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Carl Shusterman's Immigration Update

Time for ICE Memo Critics to Chill

Rate this Entry On August 20, John Morton, the Assistant Secretary of the U.S. Immigration and Customs Enforcement (ICE), released a memorandum entitled "Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Application or Petitions".

The memorandum applies to persons in removal proceedings who meet the following criteria:

  • The alien must be the subject of an application or petition with USCIS to include a current priority date, if required, for adjustment of status;
  • The alien appears eligible for relief as a matter of law and in the exercise of discretion;
  • The alien must present a completed "Application to Register Permanent Residence or Adjust Status (Form I-485)", if required; and
  • The alien beneficiary must be statutorily eligible for adjustment of status (a waiver must be available for any ground of inadmissibility).

In such cases, the ICE Attorney will ask that the Immigration Judge dismiss the removal proceedings without prejudice to the government requesting that the alien be removed from the United States if his application or petition is denied by the USCIS.

ICE will request that the USCIS rule on the pending petition/application within 30 to 45 days.

The ICE attorney will not request that the case be transferred to the USCIS if "there are any investigations or serious, adverse factors weighing against the dismissal of proceedings. Adverse factors include, but are not limited to, criminal convictions, evidence of fraud or other criminal misconduct, and national security and other public safety considerations."

What would a typical case covered by this memo look like?

Juan, an overstay visitor to the U.S. was placed under removal proceedings by ICE when his wife Julia, a lawful permanent resident, petitioned for him to become a permanent resident of the U.S. The couple has been married for four years, and are the parents of two U.S. children.

Last week, Julia was sworn-in as a U.S. citizen. This makes her husband immediately eligible to become a green card holder. Juan is a construction worker, the family's breadwinner and has no criminal record.

The question is, should the already overburdened Immigration Judges have to decide Juan's application for adjustment of status or should the case be transferred to the USCIS to resolve?

Consider that 200+ Immigration Judges across the country have a backlog of nearly 250,000 pending deportation cases, some of which involve criminals and those who have committed immigration fraud. Coping with over 1,000 cases per year creates huge problems. A legal issue is raised in the case of a person with a drug trafficking conviction, and the Judge is forced to postpone the case and allow the person to remain in the U.S. for a year or more while he reschedules the case for a "merits" hearing. In simple English, the present system does not allow the Judge to focus on the "bad guys".

It is estimated that the August 20th memo will permit up to 17,000 cases to be removed from the Court's backlog and transferred to the USCIS. True, this reduces the backlog by less than ten percent, but it is a step in the right direction.

Of course, with the 2010 midterm elections in full swing, Senator Grassley (R-IN) and various anti-immigration groups call this an example of the Administration's refusal to enforce our immigration laws.

This former INS Trial Attorney (1976-82) calls it "simple common sense".

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Updated 12-02-2013 at 04:28 PM by CShusterman


  1. Francis's Avatar
    It's understandable that the mainstream of Liberal oriented newspapers have not headlined the mishandling of the 2006 Secure Fence Act. Its original design was for two parallel fences separated by a two track highway for rapid deployment of US border Patrol vehicles. The upset came in the same year of 2006 Omnibus Consolidated Appropriations bill that directly contradicted the enacted law. The Senate insiders decided it was too expensive and cut funding; concluding in a major provision that the double fence was too expensive? So we as the American people should adamantly ask, when is the defense of our country from the illegal immigration invasion or from criminals or certainly terrorists--too expensive? The success of fences was shaped after the original construction in San Diego, California, and has been remarkable in cutting back of illegal aliens in a 50 mile huge swath of open land.

    SO I ASK ONCE AGAIN, WHEN IS PROTECTION OF INNOCENT AMERICANS BECOME TOO EXPENSIVE? AFTER ALL WHO PAYS FOR IT ALL? TAXPAYERS! If the border region that cuts across California, Arizona, New Mexico, could have likely have saved thousands of lives? Even the original 2006 secure fence act of one fence is still not complete. Many hundreds of miles have no real barrier at all, just rusting fence posts adorned with drooping barbed wire. IN OTHER WORDS THOSE IN WASHINGTON TODAY AND YESTERDAY CARE NOTHING FOR THE SAFETY OF LANDOWNERS SCATTERED IN OPEN RANGE ALONG THE BORDER, OR HAVE BEEN INTIMIDATED BY THE OPEN BORDER-FREE TRADE ZEALOTS. A large margin of Americans cannot blame Arizona's Governor Brewer or State Senator Peirce for not trying to protect its own state inhabitants from the illegal alien invasion, costs of welfare using whatever laws are available to them; including SB1070. Then again we cannot blame numerous state Representatives on tweaking the 14th Amendment for instant baby citizenship, that is also costing billions of dollars in welfare programs.

    BLAME THE LIBERAL DEMOCRATS AND A SMALL MINORITY OF REPUBLICANS, FOR THE CHAOS CAUSED BY NOT CONSTRUCTING THE DOUBLE FENCING? We have billions to spend on wars abroad, but Sen. Harry Reid(D-NV), Texas Republican Sens. Kay Bailey Hutchison and John Cornyn are also to blame for discarding the second fence, which if completed would have been topped with ugly razor wire. This is truly "Cause and Effect" by eliminating the second border fence, is why we still have mass volumes of people entering America. This unceasing issue of this chaos is the government having failed to seal the border. now Immigration Czar John Morton has decided to allow ICE to deport serious criminal offenders, instead of--ALL--illegal aliens, which to most Americans is a "De Facto" Amnesty. As that means Catch & Release" is back on the rails, with thousands are out-- and--about, taking jobs and lowering wages. A COUNTRY WITH ALL THE TECHNICAL KNOWLEDGE CANNOT CLOSE THE BORDER? THIS IS A INSULT TO ALL CITIZENS AND LEGAL RESIDENTS?

    EVERY INCUMBENT, CAREER LAWMAKER WHO HAS A DISMAL IMMIGRATION RECORD, BEGINNING WITH SEN. HARRY REID AND HIS CZARS MUST BE REMOVED FROM THEIR SEAT IN WASHINGTON. THIS ASYLUM IN WASHINGTON NEEDS A CHANGE OF GUARDS? JOIN NumbersUSA AND AID IN FIGHTING AGAINST AMNESTY OR ASTRONOMICAL COSTS FROM THIS INVASION. On our soil are poor people from other countries, depleting our welfare for Americans and residents. Are you Sick & Tired of this travesty? Tell your Representative in Washington at 202-224-3121 and State level officials. Remember illegal aliens could have voted in the midterm elections? The Obama administration has shown its true colors, that illegal immigration is a great way to accumulate votes in the future by pacifying large minority groups.
  2. Marc Seguinot's Avatar
    I think Americans are becoming crazed with the issue of immigration. They simply do not like the idea that people actually believe they can better their lives in this country -- after all, Americans themselves are having the same difficulties. But to get to Morton's memo; let's see how long it takes to implement his recommendations. Don't be surprised if the government itself fights the memo.
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