A lot has happened in the last few weeks in the immigration law and policy world! Below are some of the highlights from recent weeks:
Prosecutorial Discretion Memo
On Friday, June 4, ICE released a new prosecutorial discretion memo instructing ICE attorneys how to prioritize who to enact immigration enforcement—such as arrest, detention, or deportation.
The memo advises ICE attorneys to continue to prioritize enacting immigration enforcement against the following individuals: anyone who DHS views as a threat to national security, border security, or public safety—including those convicted of an aggravated felony, gang offense, or gang participation after the age of 16. The memo clarifies, though, that having an aggravated felony or gang-related offense charge does not automatically mean that an individual is a threat to public safety. In order to be an enforcement priority, the individual must fall into one of the above categories and be determined to pose a threat to public safety.
The memo advises ICE attorneys to consider certain “mitigating” and “aggravating” factors when determining whether or not to enact immigration enforcement against an individual. Mitigating factors which may lead an ICE attorney to not pursue immigration enforcement include:
- Time length in the U.S.;
- Service in the U.S. military;
- Ties to family or communities in the U.S.;
- Circumstances of arrival in the U.S.;
- Current immigration status, where lawful permanent residents (green card holders) may be prioritized;
- Work history, education, or pursuit of completing an education in the U.S.;
- Status as a victim, witness, or plaintiff in civil or criminal proceedings;
- Potential immigration relief;
- Community contributions;
- Compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States.
Certain aggravating factors, which may lead an ICE attorney to pursue immigration enforcement may include:
- Criminal history, where ICE should consider: the seriousness and recency of the crime, the length of the sentence, indications of attempted rehabilitation, extenuating circumstances of the conviction, the age of the noncitizen when the crime was committed, and other potentially mitigating factors;
- Participation in persecution or other human rights violations;
- Prior immigration violations, such as: previous failures to comply with release bond terms, prior unauthorized entries, or prior deportations.
The memo states that there are currently over 1.3 million immigration cases on immigration court dockets nationwide. Therefore, the memo advises ICE to genenerally dismiss five groups of people if they are not enforcement priorities and if they do not have serious negative factors:
- Anyone who is currently in the military; anyone who has served in the military and has been honorably discharged; or anyone whose immediate relative is in the military or has previously served and was honorably discharged.
- Individuals likely to obtain temporary or permanent relief outside of removal proceedings.
- Those with compelling humanitarian factors, such as: serious health conditions or pregnancy; elderly age or minor status; caregiver status, or having an immediate family member or household member with severe physical or mental health issues; survivors of domestic violence, human trafficking, or another serious crime; having come to the U.S. as a young child and lived here continuously since; having involvement in a serious lawsuit outside of the deportation proceeding.
- Those who are serving as witnesses or confidential informants, or who are assisting law enforcement.
- Long-time lawful permanent residents (those who hold green cards), especially if they obtained green cards while young and have close ties to communities and family in the U.S.
You may be able to request prosecutorial discretion (requesting that ICE does not enact immigration enforcement) for yourself or someone else by collecting evidence to demonstrate that you have mitigating factors, and/or that your case is one of the five types which should be dismissed. And we should continue to urge ICE to increase the categories of people who should be granted prosecutorial discretion.
You can read the full text of the memorandum here.
Sanchez v. Mayorkas
Supreme Court of the United States
Decided June 7, 2021
Plaintiff Jose Sanchez, a citizen of El Salvador, arrived in the United States in the 1990s and obtained Temporary Protected Status (TPS) in 2001, establishing legal status to live in the United States. TPS means the Secretary of Homeland Security deems a country so dangerous or inhabitable that certain eligible people can be granted TPS in the U.S. while the designated foreign country remains in unrest. The U.S. government declared El Salvador a country designated for TPS in 2001 because devastating earthquakes made a safe return to El Salvador impossible. Like so many TPS holders, Jose built his life in the U.S.—starting a family, establishing roots, and making contributions to his community. In 2014, after nearly two decades of living in this country, Jose applied to shift his TPS status to Lawful Permanent Resident (LPR) status under the immigration law section 1255. LPRs are also known as “green card” holders; they are non-citizens who are lawfully authorized to live permanently in the United States. The U.S. Citizenship and Immigration Services (USCIS) denied Jose’s application. They reasoned that he was not eligible for LPR status under section 1255 because he had not initially been lawfully admitted to the U.S., which the section requires. Jose sued, and the U.S. Supreme Court answered the question of whether Jose’s TPS enabled him to obtain LPR status despite his unlawful entry into the United States. The Court held that it did not—that Jose’s application for LPR was rightfully denied. The Court rejected Jose’s argument that his TPS—his legal status in the U.S.—made him eligible for LPR under section 1255. The Court stated that legal status, which Jose had through TPS, was a distinct concept from legal admission, which Jose did not have based on his initial unlawful entry to the country. They reasoned that because legal admission, rather than legal status, is required by section 1255, Jose cannot become a LPR in the United States.
This ruling means that TPS holders cannot use adjustment of status without first having to leave the U.S. This decision could impacts tens of thousands of individuals and families seeking stability and security. To mitigate the potentially detrimental effects of this Court decision, the current administration could:
1. Continue to process TPS adjustment cases currently in the pipeline during the period before the certified judgment issues.
2. Call on Congress to immediately pass permanent relief for TPS holders
3. Put in place a robust, culturally competent outreach plan to educate TPS holders and other immigrants about the meaning of this decision
USCIS Policy Updates
Requests for Evidence and Notices of Intent to Deny
USCIS is reinstating the policy that instructs agency officers to issue a Request of Evidence (RFE) or a Notice of Intent to Deny (NOID) when additional evidence could possibly show one’s eligibility for an immigration benefit. USCIS is thus rescinding the policy that allowed agency officers to deny certain immigration benefit requests without ever issuing first a RFE or NOID.
Through this policy update, benefit requestors will be given an opportunity to correct innocent mistakes and unintentional omissions.
Employment Authorization Documents
When an applicant applies for adjustment of status, he or she may also apply for employment authorization so that the applicant may work in the United States while waiting for a decision on the adjustment application. The USCIS has updated its policy to increase the length of validity of that employment authorization from one year to two years.
This update should reduce the number of employment authorization requests USCIS receives and allow the agency to shift limited resources to other priority areas. This guidance was issued due to ongoing processing delays affecting the completion of adjustment of status applications. Renewing Employment Authorization Documents in this category is generally free, and USCIS received nearly 370,000 adjustment-related employment authorization requests in fiscal year 2020.
Matter of A-B- and Matter of L-E-A- Abrogated
We are thrilled to share that the Attorney General has published decisions that overturn two cases that significantly limited the ability of certain asylum seekers to be granted protection in the United States. These decisions bring hope to gender-based violence victims, gang violence victims, and victims of persecution due to their family status.
Join us as we say good riddance to two cases that caused significant harm to asylum seekers and limited thousands from seeking protection in the U.S. We’ll discuss the Attorney General’s decision to abrogate Matter of A-B- and Matter of L-E-A-, including what it means for practitioners, policy advocacy, and what the future may look like for asylum seekers and their counsel. Our panelists will include Jennifer Ibañez Whitlock, Policy Counsel at AILA, Tamara Jezic of Jezic & Moyse, and Kate Lincoln-Goldfinch, Board President of VECINA and Managing Partner at Lincoln-Goldfinch Law.
Synopses authored by Kensey Kirby, Law Student Intern at VECINA, University of Texas at Austin School of Law