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Category Archives: Motion to reopen

Removal Cases: What is Prosecutorial Discretion and Am I Eligible for this Benefit?

At my law office, I have been receiving many calls from individuals in deportation / removal proceedings asking whether a new law has been passed that helps them avoid removal from the U.S.  There has been a change, but it is not a new law per se.  Basically, the Obama administration has issued a policy change in how they will treat OPEN deportation and removal cases by setting “low priority” and “high priority” case standards. Those individuals with what are considered low priority cases are eligible for prosecutorial discretion, which means that the Immigration Court can “administratively close” or even terminate removal proceedings.

The new policy change is that John Morton, Director of ICE, has explained the benefit called Prosecutorial Discretion and has even created a system whereby an immigration lawyer can file a prosecutorial discretion request on behalf of their clients.  The request is usually made to the Chief Supervising Attorney at the Office of the Chief Counsel.

I have filed many requests for prosecutorial discretion on behalf of my clients, and I have received calls directly from the Chief Supervising Attorney about some of those pending applications.  I mainly look for the following factors when choosing whether an individual is a good candidate for prosecutorial discretion:

  • Length of time in the U.S.
  • Any family in the U.S. especially immediate relatives
  • Any health conditions for the applicant or his / her U.S. citizen or lawful permanent resident relatives
  • Completing an education in the U.S.
  • Entering the U.S. at a young age
  • Lack of a criminal history as well as other factors detailed in a Memo issued by John Morton OR
  • Any other “humanitarian” type of factors

It is important to note that you do not need all of the above points to qualify for prosecutorial discretion.  I look for one or more of the above factors, and I organize our request in a way that maximizes our chances of success by attaching legal arguments and documentation.

The reason for this policy change is that there are more removal cases than the current immigration court system can handle. In other words, Obama wants to focus on criminal aliens more than the aliens that have no criminal record and the aliens that have a possible means to obtain immigration relief.

We have noticed an increase in the cooperation of the trial attorneys for cases where the individual has no criminal history, and we are thankful for this new policy change.  For individuals who already have a Final order of removal, we have been successful in filing a prosecutorial discretion request asking the Office of Chief Counsel to Join our Motion to Reopen based on other grounds, and they can cite this policy change as a reason for the Judge or the BIA to have mercy on them and grant their request.

The above policy is in line with the thoughts reiterated by Homeland Security Secretary Janet Napolitano, who has stated that the work raids where hundreds are arrested will stop, and focus of immigration officials will turn to prosecuting and removing criminal aliens.

Good BIA case for Iraqi Christians Applying for Asylum

The Board of Immigration Appeals recently issued a favorable case regarding Iraqi Christians. Although the Immigration Judge did not allow the applicant to reopen her deportation order to apply for asylum from Iraq, the Board of Immigration Appeals (BIA) reversed the Judge’s decision and allowed the applicant’s deportation order to be reopened.

This is a helpful case, because the motion to reopen was NOT timely filed within 90 or 180 days. In fact, the applicant waited 3 years before filing this Motion to Reopen. The Judge who denied the Motion to Reopen is with the Immigration Court in Detroit, MI. Based on this decision, now the applicant will have the opportunity to apply for asylum and withholding of removal.

The Board of Immigration Appeals reopened the applicant’s case because they stated that based on the country conditions information provided by the applicant, the country conditions for Christians in Iraqi have worsened in the years of 2008 and 2009. The BIA held that the country conditions have worsened to such an extent since the applicant’s prior deportation hearing that the deportation proceedings should be reopened to allow the applicant to apply for asylum and withholding of removal. The matter was remanded, i.e. sent back, to the Immigration Judge for his consideration of the worsening situation in Iraq for Christians and for entry of a new decision.

This decision is unpublished and a copy of the decision was emailed to our office for our own information from the applicant’s attorney.