Re: Request for Prosecutorial Discretion; Joint Motion to Reopen and Terminate Requestor: (A )

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1 , Deputy Chief Counsel Office of the Chief Counsel, Baltimore Immigration and Customs Enforcement U.S. Department of Homeland Security Fallon Federal Building 31 Hopkins Plaza, Room 1600 Baltimore MD July 1, 2012 Re: Request for Prosecutorial Discretion; Joint Motion to Reopen and Terminate Requestor: (A ) Dear Mrs. : Catholic Charities Immigration Legal Services of the Archdiocese of Washington represents respondent (hereinafter Mrs. ) who respectfully requests the Baltimore District Counsel exercise favorable prosecutorial discretion by joining in her Motion to Reopen and Terminate Proceedings so she may apply for adjustment of status under INA 245(a) for which she is eligible. STATEMENT OF FACTS Mrs. is a 49-year-old native of Liberia, who entered the United States on a B-2 visitor visa on November 15, See Exh. E, Admitted Visa Stamp. Fleeing the Liberian civil war, Mrs. applied for political asylum when she arrived in the United States because she feared being killed on account of her Krahn ethnicity, which is one of the key tribes in the Liberian civil war. Mrs. attended for an interview on her asylum application. However, her case was referred to Immigration Judge. See Copy of Asylum Application; Respondent s Declaration. During the intermittent time before the merits hearing, Mrs. was reunited with (hereinafter Mr. ), whom she had dated on and off starting at the University of Liberia. arrived in the United States on February 27, 1994 and was granted political asylum in the Newark Immigration Court. See Exh I, Mr. s Declaration. The couple married on August 9, 1997 in Silver Spring, MD. In 1998, the couple encountered financial difficulties when Mr. lost his job and Mrs. was pregnant with their son,. Due to their financial difficulties, the lived with different family members. Mrs. did not filed a change of address form because she believed that she would have a permanent residence soon. Consequently, she never received notice from the Immigration Court 1

2 about the merits hearing for her asylum case. At this hearing, on September 21, 1998, Judge issued a removal order in absentia when Mrs. was not present. From 1997 to 2007, Mrs. worked as an Ophthalmic Assistant at, a job she obtained with her work permit issued due to her asylum application. did not ask for her work authorization again until When she sought to renew the permit, she learned about the in absentia removal order and the closing of her asylum case. Because she could not provide a renewed work permit, laid her off. On September 30, 2010, Mr. naturalized as a U.S. citizen. On November 27, 2011, Mr. filed an I-130 on behalf of his spouse, Mrs.. USCIS has approved the I-130 on April 24, However, USCIS denied the I-485 application due to her outstanding removal order, and as such, the agency s lack of jurisdiction over the application. ARGUMENT I. The Department of Homeland Security has the right and responsibility to exercise prosecutorial discretion in appropriate cases. The Department of Homeland Security (DHS) possesses the power of prosecutorial discretion. Within the former Immigration and Naturalization Service (INS) and subsequently DHS, attorneys have long been encouraged to exercise prosecutorial discretion in appropriate cases. See, e.g. John Morton, Director: Prosecutorial Discretion: Certain Victims, Witnesses and Plaintiffs (June 17, 2011); Bo Cooper, Deputy Director: INS Exercise of Prosecutorial Discretion (July 11, 2000). Both DHS and legacy INS policy memoranda positively promoted the exercise of discretion. See, e.g. id., Doris Meissner, Commissioner: Exercising Prosecutorial Discretion (Nov. 17, 2000) (hereinafter, Meissner Memorandum ) ( Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process. ) (Emphasis in original). Both the federal courts and the immigration court system approved the exercise of prosecutorial discretion by DHS. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, (1999) (finding that the INS retains inherent prosecutorial discretion as to whether to bring removal proceedings); Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009) (noting that DHS has prosecutorial discretion over deferred action and citing cases). Departmental policy and court precedent agree that DHS attorneys have the power of prosecutorial discretion. II. Mrs. Meets the Criteria for This Joint Motion to Reopen for Adjustment of Status Purposes In general, District Counsel may join in a Motion to Reopen for consideration of adjustment of status pursuant to INA 245 if: (1) such adjustment of status was not available to the respondent at the former hearing, (2) the alien is statutorily eligible for adjustment of status, and (3) the respondent merits a favorable exercise of discretion. Memo, Cooper, Gen. Counsel, HQCOU 90/ (May 17, 2001). 2

3 A. Adjustment of Status was not available to Mrs. at her former hearing. Mrs. was not eligible to apply for adjustment of status at her prior hearing in September 1998, because at that time she was not married to a United States citizen. While Mrs. and Mr. were married on August 9, 1997, See Exh G, Certificate of Marriage, Mr. did not become a naturalized United States citizen (USC) until September 30, See Certificate of Naturalization. Therefore, Mrs. is now eligible as an immediate relative for adjustment of status. See Exh H, Completed I-130 Petition with USCIS approval stamp, dated Apr. 24, These events occurred after the Honorable Judge ordered Mrs. removed in absentia on September 21, 1998 after declaring that her claim of asylum had been abandoned when she did not appear. Since, adjustment of status pursuant to INA 245(a) was not available at her former hearing, reopening Mrs. s removal proceeding is therefore appropriate to allow her to apply for adjustment of status. 1. Mrs. is statutorily eligible for Adjustment of Status. Mrs. is prima facie eligible for adjustment of status. She was inspected and admitted into the United States, is admissible, and is immediately eligible to receive an immigrant visa. On November 15, 1992, Mrs. entered the United States on November 15, 1992 with a B2 non-immigrant visa through New York, NY where Customs and Border Patrol (CBP) agents inspected and admitted her. See Exh. E, Respondent s Visa Stamp. Mrs. is admissible into the United States, because she has no criminal record and is not subject to other grounds of inadmissibility. Additionally, she is the beneficiary of an approved I-130 petition filed by her USC spouse, and she qualifies as an immediate relative as defined in section 201(b)(2)(A)(i) of the INA. See Exh. H, Completed I-130 Petition with USCIS approval stamp. Mr. is willing to file an I-864 Affidavit of Support on her behalf, and Mrs. is willing to undergo the required medical examination and submit the results of this examination. Mrs. deserves a favorable exercise of discretion as described in detail in the subsequent section. Therefore, enclosed with this letter are Mrs. submits proof of her prima facie eligibility for adjustment of status thereby complying with the standard of proof required for reopening proceedings. 2. Mrs. merits a favorable exercise of discretion. Factors to be considered in determining whether a favorable exercise of discretion is warranted include: (a) the hardship to the alien and/or his USC or lawful permanent resident (LPR) family members if the alien were required to procure a visa through consular processing (including the potential applicability of section 212(a)(9) should the alien depart the United States); (b) the alien s criminal history, if any; (c) the number and severity of the immigration violations; and (d) whether the alien s removal is consistent with ICE objectives. Memo, Cooper, 3

4 Gen. Counsel, HQCOU 90/ (May 17, 2001). Furthermore, on June 17, 2011 ICE Director John Morton issued a policy memorandum concerning prosecutorial discretion, which added to the list of established prosecutorial factors (e) the person s length of presence in the United States and (f) whether the person has a USC or LPR spouse, child, or parent. See John Morton, Director: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter, Morton Enforcement Priorities Memorandum ). 1 a. If Mrs. were removed in the future, her USC family members would incur extreme hardship. Mrs. s removal even if temporary will result in extreme hardship to her and her entire family. Departing the United States would trigger the ten-year unlawful presence bar and she would not be able to return for at least ten years unless the U.S. Consulate in Liberia approves an I-601 waiver. Obtaining such an approval would likely require Mrs. to be in Liberia and away from her family for approximately a year or more. Being separated from her family for this long a period will cause them extreme hardship, including financial and emotional hardship. If Mrs. were forced to return to Liberia, Mr. would become the sole breadwinner for the family. This burden would cause severe financial hardship for him and their son. Currently, by working multiple jobs, Mr. struggles to support their family on his income alone. See Exh I, Mr. s Declaration. According to a 2010 Urban Institute study, children with parents who are arrested or deported due to immigration enforcement are more likely to suffer from economic instability and food insecurity than the general population. 2 Furthermore, Mrs. would not be able to send money from Liberia to help support her son because she is unlikely to find employment in Liberia. Liberia is one of poorest countries in the world with 85% unemployment and 64% of the population living on less than one dollar a day. 3 Given the lack of family members, political instability, widespread unemployment, and lack of access to basic necessities like electricity and water in Liberia, Mr. would likely have to 1 Note that, although this memorandum was issued on the same day, by the same director, to the same recipients, it is a distinct document from the memorandum referred to previously as 2011 Morton Victims Memorandum. 2 Ajay Chaudry et al., Facing Our Future: Children in the Aftermath of Immigration Enforcement, The Urban Institute, 27, 29-31, February See Central Intelligence Agency [CIA], 2012 World Factbook: Liberia [last updated Nov. 20, 2012]; African Economic Outlook, Liberia , available at ( A much more useful statistic is the percent of the labour force in vulnerable employment, which comprises 78% of the labour force. This includes people who are unlikely to have an assured salary: those who are self-employed, or those who provide unpaid family labour to their households. Moreover, 68% of the labour force works in the informal sector, where employment is similarly precarious. ) 4

5 support her from the United States. This would further strain the family s very limited financial resources. Moreover, Mr. and would experience severe emotional hardship if Mrs. returned to Liberia. Upon her return, Mr. would become a single parent to their son, and would be deprived of his mother s attention, love, and care. currently excels in school and is a model student. See Exh. K, s school records; Exh. N, Letter from s Teacher. Nevertheless, because of the stress of and uncertainty surrounding Mrs. s immigration status, is constantly depressed and afraid of what will happen to his mother. See Exh A, Respondent s Declaration. These feelings would intensify upon Mrs. s removal, because of the loss of his primary caregiver. In addition, s academic performance could suffer and he could become depressed, anxious, and emotionally withdrawn from the rest of his family and friends. 4 Mr. would also suffer extreme emotional hardship, because he would be left without the love and support of his wife and partner of fifteen years. Currently Mr. is experiencing symptoms of helplessness and depression due to the stress of the ongoing situation, and these feelings would only worsen if she returned to Liberia. See Exh I, Declaration of. Due to the poor living conditions in Liberia, relocation is not an option for either Mr. or. Mr. currently suffers from hypertension and borderline diabetes; he could not receive the necessary medical treatment for his conditions in Liberia. See Exh. Furthermore, Mr. could not return to Liberia because he still fears persecution on account of his Krahn nationality, the basis of his 1998 grant of asylum. See Exh I, Declaration of. Because of these reasons, Mr. could not accompany his wife to Liberia. Their son,, also could not go to Liberia, because the schools in Liberia remain devasted from the civil war. According to the CIA Factbook and the African Economic Outlook, educational and employment opportunities for Liberian youth are non-existent. 5 If moved to Liberia, he would not be able to achieve his dream of going to college and becoming an engineer. Lastly, to consular process without further delay or complication, Mrs. will still need to reopen her removal proceedings and deal with the removal order on her record. 4 Ajay Chaudry, at 47, 51 ( Within the first six months after their parents arrest, students study and work habits began to change and children s academic performance started to suffer. In the short term, about one in five students in the sample could not keep up their grades, according to their parents. ); Carola Suarez-Orozoco et al., I Felt Like My Heart Was Staying Behind: Psychological Implications of Family Separation & Reunifications for Immigrant Youth, 26 Journal of Adolescent Research 222, (2010). 5 See CIA, 2012 World Factbook: Liberia ;African Economic Outlook, Liberia. 5

6 However, if her removal proceedings are reopened, Mrs. can and should pursue adjustment of status based on her marriage as this law was specifically designed to benefit those like Mrs. who are already in the United States. b. Mrs. has no criminal history. Mrs. has lived in the United States for twenty years. During this prolonged residence, she has not committed any crimes. Instead, she has dedicated herself to her work, her family, and her community. See Exh P, Letters and Certificates. She is an active member of the, a community organization that helps young people define and achiever their goals. See Exh A, Respondent s Declaration. As the Office of Chief Counsel determines whether to pursue the case against Mrs. it should take into consideration the recent realignment of DHS priorities, which includes an increased focus on criminals. See Statement of John Morton, Director, U.S. Immigrations and Customs Enforcement, Before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement (October 12, 2011). c. Mrs. has incurred one immigration violation. Mrs. failed to depart according to the order of removal entered by the Court or report in September 1998 as instructed to be deported. Mrs. did not depart in September 1998 not only because she was unaware of the removal order at that point, but because the Liberian Civil War was still ongoing and she feared for her life and the life of her son, who she was pregnant with at the time. See Exh A, Respondent s Declaration. As such, this violation should not count heavily against Mrs. d. Mrs. s removal would be inconsistent with ICE enforcement objectives. Removing Mrs. from the United States is inconsistent with ICE s objectives. As an agency of the United States government, DHS has an interest in promoting family unity and the safety and welfare of USCs and LPRs. 6 DHS also has an interest in focusing its limited resources and tax-payer dollars on criminal aliens who pose a threat to the public safety. Removing Mrs. would not further these objectives. Lastly, Mrs. s long presence in the United States without criminal incident demonstrates that she presents no danger to American society and is not a priority individual for removal. She has successfully integrated herself into American society, receiving training and further education in Ophthalmology, and having served for ten years at her job with before her work authorization became a problem. See Training Certificates and 6 This principle of family unity was most recently promulgated by DHS in the leaked USCIS Memorandum entitled Administrative Alternatives to Comprehensive Immigration Reform. 6

7 Certificate. Mrs. is an active member of the Church in Silver Spring, MD. See Exh. P, Letter from Pastor. She and her husband also have family members who are USCs; she has one USC sister, and he has a USC brother, a USC sister, two USC nieces, and one USC nephew. In addition, she has paid her taxes since 1993, and Mrs. and her husband have filed taxes jointly since See Exh. T, Federal Income Tax Returns. Given these factors, removing Mrs. would be contrary to the public interest. would be inconsistent with ICE objectives and e. Mrs. has a lengthy period of residence in the United States. Since Mrs. arrived in the United States in 1992, she has resided in the United States for over twenty years. During that time, she has been a law-abiding resident, and for the last fifteen years, she has been married to, who is now a United States citizen. f. Mrs. has many U.S. citizen and permanent resident family members. Both Mrs. s husband and son are USCs. She has a USC sister; her husband also has a USC brother with a family and a USC sister. CONCLUSION Mrs. respectfully requests the Baltimore Office of Chief Counsel join in her Motion to Reopen to allow her to apply for Adjustment of Status given that Adjustment of Status was not available at Mrs. at her prior hearing. Furthermore, she is statutorily eligible for adjustment and merits a favorable exercise of discretion. Thank you very much for your time and consideration as I know and appreciate your office receives many requests for joint motions to reopen. Please do not hesitate to contact me should any questions or concerns arise. Respectfully, Enclosures Erica Morgan Pro Bono Attorney for Respondent Catholic Charities Archdiocese of Washington Immigration Legal Services Georgia Avenue Silver Spring, MD Telephone: (301) Fax: (301) erica.morgan@catholiccharitiesdc.org 7