February 23, 2011
The Department of Homeland Security (DHS) has made it abundantly clear that enforcement of the immigration laws against individuals unlawfully residing in the United States is amongst one of its top priorities. The more stringent enforcement of this policy in recent years has tremendously increased the number of individuals placed in removal proceedings before the immigration courts, which is known as the Executive Office for Immigration Review (EOIR). Consequently, the massive number of removal cases has excessively burdened the EOIR, as well as DHS’ trial attorneys, known as the Office of Chief Counsel (OCC) (which is part of the Immigration and Customs Enforcement (ICE) unit).
In an effort to resolve some of the excessive delays caused by the increase in removal cases, John Morton, the Assistant Secretary for ICE, released a policy memorandum on August 20, 2010, aimed to provide assistance to some individuals faced with removal proceedings. The policy memorandum outlined a framework for ICE to request expedited processing of a petition that is pending before the U.S. Citizenship and Immigration Service (CIS). The memorandum also outlined circumstances that would warrant the termination of removal proceedings against the individual.
On February 4, 2011, the CIS issued its own memorandum implementing the policies set forth in the ICE memorandum. Both CIS and the OCC are now coordinating their efforts in identifying and processing cases that warrant expedited handling and termination of removal proceedings in order to alleviate the excessive backlogs currently faced by the immigration courts.
The first component of the memorandums, expediting certain petitions pending before the CIS, is important because the EOIR often cannot issue a favorable decision for an individual in removal proceedings until the CIS issues a final approval on an underlying petition, such as an I-130 Petition for Alien Relative or I-140 Immigrant Petition for Alien Worker. For example, an immigration judge cannot grant an individual married to a U.S. citizen a green card until the CIS approves the I-130 Relative Petition. In July 2009, the EOIR identified approximately 17,000 removal cases that were delayed simply because the CIS had not yet issued a final decision on the I-130 Relative Petition. This not only prolongs the ability for the individual to favorably resolve the removal case and move forward in life, but it also wastes the EOIR and ICE’s time and resources.
Under the memorandums, the OCC will now affirmatively request expedited handling of pending petitions with the CIS. For detained individuals, the CIS will seek to render a final decision within 30 days of receipt of the file from ICE. For non-detained individuals, the goal is for CIS to render a final decision within 45 days. This would be a tremendously positive reform as most pending petitions are presently taking several months, if not years, to process.
The second component of ICE’s policy memorandum is of great encouragement as it reinforces ICE’s policy that prosecutorial discretion should be used to terminate removal proceedings against certain individuals not deemed to be of high risk. The memorandum states that the OCC should seek to terminate removal proceedings against an individual, whether detained or non-detained, if the individual appears to be eligible for relief from removal. If the individual is detained, termination of removal proceedings would allow the individual to be released from custody.
The factors that the OCC is to use in determining whether a removal case should be terminated are as follows: 1) The individual must be the beneficiary of a petition that would immediately render the individual eligible for adjustment of status; 2) The individual appears eligible for relief as a matter of law and in the exercise of discretion; 3) The individual must present a completed adjustment application, if required; and 4) The individual must be statutorily eligible for adjustment of status, including any required waivers. Unless there are other discretionary factors that warrant continuation of removal proceedings, the policy memorandum clearly outlines ICE’s goal toward streamlining the caseload before the EOIR by terminating removal cases deemed to be of low risk.
The fear that one faces when removal proceedings are initiated can understandably be overwhelming and frightening. The immigration laws are complex and the various policies by the multiple governmental agencies involved can certainly add to the anxiety. The new ICE and CIS policy memorandums should at least aid in alleviating some of the problems faced by individuals in removal proceedings. It is vital, however, that an individual have an immigration attorney attune to the constantly evolving laws and policies to ensure that an individual’s rights are fully protected.