Our office recently obtained approval of an application for adjustment of status to permanent residence for the foreign spouse of a U.S. citizen.

This was a particularly difficult case since the foreign spouse was still subject to an open removal hearing that occurred when she was a child, and wherein, she and her family were granted withholding of removal.

I personally contacted the prosecutor-in-charge of the Department of Homeland Security’s Office of ICE Counsel and requested joinder in a Motion to Terminate Removal Proceedings so that our client can pursue adjustment of status.

After presenting the compelling factors of the case both verbally and in writing, together with a collection of exhibits that established every relevant factor discussed in our request, the Office of ICE Counsel agreed to join in a Motion to Terminate Removal Proceedings.

This motion was subsequently submitted to the presiding immigration judge of the U.S. Department of Justice, Executive Office for Immigration Review, who found good cause to be shown and granted the Motion to Terminate Removal Hearings.

The Department of Homeland Security enjoys the power of prosecutorial discretion.   Federal courts and the Board of Immigration Appeals have found that the Department of Homeland Security possesses discretion in deciding how best to exercise its immigration enforcement powers. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489-92 (1999) ( INS retains inherent prosecutorial discretion as to whether to bring removal proceedings); See Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009) (DHS has prosecutorial discretion to grant deferred action status to a respondent).

The Department of Homeland Security has also expressed as policy the necessity of exercising its power of prosecutorial discretion. See Doris Meissner, Commissioner: Exercising Prosecutorial Discretion (Nov. 17, 2000); William Howard, Principal Legal Advisor: Prosecutorial Discretion (October 24, 2005).

On June 17, 2011, ICE issued its two most recent policy memoranda on prosecutorial discretion: John Morton, Director: Prosecutorial Discretion: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); John Morton, Director: Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011).

As John Morton’s Prosecutorial Discretion Memorandum of June 17, 2011 states,

“One of ICE‟s central responsibilities is to enforce the nation‟s civil immigration laws in coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency‟s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

John Mortan’s Prosecutorial Discretion Memorandum of June 17, 2011, also puts forth factors to be considered by the agency’s officers, agents, and attorneys.  The following list is not considered exhaustive and no one factor is determinative.  The list of factors cited include:

1. the agency’s civil immigration enforcement priorities;
2. the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
3. the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
4. the person’s pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
5. whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
6. the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
7. the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
8. whether the person poses a national security or public safety concern;
9. the person’s ties and contributions to the community, including family relationships;
10. the person’s ties to the home country and conditions in the country;
11. the person’s age, with particular consideration given to minors and .the elderly;
12. whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
13. whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
14. whether the person or the person’s spouse is pregnant or nursing;
15. whether the person or the person’s spouse suffers from severe mental or physical illness;
16. whether the person’s nationality renders removal unlikely;
17. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
18. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
19. whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

Using these memoranda together with our extensive experience presenting persuasive I-601, I-601A, I-212, and 212(d)(3) waiver cases as guidelines, we presented a compelling and persuasive case that allowed termination of removal proceedings.

Our client’s adjustment of status application was subsequently approved after the couple’s “marriage interview,” and the foreign spouse is now a U.S. lawful permanent resident for the first time in her life.