If you are in removal or deportation proceedings and you have a family based petition (Form I-130) petition pending or it has been approved, you could go home is as little as 30 days! This article addresses the new handling proceedures for individuals in removal or deportation (issued an NTA) with a pending or approved application or petition with USCIS.
Petition for Alien Relative (I-130) Expedites Removal:
A recent policy memo instructs the U.S. Immigration and Customs Enforcement (ICE) on handling removal deportation proceedings of aliens with pending or approved I-130 applications or petitions. The new ICE policy outlines a framework for ICE to request expedited adjudication of an application or petition for alien relative in removal proceedings. The petition must be pending before U.S. Citizenship & Immigration Services (USCIS). The case will be expedited if the approval of such an application or petition would provide an immediate basis for relief for the alien.
- Detained Alien: if the case involves a detained alien whose application or petition is pending with USCIS, the office of chief counsel (OCC) is directed to request that USCIS expedite the adjudication of the application or petition within 30 days. ICE will see that USCIS conducts the interview, if needed.
- Non-Detained Alien: if the case involves a non-detained alien whose application or petition is pending with USCIS, OCC will request that USCIS expedite the adjudication of the application or petition within 45 days.
Detained Aliens: Terminate Proceedings. Dismiss the Case. Get of Jail!
Certain cases in removal proceedings can be dismissed without prejudice. Where there is an underlying application or petition filed with USCIS by or on behalf of a detained alien and ICE determines as a matter of law and in the exercise of discretion that such alien appears eligible for relief from removal, the office of chief counsel is allowed to move to terminate the proceedings and the judge will dismiss the case. Dismissal is only done after the OCC contacts the local USCIS Field Office Director where the case is pending and Special Agent in Charge to determine if there are any investigations or serious, adverse factors weighing against dismissal of proceedings. Adverse factors include criminal convictions, evidence of fraud or other criminal misconduct, and national security and public safety concerns. This affects thousands of aliens married or related to a U.S. citizen or a lawful permanent resident who has filed a petition for them and who do not have a criminal conviction.
This is the first move by the Obama administration to establish a more lenient immigration policy towards aliens facing removal from the United States. Once it is determined that there are no adverse factors, Chief Counsel is likely to dismiss the case without prejudice before the Immigration Court. “Without prejudice” simply means that if the underlying petition or application is subsequently denied, the alien will be allowed to his or her case heard again in Immigration Court. This is advantageous because it allows the alien’s case to be heard by USCIS and again by the Immigration Judge if something goes wrong at USCIS. This allows the alien to remain in the United States to take more bites out of the apple.
After OCC notifies the Field Office Director that there are no adverse factors, the Director must release the alien pursuant to the dismissal of the proceedings. This allows ICE to focus on those aliens who are criminals while expediting the cases of law-abiding immigrants. The new approach saves tax dollars and efficiently allocates ICE’s resources. It also promotes unity of the family unit – a tenant of the Immigration laws.
Where there is an underlying application or petition and ICE determines in the exercise of discretion that a non-detained individual appears eligible for relief from removal, Chief Counsel should promptly move to dismiss proceedings without prejudice before the Immigration Court.
So detained and non-detained aliens’ cases can be dismissed and terminated from Immigration Court. This does not apply to all cases. Suffice it to say that if you are in deportation because of an overstay problem or techincal violation of immigration laws, your case can be expedited out of removal proceedings. There are four (4) criteria that ICE uses to determine which cases are “dismissible.”
What Cases Are “Dismissible?”
Only removal cases that meet the following criteria will be considered for dismissal:
- The alien must be the subject of an application or petition filed 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 Adjustment of 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).
Dismissal is only discretionary, but due to the underlying goal of promoting judicial efficiency these cases are likely to be dismissed. An experience immigration lawyer will know whether these factors are applicable to the alien’s case and will make appropriate communications with OCC to ensure that the guidelines are followed.
Basically, family-based adjustment applicants who have not committed serious crimes will have their case expedited. Accordingly, if you have an approved I-130 but your green card case (I-485) was denied, the local field office will issue an NTA (Notice to Appear) in removal proceedings. The I-485 must have been denied on a ground that can be overcome, such as not presenting a required piece of evidence or by overstaying a visa. If this is the case, your immigration lawyer will likely apply to adjust status in Immigration Court as a basis of relief. If this is the case, your case is good for dismissal, even if you are detained.
How to Contact Us
If you have questions about a deportation or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including deportation dismissals, Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are a detained or non-detained alien, an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.