Tag Archives: removal

Part Nine: Discretionary Authority with Respect to Removal/Inadmissibility of Certain Aliens

· Gives Immigration Judges and DHS officers discretion to terminate removal proceedings or waive inadmissibility with respect to a request for admission, respectively, in cases in which:

o Not doing so would be contrary to public interest;

o There would otherwise be hardship to the noncitizen’s U.S. citizen or LPR parent, spouse, or child; or

o The non-citizen is prima facie eligible for naturalization.

o The waiver is not available to individuals who are subject to removal or are inadmissible based on a wide range of criminal and national security grounds, including convictions for aggravated felonies.

· Creates an exception to reinstatement of removal orders for individuals under 18 years of age or where reinstatement would be contrary to public interest or would result in hardship to the alien’s citizen or permanent resident parent, spouse, or child.

Limits the impact of the unlawful presence bars found at INA § 212(a)(9)(B) and (C):

o Expands eligibility for the waiver of the three– and ten-year bars to those who are parents of U.S. citizens or LPRs and strikes “extreme” from the waiver’s hardship standard;

o Adds that beneficiaries of approved H nonimmigrant visa petitions who earned a baccalaureate or higher degree from a U.S. institution and were under the age of 16 upon initial entry into the U.S. are eligible for a waiver of inadmissibility.

· Limits scope of inadmissibility for misrepresentation and false claims to U.S. citizenship.

o Adds a three-year limit on past misrepresentations.

o Requires that false claims to citizenship be “knowing” and exempts children under 18 and those without the mental capacity to knowingly make a false claim.

o Creates a new, non-reviewable waiver for misrepresentations and false claims that applies to noncitizens in or outside the United States; that is based upon extreme hardship to the noncitizen or a qualifying relative; that in VAWA cases is based upon significant hardship to the noncitizen or qualifying relative; and eliminates existing section 212(i) waiver.

o Applies the new inadmissibility provisions for false claims to citizenship to the deportability provisions.


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.


“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 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.

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.

Federal Court sides with Foreign Student on status violation issue.

In a very recent decision by the Federal 10th Circuit Court of Appeals, the court found a Foreign Student had not violated her student status, for purposes of seeking an adjustment of status, by switching from a private school to a public school, where the private school closed and ceased operations.


Foreign Student entered the U.S. as a B-2 nonimmigrant visitor and subsequently changed to F-1 student status. In accordance with her status, Foreign Student attended a private school until the conclusion of her sophomore year at which time the school ceased operations.

The school attempted to assist Foreign Student in securing admission to another private school, but was unsuccessful due to the distance of such schools in relation to Foreign Student’s home. She then attended a local public high school and eventually graduated in May 2005. In September 2003, just a few months after Foreign Student’s private school closed, Foreign Student filed an application for adjustment of status.

The application was denied and Foreign Student was placed in removal proceedings for having violated her nonimmigrant status. The immigration judge denied her renewed adjustment application, finding her inadmissible and ineligible and as a “student visa abuser” under INA §214(m). The Board of Immigration Appeals affirmed that decision. At heart of this issue was this regulation:

Adjustment of status is eligible to persons who establish, inter alia, that they are admissible. See INA §245(a). Under INA §214(m)(2), in relevant part, a nonimmigrant student will be deemed to have violated her status (thus rendering her inadmissible), “if the alien terminates or abandons [a] course of study” at a private secondary school “and undertakes a course of study at a public…secondary school” unless the student attends the school for an aggregate period of 12 months or less, or the student reimburses the school for the cost of her education in accordance with INA §214(m)(1)(B).

The appeals court then examined the meaning of “to abandon” and “to terminate”, concluding, the ordinary meaning of these words requires the student to act, not to be acted upon. The court held that under the plain meaning of INA §214(m)(2), Congress intended to penalize only F-1 students who act affirmatively to terminate or abandon their approved course of study.

Because Foreign Student stopped attending private school only when it ceased operations, Foreign Student took no affirmative action to terminate or abandon her course of study at the school. The court concluded that the initial immigration judge therefore erred in concluding that Foreign Student was not admissible for purposes of adjustment of status and remanded the case for further proceedings.