Written by attorney David H. Stoller

ICE's August 2010 Memo to the Field - Discretion to Terminate Removal Proceedings.

In August 2010, US Immigration and Customs Enforcement ("USICE") issued guidance to its attorneys regarding their exercise of discretion to terminate deportation proceedings pending against a foreign national who may otherwise be eligible to pursue an application for adjustment of status (Form I-485) before US Citizenship and Immigration Services ("USCIS"). This memo created a lot of "buzz" in the immigrant community and resulted in confusion as to its use and meaning. The purpose of this memo was to provide an avenue by which government attorneys could exercise discretion to agree to the termination of proceedings pending before the Immigration Court even if the visa petition which was filed on their behalf had not yet been approved. The most common example of this is a foreign national who is married to a United States citizen but has a case pending before the Immigration Court. Because proceedings were pending, government attorneys would not agree to terminate a case to permit the filing of an application for adjustment of status (Form I-485) with USCIS until the visa petition (Form I-130) filed on their behalf was approved. This would often result in cases dragging on and on before the Court awaiting a decision on the Form I-130. The August 2010 memo now permits USICE attorneys to terminate proceedings without requiring the approval of the Form I-130. This memo does not mean that every case eligible for consideration of a request for termination will receive such treatment. Rather, the memo makes clear that the decision to agree to the termination of proceedings is an issue of discretion and there is no requirement for the government attorney to take any action if doing so is not deemed appropriate. Moreover, this memo does not provide any avenue by which someone who has already been ordered deported from the United States can have a case reopened other than by the same process which was in place prior to the publishing of the August 2010 memo. Rather, the memo is intended to apply only to cases which are currently pending. If you have any questions regarding the potential use of the August 2010 memo to your case or in regards to any immigration matter, please contact us and we would welcome the opportunity to review your case and advise you on how to proceed.

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