“Motion to Reopen” and “Prosecutorial Discretion”

Back the to blog posted a few days ago, when the police power of immigration law may happen in local, the states, the standard for “Motion to Reopen” and “Prosecutorial Discretion” can be different.

After the “prosecutorial discretion” is approved by the DHS counsel, with the judge’s consent, the person is no longer in removal proceeding. We call it “PD”. Once PD is granted, the DHS can still put the person back to the proceeding. For example, if the person committed a crime, DHS can reinitiated PD under the other grounds.

The immigration counsel of the Ocean view told the editor that he was reluctant to seek PD before because whether the person can renew the work permit is vital for the client. Sometimes, with no case pending and if the PD was initiated by the government, then the work permit can be retained. But for how long, it is unclear.

Further, with PD and if the client reapply I-130 and I-485, the USCIS can still deny the I-485 due to immigration law violation. So, the strategy before was, leaving as much as evidence at the individual hearing. If something bad happen, the appeal will speak to itself.

A new benefit from the USCIS the Ocean View counsel mentioned to the editor which made him restructure his practice strategy is to “taking length of the residency” and “credit” consideration while seeking PD. He told me before he did not know after PD, if the client has not filed asylum with USCIS, he may do so.

It is because that for some EWI client, after they apply asylum affirmatively as when the client entered the border the client was not caught by ICE, the client was placed in removal proceeding before the interview with USCIS adjudicator happens. So his conclusion back then was that, if the USCIS can place those kind of client to the proceeding and since PD was without prejudice, it may happen after reapplying asylum and then the officer can do the same.

But not really.

When issuing PD, the judge and the DHS counsel consider the person’s credit built in the U.S. For example, good tax record, employment, showing client is a good parent, etc., these factors all add to the favorable discretion determination rendering them to have second chance to have more time to build their credit.

The role of time and timing also play a role in Motion to Reopen. With the deportation order, we make complicated argument to give the client a second chance with the court due to “Change of Country Condition” or “new factual information arisen after the deportation order was issued”. The approval rate of Motion to Reopen based on Changed of Country condition is not as certain as it is based on “in absentia” with cause.

Nevertheless, many clients with ITIN have been a tax payer in the U.S. for years after the deportation order is issued.

Getting cases reopened for the counsel of Ocean View means creating new chapter for clients’ life he states. It is because when client has the valid work permit and SSN, he/she may have more options as to continue education. At the same time, client also may have more option as to the health insurance options.

I thought work permit can bring more job opportunities can be the reason but he stated not really. He felt it is just a chance to give the client the possibility of “comparison”.

Work without authorization is illegal but it happens a lot. When the work permit is given the current “unauthorized employment” a compliance opportunity, it can built a deeper trust between the employer and the client.

Again, Ocean View is here to help immigrants who want to legalize their immigration status in the most affordable way and means.