IN a previous column, I discussed a new memo from the Biden administration, that they are limiting deportations by exercising what is called “prosecutorial discretion,” in terms of whether or not to bring deportation cases or even dismiss existing deportation cases.
We were monitoring how this memo would be implemented and how soon. I already have an update, and it is good news, especially for one of my clients. We have a case where there is a pending deportation, and we just received in the mail a motion from the trial attorneys asking the court to dismiss the case.
If you are presently in deportation, maybe what happened to our client could also benefit you. Of course, I am not giving you any guarantees that your case would be dismissed, as it would depend on the facts of each case and the discretion of the government. But we see the Biden administration is finally acting on that memo, going so far as to even urge the court, on their own, to dismiss cases.
Your case does not have to be exactly like my client’s case, and I’m giving the factual background only as an example. But if you are in removal proceedings, or even if you have a final removal order, maybe this Biden memo could benefit you.
Our client had married a U.S. citizen, who petitioned him, and he received a 2-year conditional green card. He was supposed to file a petition to remove conditions when that green card expired. The marriage did not work out and they got divorced. However, his conditional status had never been terminated.
His mother then petitioned him as a single adult child (F-1). Eventually, the priority date became current, and he filed for adjustment of status. When he went to the adjustment interview, USCIS had a policy that if a person was under conditional status based on a marriage, the person had to go in front of a judge in order to terminate their conditional status. USCIS put him in deportation, and the hearing was scheduled for 2022. Then USCIS changed its policy and said it would no longer be necessary for people who are in conditional status to go in front of a judge to terminate that status. But still, the case was pending in deportation. Of course, during Trump, there was almost no chance of the government exercising prosecutorial discretion or agreeing to dismiss cases.
As a result of Biden’s memo, we recently received the government’s motion to dismiss, which stated in relevant part, “the Department of Homeland Security requests this Honorable Court to dismiss the instant proceedings without prejudice…the circumstances of the case have changed to such an extent that continuation is no longer in the best interest of the government. The respondent is a beneficiary of an approved I-130 petition and may adjust before USCIS.”
In other words, the government was exercising prosecutorial discretion for a person in deportation, and on its own, was urging the court to dismiss the case, so our client can go back in front of USCIS and adjust status under his mother’s petition.
How can this benefit you? If you are now in deportation or have already been ordered deported and you are not one of the “enforcement priorities” (such as a felon, terrorist, etc.), maybe you could be eligible for prosecutorial discretion, to have your case dismissed or reopened, provided you now have a way to legalize your status.
For example, at the time of the deportation, you did not have a way to get a green card, and so were ordered deported. But perhaps a petition was filed for you long ago and only now the priority date is current. Or, you just married a U.S. Citizen, and now you have a way to get a green card. This new policy by the Biden Administration could benefit you because perhaps the government would be willing to re-open an old deportation case or be willing to dismiss the case.
Also, you do not necessarily have to wait for the government to bring the motion. You should consult with an attorney, who can perhaps package your case and negotiate with the government – the trial attorneys, if they would be willing to dismiss the case or join in what’s called a joint motion to dismiss.
But this is great news! If you think you may be eligible, consult with an attorney, who can evaluate your case, and assist in helping you legalize.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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