ENTRYLAW Blog - Immigration Attorneys Portland Oregon

ENTRYLAW Blog - Immigration Attorneys Portland Oregon


Turn Self In for Deportation Alternative to DAPA?

February 23, 2015

Original February 23, 2015 post updated with May 26, 2015 Fifth Circuit ruling:  A Texas judge ordered a temporary hold on #immigrationaction Deferred Action for Parents of Americans (DAPA).  The Feds have appealed, but they just lost in the Fifth Circuit.  Now that all but the nation's highest court has halted the DAPA program, the question remains: Is DAPA the only way to enact smart enforcement?  Arguably, the White House has another potential option to defer deportation and grant work permission for low priority undocumented immigrants - a Turn Self In for Deportation program.How would that work?  The answer lies in the laws that Congress passed in 1996.  If a person in the United States without authorization can show 1) 10 years of continuous physical presence in the U.S. (with allowances for breaks of 90 days or less if totaling 180 days or less), 2) good moral character, 3) a lack of conviction for certain crimes, and 4) establishes that their removal would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident, then that person can apply for a green card from an immigration judge, and have their deportation cancelled.  The law is 8 U.S.C. 1229(b) and it is called "Cancellation of Removal."  Yep, Congress said that if you have been here a long time and deportation would work a hardship on your kids, then you should be able to stay here as a lawful permanent resident.  That's the law.It is probably no coincidence, therefore, that the DAPA program was established for otherwise law abiding individuals who have been here a number of years and are parents of American citizens.  If the government were to put all the estimated 4 million individuals who might qualify for DAPA into removal proceedings, a large portion of them would likely qualify for Cancellation of Removal, and would be entitled to a trial where they could prove the elements of the Cancellation of Removal claim.  This would completely cripple the removal system and prevent the removal of more dangerous individuals.  According to a Wall Street Journal Article, removal hearings are now being set 5 years into the future due to an already long backlog of cases waiting to be heard.  With 230 immigration judges around the country already handling 375,000 cases per year, the system is at the absolute limit. Add 4 million more to the list of pending cases, including mostly those with Cancellation of Removal claims (requiring more court time to handle than many other cases), and hearing dates could be set not 5 years away, but 50 or 100 years in the future.  Add to that the annual limit on 4,000 grants of Cancellation of Removal, and meritorious cases would be pending for 1,000 years.So how would a Turn Self In for Deportation program work in place of DAPA?  The Obama Administration could allow the portion of DAPA eligible individuals who had the required 10 years in the country to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application, then Administratively Close their case so it gets out of the streamline of pending cases.  In the old days, the predecessor to the NTA, the Order to Show Cause (OSC) could be requested by walking an out-of-status client into investigations and having them written up.  This was done to seek relief before an immigration judge.  At some point the agency decided to limit the issuance of charging documents to cases they thought they could win.  But DHS could certainly allow the old process to operate again, and could certainly direct the Office of Chief Counsel to join in motions to Administratively Close all cases in which the person was eligible for Cancellation of Removal and who also requested such administrative closure.  This process would enable th