ICE released new interim guidance on May 27, 2021, relating to OPLA's (aka OCC) handling of cases before the EOIR (immigration court and the Board of Immigration Appeals). The guidance essentially tells OPLA (the branch of ICE that handles administrative litigation before EOIR) that it has discretion to act like a normal prosecutor's office in its handling of cases.  That means ICE may pick and choose which cases to prosecute (and which to dismiss, administratively close, offer deferred action, etcetera).  The factors below will determine when ICE will exercise its discretion:

"In determining whether to exercise prosecutorial discretion, OPLA should consider relevant aggravating and mitigating factors. Relevant mitigating factors may include a noncitizen' s 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 their entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion of other noncitizens depending on the totality of the circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States. Relevant aggravating factors may include criminal history, participation in persecution or other human rights violations, extensiveness and seriousness of prior immigration violations ( e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety. These factors are not intended to be dispositive or exhaustive. Discretion should be exercised on a case-by-case basis considering the totality of the circumstances."

It remains unclear what impact this new guidance will have on how ICE behaves.

ICE has created a new case review process that applies to those detained and subject to imminent removal/deportation.  It remains to be seen if the Agency will actually do any meaningful review of field office decisions.  Ideally, this process will expand to non-detained cases where the OPLA office fails to engage in any meaningful discretionary decision making.  

Based on actions that the Biden Administration has taken in a few pending cases, Form I-944 will no longer be required as the rulings in Cook County, Illinois, et al v. Wolf et al (19-cv-6334) are once again the law of the land.  Expect a new form I-485 to be released this year.  There should be a new header posted here this week.

The U.S. Department of Homeland Security published a notice in the Federal Register designating Venezuela for Temporary Protected Status (TPS).  The initial period will run from March 9, 2021, to September 9, 2022.  Venezuelans, and those who last habitually resided there, have until September 5, 2021 to register.

On February 18, 2021, ICE's Acting Director, Tae D. Johnson, issued interim guidance in the form of a memorandum to all ICE employees.

The Memo sets up three categories of assumed priority cases: 1) national security; 2) Border Security (caught after 11/1/2020 entering unlawfully or not present before that date in the USA); and, 3) Public Safety (aggravated felons under the INA and street gangs).

It will be interesting to see if prosecutorial discretion will make a come back before OPLA and if ERO will once again issue supervisory orders in the near future.

President Biden's U.S. Citizenship Act of 2021 has zero chance of becoming law in present form.  While it may become law if Democrats are willing to do some major horse trading with Republicans, currently the chances of that seem scant.  

Biden's plan would permit the undocumented to apply for a temporary legal status and then parlay that status into lawful permanent residency after five years.  Certain classes of immigrants could be eligible for permanent residency without any wait such as DACA, TPS grantees, and agricultural workers.  

However, Biden can make significant changes to immigration policy without his proposed legislation becoming law.  First, he could grant TPS (Temporary Protected Status) to noncitizens who cannot return to their home countries due to a crisis there, i.e., COVID-19.  Second, Biden could permit a broader swathe of noncitizens to apply for parole-in-place so that they do not need to return to their home countries to become permanent residents.  Third, Biden could allow would-be immigrants waiting for their visa numbers to become current to wait inside the United States.  

USCIS (United States Citizenship and Immigration Services) announced that it would be reverting to the 2008 version of the naturalization civics test as of March 1, 2021.

On Dec. 1, 2020, USCIS implemented a revised naturalization civics test (2020 civics test) as part of a decennial test review and update process. USCIS determined the 2020 civics test development process, content, testing procedures, and implementation schedule may inadvertently create potential barriers to the naturalization process. This action is consistent with the framework of the Executive Order on Restoring Faith in Our Legal Immigration Systems, which directs a comprehensive review of the naturalization process to eliminate barriers and make the process more accessible to all eligible individuals. 

The 2008 civics test was thoroughly developed over a multi-year period with the input of more than 150 organizations, which included English as a second language experts, educators, and historians, and was piloted before its implementation. USCIS aspires to make the process as accessible as possible as directed by President Biden’s request to review the process thoroughly.

The civics test is administered to applicants who apply for U.S. citizenship through naturalization and is one of the statutory requirements for naturalizing. Applicants must demonstrate a knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. The decision to naturalize demonstrates an investment in and commitment to this country. USCIS is committed to administering a test that is an instrument of civic learning and fosters civic integration as part of the test preparation process.
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Applicants who filed their application for naturalization on or after Dec. 1, 2020, and before March 1, 2021, likely have been studying for the 2020 test; therefore, USCIS will give these applicants the option to take either the 2020 civics test or the 2008 civics test. There will be a transition period where both tests are being offered. The 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test.

The Board of Immigration Appeals (BIA) published a decision in the case of Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) today.  The decision held that an applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse must demonstrate both that the abuser was his or her lawful spouse and possessed either United States citizenship or lawful permanent resident status at the time of the abuse.  The case was one of first impression because the statute is silent as to the temporal requirement, if any, of the abuser's status.  Special Rule Cancellation still has fewer requirements than a self-petition filed with Form I-360.

The Executive Office for Immigration Review (EOIR) announced that the Philadelphia Immigration Court will be closed on February 18, 2021, on account of the expected snowstorm.