A Case By Case Basis: new ICE and Immigration protocols could mean jail time for more immigrants

We have seen many changes in US immigration protocol since the Trump Administration came to power. These changes have affected young people through the cancellation of DACA, and more immigrants through the loss of prosecutorial discretion

As I have stated in recent lectures and other blog posts, the loss of prosecutorial discretion is the worst immigration edict that has come out of the Trump administration. It’s a waste of time and money to treat all immigrants as high priority. Should a student with no criminal record who came to the US at the age of 4 be considered a “high priority” for deportation? 

Things are changing fast. Below is the latest from the Department of Homeland Security, regarding changes and updates in US immigration policy.

Everything immigration is now on a “case by case” basis

1) Stays of removal (stopping deportation) under new administration will now be dealt with on a “case by case basis. No more memos, or priorities.” Case officers are now “enforcing the law”.  

2) If you do manage to get a stay of removal (stop your deportation), the standard for that continues to be compelling and urgent humanitarian factors, and/or significant public benefit.

3) ICE is currently working with the Deptartment of State to get travel documents for countries that previously wouldn’t issue them. 

 4) ICE claims there has been “movement” on Cuba; we aren’t sure what that means. Cubans on stays for many years are going to be looked at on a “case by case basis.”

5) ICE will be releasing identity documents back to clients on a “case by case basis” – “if they are legally entitled to them” – we aren’t sure what that means exactly. If you have had your documents taken from you, you or your lawyer must contact the deportation officer in charge of case. Attorneys strongly recommended for these communications.

6) ICE will release those with pending criminal charges on a “case by case basis.”

7) Bond (bail) amounts will be issued by a computer program, but can be raised or lowered “on a case by case basis.”

8) Re the  I-212 (deportation waiver) stateside procedure.. I kid you not, they will grant stays for eligible people “on a case by case basis.”  We’re winning 212s this year, which is positive.

9) RE DACA: once DACA kids start losing that status, ICE may or may not detain them — that’s right — “on a case by case basis”.

Bottom line: “a case by case basis” could be a drinking game at these ICE meetings.

Why could a “case by case” basis mean jail time for more immigrants?

Well, we aren’t really sure. On one hand it could sound like the return of prosecutorial discretion, putting some power in the hands of whomever is in charge of your case. But we really won’t know until we see the outcome of this new “case by case” approach.

One potential issue was discussed in particular regarding people with old deportation or removal orders going to I-130 interviews.  We were told that the USCIS officer doesn’t contact them until the day of the interview, and so normally they grab the file 5 minutes before the interview or court date.  This means that ICE doesn’t have a lot of time to take a look at the file and make their “case by case” determination, so they may just arrest the person.

So that leaves most of these cases in the hands of the USCIS officer (who may or may not call ICE)  — so if ICE has officers available to go get a person, they will — resulting more than likely in an arrest.

So is this better or worse than before?

Whenever you have this much ambiguity in the law, it can mean trouble. And it seems like the road from trouble to jail time just got shorter with this new “case by case basis” approach. If you are currently a person who is here illegally, and is concerned that this might affect you, this is an important time to get proper legal advice specifically from a top immigration lawyer.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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