There has been a lot of talk recently about the Immigration and Customs Enforcement (ICE) memorandum on prosecutorial discretion. The idea is that individual agents and attorneys for ICE can decide not to "prosecute" removability against an alien who they feel deserves that kind of compassion or use of discretion. The memo itself is not necessarily revolutionary, as the agents and attorneys always had that power. The importance is that, in light of the seriously increased immigration enforcement under the Obama administration, this memo reminds agents and attorneys of that authority, and I think, in so doing, recommends that they use it in appropriate situations.
I complained about the actions of an attorney for the government in the case of the South African asylum applicants. Ultimately, the ICE attorneys decided not to appeal our win, a kind of prosecutorial discretion that they utilized in favor of my clients, when no legal authority required them to. On the one hand, I feel some of the government actions in that case were not appropriate, however, the same office went out of their way to help my clients by not appealing and forcing them to expend additional resources and face the possibility of the Board of Immigration Appeals (BIA) overturning the decision and denying them asylum... so it cuts both ways.
Today, I had a case of a seriously mentally ill man who was granted cancellation of removal, and allowed to remain in the United States with his family who have been struggling to care for him for many years now. The government's attorney did not oppose the case, and in fact, agreed that he should be granted that relief without requiring any testimony or argument on the strength of the medical and psychological records submitted before trial. He didn't have to do that. He could have fought the case, put my client to his burden of proof, and challenged any incorrect or conflicting testimony (which for a guy with auditory hallucinations there certainly would have been some). But he used his prosecutorial discretion, not to agree not to prosecute the case, but to agree to his being granted relief. Even the memo doesn’t require or suggest that he take this action. In fact, had they simply terminated the case against him, his family would have been in a worse situation, because he would have gone back to the status he had before (none) which results in his not being eligible for many forms of financial and medical assistance that he needs. By doing exactly what he did, the government's attorney's prosecutorial discretion resulted in my client's entire family having a better life, and probably lessening the hardship his family has endured for the last 15 years.
When someone is in removal (deportation) proceedings, they are required to appear at all their scheduled hearings, or else they will be ordered removed in absentia. Latin for "in the absence." Thank you, Missouri State University (Southwest Missouri State at the time) for the Latin lessons. The key problem with these kinds of orders are that the individual won't know they have been ordered deported, because they aren't there. How this generally happens is that the individual did not get notice, for one reason or another, and so whatever issue caused them not to get notice of the hearing in advance also results in their not getting a copy of the order of removal. Without that notice, they can not file an appeal within the required 30 days, or a Motion to Reopen within the required 90 days. Luckly, the law allows for a Motion to Reopen In Absentia orders to be filed at any time, if it is based on lack of notice. The problem here is proving lack of notice. If the government mailed the notices to the last given address, and it wasn't returned, there is an assumption that the notice was proper, though it can be refuted with specific evidence to the contrary.
How this normally comes up is where the person is arrested and taken into ICE (Immigrati/on and Customs Enforcement) either on a mission to enforce the old order, or through some other issue like arrest by local police. Then, the alien only has a very short amount of time to get the case reopened, because they are no longer required to be given any hearings, and are immediately subject to removal from the U.S. For those from Mexico, there is a flight back every Friday, and so it often means that someone may have less than a week from the date of arrest to the date of removal, depending on the circumstances. Luckily, where the motion is based on lack of notice, it carries with it an automatic stay of removal, keeping them in the country while a Judge decides whether or not to reopen their case.
We just got a positive result in an I-140 petition for an Outstanding Researcher from India. The petition was approved in five weeks. We pushed for an EB-1, so that a visa would be immediately available for her, and so she and her family could immediately file to adjust status to permanent resident (green card). This also allowed her to forego the lengthy labor certification process, where employers have to prove there are no minimally qualified U.S. workers to take the job - being a high-level researcher, this seems unlikely and a poor use of time and resources. Additionally had she applied for a National Interest Waiver, EB-2, she would have had to wait roughly five years before applying for permanent residence.
The key to her case was the nature of her work in biophysics. We were able to effectively communicate to the United States Citizenship and Immigration Services (USCIS) the nature and importance of her research. I reviewed her publications, presentations and citations to her work, and conducted independent research to help explain her work to the laymen at USCIS. Despite not having a background in biology, my background in science and math (see below) made it quite a bit easier and faster to process the concepts and importance of her research so that US CIS can understand it. In this case, the researcher had one year as a research professor, four years as a post-doctoral researcher, co-author articles in the Proceedings of the National Academy of Sciences and Nature, but no easily recognizable or internationally-known awards. Despite a lack of high-profile awards or first-author publications, this case was still approved without a Request for Evidence (RFE), which contributed to its fast adjudication.
After almost two years in the same location, we are moving into our own offices in the Crossroads district of Kansas City. We will be closer to the Immigration Court and close to I-35 in either direction. Our phone number will remain the same, and all website/email information will remain the same, but we do have a new fax number. Beginning August 1, 2011, our new address/information will be:
Willmoth Immigration Law, LLC
215 W. 18th St., Suite 101
Kansas City, MO 64108
Ph 816.753.7382 Fx 816.605.1129
The turn-by-turn directions on the Contact Us page will be updated shortly to make sure you can find the new office. The front door is locked again, but there is a keypad/phone system outside to be buzzed in. We are in suite 101. Thanks, and look forward to seeing you all soon at the new office.
Today the Attorney General issued an opinion vacating and remanding an order for removal (deportation) to the Board of Immigration Appeals, so that the BIA can consider for the first time, the constitutionality of the Defense of Marriage Act (DOMA), its applicability to New Jersey family law, etc. This appears to be another step in the direction of eradicating the unjustifiable distinction between legal heterosexual and legal same-sex marriage under the immigration laws of this country. I welcome Attorney General Holder's decision in this case, and hope that the BIA acts bravely to determine that DOMA will no longer be followed in immigration cases. This would have a profound impact on same-sex married couple's ability to immigrate to and live together in the United States.