Waivers and Relief from Deportation
American Immigration Council Commends Decision Expanding Availability of Hardship Waivers to LPRs
The U.S. Court of Appeals for the Seventh Circuit issued a unanimous decision that will allow more lawful permanent residents (LPRs) to avoid deportation if their removal would result in extreme hardship to family members in the United States. The American Immigration… Read More
Putting the White House Immigration Reform Proposal into Perspective
Over the weekend, the press reported on a leaked draft of portions of the White House’s immigration proposal, and the coverage since then has been largely a frenzied discussion of whether the leak will kill Senate negotiations. There shouldn’t be much chance of that, given the immense pressure on the Senate to not only come up with a proposal, but actually draft legislation that can be debated and voted on this year. Now that at least some of the Administration’s ideas are out in the public eye, it’s useful to treat them as what they are: basic discussion points on what might be in an eventual bill. In the long run, the draft proposal may help to encourage the constructive conversation that the Administration has sought to have on reform. Read More
DHS Publishes New Provisional Waiver to Help Some Families Stay Together
Some families facing long separations from their loved ones because of U.S. immigration laws will have an easier time of it in 2013. Thanks to a new regulation from the Department of Homeland Security (DHS), immediate relatives of U.S. citizens will be able to complete part of the processing of their immigration cases without leaving the country. The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, will be published tomorrow (January 3, 2013) and become effective on March 4. Read More
Standardizing Guidelines Would Improve USCIS’s Proposed Family Unity Waiver Rule
Earlier this year, USCIS proposed a new waiver rule that would allow some unauthorized immigrants (mostly direct family members of U.S. citizens) who are applying for a green card to apply for a waiver to the 3 and 10 year bar from within the United States, minimizing the amount of time they would have to be away from their families. While many welcome this proposed rule change, there are ways in which USCIS could streamline this process. In addition to previously suggested improvements, USCIS could provide training and guidelines on the extreme hardship standard to ensure that the standard is applied consistently. The “comment period,” which is open to the public and can be used to suggest improvements to the rule, end this Friday, June 1. Read More
Expansion of Proposed Waiver Rule Could Help More Families Stay Together
As previously noted, the administration recently proposed a new rule that would help keep American families —the “Proposed Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives.” This proposed rule would streamline the application process for many relatives of U.S. citizens currently eligible for a green card by minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States. While the proposed rule is certainly a welcome change and would be an improvement over current procedures, there are ways in which the rule could be improved to help even more immigrants. Read More
Falling through the Cracks
How Gaps in ICE's Prosecutorial Discretion Policy Affect Immigrants Without Legal Representation While the Obama administration’s has expanded use of prosecutorial discretion in immigration cases, the subject of immigrants without legal representation and their ability to access this discretion remains unresolved. In 2011, nearly half of all immigrants in removal proceedings appeared “pro se,” or without legal representation. While immigration attorneys can explain the effect of these policies to their clients, pro se immigrants may be unaware that new policies are even in effect. Immigrant advocates have thus been rightly concerned about whether pro se immigrants in removal proceedings will benefit from Immigration and Customs Enforcement’s (ICE) prosecutorial discretion policies. This paper lays out what immigration authorities can do to ensure that pro se immigrants understand what prosecutorial discretion is, how they can seek it, and what they should do after receiving (or not receiving) an offer of it. Read More
Prosecutorial Discretion in Context: How Discretion is Exercised Throughout Our Immigration System
Discretion takes many forms throughout the immigration enforcement process. Every removal of a noncitizen from the United States, for example, reflects a series of complex choices which reflect discretion. To understand the role of discretion fully, however, we need to examine the entire range of opportunities to exercise discretion in immigration enforcement and the cast of decision makers who make discretionary decisions, such as members of Congress who enact laws, Department of Homeland Security (DHS) officers who make arrests, Immigration and Customs Enforcement (ICE) trial attorneys who represent the government in removal proceedings, and immigration judges who preside over those proceedings. This Special Report traces the role of discretion throughout the immigration enforcement process. Understanding these roles is important not only in individual cases, but also in how policymakers write regulations and draft laws. Knowing how the enforcement system anticipates and incorporates discretion is key to understanding how our immigration laws work. Listen to Hiroshi Motomura discuss this report. Read More
The Morton Memo and Prosecutorial Discretion: An Overview
On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters. Prosecutorial discretion refers to the agency’s authority to not enforce immigration laws against certain individuals and groups. The primary memo (the Morton Memo on Prosecutorial Discretion) calls on ICE attorneys and employees to refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. and instead spend the agency’s limited resources on persons who pose a serious threat to public safety or national security. Morton’s second memo focuses on exercising discretion in cases involving victims, witnesses to crimes, and plaintiffs in good faith civil rights lawsuits. The memo instructs “[a]bsent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.” A closer look at the Morton Memo on Prosecutorial Discretion reveals that it reaffirms many of the principles and policies of previous guidance on this subject. The memo, however, takes a further step in articulating the expectations for and responsibilities of ICE personnel when exercising their discretion. Read More
BIA Provides Important But Incomplete Guidance on Mental Competency Issues
Washington, D.C.—The American Immigration Council’s Legal Action Center (LAC) cautiously applauds last week’s decision of the Board of Immigration Appeals concerning the rights of immigrants with mental disabilities in removal proceedings. Echoing concerns expressed in amicus briefs filed by the LAC… Read More
Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion
On June 30, 2010, the Deputy Assistant Secretary for Immigration and Customs Enforcement (ICE), John Morton, issued a memo to the agency that reflected the Obama administration’s oft repeated intent to focus removal efforts on serious offenders. Morton noted: In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security. Coupled with last year’s announcement that ICE would not engage in the kind of major worksite raids that became common during the Bush administration, the “Morton Memo” potentially marks a new phase in the enforcement of immigration law. Moreover, the memo gives us insight into the Obama administration’s approach to prosecutorial discretion in immigration enforcement. Read More
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