As part of our Client Success stories series comes this article on how to close a deportation case. You may ask why would I want to close my deportation case. Please read below on the types of case closures and if they can benefit you.
How does a removal case proceed?
The removal case is started with a Notice to Appear (NTA), which is the charging document in Immigration. The NTA states certain facts which need to enter a plea so as to either “admit” or “deny”, and on the basis of these facts, then there is a charge of removability. So then, to the charge of removability the attorney can concede or deny.
Once the NTA pleading is done, the respondent presents a defense application and evidence. The case then is scheduled for a merits hearing where the respondent testified regarding the application and evidence.
Closing a case is different from case resolution through a merits hearing. At a merits hearing the immigration judge hears the merits of the case after testimony. After the direct and cross examination, the judge issues a ruling. The ruling can be a grant which results in the approval of the underlying petition. Or the ruling can be a denial, which results in an Order of Removal.
How can a deportation case get closed?
I will here discuss closing a case without ever reaching a merits hearing. So closing the case without presenting the case to the judge and basically without ever giving testimony in front of the judge.
There are three types of case closures – Dismissal without prejudice, Dismissal with prejudice, and Administrative Closure. I will discuss each one in order and how they are different.
What is a dismissal?
A dismissal without prejudice is closing the case so that it is no longer on the court’s docket. However, the part of “without prejudice” means that the same type of case may be started at any point again in the future. So, if, say there is a new arrest by the police and ICE places a hold, DHS may resume removal proceedings by issuing a brand new Notice to Appear.
A dismissal “with prejudice” means that the Immigration Judge closes the case forever. The “prejudice” part means that this type of matter against the same individual can never be initiated ever again.
In the litigation world outside of deportation, “without prejudice” is usually often because of technicality or a procedural defect. And the party can bring the suit again. In removal, when a case is dismissed without prejudice, it means two things. First, DHS does not care to deport this person because he or she is not a threat and not a priority right now. If nothing changes in the person’s criminal background, chances are the DHS will never bother bring a new NTA.
However, if something changes in the criminal background, then DHS can file a new NTA and decide that this time around, they want the person removed.
I changed my mind!
What happens if your case gets dismissed but you change your mind. Can you go back to the Immigration judge and say “Hey, I changed my mind, now I want to present the merits of my case.” Well, that’s not easy at all. DHS can easily file a new NTA. However, the respondent cannot go back to court and ask for the case to be reopened. Even if the respondent goes to DHS and says, I want my case back in court, most likely the request will fall on deaf ears. So, once a case is dismissed without prejudice, only DHS can send it back to court.
What is Administrative Closure?
Administrative closure is a temporary form of closing a case. If it is temporary, what is the point? Mostly for convenience so as to free up time on the court’s calendar. The most common reason is when an underlying petition is taking a long time for adjudication. The judge may agree to admin close the case until such time as there is an update on the resolution. This way, both the judge and the respondent do not need to be present for a case that has no update. Once the underlying petition is ready, counsel for respondent files a motion to place the matter back on the judge’s docket.
An admin closure is temporary only because it does not take away the matter from the court forever. It is an administrative convenience, which allows the case to not have an active hearing date. Once either DHS or the respondent counsel, decide that they want to go back in front of the judge, either one may make a motion ask for the case to be calendared with a new hearing date.
What is Prosecutorial discretion?
Prosecutorial discretion is the power to choose who to deport. ICE has the option to prosecute someone until that person is physcially deported to another country. Or ICE may decide that an individual is not of interest and therefore give up on prosecuting the deportation.
Prosecutorial discretion is nothing new. This power has been used in Immigration litigation for many years. However, the requirements one needs to meet in order to qualify for prosecutorial discretion are what changes. When prosecutorial discretion is used the requirements are explained in memos, which are the guidelines for the legal bar. The current memo which lists those requirements can be found here.
Here is the list of factors, which DHS and ICE may consider:
- length of residence in the United States;
- service in the U.S. military;
- family or community ties in the United States;
- Circumstances of arrival in the United States and the manner of entry;
- prior immigration history;
- work and education history in the United States;
- status as a victim, witness, or plaintiff in civil or criminal proceedings; and
- Compelling humanitarian factors including:
- Serious medical condition,
- Status as a child, and
- Status as a primary caregiver of a seriously ill relative in the United States.
If there is a charge or conviction of a crime in the United States or abroad, DHS attorneys may also consider such factors as:
- The extensiveness, seriousness, and recency of the criminal activity;
- Extenuating circumstances involving the offense or conviction;
- the sentence imposed;
- The length of time since the offense or conviction occurred.