Motions To Reopen Requiring Exercise Of Prosecutorial Discretion - Should They Be Treated More Kindly Under Administration's New Policy? Filing I-130 Petitions Overseas With U.S.C.I.S. Now; Entry Without Inspection (EWI) With Inability To Immigrate May Have Solution

by Alan Lee, Esq.

1. MOTIONS TO REOPEN REQUIRING EXERCISE OF PROSECUTORIAL DISCRETION - SHOULD THEY BE TREATED MORE KINDLY UNDER ADMINISTRATION'S NEW POLICY ?

On prosecutorial discretion and the Administration's August 18, 2011, decision to apply it to the 300,000 pending cases in immigration court proceedings regardless of the present stage of the cases, is this a signal that the Department of Homeland Security will now favorably entertain motions to reopen cases in which people have final orders of exclusion, deportation, or removal and new grounds of possible relief? We believe that it should be so, but that there are some real concerns that this will not happen.

Prosecutorial discretion to reopen cases has frequently been requested by aliens and their lawyers to DHS attorneys as there have been other DHS memoranda in the past encouraging its use,[1] but favorable use of discretion has generally been lacking. Responses from DHS attorneys opposing reopening almost invariably cite the long period of time the aliens took to file motions to reopen, that they presented no good reasons for ignoring the final orders in the past, and that DHS would not reopen cases just because the movants acquired new equities thereafter. But now the Administration's announcement of prosecutorial discretion standards for the nationwide 300,000 immigration court caseload gives much more importance to ICE Director John Morton's June 17, 2011, memorandum, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens." This latest memorandum spells out a set of factors to be considered by the agency's officers, agents, and attorneys, with Mr. Morton saying that the list is not exhaustive and no one factor is determinative. The list of factors is:

the agency's civil immigration enforcement priorities; the person's length of presence in the United States, with particular consideration given to presence while in lawful status; the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child; the person's pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States; whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat; the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants; the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud; whether the person poses a national security or public safety concern; the person's ties and contributions to the community, including family relationships; the person's ties to the home country and conditions in the country; the person's age, with particular consideration given to minors and .the elderly; whether the person has a U.S. citizen or permanent
resident spouse, child, or parent; whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative; whether the person or the person's spouse is pregnant or nursing; whether the person or the person's spouse suffers from severe mental or physical illness; whether the person's nationality renders removal unlikely; whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident; whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

There appear to be two major forces against taking the memo seriously in the reopening of cases:

A. DHS's stated position thus far.

1. DHS Secretary Janet Napolitano discouraged the immigrant communities in her talk on August 30, 2011, in a Christian Science Monitor breakfast by saying that the deportation numbers will be "very robust" under the new policy. If Secretary Napolitano was truly serious about applying the Morton memo to keep low priority cases out of the system and to review the 300,000 presently in proceedings to terminate cases of those falling within the Morton criteria, the deportation number should logically be expected to decline rather than being trumpeted as very robust in the future.

2. U.S.I.C.E. recently released an FAQ titled, "Frequently Asked Questions on the Administration's Announcement Regarding a New Process to Further Focus Immigration Enforcement Resources on High Priority Cases," in which ICE answered the question "Does the implementation of the process mean that only individuals with criminal convictions will be removed?" in the negative that "Many individuals who have violated civil immigration law but lack a criminal conviction are a DHS priority for removal from the United States ... DHS priorities include threats to public safety and national security, repeat violators of the immigration law, recently illegal border entrants, and immigration fugitives." Aliens who remain in the United States following a final order of removal are considered by ICE to be immigration fugitives. Also what is a repeat violator of the immigration law? - just the acts of entering the United States illegally or being in the United States illegally or working illegally or purchasing a false document to stay/work are all separate violations, and these do not even include consideration of the violation of a final order of removal.

3. Recent anecdotal evidence indicates that local ICE officials are not taking the Morton memo seriously in their operations.

Here the Administration and specifically the White House must set the tone and keep its eye on the ball in ensuring that the August 18th announcement is not finally seen by immigrant communities as a grandstand play without substance. The tone of DHS on the importance and applicability of the Morton memo in recent days has turned unfavorable, and the Administration will have to do more to define the boundaries of the memo's applicability to those who have only immigration violations, and what serious immigration violations would preclude them from the August 18th proposed relief.

B. Motions to reopen may technically be seen as outside the scope of the 300,000.

1. Motions to reopen are instruments attempting to reopen final rulings. As such, the matters have generally been closed and are not within the 300,000 cases presently clogging the immigration court system. So although the Morton memo of prosecutorial discretion applies to motions to reopen, it may not do so with much force as it does not have the impetus of the Administration's August 18, 2011, commitment to having the memo's standards applied to the current deportation caseload. However, it should.

If the principal idea behind the Administration's announcement is to reduce immigration court backlogs, granting the motions of those qualifying within some of the memorandum's factors for prosecutorial discretion and then immediately terminating the court cases and sending the applications to U.S.C.I.S. to deal with the adjudications would have the effect of preventing those whose motions are denied from filing further motions and administrative/judicial appeals. Although this is not a perfect solution as some remanded cases will be denied by U.S.C.I.S. with the concomitant effect of the applicants being back in front of the immigration courts, most will not be, and the sending down of so many cases to U.S.C.I.S. within the short term would significantly reduce the immigration court backlog. In addition, remanded cases based on requests for adjustment of status to permanent residence would generate new revenues to U.S.C.I.S., which is funded by the fees that it collects.

Finally if the standards of the Morton memo are seriously applied to motions to reopen, it can be seen that many cases could be reopened and relief given. Applying the listed factors to our typical motion to reopen based on family ties, favorable factors are that the agency's civil immigration enforcement priorities are now to focus on criminal aliens rather than those with just immigration violations; that most persons filing motions to reopen will have been present in the U.S. for a lengthy period of time; do not pose a national security or public safety concern; will not have had a criminal history; will have ties to the community, including family relationships; have tenuous ties to the home country; conditions in the home country will generally be detrimental to them; they will have a U.S. citizen or permanent resident spouse, child, or parent; and be likely to be granted temporary or permanent status or other relief from removal, as a relative of a U.S. citizen or permanent resident. Unfavorable factors are that most with lengthy presence in the States will have been illegal for all or most of the period of residence; many will have sneaked in, entered with fraud, or with no documents; will not have been educated in the States; will not have served in the U.S. military or have an immediate relative in the military; will have had a final order, and may have other evidence of fraud associated with prior applications to U.S.C.I.S.

The choice is now up to the Administration as to how the August 18th announcement and Morton memo will play out. It cannot slow dance its initiative through interagency meetings and a few show samples of relief. It will have to do more, and it should realize that the slogging begins from here if it hopes to hold up a shining example of pro- immigrant accomplishment to the immigrant communities.