New York Lawyer's Legal Updates

ICE Prosecutorial Discretion Review Process

Author: Deportation Attorney Alena Shautsova

New York Immigration lawyer Alena Shautsova helps clients to fight for their status and stay in the United States.

On March 11, 2021, ICE announced a new procedure that could change millions of lives: a case review tool. Over the past decade, ICE's priorities for deportation and removal enforcement have changed. Just like the government as a whole has evolved over time, ICE as a branch of that government is taking a much-needed step in acknowledging the changes it has adopted and incorporated. The procedure is likely to help those who are already in removal proceedings or subject to orders of supervision, as well as the millions of backlogged applicants trying to navigate the US Immigration system will have a chance at some good news.

The case review is applicable in certain types of cases with specific criteria. If an individual's case meets the requirements, they can apply to have their case reviewed with ICE. ICE can then check the individual's case to see if their case meets ICE's current priorities for removal and enforcement. Therefore, if the individual meets the criteria for review and does not meet ICE's current priorities, they may be eligible for a form of relief allowing the individual to stay in the US.

Potential types of cases that can use the ICE case review tool include:

  1. When rearresting a person with a previously issued detainer.
    1. Individuals with prior Immigration Arrests.
    2. Individuals with prior Criminal Arrests.
    3. Individuals issued a Notice to Appear (NTA) and ICE already released from custody.
  2. When issuing, reissuing, serving, filing, or canceling an NTA.
    1. IIn certain cases, a denial will result in an automatic issuance of an NTA. If a person can show that they do not meet ICE's current priorities, they can have the case reviewed, and ICE may decide not to issue the NTA after denying a separate case.
    2. ICE can reissue NTAs for many reasons, usually involving correcting a defective NTA. If ICE served a person with a defective NTA, usually at the wrong address, ICE would have to correct the address and reissue the NTA to the correct address and start deportation proceedings over again. In this case, ICE can decide not to reissue the NTA allowing the individual to reopen and easily void a prior deportation case.
  3. Refocus of resources towards cases stemming from conduct-related violations then purely administrative.
    1. Suppose you can show that the violation that occurred does not exceed the minimum conduct-related violation of ICE's new priorities. In that case, an individual can argue that ICE should allocate the resources needed to finalize their case on cases with a higher level of conduct-related violations. For example, a person who will become eligible to adjust their status in the near-future could argue that ICE should focus their case's resources elsewhere.
  4. At the time of stopping, questioning, or arrest for an administrative violation of civil immigration laws.
    1. After arresting an individual with an overstayed visa, unauthorized stay, or other similar administrative violation, ICE can review their priorities in deciding to hold the individual for removal proceedings. If ICE's priorities do not fit the individual's case, they can choose not to issue or cancel the NTA.
  5. When deciding whether to detain or release an individual from custody subject to conditions.
    1. When deciding to detain an individual in ICE custody, a person can have ICE review their priorities.
    2. After detention, ICE can decide when they release an individual from their custody if they should be subject to different conditions, most commonly orders of supervision. Orders of supervision require an individual to check in with ICE after a person has a final order of removal from the US. There is a chance at every meeting that ICE can physically remove the individual from the US. If the individual no longer meets ICE's current priorities, they may be able to have their case reviewed to change their release conditions.
  6. When deciding whether to grant deferred action or parole.
    1. Deferred Action can take many forms, but the most widely used format is called prosecutorial discretion. When asking ICE for prosecutorial discretion, the case can be reviewed and improve the chance of ICE granting the discretion.
    2. Parole is a form of permission to “enter” the US, which may help an individual to adjust status, obtain a work permit, prove “legal” or authorized stay in the US.
  7. When deciding the circumstances to execute final orders of removal.
    1. Individuals subject to a final order of removal and in danger of physical deportation can have their case reviewed. If their case no longer meets ICE's priorities, ICE can decide not to deport the person physically. ICE places its priority on reviewing the cases of individuals who are facing physical deportation. Therefore it is critical to use the review tool as soon as possible in this case.

Any of the aforementioned situations are eligible for ICE's new case review tool. For an in-depth analysis of your case to see if you no longer meet ICE's current priorities, please call 917-885-2261.

17 March 2021
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