ON April 16, 2012, the US Immigration & Customs Enforcement (USICE) released key statistics regarding its prosecutorial discretion initiative that began last year. Since November 2011, USICE has been reviewing some 300,000 cases pending in the US Immigration Courts, to improve that agency’s efficiency and preserve limited resources. The USICE’s policy to exercise its “prosecutorial discretion” to prioritize cases against aliens considered the most dangerous to our society, including criminals, repeat immigration violators and those with suspected terrorist ties was widely publicized by release of the June 17, 2011, memorandum of Mr. John Morton, Director USICE District Counsel, which instructed USICE Chief Counsel and deputies to exercise “prosecutorial discretion” in removal proceedings. Prior to that, USICE issued a Memo from Mr. Morton that had directed US Citizenship and Immigration Services (USCIS) to expedite visa petitions affecting Respondents in removal proceedings and for USICE to dismiss proceedings against certain foreign nationals who appear to be eligible for relief from removal, such as adjustment of status to lawful permanent resident.
In the past several months, USICE has been reviewing cases with upcoming hearings in removal proceedings under the criteria set forth in the memorandum and entertaining affirmatively filed requests for prosecutorial discretion from Respondents, who believe they may be good candidates for such an exercise of the USICE’s prosecutorial discretion all over the country. The goal is clear: to prioritize certain types of cases to alleviate backlogs within the Executive Office for Immigration Review (EOIR) and lighten the overcrowded Immigration Judges’ dockets throughout the US.
As of April 16, 2012, USICE has reviewed 219,554 cases and identified 16, 544 as good candidates for prosecutorial discretion, or almost 8% of those cases reviewed. Of these, USICE reviewed 179, 518 pending non-detained alien cases, and determined that 16, 518, or just over 9%, were good candidates for PD. Of detained cases, however, USICE has reviewed 40,036 cases but determined that only 26, or less than 1% were good candidates for PD. The USICE has also continued active removal of high priority and criminal aliens, indicating that for FY 2012, year-to date, it had already deported 102,000 criminal aliens and in FY 2011 it deported 216, 698 criminal aliens, representation an increase of nearly 90% from FY 2008.
In removal or “deportation” proceedings, a foreign national or “Respondent” may challenge the grounds of removability asserted against him, or may apply for relief from removal once removability is conceded or established. For instance, a Respondent in removal proceedings may apply for cancellation of removal, asylum, or adjustment of status to green card, if otherwise eligible. Since an application for adjustment of status generally requires that a visa petition be approved making a visa available to the Respondent, a Respondent seeking adjustment of status in immigration court must pursue the visa petition with the USCIS, which has exclusive jurisdiction over the visa petition, in order to apply for that relief with the Immigration Judge.
Under the current process, USICE Attorneys may move to dismiss removal proceedings against individuals who meet certain objective criteria, as long as there are no serious adverse factors or any ongoing investigations involving the Respondents. In some cases, the USICE District Counsel will move to dismiss the proceedings on their own initiative and in others, Respondents may file affirmative requests with the USICE District Counsel’s office to seek relief under this policy. USICE will most likely move to dismiss or close a pending case if the Respondent is the beneficiary of an application or petition filed with USCIS with a current priority date; the Respondent appears eligible for adjustment of status and deserving of a favorable exercise of discretion; the Respondent files the appropriate application and the Respondent is statutorily eligible for adjustment of status or for a waiver of any grounds of inadmissibility that may apply. USICE will also consider requests for administrative closure as an exercise of prosecutorial discretion and move to dismiss certain removal cases in their discretion, even if Respondents are not Beneficiaries of visa petitions with a current priority dates, as long as the Respondents can establish that they merit such treatment under the criteria set forth in the Morton Memo.
While some politicians have openly criticized the Obama administration as endorsing a “de facto amnesty” by utilizing administrative policy change to de-prioritize removal of non-criminal and non-dangerous foreign nationals, the policy initiative seems to be working. Record numbers of criminal aliens are being deported from the US, making to country safer for citizens and green card holders alike. Focusing USICE’s efforts on the most dangerous aliens has freed up invaluable court resources, which should allow USICE to continue to prosecute record numbers of aliens with criminal and terrorist backgrounds.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
