It’s so nice to see positive news on immigration! Today, two very helpful things were announced today that make me smile.
First, the Secretary of Homeland Security announced today that ICE and CBP should severely restrict any type of enforcement activity (that is, arresting people) around courthouses. This had been long-standing practice because most everyone wanted immigrants to be able to go to court without fear of ICE. In 2018, though, the policy changed and we were hearing stories of people being arrested when going to receive a Protective Order or when going to a divorce or custody hearing. Courts and judges hated this policy because it made administering justice hard. How could they hold a hearing if someone had just been arrested by ICE? No one should be scared of going to seek protection or to fight to keep their kids because of lack of immigration status.
Today’s announcement states that ICE can only take an enforcement action if at least one of the following is present – (1) it involves a national security matter, (2) there is an imminent risk of death, violence, or physical harm to any person, (3) it involves hot pursuit of an individual who poses a threat to public safety, or (4) there is an imminent risk of destruction of evidence material to a criminal case.
The second announcement about deference is perhaps less exciting, but has a huge impact. In 2004, USCIS adjudicators were instructed that renewal petitions could be adjudicated faster by deferring to the prior approval, so long as the same parties and facts were in place as in the original filing. It was a common sense approach that allowed USCIS to make decisions faster, but also gave some predictability in the system. If you were approved once for a benefit and nothing changed, then you should be approved a second or third time.
In 2017, USCIS was instructed to adjudicate every case from scratch. This led to much longer adjudication times and inconsistencies. Someone who was found to be “extraordinary” in their field in 2015 may not be extraordinary now. It just depended on the discretion of the adjudicator. I have seen this happen in U visa cases, too. If the Georgia battery statute is substantially similar to the federal definition of aggravated assault (a qualifying crime), in one case, shouldn’t it be substantially similar in every case? Yet we’ve had to argue this with USCIS in multiple requests for evidence. And if someone is deemed worthy of a favorable exercise of discretion when the U visa is granted, shouldn’t they still be worthy of discretion when they apply for their green card? I cannot tell you how many U-based adjustment of status applications we’ve seen these last few years where USCIS says that now, years after they’ve already granted discretion once, that the person suddenly isn’t worth of discretion now.
These change may not make the news, but for our clients, our work, and the immigrant community – they are certainly good news.