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Greg Siskind on Immigration Law and Policy

Deportation Priority Policy FAQ

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Siskind Susser FAQ - The 8/18/2011 Deportation Relief Announcement

By Greg Siskind ( / 901-682-6455) 

1.       What does the newly announced policy do?

On August 18, 2011, Secretary Janet Napolitano sent a letter to key members of Congress informing them that the Immigration and Customs Enforcement (ICE) would be reviewing all pending deportation cases and would be handling cases under a new process that will ensure that resources are being put in to deporting serious criminals and not focusing on deporting individuals who are not a priority for deportation. The announcement should mean the end of the deportation process for a large number of individuals. The news follows the June release of a memorandum advising ICE officials to consider certain factors when deciding whether to proceed with a deportation.


2.       What factors are to be considered when deciding to close deportation proceedings?

In the June ICE memorandum, several factors are listed including

  • Whether someone is a child or came as a child and finished high school in the US

  • How many years the person has been in the US

  • Whether the person is elderly

  • Whether the person has close family members who are permanent residents or citizens

  • Whether the person is a caretaker for someone who is elderly or in poor health

  • Whether the person is pregnant or nursing or suffers from an illness or a disability

  • Whether the person or a family member is in the military


3.       Will everyone who is illegally present in the US benefit? Is this an "amnesty" or legalization program?

No. Individuals whose deportation proceedings are closed are not going to receive a visa, green card or any new type of legal status. Some may be eligible for work authorization, however, but even being granted such documentation will not be the same as having a legal status in the US.


4.       How many cases are affected by the new policy?

All 300,000 cases currently in the immigration courts will be reviewed for eligibility under the new guidelines. Also, future cases will also be reviewed under the guidelines to determine if ICE should be closing the case or proceeding with removal proceedings.


5.       Is there some kind of application I can file to have my case considered under the new policy?

No. ICE will be reviewing all cases.  If someone is already in deportation proceedings, their case will be reviewed.


6.       I'm not in deportation proceedings. Can I request to be placed in proceedings if I think I fit under the new policy?

There is no formal way to force ICE to put someone in removal proceedings. ICE has the discretion to issue a Notice to Appear and individuals who think they might benefit from the new guidelines may want to discuss with their lawyers the possibility of approaching ICE. But whether an individual would be placed in to proceedings would be entirely up to an ICE official.


7.       What if I have already been ordered deported or have been issued a voluntary departure order and have not left?

The process here is also unclear. Some immigration attorneys may seek to have such cases administratively reopened to benefit from the new policy, but these issues have not yet been addressed by ICE. 


8.       Are employment and other benefits available to people whose cases are closed under the new policy?

Yes, though details on how this will work are currently unclear. According to congressional offices briefed on the new program, individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. DHS will review such applications on a case-by-case basis and it is not yet clear what standards they will be applying. Applications for work cards should NOT be filed until the procedures are clarified.


9.       How long will it take for ICE to start closing cases?

ICE attorneys are being asked to immediately start reviewing cases with hearings set in the next one to two months. DHS will also shortly begin the process of reviewing the rest of the 300,000 cases currently in the immigration courts. No guidance has been provided, however, on how long it will take before cases begin to be closed and how long it will take to review the entire caseload.


10.    What will my status be once my case is closed?

Once a case is closed, an individual will continue in the same status he or she was in prior to being placed in proceedings. Some individuals may gain work authorization, but they would not be considered to otherwise be in a legal status in the US.


11.    Will I be able to apply for other immigration benefits like a green card after my case is closed?

Possibly. However, the new policy will not remove barriers to green card processing such as being subject to the three and ten year bars on reentering the US as well as bars on adjusting status for individuals who entered the country without inspection.


12.    Can I travel home for a visit after my case is closed?

We do not believe travel will be possible for most since departing the US would trigger bars on readmission and most would not be able to meet the requirements for being re-admitted back to the US. But this is a question to discuss with counsel.


13.    My lawyer says I have a good case for cancelation of removal. Can I keep my case open even though I fit under the new policy?

That should be possible since all parties must agree for a case to be closed.


14.    A notario has told me that she can submit a request for work authorization under the new guidelines. How is that possible?

It is not. Everyone should be very careful to avoid non-lawyers offering immigration services. There is no application process to benefit under the new policy. Anyone who suggests otherwise is engaging in fraud. We highly recommend consulting with a member of the American Immigration Lawyers Association. Do not file any application with USCIS at this time unless advised by a licensed attorney competent in immigration law.

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  1. gg's Avatar
    the new policy will leave illegal immigrants in limbo -- still without legal status and subject to a future administration open to undoing what President Obama has done.
  2. Jorge Luis Zuniga's Avatar
    Are there any guidelines regarding Legal Permanent Residents who have been convicted of a felony prior to the 1996 IIRRA law (i.e. retroactive deportation) and who are NOW in deportation proceedings? Does there appear to be any "wiggle-room" because of these new guidelines for these types of cases?
  3. George Chell's Avatar
    With the way the things are going there wont be any money for immigration enforcement or for immigration processing...guess that is the penalty for running up the debt! The country is no longer longer sovereign!
  4. George's Avatar
    what a wonderful relief to our fellow people who have been living in fear many many years.The bible says treat one another with respect regardless of race ,because we are all equal before God,in this world we are passing by,let us live like brothers and sisters.Thanks once again for all of you to come up with this
  5. Legal and no longer waiting's Avatar
    I have to admit that Frank was not nearly as crazy as he sounded. And not nearly as crazy as Jack the anti.
  6. Another Voice's Avatar
    Yeah what ever happened to Frank?
  7. beppe's Avatar
    i don`t understand. if you are in the process of deported, you can be saved, but if you are not in this process, you can be in trouble.
    is this mean that all the illegal immigrants who are not dangerous can easily life in us?

  8. Another Voice's Avatar
    "is this mean that all the illegal immigrants who are not dangerous can easily life in us?"

    I would not exactly call living in the US illegally easy.... Per Greg's posting they get to stay illegally until further notice or until the get caught again!! Hardly a walk in the park....
  9. Tony Gonzales's Avatar
    So the question in Tennessee where they arrest you for a simply no driver licenses offense instead of ticket, then after they have you arrested and booked drop the charges and call ICE. For the undocumented does this mean because they are not violent or general law breakers that ICE will not request a 48 hour ICE hold on them there for subject to release or bond?
  10. Another Voice's Avatar
    "For the undocumented does this mean because they are not violent or general law breakers that ICE will not request a 48 hour ICE hold on them there for subject to release or bond?"

    It means they have discretion to prosecute someone or not...they probably will still go thru hell of going to jail and then getting picket up by ICE. Once in deportation proceeding they will decide if someone is deportable based on the posting details.
  11. Another Voice's Avatar
    Greg I keep hearing that all things remain the same, judges are not granting continuances on cases based on the memo and that things are on hold other than really high profile cases. Can you share any insights into these claims.....
  12. michelle's Avatar
    my boy friend is in deproting process immigration has a hold and they waiting for immigration to pick him up does this mean he will be deported back
  13. H1B & H4 worker's Avatar
    The new deportation policy sounds unfair to those in legal H-1B or H4 visa status. If government allowed these undocumented immigrant get working authorization, the same rules must apply to everyone who maintain their legal status.
    My wife currently on H4 visa. She won't be eligible to work and she is legally present here in the US.
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