Deferred action may be granted to a noncitizen who is removable on account of an aggravated felony conviction, with the effect of temporarily postponing, or completely terminating, removal proceedings.

 

Since the passage of IIRAIRA in 1996 removed so much discretion from the INS, DHS, and immigration judges, immigrants increasingly requested deferred action status in difficult cases.[94]  Over time, the immigration authorities were asked to extend its use of “prosecutorial discretion” in various ways in worthy cases, often by agency officers and the same Congresspersons who pushed to create such stringent laws.[95]  The BIA stated, in a case that had nothing to do with prosecutorial discretion, that it believed that the agency retains the prosecutorial discretion not to bring removal proceedings, even in cases involving crimes.[96]  On her last day in office, INS Commissioner Doris Meissner signed a memorandum authorizing the use of prosecutorial discretion to decline to deport the deportable in appropriate cases.[97]

 

[94] See Simmons, Deferred Action Status: The Last Vestige of INS Discretion, Bender’s Immigration Bulletin 521-23 (July 1, 1997).

[95]  See, e.g., Paul Virtue (former INS General Counsel), Restoring Fairness: A Look at Prosecutorial Discretion, Bender’s Immigration Bulletin 555-565 (June 15, 2000); Letter from Robert Raben, Assistant Attorney General, Department of Justice, Office of Legislative Affairs, to 28 members of the House of Representatives dated January 19, 2000 (available on AILA InfoNet) (in responding to Congressional request that INS exercise more prosecutorial discretion, the DOJ emphasized the limits left to agency discretion by the 1996 law).

[96] Matter of Bahta, 22 I. & N. Dec. 1381 (BIA 2000).

[97] The memorandum was dated November 27, 2000 and appears in 77 Interpreter Releases 1661 (Dec. 4, 2000).  See also Memorandum for the Commissioner from Bo Cooper, INS General Counsel, INS Exercise of Prosecutorial Discretion, reprinted in 77 Interpreter Releases 950, 961 (July 17, 2000) (explaining legal basis and extent to which INS may exercise prosecutorial discretion in its enforcement activities).

Fourth Circuit

AGGRAVATED FELONIES " RETROACTIVITY
Mondragon v. Holder, 706 F.3d 535, (4th Cir. Jan. 31, 2013) (retroactive application of 1996 expansion of aggravated felony definition to convictions predating its effective date did not violate the Constitution).

Ninth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " ESTOPPEL " DEFINITION
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011). In Perez-Mejia v. Holder, the Ninth Circuit explained the elements of a successful claim of estoppel against the government: It is well settled ... that the government may not be estopped on the same terms as a private litigant. Watkins, 875 F.2d at 706. A party seeking to raise estoppel against the government must establish affirmative misconduct going beyond mere negligence; even then, estoppel will only apply where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability. Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir.2007) (quoting Watkins, 875 F.2d at 707). Moreover, a party cannot obtain estoppel against the government if he did not lose any rights to which he was entitled. Id. There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, although it does not require that the government intend to mislead a party. Watkins, 875 F.2d at 707 (citations omitted). If a litigant survives this initial inquiry, the court considers four elements to determine if the government is estopped: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. Morgan, 495 F.3d at 1092 (quoting Watkins, 875 F.2d at 709). (Id. at ___.)

JUDICIAL REVIEW " PETITION FOR REVIEW " ESTOPPEL " GOVERNMENTS ERROR IN GRANTING LPR STATUS DESPITE CONVICTION DID NOT PREVENT IT FROM LATER CORRECTING ITS MISTAKE AND ORDERING REMOVAL
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (The government is not estopped by its error in granting Perez"Mejia LPR status from correcting its mistake and ordering his removal.).

Other

RELIEF - DEFERRAL OF REMOVAL
Political Asylum Project of Austin Press Release, Jul. 17, 2006. "San Antonio, TX - Martine Jean Pierre Gregory was released from the Department of Homeland Security, Immigration and Customs Enforcement (ICE) custody on Friday July 13, 2006, when ICE granted a favorable decision in her request for Deferred Action Status." http://www.bibdaily.com/pdfs/press.release.7.15.06.letterhead.pdf