By:  Richard Hanus, Esq.

Published June 13, 2021

With 12 million or so foreign nationals residing in the U.S. without lawful immigration status, agents of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement department have no shortage of work to carry out.  Indeed, this has been our nation’s steady reality for decades and our most recent ex-President ascended to office with promises to leave no undocumented person behind, and deport them all.  Well, of course, that mass deportation promise never came close to being kept although it certainly provided fresh red meat for gleeful rally celebrations.

Now we are back to the question of how to effectively, and without hyperbole, allocate our nation’s immigration enforcement resources, especially in light of the fact that the vast majority of our nation’s undocumented are without any criminal record, pay taxes, have significant family ties here and perform jobs native born Americans tend to be repelled by.  In the past week, the Biden Administration has spoken and presented a new, more realistic approach, giving ICE prosecutors, once again, broad discretion when it comes to deciding who should be placed in removal proceedings and deported.

Under new guidelines, ICE prosecutors now have greater flexibility in approaching cases where humanitarian or sympathetic circumstances might dictate a decision to not seek deportation, allowing an otherwise deportable foreign national to remain in the U.S.  Noncitizens with serious criminal backgrounds or who otherwise pose a public safety or national security threat to our nation will continue to be priorities for ICE prosecution.  But for other deportable noncitizens though, the following factors will be taken into account by ICE prosecutors in their discretionary decision-making formula:

  •  Length of residence in the U.S., including arrival at young age,
  •  Advanced age,
  •   work history, pursuit of education, contributions to the community,
  •   family ties to the U.S.,
  •   serious health condition, or are they the primary caregiver to someone with such a condition;
  •   Has the noncitizen been the victim of domestic violence or other serious crime,

Many noncitizens already in removal proceedings, and with strong cases for relief from removal (defenses which lead to green card issuance) may still want their cases heard by an immigration judge.  Many others though may have weaker cases for relief, or no case/defense at all, and the issuance of these new guidelines will be welcome news.

While reinstituting these guidelines brings some measure of justice and fairness to our immigration enforcement system, our society is once again still left short of achieving a real solution for dealing with our nation’s undocumented.  So, we are back at a place where we have been for the past 20+ years, where, pursuant to these guidelines, millions of undocumented will continue to be allowed to remain in the U.S., but without any formal immigration status.  Which thus leads to the next question of whether our society is ready for the inevitable, honest conversation of how to meaningfully address our nation’s undocumented population.   Will Congress ever be bold enough to enact legislation allowing otherwise law abiding individuals to come out of the shadows, shed their second class skin and achieve not just a de facto status (of being left alone by law enforcement), but a real path to permanent residence and citizenship?

PUBLISHED June 13, 2021– “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois