Time for ICE Memo Critics to Chill

On August 20, John Morton, the Assistant Secretary of the U.S. Immigration and Customs Enforcement (ICE), released a memorandum entitled “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Application or Petitions”.  

The ICE memo applies to persons in removal proceedings who meet the following criteria:

• The alien must be the subject of an application or petition with USCIS to include a current priority date, if required, for adjustment of status;
• The alien appears eligible for relief as a matter of law and in the exercise of discretion;
• The alien must present a completed “Application to Register Permanent Residence or Adjust Status (Form I-485)”, if required; and
• The alien beneficiary must be statutorily eligible for adjustment of status (a waiver must be available for any ground of inadmissibility).
  

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In such cases, the ICE Attorney will ask that the Immigration Judge dismiss the removal proceedings without prejudice to the government, requesting that the alien be removed from the United States if his application or petition is denied by the USCIS.

ICE will request that the USCIS rule on the pending petition/application within 30 to 45 days. 

The ICE attorney will not request that the case be transferred to the USCIS if “there are any investigations or serious, adverse factors weighing against the dismissal of proceedings. Adverse factors include, but are not limited to, criminal convictions, evidence of fraud or other criminal misconduct, and national security and other public safety considerations.”

What would a typical case covered by this memo look like?  

Juan, an overstay visitor to the U.S. was placed under removal proceedings by ICE when his wife Julia, a lawful permanent resident, petitioned for him to become a permanent resident of the U.S. The couple has been married for four years, and are the parents of two U.S. children.

Last week, Julia was sworn-in as a U.S. citizen. This makes her husband immediately eligible to become a green card holder. Juan is a construction worker, the family’s breadwinner, and has no criminal record.

The question is, should the already overburdened Immigration Judges have to decide Juan’s application for adjustment of status or should the case be transferred to the USCIS to resolve?

Consider that 200+ Immigration Judges across the country have a backlog of nearly 250,000 pending deportation cases, some of which involve criminals and those who have committed immigration fraud. Coping with over 1,000 cases per year creates huge problems. A legal issue is raised in the case of a person with a drug trafficking conviction, and the Judge is forced to postpone the case and allow the person to remain in the U.S. for a year or more while he reschedules the case for a “merits” hearing. In simple English, the present system does not allow the Judge to focus on the “bad guys”.

It is estimated that the August 20th ICE memo will permit up to 17,000 cases to be removed from the Court’s backlog and transferred to the USCIS. True, this reduces the backlog by less than ten percent, but it is a step in the right direction.

Of course, with the 2010 midterm elections in full swing, Senator Grassley (R-IN) and various anti-immigration groups call this an example of the Administration’s refusal to enforce our immigration laws.

This former INS Trial Attorney (1976-82) calls the ICE memo “simple common sense”.