Immigration Law and Updates


Administrative Maneuvers to Ease Immigration? Prosecutorial Discretion and Unlawful Presence Waivers

Ellie Levine
JFON-SEMI Regional Attorney

The notion that enforcers of laws have the power to exercise discretion is not a new concept in U.S. jurisprudence. Law enforcement uses often uses discretion, whether it is a police officer giving someone a warning instead of issuing a speeding ticket, or a prosecutor offering a plea to a defendant. According to U.S. immigration law, regulations, and legal precedent, discretion can also be applied to immigration enforcement.

This past spring, the Obama administration began a series of memos revisiting this concept of discretion setting out guidance as to how discretion can and should be considered for immigration cases. The focus of these memos emphasized the administration’s articulated position of prioritizing “high risk” cases – criminals, threats to national security and public safety, and repeat immigration violators – and exercising discretion in “low risk” cases with a range of equities to consider, such as length of time a person has been in the United States, family ties, age, health, eligibility for immigration benefits, victims of crimes, DREAM Act eligibility, etc. The administration announced that such discretion can be used in all phases of enforcement, including, detention, issuing notices to appear in court, continuing or closing cases, deportation, etc. Immigration and Customs Enforcement (ICE) offices around the country were supposedly trained in the exercise of discretion and in many jurisdictions, ICE attorneys went through cases in removal proceedings and offered the opportunity to administratively close “low priority” cases, in an effort to clear up the dockets to focus on the “high priority” cases.

The response to the policy has been mixed. Advocates are pleased and find the announcement to be taking positive steps towards helping immigrants, offering a great deal of potential in the hopes of pursing justice. However, many feel that the implementation has been inconsistent and more policies need to be issued to resolve some of the kinks. Although many people have benefited from discretion exercised, some have been placed in new situations of limbo where while they are no longer in removal proceedings, they are also unauthorized to work; and still, many others continue to be detained and deported despite being what some might consider to be “low priority”.

The Obama administration took another step forward at the start of the 2012 in what appears to be an effort to assist some U.S. Citizen families of immigrants with remaining together longer during the lengthy immigration process. On January 6, 2012, U.S. Citizenship and Immigration Services (USCIS) issued a notice of intent in the Federal Registrar to publish a rule allowing immediate relatives of U.S. Citizens to apply for waivers of inadmissibility from within the United States based on unlawful presence before going abroad to consular process.

Many immediate relatives of U.S. Citizens who have approved family based petitions need to leave the United States to complete the process at the U.S. Consulate in their home country. For those immigrants who spent six months or more in the United States without lawful status, upon leaving the U.S. to consular process, they may trigger a three to ten year bar to reentry back into

the United States. Under the current law, many of those immigrants who have received an approved family based petition and have applied for an immigrant visa to lawfully emigrate to the U.S. must travel to their consulate to appear at an interview and then, if there are issues relating to their admissibility, for example because of unlawful presence, they would then be denied a visa. Only after this stage can immigrants apply for a waiver to forgive the unlawful presence if they can show an extreme hardship to their U.S. Citizen or Lawful Permanent Resident spouse or parent. Under this practice, many families, including those with extreme hardships, are forced to remain separated for weeks, months, and even years while the government adjudicates the waivers.

The proposed rule will keep families united while the government adjudicates the waiver request. Once the waiver request is decided, the immigrant will then return to their home country where if the waiver had been approved, could then appear at the interview at the consulate and return to the United States lawfully within days to weeks as opposed to months or years. If the waiver was denied, the immigrant will still likely have to return to their home country where they could try to apply again or wait the appropriate time before they are eligible to return.

USCIS plans to have a proposed rule by the spring that will be open to public comment and hopes to enter the rule into the Federal Register by the end of the year. Until then, immigrants are advised that nothing has changed and they should continue processing their cases in the same manner as before this announcement.

Ultimately, this rule could result in many filing for relief who had previously failed to for fear of being separated from their family for lengthy periods of time. The new rule is not a form of backdoor amnesty; rather it would create a more effective and efficient manner of enforcing current law. Further, the rule could result in more people coming out of the shadows to try to resolve their immigration matters lawfully.

Some items that have been raised by immigration attorneys and advocates include hopes that the new rule would apply to relatives of Lawful Permanent Residents, that it would apply to other grounds of inadmissibility covered by the same form with the same standards and proofs of hardship as that for unlawful presence, and that the Department of State cooperates with the Department of Homeland Security in accepting the provisional waivers.

So while we may not have comprehensive immigration reform, or the DREAM Act, and while the administration has removed more immigrants than the past administration, these appear to be positive steps to help benefit immigrants and also improve the immigration system. At this point it is too early to determine the full effect that these announcements will have on many immigration cases. Additionally, it is important to caution immigrants about working with reputable immigration attorneys and not seeking legal advice from notarios or immigration consultants. Neither action or announcement is a form of amnesty and, at this point, immigrants cannot affirmatively register for either. It is of utmost importance that we now raise awareness about avoiding individuals who prey on the vulnerabilities of immigrants by offering false, illegal promises that could adversely affect an immigrant’s case for years to come.