Category Archives: Removal / Deportation

DHS/USCIS Begins Accepting DEFFERED ACTION Cases Today.

Today, August 15, 2012, USCIS begins to accept Deferred Action cases.

“USCIS has developed a rigorous review process for deferred action requests under guidelines issued by Secretary Napolitano,” said USCIS Director Alejandro Mayorkas. “Childhood arrivals who meet the guidelines and whose cases are deferred will now be able to live without fear of removal, and be able to more fully contribute their talents to our great nation.”

Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. USCIS will review requests and make decisions on a case-by-case basis.  While it does not provide lawful status or a pathway to permanent residence or citizenship, individuals whose cases are deferred as part of this process will not be removed from the United States for a two-year period, subject to renewal, and may also apply for employment authorization.

The Deferred Action process appears to be fairly straightforward for most; however issues surrounding the process are not. Each person will, in essence, be revealing him or herself to the government. While DHS has offered some level of assurance regarding confidentiality, those assurances are necessarily weak. Speaking with an immigration attorney before applying is the smart, safe way to go.

  • Because of the complexity of immigration law as a whole, even the simplest process can be fraught with pitfalls. AILA and the immigration lawyer community are rallying to mobilize unprecedented pro bono activity surrounding the Deferred Action initiative.
  • DREAMers, like all Americans, are united by a deep respect for those who work hard for a living and a shared commitment to the country we all call home. These young people study in our schools, play in our neighborhoods, and pledge allegiance to our flag. They are Americans in their hearts, in their minds, in every single way but on paper. They were brought to this country by their parents—sometimes even as infants—and yet they live under the threat of deportation to a country they may know nothing about.
  • This temporary reprieve for DREAMers gives Congress the space to reach a consensus by taking the immediate threat of deportation off the table. Deferred action is not amnesty. Deferred action is not permanent. Deferred action is not a pathway to a green card or citizenship. Deferred action is not legal status. Youth that qualify cannot vote or petition for family members.
  • Under current law people granted deferred action are eligible to apply for work authorization. While living in the United States people must have a way to support themselves—this is not a change in current law.

Please see the page on my website, regarding DEFERRED ACTION.


1. In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.

2. Information provided as part of the deferred action request process is protected from disclosure

to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.

3. If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

4. Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible.

5. A “significant misdemeanor” is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

6. Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “3 or more” standard.

7. The Form I-765 will be required, along with another form that will be made available on August 14 or 15. Total fees, including biometics, will be $465. Fee waivers will not be available, but fee exemptions will be permitted in very limited circumstances, and must be requested and approved before submitting a deferred action application without a fee.

8. Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

Talking Points on “DREAM Act”

The Development, Relief and Education of Alien Minors (DREAM) Act (S. 729/H.R. 1751) is a bipartisan bill that would provide a conditional six-year pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. if they: complete high school; demonstrate good moral character; and complete at least two years of higher education or serve for at least two years in the U.S. military. The bill also would also repeal section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) that prohibits states from providing any higher education benefit based on residency to unauthorized immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence.


The students who would benefit under the DREAM Act have been raised and educated in the U.S. and by allowing them to pursue a higher education, we are investing in the future of our country and our economy.
•  Communities, states, and nation would reap significant benefits from the DREAM Act. A RAND study showed that a 30-year-old Mexican immigrant woman who graduated from college will pay $5,300 more in taxes and cost $3,900 less in government expenses each year than if she had dropped out of high school. This amounts to an annual fiscal benefit of over $9,000 every year, money that can be used to pay for the education of others.
•  DREAM Act beneficiaries will make up part of the educated workforce needed to help the U.S. compete in the global economy. In our globalized world, their multilingual and bicultural skills, and contributions are more important than ever to the success and global competitiveness of the United States.


•  Due to the undocumented status of their parents and other family members, they have no available avenues for family-based visa sponsorship.
•  Few employers would or could sponsor them for a work visa due to their age and lack of work experience. Even if an employer was willing to sponsor them, the process takes precious years that these children cannot afford to waste.


•  States are required to invest in elementary and secondary education for undocumented children, but can’t collect on the return. However, when states are ready to earn a return on their investment through a highly educated workforce, they are barred from offering in-state tuition to these children. The states (and their taxpayers) have the right to earn this return.
•  States should have the authority to determine how they allocate their resources. Such an educational investment pays dividends for the states by reducing the dropout rate, leading to substantial savings in criminal justice costs and the use of public benefits, and sharply increasing the taxes paid by those benefiting from this initiative. AILA InfoNet Doc. No. 09043072. (Posted 3/19/10).


•  This measure would require children to have lived in the U.S. for a number of years and to have no criminal record.
•  This measure would require eligible children to dedicate themselves to learning English and succeeding in our educational system.
•  This measure proposes a one-time only fix that would not encourage illegal immigration.

This measure recognizes that the status quo needs to be reformed by granting children the means to continue their education and legalize their status. Such reform works for children and works for America.


“Deferred action” amounts to an excercise of favorable discretion by the authorities, which allows an individual to remain temporarily in the United States and apply for work authorization. It does not confer any kind of permanent residence, nor can it be seen as a form of amnesty.

Under this new initiative, deferred action would be granted for two year increments and would be renewable.

According to DHS, people may apply for deferred action if they meet all the following criteria:

  • came to the U.S. under the age of 16;
  • are not above the age of 30;
  • have resided in the U.S. for 5 consecutive years as of the date of the memo;
  • are currently in school, have graduated from high school, obtained a GED or have been honorably discharged from the armed forces; and
  • have not been convicted of a felony offense, a significant misdemeanors, multiple misdemeanors or who do not pose a threat to national security or public safety.

Specifically, DHS advised that:

Effective immediately, ICE, CBP, and USCIS agents should not place individuals into removal proceedings who meet the above criteria.

For those already IN immigration proceedings and who have been offered administrative closure under the previous prosecutorial discretion program, ICE will begin making determinations about deferred action immediately. For other persons who are in removal proceedings, ICE is directed to implement the program within 60 days.

For those NOT in removal proceedings, which is the vast majority of individuals affected by the new announcement, USCIS has been directed to devise a plan within 60 days that allows people 15 and older to affirmatively apply for both deferred action and work authorization (those granted deferred action through ICE will apply to USCIS for work authorization as well). People with final orders of removal will also apply to USCIS.

ICE issues guidance on enforcement efforts for Aliens with pending filings.

Traditionally, Aliens in removal proceedings, who were beneficiaries of pending petitions, found themselves in lengthy drawn out legal limbo, pending the outcome of the pending petitions, which could provide relief from removal.

In a recent joint effort between ICE , EOIR, and USCIS,  this issue was examined and as a result guidance is now forthcoming, whereby cases referred by ICE to EOIR will be submitted to USCIS for expedited processing.

Depending on whether the Alien is in Detention (or not in detention), USCIS will pull pending petitions/application on behalf of that Alien and attempt to process those filings within 30/45 days, since the approval may provide relief and EOIR may terminate removal proceedings without prejudice, since the Alien may no longer be removable.

ICE, at its discretion, will examine whether there are adverse factors concerning a particular Alien (lengthy criminal history, threat to public safety or national security, etc.) to determine if the referral to USCIS for expedited processing is appropriate.

ICE and FDLE partner up to Prioritize removal of Criminal Aliens

Today, U.S. Immigration and Customs Enforcement (ICE) and
 the Florida Department of Law Enforcement (FDLE), announced that ICE is
using a new biometric information sharing capability in every Florida 
county to help federal immigration officials identify aliens, both 
lawfully and unlawfully present in the United States, who are booked
 into local law enforcement’s custody for a crime. This capability is
 part of “Secure Communities” – ICE’s comprehensive strategy to improve and
modernize the identification and removal of criminal aliens from the 
United States. [download ICE's pamphlet]

Formerly, during the booking process, arrestees’ fingerprints were 
checked for criminal history information only against the Department of
 Justice’s (DOJ) Integrated Automated Fingerprint Identification System 
(IAFIS), a biometric database maintained by the FBI.

With the implementation of “Secure Communities”, this fingerprint
information is now automatically and simultaneously checked against both 
the FBI criminal history records and the biometrics-based immigration 
records in the Automated Biometric Identification System (IDENT), which 
is maintained by the Department of Homeland Security (DHS).

If any fingerprints match those of someone in the DHS biometric system, 
the new automated process notifies ICE. ICE evaluates each case to 
determine the individual’s immigration status and takes appropriate
 enforcement action. This includes aliens who are in lawful status and
those who are present without lawful authority. Once identified through 
fingerprint matching, ICE will respond with a priority placed on aliens
 convicted of the most serious offenses first – such as those with 
convictions for major drug offenses, murder, rape and kidnapping.

“This program maximizes the use of biometric technology to exchange 
critical public safety information,” said FDLE Commissioner Gerald 
Bailey. “FDLE is pleased to work with ICE and local law enforcement to
 help protect Florida citizens.”

“The Secure Communities strategy provides an effective tool to help ICE
 identify aliens charged with crimes in law enforcement custody with 
little or no cost to our law enforcement partners,” said ICE Assistant
Secretary John Morton. “Applying this biometric information sharing tool
in Florida improves public safety by enabling ICE to prevent the release 
of criminal aliens back into our communities when they complete their

USCIS Grants Deferred Action for 2 Years to Widows/Widowers of U.S. Citizens

(DHS Secretary) Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States and who were married for less than two years prior to their spouse’s death.

USCIS will suspend the adjudication of visa petitions and adjustment applications filed for widow(er)s, where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage.

Additionally, ICE will defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.

ICE is scrapping its “Scheduled Departure” scheme…

The Associated Press has just reported that the U.S. Immigration and Customs Enforcement (“ICE”) is ending the “Scheduled Departure” program when the trial run concludes Friday. According to the AP wire, only eight people participated in the program.

According to ICE, the purpose of the program was to give illegal immigrants under court order to leave more control over their departure, being less disruptive to affected families. While pro-immigrant activists ridiculed ICE’s attempt, many now fear that the program’s short-lived “test” will only prompt far more stringent enforcement from ICE.

According to analysts, the ill-conceived program by ICE offered too few (if any) incentives for immigrants to come forward and “self-deport”, since they could be barred from re-entering the U.S. for as long as 10 years. The program also failed to consider the needs and circumstances of immigrants’ ties to family left behind in the U.S.

ICE offered the program to 457,000 illegal immigrants nationwide who were under judicial orders to leave the country, but had no criminal records. The immigrants were given up to 90 days to plan their exit and coordinate travel with relatives instead of facing the prospect of being arrested, detained and deported.

An Update on ICE’s “deport-yourself” program…

In following up to my recent August 7 post, on reflection, it seems that ICE’s efforts coax undocumented or out-of-status aliens out of the woodworks to come forward and essentially self-deport, it not only a ‘humanitarian’ measure, as advertised by ICE.

Reflecting further on this, one wonders why any of the estimated half-million aliens who could potentially ‘benefit’ from this and would want to do this, — other than for reasons of coordinating their departure from the U.S. somewhat on ‘their’ terms.

In order for this new program to even stand a chance of working, Aliens who are removable (i.e. deportable) would have to weigh the risks and consequences of being arrested by law enforcement and forcefully deported “on the spot”, against quietly living in the shadows and avoid any run-ins with the law. Aliens would have to conclude that a high likelihood of apprehension and the experience of being forcefully removed would be far worse and far more unpleasant, than a structured, voluntary, orderly departure on one’s own terms.

One consideration would be the immigrant population’s perception of how likely it is for them to be caught, detained and deported. For some aliens, this fear is a very real, daily fear. Others take a more laissez-faire approach and roll their dice… and take their chances.

Of course ICE and other agencies want to paint a self-portrait of stringent, pro-active enforcement, where random raids and spot-checks are a daily occurrence. ICE clearly wants to be seen as having the ability to simply show up, bang down doors, pick up the Alien-suspect, and essentially drive them straight to the airport, to be placed on the next available outbound flight.

But does this heavy-handed “don’t mess with the law” self-portrait really mirror reality? Do current staffing levels and resources of the Feds really permit wide-sweeping, immediate enforcement, where it is only a question of time (rather than if), before an Alien is apprehended and forcefully put in removal proceedings?

Some who are observing ICE’s new initiative with curiosity are attempting to read between the lines? Is this supposed “humanitarian” effort to coax eligible aliens to come forward voluntarily in reality nothing more than an open admission, a resignation of sorts, that ICE and other Fed-agencies really can’t cope with the scope of their mandate?

Some skeptics snicker, saying that most out-of-status immigrants are probably more likely to be struck by lightning than to ever be paid a visit by ICE. According to ICE, last year, in 2007, the agency arrested about 30,000 fugitive aliens in the entire country.

If you assume for the moment, that at any given time, there could be between 12 million and as many as 30 million ‘illegal’ aliens, unless ICE and other agencies significantly increase its human and operational resources significantly, at last year’s rate of apprehensions, it could take ICE between 400 and over 660 years for the agency to ‘clean house’ among the millions of illegal immigrants now estimated to be in the United States.

Under ICE’s new program, anyone who wants to take advantage of this and schedule their own departure would be given 90 days to get their affairs in order.

… Oh, and guess what? As with almost anything these days, even ICE has fine-print, which was not drawn attention to, you know, just minor terms and conditions, like being outfitted with an electronic ankle bracelet to keep track of their whereabouts until they self-deport.

New program gives non-criminal aliens opportunity to avoid arrest and detention

U.S. Immigration and Customs Enforcement (ICE) announced today the launch of a pilot program, Scheduled Departure, which will begin next week in five cities. The program allows fugitive aliens who have no criminal history and pose no threat to the community an opportunity to remain out of custody while they coordinate their removal with ICE.

The program complements ICE’s Fugitive Operations Program which targets fugitive aliens for arrest and removal from the United States. ICE’s fugitive operations teams give top priority to cases involving fugitive aliens who pose a threat to national security and community safety; and thus far in FY 2008, they arrested more than 26,000 fugitives and other immigration status violators. There are 90 active fugitive operations teams, with 15 more scheduled to be deployed in the next two months.

Those with families can particularly benefit from this program. It allows qualifying aliens to make removal arrangements without being held in custody, which will ease their transition and minimize the impact of their removal on their loved ones. In addition, ICE will allow eligible participants to arrange for their families to depart together, should they so desire.

According to ICE, By coming forward and participating in the program, ICE will no longer consider the alien to be a flight risk. An ICE fugitive is defined as an alien who has failed to depart the United States based upon a final order of removal, deportation, or exclusion from a U.S. immigration judge, or who has failed to report to ICE after receiving notice to do so. Only non-criminal fugitive aliens are eligible for the program and will be screened by an ICE officer when reporting to verify status.
ICE officers will update immigration databases, and explain supervision requirements to eligible aliens. Aliens who qualify would be allowed to remain in the community with a reporting requirement or an electronic monitoring device. Since all situations are unique, an ICE officer will notify the alien of the next steps to take for removal.

Aliens who are able to provide for their own removal would have the flexibility to make their own travel arrangements within a 90-day time period. ICE will work with eligible aliens who are not able to provide for their travel; however, ICE will maintain control and schedule the travel arrangements in these specific cases.

ICE will allow eligible participants to arrange for their families to depart together. U.S. citizens or aliens with a legal immigration status cannot be removed by ICE from the United States; however the relatives of the non-criminal fugitive alien being removed are welcome to make their own travel arrangements to depart at or around the same time, if they choose to join their relative. These are personal decisions made by each individual family.

At this time, Aliens who have not previously been encountered by immigration officials (i.e. entered illegally, without inspection, or “EWI”) or who have criminal records, or are determined to be a danger to the community are not eligible for this program and may be arrested and taken into custody if they report to ICE.