Maryland Bar Bulletin
Publications : Bar Bulletin : August 2012

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This year has seen unprecedented immigration developments from all aspects of the Executive Branch.

At the start of the year, no one could predict all of the new opportunities for immigration benefits that would appear. For more than ten years, Congress had provided no meaningful avenues for immigration relief.   Both federal and administrative courts had offered little positive development. The White House had deported more noncitizens than ever before, created the Secure Communities sweeps, and supported enforcement instead of reform.
But this year has seen unprecedented immigration developments from all aspects of the executive branch. Prosecutorial discretion, new administrative closure policy, changes in advance parole, revised family definitions for gay couples, advanced waiver processing, and dream act student deferred action have changed the landscape of immigration law.

Prosecutorial Discretion

Immigration and Customs Enforcement commenced a review of all immigration court cases to determine whether some should be closed or terminated as a matter of prosecutorial discretion in order to reduce the courts’ backlogs.  ICE evaluated whether each person facing removal met with the government’s enforcement priorities. As a result, more than 5,000 cases have received discretion nationwide this past year. 

Two from the BIA

The Board of Immigration Appeals offered a new opportunity to litigants in immigration court this year.  An immigration judge can grant administrative closure to suspend proceedings indefinitely, but  prior to this year, judges could only close proceedings if both the noncitizen respondent and the federal government jointly agreed. That policy blocked judges from closing cases whenever government attorneys expressed even slight opposition. But a recent Board decision now allows the judge to consider a set of factors and then grant administrative closure over the objection of a party.

The Board also issued a decision expanding the concept of advance parole, which is travel permission obtained by noncitizens with applications seeking permanent residence. Advance parole allows persons to travel outside the United States and return to complete the application process here. Prior to the Board decision, a person who left the U.S. with advance parole would not be admitted back into the country if he had more than a year of unlawful presence from a visa overstay or otherwise. The Board’s new decision means that such persons are not inadmissible from unlawful presence when they leave on advance parole. This decision will enable more people to visit family or address business concerns overseas.

CBP Gets In On the Action

Customs and Border Protection this year took steps to expand the definition of family for customs declarations. Previously, family members were limited to persons related by blood, marriage, or adoption who live in the same household. This past March, CBP announced that family members would now include members of the public who travel together as a family unit and live in the same household, including step-children, foster children, half-siblings, and guardians. Even more striking, the family unit would also include adults living together in a committed relationship. For the first time, gay and lesbian couples would be considered to be in a family unit for customs declarations.

Stateside Waivers for Family Unity

U.S. Citizenship and Immigration Services (USCIS) announced this year that it is developing a process for persons to file an advance application to waive inadmissibility in connection with family-based permanent residence petitions. Noncitizens seeking permanent residence who require such waivers currently have to depart the United States and file a waiver overseas as part of their consular processing. This practice can add years of extra waiting for approval of cases, which results in unnecessary separation of spouses and children.

In April, USCIS published a Federal Register notice indicating that applicants will be able to file provisional waivers of unlawful presence in the U.S before they depart for consular processing of their immigrant visas. This new practice is anticipated to allow families to remain together in the U.S. during the waiver application process, thereby minimizing the amount of time that spouses and children will be separated by consular processing.

The Dream is Alive

On June 15, the Department of Homeland Security announced it would offer deferred action to persons who arrived in the U.S. when they were under 16; have continuously resided in the U.S.  for at least five years; are currently in school, have graduated high school, have a GED or were honorably discharged from the armed forces or Coast Guard; have not been convicted of certain crimes; and are under age 31. Deferred action will allow such persons to remain lawfully in the United States and obtain work permission. (Editor’s note: For more on deferred action, see Deferred Action: A DREAM Come True? on page 10.)

Although such relief does not offer permanent residence like the proposed DREAM Act in Congress, many young people will be able to take advantage of this offer to improve their future in the U.S.

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Publications : Bar Bulletin : August 2012

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