In a June memorandum by John Morton, Director of Immigration and Custom Enforcement (ICE- the immigration police) new guidance was issued to agency personnel that support a new policy of discontinuing the arrest and deportation of certain noncriminal immigrants. The memorandum states that “prosecutorial discretion” will be used to concentrate on detaining and removing immigrants with serious criminal convictions and halt the deportations of immigrants with community ties, family relationship or a military service record.

The memo was also important for what it said about the agency’s willingness to consider joining in on motions to reopen existing deportation and removal orders. (Before April, 1997, court proceedings to expel immigrants from the U.S. were referred to as “deportation” proceedings. In 1997, the law was reorganized and these expulsion proceedings are now called “removal” proceedings.)

The Morton memo states that ICE will consider using “prosecutorial discretion” in “responding to or joining in a motion to reopen proceedings and to consider joining in a motion to grant relief or a benefit.” The memo goes on to list many positive factors which the agency will consider, including:

• An immigrant’s length of presence in the U.S.
• The manner of the immigrant’s arrival
• Whether the person has pursued educational opportunities in the U.S.
• An immigrant’s family ties in the U.S.
• The immigrant’s health and/or the health of US relatives
• The immigrant’s ties to the community
• The immigrant’s age, with particular consideration given to minors and the elderly
• Whether the immigrant is the primary caregiver or primary means of support for U.S. residents or citizens
• Military service
• The immigrant’s prior immigration history, including prior removal orders, denial or prior applications and evidence of fraud
• The immigrant’s prior criminal history, including prior arrests, convictions, or outstanding arrest warrants

The new ICE policy was specifically endorsed by Janet Napolitano, the Secretary of the Department of Homeland Security, which oversees ICE operations.

Clearly, then, the stated policy of the Obama Administration is to join in on motions to reopen where the immigrant can show several positive factors listed in the Memo. How can you judge whether you have a good opportunity to reopen your removal order? Some of the questions and answers set out below you assist you in making that judgment.

Frequently Asked Questions (FAQs)

Q. What is meant by reopening a deportation or removal order?

A. When ICE believes you are unlawfully present in the United States, it starts a process now known as removal proceedings (and previously known as deportation proceedings.) You will be served with a Notice To Appear (NTA) which is filed with the immigration court to start the process. The NTA outlines the charges against you which ICE believes makes you removable. Eventually, the immigration judge will determine whether you should be removed or allowed to stay. If the judge determines you should be removed or you do not go to court when you are told to, a removal order will be issued against you. A motion to reopen a deportation or removal order seeks to stop your removal and bring the case back before the judge.

Q. Are there rules about how and when a deportation or removal order can be reopened?

A. Yes, and the rules are pretty complicated. Much of it will depend on whether the order was entered against you after a hearing or after you failed to show up in court when you were told to appear. It will also depend on whether the government properly notified you of the time and place of your court hearing. Most often, the rules require that you try to reopen your deportation or removal order within a very limited period of time after the order is issued.

Q. What are the time periods?

A. A motion to reopen can only be done once and must be filed within 90 days of the issuance of the order. There are exceptions for “exceptional circumstances” or if the government failed to follow proper procedures in notifying you of the time and place to appear in Court.

Q. Can I still reopen my deportation or removal order if the time period has expired?

A. Generally, you will need the cooperation of the government’s lawyers to reopen a deportation or removal order if the time period has expired. This is why the recent “Morton memo” is so important. It sets out new standards which should make it easier for some people to successfully reopen their deportation or removal orders

Q. Am I a good candidate to reopen my deportation or removal order?

A. It is impossible for anyone to answer that question without reviewing all of the facts and circumstances about your immigration history. Certainly, the best candidates are those who have:

• At least two or three of the positive factors set out in the Morton Memo and
• None of the negative factors set forth in the memo and
• A strong case to be made to the Court for some form of relief in the event the government agrees to reopen your case. This means that you are a strong candidate for adjustment of status, Cancellation of Removal, or political asylum or withholding of removal.

Q. What is does it mean to be a strong candidate for adjustment of status, Cancellation of Removal, or political asylum or withholding of removal?

A. Adjustment of Status is a process by which an individual can become a permanent resident through the sponsorship of a close family relative or employer. Cancellation of Removal allows individuals in removal proceedings to obtain a green card if they have lived in the U.S. for more than ten years, are persons of good moral character, and their removal “would result in exceptional and extremely unusual hardship” to the applicant’s “spouse, parent, or child” who is a U.S. citizen or permanent resident. Political asylum or withholding of removal involves persons with a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”
Obviously all of these forms of relief should be reviewed very carefully with your immigration attorney. The point here is that it makes no sense to reopen your deportation or removal order if you have no form of relief available. The judge is just going to order you to leave all over again.

Q. Can I reopen my deportation or removal order to apply for a work card under the new Morton Memo rules?

A We think it is too early to know and are advising our clients to take a “wait and see” approach until we know more about what ICE intends to do. Obviously, if you have an outstanding removal order and ICE is banging at your door or you or a close family member or friend has recently been detained, it makes sense to try to open the order and hope for discretionary help from the government.

Q. Who should not try to reopen their deportation or removal orders?

A Certainly, people who fall into the following groups should not expect any favorable consideration by ICE:

• Serious felons, repeat offenders, or individuals with lengthy criminal records
• Known gang members
• Persons with a record of serious immigration violations including those with a record of illegal re-entry and those who have engaged in immigration fraud.

Q. If I do not already have a deportation or removal order, should I surrender myself to ICE to put me into deportation as a way of getting work cards for myself and my family?

A NO! ICE is unlikely to cooperate with you. They are trying to reduce the number of people in deportation proceedings to concentrate on deporting criminal immigrants. Ten million people coming forward to put themselves into proceedings is not likely to accomplish their goal. Furthermore, if they do accept your case and put you into deportation proceedings it probably means they have classified you as a high priority case and will do everything they can to deport you as quickly as they can.

Q. What should I do?

A Consult with your attorney.