December 7, 2011
Recent memorandums issued by the Department of Homeland Security (DHS) detailing the instances as to when a Notice to Appear (NTA) will or will not be issued expands the potential for individuals to resolve immigration problems without necessarily encountering the stress and burdens of removal proceedings. This is especially true for those who may have wrongfully been granted permanent residency, either because they intentionally misrepresented a material fact or the immigration service made a mistake in granting their application.
There are many situations wherein an individual has erroneously been granted permanent residency to the United States. A common scenario involves individuals who were petitioned as a single child, but were in fact already married before becoming a permanent resident. Another situation may be an individual who was a beneficiary of an employment-based visa, but never actually worked for the petitioning sponsor. As well, there are instances wherein the DHS simply makes a mistake.
The DHS’ recent memorandums discussing prosecutorial discretion and instances as to when an NTA initiating removal proceedings will or will not be issued sheds light on the potential that the DHS may now be more willing to provide leniency to individuals wrongfully granted permanent residency to the United States. It appears that the DHS may now be willing to exercise prosecutorial discretion by allowing individuals to plead the essence of a 237(a)(1)(H) fraud waiver during the processing of an application for naturalization, rather than pursuing removal proceedings against all individuals who have wrongfully been granted permanent residency.
The granting of a 237 fraud allows an individual who has wrongfully been granted permanent residency the ability to retain his permanent resident status, thereby effectively forgiving the fraud committed by the individual. Since permanent resident status is retained, the individual does not lose any time toward their eligibility to become a US citizen. Unfortunately, though, an individual may only apply for a 237 fraud waiver in removal proceedings before an immigration judge.
Realizing that the immigration court is vastly overwhelmed with cases, however, the DHS is acknowledging through these recent memos that perhaps not every individual who has wrongfully been granted permanent residency should be placed in removal proceedings in order to apply for a 237 waiver. Instead, it appears that the DHS may now be willing to review the merits of what is essentially a 237 waiver during the naturalization application process.
The DHS is establishing a Review Panel for naturalization applicants that will determine whether or not to issue an NTA. The Review Panel will receive a recommendation by the DHS interviewing officer. The recommendation will be based on the following criteria: willfulness of actions, fraud factors, length of permanent resident status, criminal history, and officer error at time of adjustment. These factors are similar to those required for a 237 waiver. Accordingly, naturalization applicants in this situation should fully set forth all factors as to why the DHS should exercise prosecutorial discretion by not requiring a formal 237 waiver in removal proceedings, and instead granting the naturalization application. The DHS policies and practices continue to evolve, some more strict and others seemingly more lenient. The initiation of the Review Panel in the naturalization application process should afford more individuals the ability to present their story and try to convince the DHS that it would not be in the best interest of the DHS or the immigration court to seek terminating the permanent resident status of a person wrongfully granted such status. Individuals who are faced with this situation should escape the shadows of their fear and seize upon the opportunity that the DHS is now at least willing to consider.