Opinion

Dismissal of removal/deportation cases

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

March 13, 2022 | 12:00am

The Department of Homeland Security (DHS) announced a new initiative where it will affirmatively (on its own) move to dismiss certain cases currently in deportation/removal proceedings, so the person can, instead, apply for their green card with US Citizenship and Immigration Services (USCIS) instead of an immigration judge. The reason for this “Backlog Reduction Initiative” is there are over 1.5 million cases now pending in the immigration courts, and that by dismissing certain cases, DHS could reduce the backlog.

If you, or someone you know, is in deportation/removal proceedings and your case meets the requirements, this could be a great benefit, so the threat and fear of deportation is no longer hanging over your head.

• What kinds of cases could be eligible for dismissal? The cases eligible for possible affirmative dismissal are those where there are no “derogatory factors” (perhaps such as crimes, etc.) and the person has on file with the court an Application to Register Permanent Residence or Adjust Status (Form I-485) and they have a merits hearing scheduled on or after Aug. 31, 2023. For example, a person was placed in deportation and they are married to a US citizen who petitioned them and they have an adjustment of status application filed in court. DHS could possibly file a motion to dismiss and have the case transferred to USCIS, who would conduct the interview and adjudicate/approve the case, instead of an immigration judge.

• When and where will DHS file these motions to dismiss? Starting Feb. 11, 2022, DHS will begin this initiative at approximately 24 field locations, including New York City, Los Angeles and Newark. Depending on how well this program goes, it could be expanded and continued.

• What if the noncitizen is not included in this initiative, but still wants his or her case dismissed? If your case was not selected for affirmative dismissal by DHS, but you think you could be eligible to adjust status with USCIS, you could submit a request for “prosecutorial discretion,” as is currently in practice. In fact, I have previously written articles and posted videos on my YouTube channel, US Immigration TV, discussing prosecutorial discretion.

• If a person’s case is dismissed, will they have to file a new Form I-485 with USCIS, or will the one pending in court be transferred to USCIS? If a person’s case is dismissed, they will not be required to file a new Form I-485 with USCIS if their pending Form I-485 was properly filed with the immigration court, including the payment of any requisite filing fee and submission of all required documents.

• How will USCIS prioritize the scheduling of interviews for cases that were dismissed? If a case is dismissed from immigration court, USCIS will use the date the noncitizen filed his or her Form I-485 with the immigration court to determine when their application will be adjudicated. In other words, they will not have to go to the back of the line when the case is transferred to USCIS.

If your case is in deportation proceedings and you receive a motion to dismiss, or if you believe your case qualifies for prosecutorial discretion, you should consult with an attorney to determine the best course of action and to possibly represent you at any future interview for adjustment of status.

I know there are tremendous backlogs not only at the immigration courts but also at USCIS and the embassy, with so many people (whether or not in deportation/removal) anxiously awaiting to have their cases processed. Let us hope the government does more to reduce backlogs not only in immigration courts but also at USCIS and the embassies around the world.

Monitor my YouTube channel, US Immigration TV where I will discuss this topic more in detail.

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