIS will issue the person a Form I-512.

I was granted advance parole.  Can I reenter the United States without any issues?

It depends on if you may be subject to any grounds of inadmissibility, and if so, which ones.

Unlawful Presence

Have you been unlawfully present in the United States?

A person may be considered unlawfully present here in the United States if he entered without any papers or if he overstayed his visa.

If you have accrued unlawful presence, you will probably be safe reentering the United States on a grant of advance parole.  The Board of Immigration Appeals recently held that persons issued an advance parole document, who have accrued unlawful presence in the United States, will not be deemed inadmissible for unlawful presence upon return to the United States.

So — if the only potential ground of inadmissibility is unlawful presence — you are probably safe relying on advance parole.  In any case, we recommend discussing your case with an experience immigration lawyer in Dallas.  The Vinesh Patel Law Firm has helped many non-citizens with advance parole issues, and would be happy to help.

If you have committed, or been convicted or, a crime of inadmissibility in the United States, you should have serious concerns about traveling abroad and attempting to re-enter.  A grant of advance parole cannot necessarily be relied upon.

In theory, Customs and Border Patrol should not deny parole to someone issued an advance parole document.  After all, the issuance of an advance parole documents is like a pre-authorization to reenter the United States.

But we are not concerned with theory.  We are concerned with what happens in practice. In 2012, our Law Firm observed several individuals who were detained and charged with inadmissibility, despite having been issued an advance parole document.  While our Firm does not believe this is fair, just, or even legal — Customs has done it anyways.  Thus, non-citizens with old drug convictions can be detained at the airport, and placed in immigration detention, despite promises made by the government.

The government may give two justifications for this practice.  First, the government may argue that parole is a discretionary grant by the Department of Homeland Security.  As such, the Department is entitled to a terminate a grant of parole at any time.  Second, the government may contend that the recent Board of Immigration Appeals case Arrabally and Yerrabelly governs only inadmissibility based on unlawful presence — not other grounds of inadmissibility.

In any case, if you have some reason to believe that you may be inadmissible to the United States, be extra-cautious about trying to reenter the country, even if you were issued an advance parole document.  To consult with an attorney familiar with removal and deportation policies, call The Vinesh Patel Law Firm today.

 

Immigration bonds to be accepted at new locations in Central, South, and East Texas

You may be wondering where you can post bond for detainees at South Texas Detention Center, Laredo Processing Center, Port Isabel Detention Center, and Hutto Detention Center.  Although you can post bond at locations all across the United States (e.g., locations stated here), you are probably looking for locations in Texas.

Good news.  The San Antonio Field Office Director Enrique M. Lucero has announced that, starting January 7, 2013, immigration bonds will be accepted at a host of new locations.  As a quick review, here are the locations in Central, South, and Southeast  Texas that already accept bonds:

  1. San Antonio Field Office, 8940 Fourwinds Drive, San Antonio, Texas 78239
  2. Laredo Detention Center, 4702 East Saunders St., Laredo, Texas 78401
  3. Port Isabel Detention Center, 27991 Buena Vista Blvd, Los Fresnos, Texas 78566

The new locations that will be accepting bonds are as follows:

  1. South Texas Detention Center, 566 Veterans Drive, Pearsall, Texas 78061
  2. T. Don Hutto Residential Center, 1001 Welch Street, Taylor, Texas 76574
  3. Karnes County Civil Detention Facility, 409 FM 1144, Karnes, Texas 78118
  4. Harlingen Resident Office, 1717 Zoy Street, Harlingen, Texas 78550

As a reminder, immigration bonds must be paid using a cashier’s check or money order written to the Department of Homeland Security.  The person posting the bond must be a lawful permanent resident or United States citizen.  There is a two-step process for posting bond.  First, the person posting the bond will show the check or money order to the ICE bond official.  ICE will not take the money right away.  ICE will first have to verify that the money can be accepted and the detainee can be released.  ICE may check for things like outstanding warrants, etc.  Second, ICE will call the person back, and the check or money order will be accepted.

It can take several hours to a couple days for the detainee to be released.  This can be frustrating for family members, who are ready to depart with the bond money in order to see their loved one.  Nonetheless, it is best to set your expectations low when it comes to speed of release.  But rest assured, as long as the conditions of a judge’s bond order are met, the person will eventually be released.

My relative has a green card. So why is he being held by Immigration at the airport?

I am often contacted by immigrant families wondering why their permanent resident-relative is being detained at an airport or other port of entry by Customs and Border Protection.  In Texas, for example, green card-holders are often held up for secondary inspection at Dallas’s DFW Airport, Houston’s George Bush Intercontinental Airport, and San Antonio International Airport.  These travelers are often on their way back from a brief trip abroad.  Motorists and pedestrians are also sometimes detained at border crossing points, like Laredo, Texas, and Hidalgo, Texas.

With good reason, those same families are shocked that their relative is being detained and treated like a criminal.  There are several reasons a person with a green card may be detained by Customs at a port of entry — most of which relate to the person’s criminal history.  But why — one might ask — is a resident even treated as applying for admission if they have already been admitted into the United States?

Even Green Card Holders Can Be Stopped At The Border By Immigration

Green card holders are not entitled to the same rights as U.S. citizens — such as living indefinitely in the U.S. — and so the term “lawful permanent resident” can be slightly misleading.  Green card holders are not automatically allowed back into the United States when they fall into one or more of several categories:

  • having abandoned status
  • having left the United States for more than 6 months
  • having done something illegal outside the country
  • having committed a drug offense or crime involving moral turpitude

If the person falls into one of these categories, then he or she will be treated as an applicant for admission, and will be screened for the very same things that he or she was screened for when applying for the green card.

Even Green Card Holders Can Be Detained or Arrested By Airport Immigration

If the Customs officer determines that the person falls into one of the above categories, and that he or she is inadmissible from the United States, the Customs officer may decide to place the person in removal, or deportation, proceedings.  The Customs officer will issue the person a Notice to Appear (NTA), a charging document which states the reasons for putting the person in deportation proceedings.  Then the Customs officer will decide whether to send the person to ICE for further detention, or whether to release the person on his or her own recognizance (i.e., without posting a bond).

Green Card Holders Detained At The Airport Can Fight Their Deportation

Although the Customs and ICE officials may get the first word on whether your relative should be deported, they don’t get the last word.  You and your relative should not assume that he or she is going to be deported without question.  There are many ways to beat the charges made by Immigration.  And there are many types of relief from deportation.

Finding a trustworthy deportation attorney is the first step to knowing the strength of your relative’s defense.  A good attorney will explore common options for green card holders in deportation proceedings — like cancellation of removal for certain permanent residents, and waivers under Section 212(h) of the Immigration and Nationality Act.  A good attorney will also evaluate less common options, like terminating proceedings based on suppression of evidence, false allegations, or inaccurate charges, or asylum and withholding of removal.

The Vinesh Patel Law Firm Is Committed To Helping Green Card Holders Maintain Their Resident Status

Our Firm understands how precious it is to have permanent resident status in the United States.  We will do everything in our power to protect that status, whether it requires a firefight in immigration court, or skillful negotiating with immigration officials.  If you relative has been detained at DFW International Airport, Houston’s George Bush Intercontinental Airport, or the San Antonio International Airport, call us today at 855-278-2943.

 

3 Reasons To Know the Immigration Consequences of Criminal Activity

First, the Supreme Court says you should. In early 2010, the Court ruled that criminal defense attorneys are required to advise clients on the immigration consequences of their pleas.  Failure to do so counts as  “ineffective assistance of counsel.”  Specifically, defense attorneys should advise non-citizens that deportation is “presumptively mandatory” when the risk of removal is “clear.”  When the risk is less than clear, attorneys must advise that the “pending criminal charges may carry a risk of carry a risk of adverse immigration consequences.”

Second, it’s critical for the well-being of your non-citizen clients. The wrong plea can put them in removal proceedings.  It can destroy any hope of relief from removal.  It can make them deportable.  In short, a guilty plea’s immigration consequences can be worse than the criminal sentence.

Third, criminal appeals attorneys need to know the immigration consequences in order to argue ineffective assistance. Appellate lawyers have an extra arrow in their quiver.  They should know how to use it.

For a free initial consultation on the immigration consequences of criminal activity, contact a qualified Dallas immigration lawyer today at 1-888-407-7014.

Why ICE’s Dismissal Policy Could Be Bad For Immigrants

While supporters of immigration reform are applauding ICE’s new immigration policy — which may lead to the dismissal of thousands of deportation cases — the policy could be bad for some aliens.  In particular, it could make life worse for aliens who are likely to win relief from removal.

This is because the ICE memo encourages dismissal without prejudice, which means that the government can later re-institute deportation proceedings against the same alien.  Thus, for aliens with a strong chance of winning relief, it may be better to avoid dismissal and litigate their cases to conclusion.  That way, if the government resumed deportation proceedings under a stricter administration, the successful alien could assert res judicata.

Moreover, if the alien were to win cancellation of removal, then he could automatically adjust status and get a green card.  Thus, he wouldn’t be subject to removal proceedings anyways.  By contrast, if an alien’s case is dismissed, he doesn’t gain any lawful status.  The government just drops its case against him.

In sum, ICE’s new policy could have some unintended negative consequences for aliens under future administrations.

- Vinesh Patel, Dallas Immigration Lawyer