Although not quite as strong as a Pacquiao combination, two important memos have issued from the Immigration service this year which reveal a campaign by the Department of Homeland Security to increase deportations. The first memo was issued by Acting Deputy Director Robert Divine on May 3, 2006 and the second on June 11, 2006 by Michael Aytes.
The Divine Memo provides instruction and guidance for officers regarding the denial of waivers where the immigrant is otherwise not eligible for legal permanent residency. Divine instructs officers they do not have to exercise discretion in favor of a waiver application, even where that person is otherwise legally entitled to the immigration benefit. For example for a number of waivers for inadmissibility, where the immigrant can demonstrate extreme hardship to a U.S. Citizen family member, that officer may still decline to favorably adjudicate the case. This reflects an aggressive stance by the Immigration service leaving a great deal of power and 'discretion' in the hands of the officer deciding the case and allowing an officer to place an immigrant in removal proceedings.
The Aytes memorandum of July 11, 2006 advises officers that once an application for immigration benefits has been denied, and the officer can conclude that individual may be removed from the United States, a charging document (NTA or Notice to Appear) should issue placing that person in removal (deportation) proceedings with the immigration court. This, however, is not necessarily a bad thing since waivers are normally approved in immigration court while normally denied at the administrative level.
In the past, issuance of NTA's were done on a 'priority' basis with a focus on persons who presented a threat to the public welfare. Now USCIS will issue NTA's on any case it encounters in which it can deem the person "removable". According to sources within the immigration community a Memorandum of Agreement ("MOA") has issued between USCIS, the benefits side of the Immigration Service and ICE the enforcement side of the Service to be more aggressive in placing people in removal proceedings.
With this in mind persons should carefully consider the risks before filing any application for immigration benefits. On the other hand for persons who believe they do have relief available it may make sense to seek benefits with the purpose of "adjusting in court", obtaining their green card from the Immigration Judge. USCIS is set up as a "user friendly" system in which immigrants can file their own applications for virtually any benefit offered. There are however, many traps for the unwary in which past criminal convictions, mis-stating marital status, failure to properly calculate unlawful presence, or a prior deportation order could result in denial.
Now the Service will not allow applicants to "walk away" from a failed application for immigration benefits, they have greatly raised the stakes by putting applicants in removal proceedings. Now more than ever applicants should avoid the temptation of filing their own applications and seek a qualified immigration attorney before they file any application with the Immigration Service.
Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly, managing its Beverly Hills Office. Mr. DuPont Graduated from Yale University and USC Law School and is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals.