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

New ICE Removal Policy Is Not Amnesty For Immigrants

After a tad bit of reading, I’m of the opinion that the new Obama policy everyone is fussing about is not actually amnesty.  It doesn’t create new grounds of relief for someone in removal proceedings.  It doesn’t eliminate existing grounds of inadmissibility.  It’s just a faster way of doing what would probably happen anyways.  It’s a way of making life easier (and less profitable) for immigration lawyers.  It’s a way of unclogging the dockets in immigration courts.

Let’s take a look at the policy, outlined in the August 20th ICE memo from John Morton.  The memo orders two things: expedited processing and — if specific criteria are met — dismissal without prejudice of removal cases.  First, Morton requests expedited processing for cases where the alien has a visa application pending with the USCIS.  For detained aliens, the USCIS must now decide the case in 30 days.  For non-detained aliens, the USCIS has 45 days.  Amnesty? No.  Efficiency? Yes.

Morton then requests dismissal of removal cases that meet the following criteria: (1) the alien is eligible for relief from removal as a matter of law and in ICE’s discretion, (2) the alien has a pending application with the USCIS, (3) the alien is eligible for adjustment of status, including eligibility for any waivers of inadmissibility.

Thus, ICE only recommends dismissal where the alien is already eligible to stay here legally.  The memo essentially says to ICE lawyers, “If you’re gonna lose in immigration court, then go ahead and drop the case.”  But the policy does not grant relief where it’s not available under the law.  On this point, the memo’s very explicit:  “[A] waiver must be available for any ground of inadmissibility.”

In sum, the new ICE policy is an attempt to expedite enforcement measures.  It’s not a grant of amnesty.

Unofficial Immigration Reform?

While immigration reform has yet to pass — and may not any time soon — the Obama Administration is implementing what some call an unofficial amnesty.  While the Administration is ramping up deportations of aliens with serious criminal histories, it’s begun dismissing thousands of removal cases.  The criteria?  If you’ve been here 2 years or more, you have no felony convictions, and no DWIs, you have a decent shot at dismissal.

Nonetheless, immigration lawyers shouldn’t bet on dismissal.  After all, we’re talking policy — not law.  For more on the policy’s application in Texas, read here.  If you need to speak with an immigration lawyer in Dallas, feel free to contact us.

The DREAM Act: A Positive Incentive-Based Approach to Immigration Reform

I applaud the DREAM Act, pending federal legislation that would give undocumented students a pathway to citizenship.  It’s unique because it gives illegal immigrants positive incentives to stay here and do good things.  The DREAM Act grants a 6-year conditional permanent residency to illegal immigrant students who (1) graduate from a US high school, (2) have good moral character, and (3) have lived continuously in the US for 5 years before the bill is passed.  After 6 years, these students can become lawful permanent residents if they earn a higher degree or serve 2 years in the U.S. military.

Contrast this approach with typical waiver provisions of the Immigration and Nationality Act, which give illegal immigrants the incentive to stay here, not get caught, and create dependencies.  For example, hardship waivers sometimes allow illegal immigrants to obtain green cards if they stay here a minimum number of years and don’t commit crimes, and if they’re deportation would cause a qualifying relative “extreme hardship.”  That means that illegal immigrants with the most dependent children and the fewest productive family members, have the greatest chance of staying here legally.  The DREAM Act’s incentive structure is clearly superior.

In short, the DREAM Act is a fresh, promising approach to immigration reform.  Even if it’s not passed, I hope it marks a creative change in thinking on immigration policy.

Rifts Within ICE on Deportation Policy

Curiously, many lawmakers on the Left are unhappy with Obama’s stance on illegal immigration and deportation, arguing its enforcement measures are too harsh.  Even stranger, there’s now a rift within executive agencies.  An article in the Washington Post reports “festering internal divisions” between political appointees and career officials Immigration and Customs Enforcement (ICE).  Evidence of the divide:

  • A union of immigration officers issued a vote of no confidence in ICE director John Morton
  • 24 field managers who oversee detention and deportation sent a memo to Morton that challenged a number of recommended changes
  • criticism by officers that the ICE leadership regularly changes its policies, depending on the political climate

To read the article, click here.

How Good Are You?: Judging Moral Character in Removal Proceedings

Yes, the government is in the business of judging morality — at least when it comes to removal and deportation.  To get cancellation of removal for a non-LPR (lawful permanent resident), the alien must be a “person of good moral character.”

Fortunately, the Immigration and Nationality Act attempts to constrain judges’ discretion to evaluate moral character.  Section 101(f) defines “persons of good moral character” by listing people who fall outside the group.  These include:

  • habitual drunkards
  • people who make most of their money from illegal gambling
  • people who have served sentences for 180+ days in the aggregate
  • those convicted of aggravated felonies
  • participants in genocide and Nazi persecution

In future posts, I’ll discuss specific problems of interpretation relating to the statutory definition of “persons of good moral character.”  If you find yourself or a loved one in removal or deportation proceedings, talk to an immigration attorney about whether cancellation of removal is an option.

Do I Qualify For Cancellation of Removal?

As a deportation lawyer in Dallas, Texas, I am frequently asked by clients about whether they qualify for cancellation of removal.  It’s no surprise, given that cancellation trumps common grounds of inadmissibility, like entering without inspection.  Unfortunately, the requirements for cancellation of removal are quite stringent.

For lawful permanent residents (“LPRs”), one must (a) have been an LPR for 5 years, (b) continuously resided in the United States for 7 years, and (c) not have been convicted for an aggravated felony.  If these requirements are met, an immigration court has discretion to grant cancellation by weighing a number of factors.  The following factors weigh in favor of cancellation:

  • family ties within the United States;
  • residence of long duration in this country;
  • hardship to the respondent and his or her family if deportation occurs;
  • service in the armed forces;
  • a history of employment;
  • property or business ties;
  • respondent’s value and service to the community;
  • proof of genuine rehabilitation if a criminal record exists; and
  • good character.

The following factors weigh against cancellation:

  • the nature and underlying circumstances of the grounds for removal that are at issue;
  • significant violations of this country’s immigration laws;
  • criminal history and its nature, recency, and seriousness;
  • bad character or undesirability as a permanent resident of this country.

For non-LPRs, the requirements for cancellation are even tougher.  An applicant must have (a) 10 years of continuous physical presence in the United States, (b) good moral character, and (c) no conviction of an offense under Section 212(a)(2) of the Immigration and Nationality Act.  Last, removal must result in “exceptional and extremely unusual hardship” to a citizen or LPR spouse, parent, or child.

Because these criteria are subjective, it is often imperative to have assistance from an immigration lawyer serving Dallas, Houston, and Austin.

More on hardship to come…