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

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