Dismissal of 17,000 Deportation Cases Not Amnesty
September 01, 2010
John Morton, Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement (ICE) issued a memorandum on August 20 aimed at relieving the backlog in the already overburdened immigration court system.
The memo provided a framework for ICE to “request expedited adjudication of an application or petition for an alien in removal proceedings that is pending before the USCIS if the approval would…provide an immediate basis for relief for the alien.”
Some 17,000 deportation cases are expected to be terminated pursuant to the memo. These cases have pending petitions that could ultimately result in relief for the aliens.
The memo said that USCIS will endeavor to complete the adjudication of all applications and petitions referred by ICE within 30 days for detained aliens and 45 days for non-detained aliens.
Deportation cases that meet the following criteria will be considered for termination: (1) The alien must have an application or petition with a current priority date, if required for adjustment of status; (2) the alien is eligible for relief as a matter of law and in the exercise of discretion; (3) the alien must have a completed Form I-485, if required; and (4) the alien must be statutorily eligible for adjustment of status.
The memo says that if an alien appears eligible for relief from deportation, ICE attorneys shall “consult with the Field Office Director and Special Agent in Charge to determine if there are any investigations or serious adverse factors weighing against dismissal of proceedings.” Examples of adverse factors are criminal convictions, fraud or other criminal misconduct and national security and public safety considerations. If there are no investigations or adverse factors the ICE attorneys will promptly move to dismiss the deportation proceedings.
Some Republican senators have criticized the memo. Senator Charles Grassley claims that the new policy provides a de facto backdoor amnesty program allowing aliens to remain despite being in violation of immigration law. Senator John Cornyn of Texas has stated that this move is representative of the Obama administration’s failure to enact far reaching immigration reform, leaving state officials with the burden of enforcing immigration law.
Some ICE agents also view the memo as a sign that the agency is abandoning its core mission with such initiatives instead of petitioning Congress for more resources. They are not convinced that the memorandum will be successful in preventing any national security or public safety threats from occurring.
Immigration attorneys, on the other hand, praise this development as a common sense policy change that will provide both immediate relief to aliens who would have successful applications and relieve some of the backlogs afflicting the immigration court system.
Proponents of the change have highlighted critics’ use of misinformation to promote opposition to the memorandum. They counter critics’ claims by pointing out language in the memorandum specifically mandating that ICE attorneys are alerted when an alien has been previously convicted of any crime or has any serious factors weighing against dismissal. They further argue that the memo, if successfully implemented, will in fact help the government target and find real threats.
This new development represents a substantive change in immigration policy. While the opponents’ criticism warrants some attention, it is undeniable that the immigration system must find a solution to its huge operational burdens that are causing backlogs in the system. Even if all of the 17,000 cases that appear eligible for expedited adjudication are approved and removal proceedings are dismissed, that still leaves hundreds of thousands more pending before the court. Last year 393,289 aliens were deported.