DHS instructed to dismiss certain pending deportation/removal cases

Officials at the Immigration and Customs Enforcement (ICE) were recently instructed by Headquarters in Washington D.C. to dismiss (or join in a motion to dismiss) deportation/removal proceedings that are pending before an Immigration Judge, when it is determined that the alien is immediately eligible to adjust status. For example, an alien might be in the middle of deportation/removal proceedings based on a denied asylum case, but is married to a US citizen in a true, love relationship. In such a case, it is likely that adjustment of status would be approved. The memo instructs that the deportation/removal case should be dismissed, and the alien should be referred to the US Citizenship and Immigration Services (USCIS), where the adjustment could be approved in the normal course, just as if there were no deportation/removal case pending.

The reason for this new policy is to "reallocate limited ICE resources to priority cases by dismissing appropriate cases" where it appears that adjustment of status "appears clearly approvable." In other words, Washington does not want ICE spending precious time and resources going after aliens who are clearly eligible for a green card. Instead, ICE should focus on removing people who might have committed serious crimes, have no "readily available" form of relief, etc.

According to the memo, in order to be eligible to have a pending deportation/removal case dismissed:

• The alien must demonstrate "prima facie eligibility" for adjustment of status based on a properly filed application for adjustment of status.

• Where the application for adjustment of status is based on a visa petition, (like a family petition) the removal case may be dismissed if the petition is approved and a visa is "immediately available" (i.e. the priority date is current), or the record establishes a long-term relationship and approval of an immediately available petition is likely. In other words, you have to show that the underlying petition is valid, and that if there were no deportation/removal proceedings pending, the alien would have been eligible for adjustment of status at the present time.

• The alien must demonstrate that the application for adjustment of status appears "clearly approvable," meaning that the alien, and whoever is petitioning that alien, meet all applicable legal requirements, and that the alien is immediately eligible for adjustment of status (or green card).

If an alien is able to demonstrate immediate eligibility for adjustment of status, a motion may be filed with the Immigration Judge, to dismiss the case "without prejudice," (meaning that if the case is dismissed, ICE still reserves the right to re-file removal proceedings, if the adjustment is, for some reason, not eventually approved).

If the motion to dismiss is granted, the deportation/removal proceedings should be closed, and the adjustment application can be referred to the USCIS, just as though there was no deportation/removal proceeding pending.

This is great news for aliens who are currently in deportation/removal proceedings, and are presently eligible for adjustment of status, such as where they are being petitioned by a US citizen spouse, being petitioned by an immigrant spouse and the priority date is current, or being petitioned by an employer through labor certification, and the petition is approved and the priority date is current, etc. It may not necessarily apply if the alien has already been ordered deported, or if an alien is not immediately eligible to file for adjustment of status, (such as where they were petitioned by a parent, sibling, employer etc., but the priority date is many years away from being "current").

If you think that your pending deportation/removal proceeding is covered by this new memo, I would strongly suggest that you seek the advise of a reputable attorney, who can analyze your situation to determine if it meets these requirements, and could assist you in contacting and dealing with the ICE in connection with convincing them to have your deportation/removal proceedings dismissed, and assisting you in pursuing adjustment of status before the USCIS.

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