DHS Announces New Policy for those in Removal Proceedings

On June 17, 2011, ICE published a memo on their interpretation of when they will use prosecutorial discretion to dismiss pending removal cases. ICE, a subset of the Department of Homeland Security, is aiming its resources on enhancing border security and identifying and

removing criminal aliens, those who pose a threat to public safety and national security, repeat

immigration law violators and other individuals prioritized for removal.

In a letter from the current DHS Secretary to Congressman Dick Durbin published in August 2011, DHS Secretary writes, "President Obama has said on numerous occasions that to DHS it makes no sense to expend our enforcement resources on low-priority cases, such as individuals like those you reference in your letter, who were brought to this country as young children and know no other home. From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities." DHS announced that it is organizing a work group with the Department of Justice (DOJ) which has oversight over the Immigration Courts, "to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities."

What does this mean for those currently in removal? Repeat immigration law violators will still have difficulty being released from immigration hold or having their cases dismissed from Immigration Court. Those who have one illegal entry as opposed to multiple entries, misrepresentations, or criminal convictions will likely not obtain prosecutorial discretion and dismissals of their cases. Further, there is going to be a lot of confusion about this policy, especially because DHS said they would consider issuing work permits on a case by case basis. Much like the guest worker program spoken of for years and years to no avail, the work permit option does not exist and may never. DHS confirms that the new policy does not give relief or benefits for anyone including any of those students that would be eligible under the Dream Act.

245(i) Grandfathering Getting Tougher

245(i ) is an ever changing area of court interpretation. The Board of Immigration Appeals decided in Matter of Legaspi that an immigrant spouse cannot always grandfather under 245(i) and independently qualify for a green card if s/he is married to another immigrant who does have 245(i) grandfathering protection. 245(i) allows immigrants who entered the US illegally and who were sponsored for an immigration benefit (IV or labor cert) by a relative or employer by the cut off date of April 30, 2001 to obtain their green card in the US despite the illegal entry. The general rule, without 245(i), is that an immigrant must enter legally to obtain a green card in the US. If the immigrant cannot prove legal entry, the immigrant would have to travel to the consulate abroad to interview for their green card. But 245(i) saves the immigrant from having to travel abroad, if you can prove you qualify. An immigrant is "grandfathered" under 245(i) if they were a beneficiary of a petition filed by that date or were the spouse or child of an immigrant who was the direct beneficiary of that petition filed by April 30, 2001.

The BIA in Legaspi drew the line for grandfathering and made it all that more confusing. Try to follow this one. In Legaspi, the immigrant's wife was the child listed in a petition filed for her father by his father (her grandfather). The immigrant wife's father was the main beneficiary of the petition filed by April 30, 2011. Yes, the immigrant's wife is grandfathered under the father's petition. But, since the immigrant's wife did not have a petition directly filed to benefit her by that cut off date, he could not use her grandfathering status (as the child of a 245(i) beneficiary) to qualify himself as a grandfathered alien because he married her and skip consular processing, the ten year bar, and who knows what else.

As you can read, 245(i) can be very fact specific and complicated. Even 10 years later, it's still being used to qualify family for green cards.

Unlawful Presence & Criminal Waiver Process Changing Worldwide

CIS recently announced in June 2011 that worldwide changes to the inadmissability waiver process are underway. One of the biggest changes affects how long these cases take to be decided. Applicants for waivers can send in their waiver directly to the CIS office assigned to the foreign consulate. Prior to this, Applicants were required to send the waiver packet to the consulate (Department of State) which would then forward the waiver packet to the CIS office. This could take many months, especially for cases in Latin and South American countries where consulates have been notoriously slow. An applicant still has to receive notification from the consulate at the Immigrant Visa interview that they are eligible to file a waiver before the CIS office assigned will accept the waiver submission.

Another important change coming is that US CIS has plans to create one lockbox in the US for the direct filings of all inadmissability waivers, so no waivers have to be decided by overseas offices. This could also save applicants a lot of time and we hope, should streamline the process and make overall decisions more consistent.

The In-Laws & Conditional Residency

Choosing whether to file a joint petition or a waiver to remove the condition on residency often comes down to what you can prove. I speak to many immigrants who have evidence of abuse or that they married for love (not immigration purposes) in the form of affidavits of relatives. Often times, relatives are the only witnesses. However, I usually never use the testimony or affidavits of the US citizen spouse's relatives. I understand that many times, the US citizen's family act helpful and claim to be upset with the US spouse's treatment of the immigrant or the US citizen spouse's immaturity. But when it comes down to it, they are the spouse's blood relations and their loyalty will always be there. Especially since in multiple types of waivers, the immigrant must show that the marriage fell apart because of the other spouse's fault; getting family to turn publicly on paper on their relative is unlikely. Exposing the US citizen's family to the type of waiver case an immigrant is filing with immigration by involving them runs a huge risk of the other spouse finding out what the immigrant is doing. This could lead to the other spouse retaliating by trying to contact immigration and make the immigrant's case even more difficult to prove. In my opinion, this is not worth the risk in 99% of all cases. There are other ways to document cases. Be careful.

Any way back from marriage fraud?

A finding of marriage fraud is a lifetime bar to a later filed immigrant visa by another spouse. This situation commonly arises when an immigrant pays someone to help them get their green card by posing as their spouse even though they have no relationship, do not live together and the marriage was set up solely for immigration purposes. Many times, an immigrant will get away with marriage fraud at the initial green card interview but will be caught later when the immigrant tries to release the condition and their spouse sabotages the interview or comes forward to INS about the fraud.

Is all hope lost for he immigrant? Maybe not. If the immigrant has been placed in removal due solely to the fraud in obtaining their green card, the immigrant may be eligible to waive the fraud and essentially back date it, as if it never happened. This is especially crucial in situations where the immigrant has since remarried to a US citizen and this marriage is real. The marriage fraud bars any visa application based on this new marriage so the immigrant had to file the waiver. The waiver is only available in immigration court and is always a risky venture. Always contact an immigration lawyer with experience with waivers to determine if you qualify