Recently the Biden Administration released an important Memo entitled “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities” This memo encourages Government (ICE or OPLA) attorneys to prioritize cases for removal or deportation and provides numerous ways for the Government to show leniency to a person in deportation proceedings.
This new memo states that the “exercise of prosecutorial discretion, where appropriate, and advance the Department’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence.”
What cases should ICE or OPLA attorneys prioritize?
( most immigrants do not fall into these categories)
A) Noncitizens who are terrorists or suspected terrorists or whose apprehension is necessary to protect the national security of the United States.
B) Noncitizens who entered the US unlawfully AFTER November 1, 2020.
C) Noncitizens convicted of an “aggravated felony” as defined in the INA, noncitizens guilty of being in a criminal street gang or transnational criminal organization and those who pose a threat to public safety.
What is Prosecutorial Discretion?
Prosecutorial Discretion (“PD”) is the authority of the Government to decide whether to enforce, how to enforce, or how not to enforce the law against an individual. PD is possible at any stage of the process because it is in the mutual interest of both the noncitizen in avoiding removal and the government itself in conserving its financial resources for priority cases.
What can PD range do?
PD can range from ICE or OPLA:
- Agreeing not to detain a noncitizen,
- Declining to initiate removal proceedings
- Agreeing to dismiss removal proceedings
- Deciding not to appeal a case
- Grant deferred action status or parole.
What factors for OPLA are in consideration in deciding whether to
exercise prosecutorial discretion?
A) Length of residence in US
B) Service in the US military
C) Family or community ties in the US
D) Circumstances of arrival in the US and the manner of one’s entry
E) Prior immigration history
F) Current immigration status (generally warranting greater consideration for LPR);
G) Work history in the US
H) Pursuit or completion or education in the US
I) Status as a victim, witness, or plaintiff in civil or criminal proceedings
J) Whether the individual has potential immigration relief available
K) Contributions to the community
L) Compelling humanitarian factors which include poor health, age, pregnancy, status as a child, status as caregiver to seriously ill relative in the US.
A) Criminal history – with consideration of extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation, extenuating circumstances involving the
offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity shows a threat to Public Safety.
B) Participation in persecution or other human rights Violations
C) Extensiveness and seriousness of prior immigration
violations (e.g., non-compliance with conditions of release, prior
illegal entries, removals by ICE)
D) Fraud or material misrepresentation.
Cancellation of Notices to Appear (NTA)
The memo grants the authority to Government attorneys to not file the document necessary to initiate removal proceedings, the Notice to Appear (NTA). In cases where an NTA was issued but not filed with the Immigration Court, the Government attorney can work with ICE
Enforcement and Removal Operations (ERO) to cancel the NTA.
Administrative Closure or Continuance
The ability to use administrative closure as a form of PD for ICE is limited to only three
circuits in the US: Third, Fourth and Seventh Circuits. Fortunately, dismissal of a case without prejudice has replaced administrative closure and the effect of a dismissal is practically the same as, or even better, than administrative closure. For motions to continue, the 05/27/21 Trasvina Memo states that “OPLA attorneys are authorized to take the general position that ‘good cause’ exists in cases in which noncitizens who fall outside the presumed priorities seek to have their cases continued to await the outcome of that comprehensive review.”
Authority to Dismiss Proceedings
As to the dismissal of removal proceedings without prejudice, the memo states that “OPLA will cover, at a later date and in a comprehensive fashion, how to address the potential dismissal of proceedings consistent with its limited resources and DHS and ICE guidance.”
Cases meriting dismissal in the absence of serious aggravating factors:
A) Military service members or immediate relatives thereof
B) Individuals likely to be granted temporary or permanent relief (I-485, CP/601A, TPS, SIJS); C)Compelling humanitarian factors (serious health condition, elderly, pregnant, victim of domestic violence, serious illness of immediate family member)
D) Significant law enforcement or other governmental interest (confidential informant, witness in proceeding, U-Visa)
E)Long-term lawful permanent residents.
This memo signifies a positive change in the way that the government is approaching immigrants in removal proceedings. If you are in removal proceedings and would like more information on how you can benefit from this new policy memo, please contact us at 775-453-4451.
In light of the coronavirus pandemic, the United States Citizenship and Immigration Services (USCIS) is facing the reality of financial crisis.
USCIS, through a spokesperson, relayed to the United States Government that it would need $1.2 billion in the form of a cash bailout to continue operations. In addition to furloughs, the agency announced that it would increase fees.
On August 3, 2020, a final rule was posted in the Federal Register that will increase filing fees for certain types of immigration benefit filings.
When will the changes take effect?
The new fees will become effect 60 days after publishing the rule which means the new fees take effect starting October 2, 2020.
Form 601A, Provisional waiver for unlawful presence is increasing by 52% from $725 (form with biometrics included) to $1010.
Form N400, Application for naturalization is increasing by 83% from $715 (including biometrics) to $1220.
Changes to some of the most commonly filed forms:
|Form||Current Cost||New Cost||Change (%)||Percent(%)|
|I90 Green Card Renewal – Online filing||$455||$405||-$50||-11%|
|I90 Green Card Renewal – Paper filing||$455||$415||-$40||-9%|
|I129F Petition for Fiancé||$535||$510||-$25||-%5|
|I130 Petition for Relative – online||$535||$550||$15||3%|
|I130 Petition for Relative – paper||$535||$560||$25||5%|
|I192 Advance Permission to enter as nonimmigrant||$930||$1400||$470||377%|
|I485 Application to Register Permanent Residency||$1140||$1130||$-10||-1%|
|I589 Application for asylum||$0||$50||$50||N/A|
|I601A Provisional Unlawful Presence Waiver||$630||$960||$330||52%|
|I751 Removal of Conditions on Residency||$595||$760||$165||28%|
|I765 Work Permit- DACA only||$410||$410||$0||0|
|I765 Work Permit -NON DACA||$410||$550||$140||34%|
|N400 Naturalization Application – online||$640||$1160||$520||81%|
|N400 Naturalization Application – paper||$640||$1170||$530||83%|
|Biometrics (except DACA)||$85||$50||$-35||-65%|
Questions? Please text or call 775.453.4451
Or, you can book a call here.
President trump signed an executive order Wednesday, April 22, 2020 which temporarily suspends immigration into the United States for 60 days. The stated goal of the measure is to protect the American job market. Understandably, this has caused a lot of stress and concern during a time that has already been challenging due to the Coronavirus.
WHO DOES THE ORDER APPLY TO?
- People who are outside the US on April 23, 2020;
- People who do not have an immigrant visa that is valid on April 23, 2020; and
- People who do not have an official travel document other than a visa (such as a transportation letter or an advance parole document).
WHO IS EXEMPT?
- Lawful permanent residents (green card holders);
- Physicians, nurses, and other healthcare professionals (and their spouses and children) if they are coming to the US to aid in the COVID-19 outbreak.
- Spouses and unmarried children (but not parents) of US citizens;
- Any member of the US Armed Forces and their spouse and children;
- EB-5 Investors;
- Certain Special Immigrants and certain and
- “Any alien whose entry would be in the national interest or whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;”
HOW LONG WILL THE EXECUTIVE ORDER BE IN EFFECT?
The executive order will remain in effect for a minimum of 60 days and may be extended. Within 30 days of April 22, 2020, the Department of Labor, Department of Homeland of Security and the State Department will be reviewing current visa programs and making additional recommendations.
- It does not affect those who are applying for immigration benefits in the U.S. including extensions of stay, changes of status and adjustment of status. Meaning, it does not impact those who have cases pending with USCIS in the U.S. right now.
- It does not apply to those seeking asylum.
- If you need information on your particular case, the best thing to do is talk to an immigration attorney.
1) If You Do Not Have DACA or a DACA Application Pending. You cannot apply. The program has been terminated and new applications are no longer being accepted by USCIS.
2)If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017.
3) If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension and your DACA, work authorization, and protection from deportation will expire on the date shown on your DACA approval notice and work permit.
4) If you have a DACA application that was received at USCIS on or before September 5, 2017, your application will continue to be processed.
5) If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the document expires. However, even with a valid travel document, CBP can still refuse
to let you in. Before you travel, speak to a qualified immigration lawyer.
6) Even with valid DACA and a valid work permit, the government can terminate your DACA and work permit at
any time if it believes you are no longer eligible or for any other reason.
7) Talk to a qualified immigration attorney as soon as possible. Members of the American Immigration Lawyers Association (AILA) report that up to 30% of people screened for DACA were eligible for something better and more permanent. Before making any decisions which could impact your future status, speak to a lawyer.
Can TPS holders become permanent residents? It just became a lot easier for those who reside in the Ninth Circuit.
Temporary Protected Status is a designation for nationals of El Salvador, Honduras, Haiti, and other countries. Many people who qualify for TPS entered the United States without inspection. Typically, a person must be “admitted and inspected” to qualify for adjustment of status in the United States. This means that even though they are married to a US Citizen or have a US Citizen child over the age of 21, those who entered without inspection are not able to apply for adjustment of status (the process to obtain a green card.) Instead, many TPS holders who entered without inspection would have to apply for a waiver and return to their home country before obtaining a green card.
Previously, the BIA carved out a loophole when it found that if a TPS holder applied for Advance Parole and traveled to their home country, he would have a lawful admission upon his return which would allow for adjustment of status. This meant that TPS holders who entered without inspection had to obtain a specific travel document, leave and return before they could legally adjust status here in the United States.
New Developments: Adjustment of Status becomes Easier
In late March 2017, the Ninth Circuit decided that being granted TPS was a “lawful admission” for purposes of adjustment of status. What does that mean? Lets take a look at the Ramirez v. Brown Case:
Jesus Ramirez, who came to the United States from El Salvador in 1999, was granted TPS in 2001 and has remained in that status to the present day. In 2012, he married Barbara Lopez, a U.S. citizen, and the couple sought lawful permanent resident status for Ramirez.
The court decided that obtaining TPS status DOES qualify as inspection and therefore a lawful admission. Mr. Ramirez, therefore, was allowed to adjust status without leaving the United States.
Who can benefit from this promising decision?
First, the decision applies only to those residing in the Ninth Circuit (Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State). Someone who was granted TPS and resides in one of those states who has a US Citizen immediate relative (spouse, child or parent) may be eligible. They may have other inadmissibility issues such as criminal history, prior removal orders, etc., so it is always best to consult with an attorney before initiating any paperwork.
What to do if someone you know is detained by ICE?
Things can move quickly once a person is detained. ICE can arrest someone at their house, at their workplace, on the street, or they can place an “ICE hold” on those who are detained in a local jail for criminal or other proceedings.
If a person is being held by local authorities under an ICE hold, this typically means that once the criminal proceedings are complete, ICE will take them in to custody at a separate facility. As soon as someone is placed under an ICE hold is the appropriate time to speak to an immigration lawyer and to start gathering documents.
Does the detained immigrant have a plan in place? Here is a good place to start with a preparedness plan.
What information do you need to gather?
- The detained immigrant’s full name and date of birth
- Where are they being held? The ICE detainee locator will help you find the person once in ICE custody. But, before that, you will need to find out if they are in a local jail or facility and exactly where it is.
- If the immigrant is already in ICE custody, see if they have an alien registration number (A#).
Information to prepare for a meeting with an immigration attorney
- When did the immigrant come to the United States? How did he enter? Has he left?
- What was the immigrant doing and where was he when he was detained?
- Does the immigrant have a criminal history? If so, what are the dates and the convictions?
- Has he or she ever been in immigration court before or were they ever detained at the border?
- Has he or she ever been issued a removal order (deportation)?
- Does the immigrant have any United States citizen or lawful permanent resident family members?
- Has anyone ever filed a family petition for a relative?
Who decides whether a detained immigrant will be released?
ICE agents will make the first bond determination. They can opt to release the immigrant on his own recognizance (no bond payment), they can set a bond, or they can deny bond.
If ICE denies bond, that is not the end of the road. The detained immigrant may have an opportunity to request a bond from the Immigration Court.
How does the IJ decide whether or not to grant a bond?
The immigration judge is going to consider whether the immigrant is 1) a “flight risk,” meaning whether or not he is going to appear at future hearings or 2) a danger to the community.
What documents can you submit to show that the immigrant merits a bond?
- Proof of US citizen or lawful permanent resident spouse or children (birth certificates, marriage certificate, etc.) and proof of hardship they will suffer without him.
- Proof of long time residence in the United States
- Proof of paying taxes
- Letters from employers, church members, family, and friends attesting to the good moral character of Immigrant.
- Proof of eligibility for any relief – for example a family petition receipt or approval notice
Does the detained immigrant need an attorney?
An attorney can facilitate communication with ICE, provide information about the immigrant’s options, and can advocate for the immigrant in a bond hearing with the Immigration Court.
Cristina M. Hughes handles bond cases and bond (custody) hearings for immigrants detained in California, Nevada, and at the border. Please call 775.453.4451 or e-mail firstname.lastname@example.org to set up an appointment today.
Tips for Immigrants Pending New Executive Orders
Currently, we are waiting to see how the recent executive order from January 25, 2017 will be enforced. A lot of people, understandably, want to know what steps they can take know to protect themselves in case of the worst-case scenario. Here are steps you can take now if you are a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant.
- Naturalized U.S. citizens. In particular if you are traveling within 100 miles of any US Border (including the oceans), it is recommended that you carry with you your US passport, or passport card, or a photocopy of your naturalization certificate. Because of the unpredictability of the current situation, keep a photocopy of these documents in a safe place at your home, so that if necessary, someone will have access to them. You may very well need to prove your US Citizenship.
- Permanent residents. Federal law requires that anyone who is NOT a US Citizen carry with them at all times evidence of their lawful status. So, carry your green card with you at all times! As noted for US citizens, you should also keep a photocopy of your green card in a safe place at home so that it can be accessed by someone in case you lose your card and you need it to identify yourself. You should also renew your green card a full 6 months before expiration. If your green card has expired, renew it now. Consider starting the process to naturalize immediately! If traveling back from a lengthy trip abroad, do not sign any documents at the border if it is alleged that you have abandoned your residency. Only an immigration judge can take away your status as a permanent resident.
- Lawfully present nonimmigrants ( DACA, U Visa, EADs, Visitors, Students, H1Bs, etc.). Carry with you at all times your Employment Authorization Document (work permit), I-94 card, passport with entry stamp, or other proof of lawful presence (see the law above). Carry the original with you and keep a photocopy in a safe place at home, especially if you are within the 100 mile border area.
- Undocumented immigrants in the US for more than two years. Keep with you at all times evidence that you have been present for at least two years. Why? Because President Trump just ordered DHS to examine activating a never used provision in immigration law that allows for the immediate removal from the US of anyone who cannot prove they have been here for two years (absent a claim for asylum). We do not know when ICE or CBP might activate the change, but we need to be prepared. Evidence that you might want with you are utility bills, receipts, Facebook posts, mail or any other documentation with your name going back two years. Again, keep this information at home so that it is accessible to someone who can help you. And, make sure you have a family plan in place to call for legal assistance if you fail to return home as usual.
- Undocumented immigrants in the US for less than two years. The bad news is that you need a plan in place on what will happen to your belongings and your family if you do not return home from work, shopping, or school. Make sure your relatives know they can look for your name on the ICE detainee website. We assume that ICE and CBP will not release you on bond, and that if you have a fear or returning home, you will need to communicate that clearly so that you may apply for asylum.
- Undocumented Immigrants with 10 years in the United States and United States Citizen children. Absent criminal convictions, you may be eligible for relief and release on bond. Begin now to prepare the paperwork you will need to secure a bond and to prove your case. Set aside copies of birth certificates of children and proof that you have been here for at least ten years. Don’t be caught unprepared!
- Non-US Citizens (Permanent Residents, Visa Holders, and Undocumented Immigrants) who have a criminal conviction OR are arrested. If you have a criminal conviction, or are even arrested for a crime, you may be detained by ICE. If you have relief from removal, you may be eligible for bond. Prepare for this by saving money for bond now and have the paperwork organized to help your attorney act quickly. If you are arrested and charged with a criminal offense, work with attorneys to fight and avoid a conviction that will have immigration consequences.
- Undocumented Immigrants with prior deportation orders. If you have a prior deportation order and have returned to the United States, you are subject to prosecution by the federal government for the crime of reentry after deportation. There may be an increase in the number of people charged with this crime. Depending on why you were deported you can spend many years in federal prison for reentering the US. Again, start preparing a plan now to handle this situation. If you have a deportation order and never left, NOW is the time to speak to an immigration attorney, obtain a copy of your file from the government, and seek advice about your options to reopen your case. Understand your immigration history!
- For those Arrested by ICE, especially for the undocumented–Have a plan in place. Decide now who picks up the kids from school/daycare, who will be authorized to do so with the school, who to contact first, have a power of attorney prepared for this. Put copies of documents in a secure place. Memorize the phone number of a relative or of an attorney.
- Remember: Don’t panic. Get informed, know your rights, know your options, and make a plan!
What are Removal Proceedings?
Removal Proceedings means that the U.S. Government is seeking to remove you from the country. Generally, you will receive a hearing notice through a letter in the mail. The letter will provide the address for the Immigration Court as well as the date and time of the hearing. When a notice to appear (NTA) is filed with the Immigration Court, this means that the government is outline the legal reasons why you should be removed from the United States.
What is going to happen at the hearing? Do you have to go? Do you need an attorney? What is going to happen at the end? Do you get to stay in the United States? These are all questions that can be answered by a qualified immigration attorney.
Removal Proceedings: Preliminary Hearings
The first kind of hearings are master calendar hearings. There will be many people present and the judge will check with each person to see if they are represented by an attorney, what defenses they will be pursuing, and what the case status is. There will be an interpreter present to translate in case English is not your best language. If there are any deadlines, the Judge will make them clear. If you have an immigration attorney, she will be able to walk you through all of the steps and keep you informed of all hearings.
Removal Proceedings: Individual Hearings
Once all applications for relief are filed, the Immigration judge will schedule an individual hearing. These hearings are scheduled a few months in advance to give you time to gather all supporting documents and prepare all witnesses in your case. At the hearing, you must present your case and demonstrate that according to legal standards, you qualify for the relief being sought. An experienced immigration attorney will identify weaknesses in the case and work to overcome them.
What happens next?
The Immigration Judge will either approve or deny the application. If it is denied, you must appeal to the Board of Immigration Appeals or you may have to leave the United States. An immigration attorney will be able to explain the process and keep you informed of any deadlines.
Do you need an attorney?
No, it is possible to represent yourself. That being said, immigration attorneys are familiar with the removal proceedings and familiar with the legal defenses available. Having an attorney can help ensure that you present the strongest case possible.
Steps to take when confronted with Removal Proceedings:
- Gather information: Look for all of the documents that you have received that relate to immigration (including notices from USCIS) and put them together. Write down your history of travel in to and out of the United States. Write down your goals, questions and concerns.
- Decide to fight and get help: Meet with an immigration attorney to assess your situation and see what options are available. If you do not feel comfortable with the attorney or trust what they are telling you, get a second opinion. If you cannot afford an attorney, there are pro bono organizations that can help orient you. Once you know the options, you can decide on a strategy.
- Go to your hearings! Even if you do not have an attorney, you MUST go to the hearing or else the Immigration Judge may order your removal in your absence.
The Expanded I-601A Waiver
The provisional I-601A waiver which came into effect in 2013 allowed for certain applicants to file for the waiver while still in the United States. The provisional waiver only waives unlawful presence (time spent in the United States without permission) for those subject to the three-year and ten-year bar. The development in the I-601A waiver meant that applicants no longer had to spend months (or even years) in their home country while awaiting a decision on the waiver.
More information about the I-601A provisional waiver here.
What’s new ?
Starting August 29, 2016, the I-601A provisional waiver is expanding. It is a step in the right direction although it still leaves many would be applicants ineligible. There are two significant improvements:
- Anyone eligible for the waiver can file in the United States.
This change expands the ability to file the provisional waiver on Form I-601A to anyone who would be eligible for an unlawful presence waiver. Previously, it was only available to those who had an approved petition and a US Citizen spouse or parent. Now, those who have an approved petition and a lawful permanent resident spouse or parent may apply provisionally from the United States.
|Who was a qualifying relative before?||Who is a qualifying relative now? (8/29/2016)|
|I601A Provisional Waiver (Submitted in the United States)||·United States Citizen Spouse
·United States Citizen Parent
|·United States Citizen Spouse
·United States Citizen Parent
·Lawful Permanent Resident Spouse
·Lawful Permanent Parent
- People with Final Orders of Removal will be eligible for the provisional waiver if they are first approved for advance permission to return on Form I-212.
Individuals subject to final orders of removal, deportation or exclusion will be able to apply for “advance permission” to return via an I-212 Application for Permission to Reapply for Admission into the United States here in the United States. Once approved, then they will be eligible to file for the I-601A provisional waiver. Previously, applicants with final orders had to return to their home country to apply for one waiver and then the other. The process could take years which meant an extended separation from family members while the applicant was outside of the United States. With the new rule, once the I-212 and I-601A are approved, the applicant will consular process which will reduce the time spent outside the United States to a couple of weeks.
Another change is that the provisional waiver will be available now even if applicants were scheduled for a visa interview before January 3, 2013. This was a limitation of the original provisional waiver announced in 2013.
It is important to remember that the applicant still has to show “extreme hardship” to their family member to obtain approval. The applicant also must be physically present here in the United States.
Also, please keep in mind that the change means that more people are eligible for the provisional I-601A waiver however, applicants are still required to leave the country to attend an interview and finish consular processing in their home country. The big difference is that the time the applicant is outside the country will be minimal – a couple of weeks instead of a couple of months.
The rules surrounding unlawful presence, the three-year bar, the ten-year bar, and the I-601A waivers are complex. If you have a lawful permanent resident or United States citizen spouse or parent, you may be eligible for the provisional I-601A waiver. If you have a removal order, you may still be eligible. Please make an appointment with Cristina M. Hughes to assess eligibility and to start your case today!
|What is the 601A Unlawful Presence Waiver?
It is a waiver to overcome “unlawful presence” which accrues when someone is not authorized to be in the United States. Depending on how long someone has been in the United States accruing unlawful presence (without documents), they risk having to spend three years or ten years in their home country.
|How is this waiver different than the 601 Waiver?
The 601A, introduced in March 2013, applies ONLY to unlawful presence and it may be filed in the United States. If the applicant as other grounds of inadmissibility, they will have to apply for the 601 waiver which covers additional ground of inadmissibility. Previously, everyone with unlawful presence had to return to their home country before submitting the waiver. Once abroad, the wait was 6 months to 2 years. Currently, the 601A provisional waiver may be filed while the applicant is still in the United States.
Who qualifies to submit a 601A waiver?
There are 3 main qualifications:
Who is a “Qualifying Relative”? Do my children count?
Only certain relatives are officially qualifying relatives under current law:
What is Extreme Hardship?
For your waiver application to be granted, you need to show that your qualifying relative would experience hardship that is extreme compared to the hardship that is normally encountered when a family is separated. It is not enough to simply show that your family will experience financial hardship. It is also not enough to just show that you or your qualifying relative will be very upset and heartbroken if you are forced to live apart. You also have to demonstrate why your family cannot move to your home country. You must submit evidence that will document the hardship that your qualifying relative will experience.
Do I have to leave the country?
While the 601A waiver is processing you may remain in the United States. If your waiver is approved, you must return to your country to complete the processing of your case. You can expect to be out of the country for approximately 2 to 4 weeks.
Benefits to working with an Attorney: While it is possible to submit the waiver packet on your own, these are the benefits of working with an attorney:
Cristina is experienced in waiver cases. To schedule a consultation to discuss your case, please call (775) 453-4451 or e-mail email@example.com.