Prosecutorial Discretion Update: ICE Los Angeles

Prosecutorial Discretion is a remedy applied to sympathetic cases where certain aggravating factors (such as serious crimes, repeated violations of immigration law) are not present in cases pending before the immigration removal judges. Prosecutorial discretion (PD), if granted, could end in the closure or termination of removal proceedings against an immigrant who may not have any other relief available.  I've been watching ICE closely to see if prosecutorial discretion is actually becoming a realistic option and is actually being granted.

So far, this is what we know. In mid March 2012, Los Angeles ICE (Immigration & Customs Enforcement) Director Tim Robbins, and Acting Chief Counsel, Jason Aguilar met with local Congressmembers Judy Chu, Grace Napolitano, and Lucile Roybal-Allard and various nonprofit immigration organizations including the ACLU and American Immigration Lawyers Association (AILA) to discuss the implementation of prosecutorial discretion so far in Los Angeles.  LA has one of the largest ICE operations in the country so news here is helpful in understanding how ICE is handling these cases on a mass scale.

ICE confirmed the following new info:

• Los Angeles is currently reviewing about 50,000 cases. Los Angeles has about
• 20% of the nationwide immigration court case load.
• 22,000 cases have been reviewed.
• Los Angeles has administratively closed 200 cases.
• About 2000 cases (pending in Immigration removal hearings) have been identified for administrative closure pending background checks.
• Review of the remaining caseload is expected to finish by summer 2012. New cases will continuously be reviewed.

Even if a PD request was previously denied, ICE will still accept a new one technically. Whether a decision will change could depend on the arguments and how long ago.

The Acting Chief Counsel for the ICE attorneys in court stated that trial attorneys would mention/raise
to the Immigration Judge the potential availability of PD, which is a huge positive sign.  Whether or not this is actually happening and Immigration Judges are becoming aware of ICE's willingness to offer PD is something that remains to be seen in practice.

On the down side, still no work authorization (work permits, EADs) is available to those whose removal cases have been terminated or administratively closed due to a grant of prosecutorial discretion. LA ICE Director, Tim Robbins stated their is currently no plan to issue EADs as PD creates no "status". ICE believes the EAD issue is a CIS issue, because they do not have the authority to grant EADs. ICE will also not be granting "deferred action" to PD cases which he called a "unique" form of relief and only available for the most extreme cases.

No more foreign CIS office delays? Waivers for Unlawful Presence, Crimes & More to Be Filed at US Lockbox

In a teleconference today, US CIS announced plans to transition all usually foreign filed I-601 packages for unlawful presence, criminal, misrepresentation, and other kinds of inadmissability waivers to one central lockbox filing location in the U.S.  The practice now is to submit the waiver filing with the CIS office attached to the foreign consulate. This current process has resulted in a lot of delay and longer wait times for a final decision at certain consulates who have less CIS officers available to decide the waivers. So this is good news . . . in theory. 

Note: This new process has nothing to do with the provisional waiver process earlier proposed by CIS in January 2012. 

What this new process would do: 

Procedural change: 

Waiver applications can only be submitted to the lockbox in the US after the applicant has attended the immigrant visa interview abroad at the consulate and the consulate officer determines that the applicant is eligible to file a waiver. The waiver would be filed with the lockbox which forwards the petition to the CIS Nebraska Service Center for adjudication. CIS expects to train 26 officers on waivers to handle the expected increased workload. 

Proposed Benefits to this new process:

• Should be faster for applicants.  They also hope a new centralized place to submit the foreign filed waivers should stop great variations on processing times at different consulates; overseas offices cannot grow easily – some CIS offices abroad only have one officer to decide these case and the backlogs created are inevitable.  In contrast, service centers are huge (can pull staff from other units) and can respond quickly to increases in receipts of applications to avoid backlogs.
• Case status info will be available online through US CIS’s website once the application is filed and receipted.
• Process applies to all I-212s (Advance Permission to Reapply After Removal Packages) filed with Inadmissability Waivers as well
• E notification will be available – if you provide email address – can get receipt number emailed to you. 
• Implementation of this new policy is expected in late spring, early summer 2012.

Exceptions & Things to Think About:

• Applicants cannot apply from Havana – must file with intrasection there (only 10 cases a year)
• There could be certain situations overseas where CIS offices are available and could be faster for expedites than lockbox decisions which are expected to take no more than 6 months on average.
• Transition period for CDJ cases – between 75-79% are filed at CDJ. Now takes two months to review if instantly approvable. If not, the case referred to another office to adjudicate.  For the first six months of this new process, the applicant will have the choice to file at a lockbox or at CDJ. After this, will then all go to lockbox filings.
• As of today's teleconference, CIS is not  sure if will be transferring pending cases from consulates at the time the new procedure becomes effective or if CIS offices abroad will continue to decide those pending cases. 
• Refiles as the lockbox if the NBC denies the case will be available if the applicant chooses this route instead of appealing the denial to the CIS Administrative Appeals Office which could take over a year.

Although this a positive step in streamlining how waivers are decided, it's still frustrating because this new policy will not include those waiver applications that are determined to be necessary after an adjustment of status (green card process in the US) or for those applying for adjustment of status who know they will have to file a waiver. Those waivers will still be decided on the local level at the local field or district office. Scary, since there's no consistent training on waivers at the local level.

I'll let you know when we hear more about this new policy.