28.11.2011 23:06:33

Thiaba Samb

The Obama Administration is pushing for a new policy to ensure that the majority of those removed from the country after an order of removal are those with criminal records and those who are a danger to the community. The Department of Homeland Security has been exercising its prosecutorial discretion to allow people to remain in the country and in the case of some non immigrants a chance to adjust within the U.S.

While many people have understood Obama’s new policy to mean that the administration is ‘giving papers’, the policy is not that sweeping. What is true is that many people will be able to get a stay of removal and others will actually be given a chance to adjust within the U.S. if the proper channels are used.

A stay of removal or the chance to reopen one’s case are not a right, nor will this be automatic. ICE or the person in removal has to seek a new determination. While DHS can on its own use prosecutorial discretion to reopen a case or grant a stay… people should not wait for an action from the Service as there are too many cases pending and it is best to be proactive about this matter. Also people should remember that the prosecutorial discretion is not a right and every one needs to make the proper arguments to be given the relief they are seeking. The Service is going to be dealing with these on a case by case basis. This means do not assume because your brother has gotten his case reopened yours will be too. The circumstances are different for each case and as I often tell people it comes down to the officer using the prosecutorial discretion.

DHS can decide to detain someone, issue an order to appear before a Judge to start removal proceedings, issue an order to cancel such a notice to appear, arrest someone for immigration violations, release someone on detention on bond, under their own cognizance or under supervision, seek to expedite the removal of a non immigrant, settle or dismiss removal proceedings, stay a removal order, agree to have a non immigrant voluntarily depart, and actually remove someone….

DHS can also agree to join in a motion to reopen removal proceedings to grant a relief and benefit. This is a very important prosecutorial discretion and the subject of our discussion. For many illegal immigrants who are on removal and have families in the states, there is a chance with the new administration’s focus on criminals and others with more serious violations, to get some relief and actually get their papers in the U.S. rather than being removed. The prosecutorial discretion is a tool that has to be used by immigrants and their attorneys in order to regularize the situation of many. 

People who are married to a citizen and have an approved I-130, those who have approved I-140 and are admissible and were not able to have their cases reopened since on removal proceedings should pay particular attention to this new policy. Do ask your attorney to contact ICE Chief counsel’s office to see whether they will use their prosecutorial discretion to join in a motion to reopen and have your case adjudicated for relief. If you are married to a citizen or your child is a citizen and over 21 and can proceed to get you a I-130 do start the process and then contact ICE legal.

Of course a reopening of one’s case is the best case scenario as it allows the person a chance to adjudicate his/her case and get a chance to be granted a relief and the chance to stay in the U.S. but some people do not have the kind of ties in the U.S. that would allow them relief. In such a case ICE can still decide to terminate the proceedings or grant a stay of removal. People who are not able to adjust but are minors or elderly, or been present in the U.S. since childhood, are pregnant, or victims of domestic violence, trafficking and serious crimes, or suffer from serious mental pr physical disability or have serious health conditions or even those who were found in removal proceedings but were at one time long time lawful permanent residents or veterans can push for such prosecutorial discretion.

Please note that DHS will not entertain to use prosecutorial discretion for people who do pose risk to the national security, or are serious felons, repeat offenders, or people with a lengthy criminal records, or pose danger to the community or those who have consistently violated immigration laws, engaged in immigration fraud or with a record of illegal re-entry, according to the different memos the Service has sent out.

If you are not sure whether you qualify for a prosecutorial discretion do contact an attorney because this is an important policy and one that people actually should take advantage of to get a chance to adjust their status in the country if possible or get a chance when the situation back in your home country is dangerous not to be removed to such a place.

Removal | immigration | Prosecutorial Discretion | Motion to Reopen | Joint Motion to Reopen | Stay of removal | Voluntary Departure | Immigration Relief and benefit