Key Updates on DAPA, DACA, and Prosecutorial Discretion

April 2015

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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HAPPY EASTER TO ALL CELEBRATING IT THIS SUNDAY!

Close-up of vibrant pink azalea flowers with dew drops on the petals.

DAPA/DACA UPDATES

Author: New York Immigration Attorney Alena Shautsova

On the first date of supposed implementation, a federal Judge in Texas has blocked Obama’s immigration reform regarding parents of the U.S. citizens and permanent residents (DAPA) and new improvements to deferred action for childhood arrivals. As a result, the old DACA applications are not affected and are being processed, but the new changes are on hold. The Justice Department appealed the Judge’s decision and asked to stay his decision pending an appeal.

Immediately, 26 states represented by Governors and Attorney Generals filed a Motion in Opposition of Stay Pending Appeal, asking the 5th Circuit Court of Appeals not to stay Judge Hanen’s injunction. On the opposing side, 14 states filed an amicus brief in support of the motion to stay the district court preliminary injunction requesting that that 5th Circuit lift Judge Hanen’s decision.

Currently, everybody is waiting for April 17, 2015 when the 5^th Circuit Court of Appeals will hear parties’ arguments regarding the lift of the Texas Judge’s injunction. Until then, President Obama’s reform is on hold.

HOW TO RECEIVE PROSECUTORIAL DISCRETION FROM ICE

Author: New York Deportation attorney Alena Shautsova

Prosecutorial discretion is a form of government action that allows a non-citizen to avoid drastic consequences of immigration law violations. ICE or Immigration and Custom Enforcement has broad powers in connection to an individual who is subject to its authority: ICE may choose not to send the case to court and cancel the issued Notice to Appear; or may agree not to issue it at all; or may choose to agree to terminate removal proceedings started against an individual or, if there was a final order of deportation (removal) against a person, ICE can choose to issue an order of supervision and not to physically deport the person.

On November 20, 2014, the Secretary of Homeland Security issued new guidance on prosecutorial discretion which all the ICE agents and employees have to follow. Unlike other parts of President Obama’s immigration initiatives (DAPA andnew DACA), the new guidance are not affected by the decision of the Judge from Texas.

The prosecutorial discretion is granted on a case by case basis. The usual favorable factors include: absence of criminal convictions such as felonies or multiple misdemeanors; family ties in the U.S.; good moral character: volunteering, helping community, religious groups participation; participation in civil rights and labor disputes; health issues and other factors that warrant favorable discretion.

The main role in the request for the PD (prosecutorial discretion) plays a brief in support or a detailed explanation as to why this particular individual deserves an exception. An applicant has to attach documents proving each allegation and hardship that is detailed in the brief. Such documents may include medical records; copies of tax returns; photos; letters of support; copies of receipts for bills paid; birth certificates of children born in the U.S.; documents proving good moral character, etc. In addition, it would be beneficial to explain why the person could not comply with the legal requirements and what he/she has done to do so; as well as explain the chances and prospects of future “legalization” in the U.S.

ICE has created an email account which accepts inquiries regarding prosecutorial discretion requests: eroprosecutorialdiscretioninquiries@ice.dhs.gov. Usually, however, a person should direct PD inquiries to the ICE office that has control over the person’s case.

While a person does not need an attorney to make a prosecutorial discretion request, a lawyer is usually in a better position to connect with ICE and receive a response from them than a person him/herself. In addition, often, deserving applicants cannot voice and explain the factors that should be weighed in their favor as they are not skilled advocates. This all should be taken into consideration before making an application for the prosecutorial discretion.

SUCCESS STORY: LONG AWAITED REMOVAL OF CONDITIONAL RESIDENCY IS GRANTED

I-751 form has to be filed in each case of green card based on marriage, if at the time of the receiving an immigrant visa or adjustment of status, the couple’s marriage is less than 2 years old. What many do not realize is that submission of I-751 form is a significant undertaking and not just a mere “check” before the permanent green card. The couple’s life and evidence in support of the petition will be scrutinized carefully in order for the government to grant permanent residence to a person and clear his/her path to citizenship.

It is even more true in case of a I-751 form that requires a waiver, when a couple is no longer together. A person may file for the I-751 by herself/himself in certain situations, even though the regular requirement calls for the couple’s joint submission of the form.

Ms. Ellin (it is not her real name) came to my office in despair. She has filed her I-751 waiver based form more than a year ago at that point and did not hear anything back from USCIS. Actually, she did hear from them: an RFE was sent to her asking to detail and prove that her rather short marriage to Mr. Ellin was bona fide. Ms. Ellin did submit all evidence that she had to show that the relationship was in fact real, even though short-lived, and then her case “got stuck.” Ms. Ellin did not know what to do. At that time, her older child and derivative was going to “age out” soon and would not qualify any longer for the automatic citizenship, and as a result it would have affected the child’s future in the US.

The first thing that we did was to follow up with USCIS. WE even worked with the AILA liaison to locate the file and see what was going on there. It took almost a year to receive a response from USCIS that the decision on the case was still pending. Since the USCIS was not in a rush to rule on the petition, and Ms. Ellin could not wait any longer for the decision, we filed a new I 751. Shortly, Ms. Ellin was called for an interview. Despite the fact that the officer had the previouslyfiled I 751 on file, she informed us that the only reason why we were called, was because of the new filing. Nevertheless, we appeared with Ms. Ellin and during the interview we able to clear up certain “moments” that apparently put the whole case on hold. In two weeks, Ms. Ellin received her permanent green card and immediately filed for citizenship. She and her child are waiting to become U.S. citizens now.