By Catherine Park
(THIS ARTICLE HAS BEEN UPDATED, SEE BELOW.*)
America’s civil immigration enforcement priorities changed with the election of President Biden. He appointed a new Secretary of the Department of Homeland Security, Alejandro N. Mayorkas, who explained the new priorities in a memo to government agencies on September 30, 2021.* The memo directs Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), Citizenship and Immigration Services (USCIS), and etc., to focus enforcement efforts on the following priority categories (which were further construed in a memo by Principal Legal Advisor Kerry E. Doyle, on April 3, 2022), as follows:
- Threat to National Security (e.g., terrorism, espionage, human rights violations)
- Threat to Public Safety (e.g., aggravated criminal conduct)
- Threat to Border Security (e.g., unlawful entry at the border, smuggling, marriage fraud, counterfeiting documents, false claim to U.S. citizenship, frivolous claim of asylum)
The Mayorkas and Doyle memos emphasize that the new priorities create no private right of action and no benefit enforceable in any administrative, civil, or criminal matter. That is to say, removal proceedings still could be justified for any immigration violation, even outside the priority categories. Even for removal cases initiated on or after November 29, 2021 (the effective date of the Mayorkas memo), therefore, the timing in and of itself will not resolve the case.
Waivers might be granted in various circumstances–if, for example, the non-citizen’s removal will cause extreme hardship to a U.S. citizen or legal permanent resident (frequently a spouse or other qualifying family member). But even if the non-citizen qualifies for and obtains a waiver, obtaining the waiver in and of itself does not result in a lawful immigration status, only a restoration of the previous status.
Finally, removal is a stressful proceeding, for which the non-citizen will be served with a Notice to Appear in Immigration Court. The government has initiated removal cases after non-citizens file applications for immigration benefits (such as Change of Status, or Extension of Status) if the application is denied, since the denial may occur after the non-citizen’s visa expires.
But what if the application is approved? As a federal district court emphasized in Ruiz-Diaz v. United States, 2008 U.S. Dist. LEXIS 97050 (W.D. Wash. Nov. 18, 2008), “a pending I-485 application [legal permanent residence application for a person already within the U.S.] allows an alien to remain in the United States without accruing unlawful presence time [emphasis added] and to file an application for employment authorization.” That is to say, approval of the application, even after the visa expires, would avoid the potential harsh consequences of a delayed decision.
Waivers are not available for all types of immigration violations, and some types of conduct could doom the waiver application for all practical purposes. If a non-citizen could qualify for a waiver, it is imperative to present evidence of such qualifications thoroughly. The evidence could include documentation of family ties in the U.S., residence of long duration in the U.S. (especially beginning in youth), service in the U.S. Armed Forces, employment, property and business ties, value and service to the community, payment of taxes, genuine rehabilitation, etc.
*UPDATE: A federal district judge for the Southern District of Texas, Victoria Division (Tipton, J.) blocked enforcement of the Mayorkas Memo on June 10, 2022. See Texas v. United States, 2022 U.S. Dist. LEXIS 104521. The government has appealed to the U.S. Court of Appeals for the Fifth Circuit. ICE’s webpage on prosecutorial discretion currently communicates that ICE will not rely upon the Mayorkas Memo in any manner until further notice. ICE Principal Legal Advisor Doyle has mentioned in public remarks that ICE will continue to exercise prosecutorial discretion upon longstanding principles, without reliance upon the Memo.
DISCLAIMER: The opinions expressed herein are for informational purposes only and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney.