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BETTER DAYS AHEAD FOR ALIENS? Part II
by Michael J. Gurfinkel, Esq.
In a previous article, I discussed several of the
positive changes and developments in U.S. immigration laws, policies,
and procedures. The mood of America is slowly shifting towards
a "kinder and gentler" approach to aliens and immigration.
Here are some more highlights of the many developments in immigration:
5. Prosecutorial Discretion. In a
November 17, 2000 memo, the INS Commissioner instructed INS to
exercise "prosecutorial discretion" in evaluating whether
or not to pursue removal/deportation proceedings against a particular
alien. (Prosecutorial discretion is "the authority of an
agency charged with enforcing a law to decide whether to enforce,
or not to enforce, the law against someone". In other words,
INS Officers may decline to prosecute a legally sufficient immigration
case if the Federal immigration enforcement interests that would
be served by prosecution is not substantial.) This means that
the INS should not go after every single alien who has violated
status. Instead, INS should pick and choose cases based on various
factors enumerated in that memo. The fact that INS would exercise
"discretion" in deciding who (or whether or not to deport
a person) is a very favorable development.
6. Stipulation for Motions to Reopen.
In a May 17, 2001 memo, INS's General Counsel instructed INS that
it may join in a motion to reopen a deportation case for consideration
of adjustment of status, if such adjustment of status was not
available to the alien at the time of the former hearing, the
alien is eligible for adjustment, and warrants a favorable exercise
of discretion. Under new laws enacted under IIRIRA, there are
strict time limits on when an alien may bring a motion to reopen
a deportation case. In many cases, it is now far beyond that time
limitation. The law also allowed for reopening of a case if the
INS would stipulate (or agree) to reopen. In the past, the INS
was reluctant to do so. This new memo now instructs INS to join
in a motion to reopen if the factors listed in that memo are present.
This would allow people who were previously ordered deported a
possible chance to reopen their deportation case, and get a greencard,
if they now have a legitimate basis to adjust status.
7. Courts have jurisdiction to decide habeas
petitions. On June 25, 2001, the U.S. Supreme Court in
INS v. St. Cyr ruled that courts still have jurisdiction
to decide legal issues raised by an alien through a habeas corpus
application. INS had previously argued that the new laws stripped
the courts of jurisdiction to hear habeas corpus applications
relating to aliens' deportation cases. This Supreme Court case
makes it clear that courts continue to have such jurisdiction.
8. Section 212(c) relief remains available
for aliens. The Supreme Court also ruled in INS
v. St. Cyr that Section 212(c) relief (for waiver of deportation)
remains available to aliens who pled guilty to a crime, if they
would have been eligible for Section 212(c) relief at the time
of their plea bargain. Section 212(c) is a law allowing discretionary
relief for aliens convicted of certain crimes. The INS had contended
that IIRIRA eliminated Section 212(c) relief, regardless of when
the alien committed a crime or was convicted, and that Section
212(c) relief no longer is available. The Supreme Court now says
Section 212(c) relief could still be alive for many aliens.
As you can see, there is a positive shift in law,
cases, and attitude towards aliens. We hope that this continues,
so that hard working aliens will finally be able to share in the
American Dream.
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