Tag Archives: administrative closure
Reflections after the election
I want to give you some thoughts about the future, after the results of the presidential election.
I do not know whether we will get any significant changes in immigration laws during the next 4 years. It is possible, but it is also possible that there might not be changes. It will depend on the priorities of the Trump Administration and on the actions of Congress.
For persons who are U.S. citizens or permanent residents, the election of Donald Trump should not result in any particularly new or different problems for you with respect to U.S. immigration laws.
For everyone else, if there are significant changes in immigration laws, the laws might actually help, or they might make things worse. At this time, we just don’t know. If there are changes in the laws, we also don’t know how quickly or slowly such changes might occur. Things in Washington often move more slowly than we might think at first.
It is possible that the way cases are handled by the various immigration agencies will become stricter, but that also will not happen overnight. There are thousands of immigration officials employed at USCIS, ICE, and CBP (Customs and Border Protection), and so if there are changes in procedures, they might happen slowly, if at all. At this time, we just don’t know what changes in procedures might occur.
Probably most of the thousands of current employees in the federal government will remain working at their jobs. Most will probably continue to handle cases the same way that they have been handling them up to now. It is possible that the Trump Administration could call for changes in the way that cases are handled, but again, many of those changes (if any) take time to be implemented.
Some programs, such as the I-601A Provisional Waiver Program, remain in place. A program such as I-601A could only be changed through an official process, which could take 6 months or longer.
Other programs, such as DACA, could be eliminated more quickly. The future of DACA as of January 20, 2016 is uncertain.
I think that it is possible that CBP (the officials at the airports and the borders) might become tougher and stricter in their encounters with persons traveling into the United States. I always advise that you communicate with me before you travel. Now, with the election results, I want you to know that you might possibly face a more difficult encounter with CBP when you return to the United States. We don’t know how CBP might change the way they do their job. At this time, the best we can say is that they might become more strict.
For persons who have cases in Immigration Court, and whose cases have been administratively closed, the future is uncertain. There exists the possibility that the new administration could order ICE to continue with your case in Immigration Court. At this time, we do not know what the new administration might, or might not, do with cases that have been administratively closed. If your case returns to the Immigration Court, or to the Board of Immigration Appeals (BIA), then we will have the right to continue to argue on your behalf to try to obtain any immigration benefits in Immigration Court or the BIA to which you may be entitled.
Adjudicators will not instantly start deciding cases differently from how they are doing it now. A case that would be approved today will be approved in the first few months of Trump’s presidency. There could be rapid change in specific types of cases due to a policy change – DACA is the most likely target of such a policy change – but the majority of cases will be decided the same as before.
New administrations can change how things are done, but there are laws preventing that from happening too quickly.
For cases that we are currently preparing, I expect we will be able to finish before substantial, sweeping change takes place. I cannot promise that a sudden policy change won’t affect your case, but I believe it is unlikely. The best thing to do is carry on and try to finish as quickly as possible. You can help me in that regard by providing me with requested information and documentation as quickly as possible when I request it. The sooner we finish your case, the better.
You will have questions that I will be unable to answer because I do not know the future. My promise to you is that I will do the best possible job on your case. Do not despair. Keep moving forward.
If after reading this you still have questions, please send them and I will respond as soon as I can.
Recent DHS Memos on Prosecutorial Discretion
The U.S. Department of Homeland Security (DHS) has published a few memos in recent months on the topic of “Prosecutorial Discretion.” Some confusion may exist in your communities about what these memos mean.
On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), which is a part of DHS, issued a memo in which he provided guidance to ICE officials about how to exercise Prosecutorial Discretion.
But first, what exactly is “Prosecutorial Discretion”? As John Morton writes in his June 17 memo, “prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.” Basically, Prosecutorial Discretion is the choice that DHS officials have in each individual case to make a decision that will result in a better result for an immigrant.
For example, an ICE official might decide to not arrest a non-citizen who appears to be in the United States without permission. An ICE attorney might decide to not put a non-citizen into Removal Proceedings in Immigration Court. DHS might decide not to deport an individual who is subject to a final order of removal from the United States.
It is important to understand that the recent memos are NOT offering an amnesty program. They do NOT provide an automatic path for a person to obtain a green card or employment authorization. It is also important to understand that there might be some dishonest people in your communities who offer to get you a green card or an employment authorization card for a substantial cost. Beware of people offering you green cards or employment cards as a result of the recent memos. They may be trying to take your money and trick you. The recent memos do NOT offer any kind of program that you can sign up for.
On August 18, 2011, Janet Napolitano, Secretary of DHS, issued a letter stating that government officials will review the cases of the approximately 300,000 people who are in removal proceedings in Immigration Courts across the country. Secretary Napolitano stated that the officials will identify certain cases that might be appropriate for Prosecutorial Discretion.
If you have questions about the legal effects of the recent memos on Prosecutorial Discretion, or about any legal aspects of your immigration case, you should contact a qualified immigration lawyer. You should NOT seek legal advice from a notario or an immigration consultant.
For more information, please view the following documents:
June 17, 2011 memo regarding Prosecutorial Discretion from John Morton, Director, ICE (English)
August 18, 2011 letter from Janet Napolitano, Secretary, DHS (English)
August 20, 2011 Consumer Advisory from the American Immigration Lawyers Association (AILA) (English and Spanish)