Maggio + Kattar has been representing clients in all stages of immigration litigation, administrative and federal, for over 25 years. Individuals who are in the United States without valid nonimmigrant status or who have been involved in activities which may jeopardize their immigration status can be placed in removal proceedings. This is the beginning of a process by which Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), attempts to remove an individual from the United States. Most individuals are allowed to challenge his or her removal before the Immigration Courts and before the Board of Immigration Appeals. Additionally, in some instances, federal courts have jurisdiction to review decisions taken by the Board of Immigration Appeals affirming a removal order. To learn more about our litigation practice, please select an option from the menu at left.
Deferred action is when the Department of Homeland Security (DHS) agrees not to place an individual in removal (deportation) proceedings or not to execute an order of removal. A decision to grant or deny a request is a purely administrative act and it is not subject to review by either administrative or federal courts. At times, DHS will designate certain categories of individuals eligible for deferred action. For example, prior to regulations being issued relating to U nonimmigrant visas, potential beneficiaries of such visas were eligible, under certain circumstances, to obtain deferred action. Prior to a beneficial change in legislation, DHS granted deferred action to U.S. citizen widows and widowers and their children under 18 years of age in the United States, where the spouses were married less than two years before the U.S. citizen spouse’s death. Foreign academic students who had been affected by Hurricane Katrina were also granted deferred action. The majority of cases where deferred action is granted involve medical cases.
Deferred action cannot be granted by an immigration judge. Deferred action requests are generally made to the Immigration and Customs Enforcement (ICE) office with jurisdiction over the person. Factors that a field office takes into consideration in deciding requests include: the likelihood of the individual’s ultimate removal from the United States; sympathetic factors which may generate a large amount publicity; the need for the individual’s presence to assist law enforcement in an on-going investigation or prosecution of a case; and, whether the individual is a member of a class of deportable noncitizens whose removal has been given high enforcement priority, for example, terrorists or drug traffickers.
Deferred action does not confer any immigration status on an individual nor does it prevent DHS from initiating removal proceedings at any time. A request for deferred action can be made at any time during the administrative process, from the time an individual seeks entry to the United States, until final removal. Where it is granted, no action will be taken to remove the individual from the country. The period of time in which a person is in deferred action status is considered to be a stay authorized by the Attorney General and the individual does not accrue any unlawful presence during that period of time. Individuals granted deferred action can also seek employment authorization.