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ICE Modifies Deportation Rules

August 27, 2010

Deportation Defense: ICE Modifies Immigration Removal Policy  For Green Card Applicants

Once in a while, common sense rules the day in immigration law.

As a Riverside immigration lawyer, it seems like these days are like a burst of sunlight in the middle of week-long thunderstorms.

But they happen.   And when they do, like the recent ICE policy change regarding needless deportation and removal hearings, the government deserves praise.

ICE Announces New Immigration Deportation Policy

In an Immigration and Customs Enforcment (ICE) policy memorandum issued a few days ago, John Morton, head of the U.S. Immigration and Customs Enforcement (ICE) announced a shift in prosecuting certain immigrants facing deportation charges.

The change in ICE policy applies to undocumented immigrants who have already filed applications to become legal residents through family members.

In recent years, the immigration courts have become clogged with too many cases, too few judges, and inadequate resources.  According to ICE statistics, there are at least 17,000 such cases pending in the immigration court system.  The new policy allows for these cases to be removed from the overcrowded immigration court system.

Not all immigrant applicants for green card benefits will be able to use the new policy.  The new ICE position pertains only to cases where there is a strong probability that immigrants will win legal status.

ICE director Morton, in his memo, classified the placement of such immigrants in deportation proceedings as a “major inefficiency” in the deportation court system process.

What Are The Requirements For Dismissing Deportations Under The Morton Memo?

According to the Morton memo, only cases meeting the following requirements will qualify for dismissal:

  • The immigrant must have an application filed with the U.S. Citizenship and Immigration Services which includes a current priority date for adjustment of status
  • The immigrant appears to be eligible for relief as a matter of law and in the exercise of discetion
  • The immigrant must present, if requested, a completed Application to Register Permanent Residence or Adjust Status, commonly known as Form I-485.
  • The immigrant must be statuorily eligible for adjustment of status (with a waiver available for any ground of possible inadmissibility)

The New Deportation Policy Does Not Carve Out A New Path

Most news accounts seem to indicate this is an entirely new direction for immigration law in this country.

It’s not a new path.

It’s merely an extension of a current policy.

Presently, if an immigrant has a pending application for a green card through a family member,  immigration judges will usually terminate proceedings if the priority date to file a permanent resident application has been reached.

To get to this point, the parties have to proceed to court, usually a couple of hearings at minimum.  Then the immigrant, who is facing deportation and removal, has to file an I-485 application with government counsel.  A motion to terminate proceedings is then presented to the court, either by agreement of the green care applicant’s attorney and the government, or solely by the green card lawyer.

For example, earlier this week, I attended the first hearing for a client from my Riverside immigration lawyer office.  He was married about a year ago to a U.S. citizen and they have one child.  Having arrived with a tourist visa many years ago, he qualifies to adjust his status to lawful permanent resident as soon as all background security checks are completed.   This process normally involves 2-3 immigration court hearings.

Now, under the Morton memo, the arresting ICE officer or the government attorney can dismiss the deportation charges.  This will save their agencies the time and expense involved in a futile attempt to remove such immigrants – and it will save immigration judges time and expense as well.

The difference between the current procedures and the Morton memo is essentially a timing issue.  The sooner the case is dismissed, the less government resources are wasted.

Critics Exaggerate The Significance Of The New Rule For Deportation and Removal Cases

As could be expected, immigration opponents quickly condemned the new policy.  Despite being a common-sense strategy, several opponents claimed the Obama administration was weakening enforcement and making it easier for illegal immigrants to stay in the United States.

Such criticism is flawed.

  • First, the policy only benefits those who already have active applications in the system to become legal residents.  The reason for the delay, in many cases, is another serious flaw in our immigration system.  Some family members have to wait over a decade to obtain an interview date for their green cards.
  • Second, immigrants with criminal records and other legal problems will not qualify under the new procedures.
  • Third, the dismissal will not be a blind dismissal.  If an immigrant fails to obtain a green card at their permanent resident interview, they will be sent back to immigration court where their deportation and removal defense hearings will start over again.
  • Fourth, this policy shift does not create a new path to legalization.

The New York Times reported this policy was only reached after ICE conferred with immigration court officials.

“This is not a backdoor amnesty,” said Beth Gibson, assistant deputy director of ICE. “It is really about efficient use of docket space and smart use of everybody’s scarce resources.”

I agree with Ms. Gibson.

It’s time for immigration opponents to be honest with the American public.  They are opposed to any ideas to improve our immigration system except arresting, locking up, and deporting immigrants back to their home countries.

Their approach will not fix our immigration system.

Even though I’m a big proponent of free speech, I dislike intellectually dishonest speech.  Sooner or later, their shallow criticisms will become more obvious to the American public.

By , Immigration Law, Policy, And Politics

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