Prosecutorial Discretion in Immigration Enforcement

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

A recent article in the L.A. Times highlighted a reported rise in the use of prosecutorial discretion in United States immigration system. There are many undocumented immigrants in the U.S., many of whom want nothing more than to reside in the U.S. legally in hope of eventually obtaining U.S. citizenship. ICE officers and their departments are under a directive to prioritize whom they prosecute under the current immigration laws for removal.  They are expected to target those with criminal backgrounds and those whom they otherwise believe pose a threat to national security.

The article on prosecutorial discretion suggests that, “Immigrants facing deportation are increasingly likely to have their cases dismissed because of mitigating factors such as having U.S. citizen children, according to an analysis by researchers at Syracuse University.”[i]  In reality, the use of prosecutorial discretion varies widely between jurisdictions and is often up to the attorney assigned to the case at that particular time by the Office of Chief Counsel for DSH/ICE.

Prosecutorial discretion in immigration means ICE should focus on national security and public safety.

In 2011, the director of ICE, Mr. John Morton, issued a memorandum directing that immigration officials review a few factors before making the decision to prosecute the individual and seek a removal order from the very busy immigration courts. Factors for consideration include how many years the person has been living in the U.S., how and when they arrived in the U.S. (as a child 10 years ago?), whether their family members served in the military, and also the person’s relationship to other family members who are U.S. citizens[ii].

The 2011 orders sent to ICE field office directors, special agents in charge and chief counsel focus on the civil immigration enforcement priorities. The memo states in its “Background” section that, “ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

What happens if an undocumented person is detained by ICE but poses no significant threat to safety or security?

If an undocumented immigrant is arrested and detained on suspicion of being a threat to public safety, as ICE memorandums describe, an attorney can intervene and work to negotiate a release or dismissal of pending charges, as suggested in the Los Angeles Times article suggesting more frequently, ICE is using prosecutorial discretion and letting people go about their lives.  If you want to learn more about prosecutorial discretion or believe someone you know if being improperly detained and prosecuted you can call attorney KiKi M. Mosley to find out what options might be available to help.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Los Angeles Times: Prosecutorial discretion on the rise in immigration courts. By Cindy Chang. Jan. 15, 2014

[ii] U.S. Immigration and Customs Enforcement. Prosecutorial Discretion Memorandum. By John Morton, June 17, 2011.

About student visas and opportunities to study in the U.S.

"Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. You must have a student visa to study in the United States." U.S. Department of State

“Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. You must have a student visa to study in the United States.” U.S. Department of State

High school students who grow up in prospering, yet still developing countries, have many choices to make when they consider their options for college. Many more of these students now consider colleges and universities in the U.S. Current social media enhances these families ability to explore what the United States has to offer, educationally.   The U.S. Department of State issues student visas, often known as F-1 and M-1 visas, allowing a citizen of a foreign country to enter the U.S. to study at an approved school. The F-1 visa is the most commonly issued visa covering most forms of study, most commonly high school, college, and private elementary schools (often used by the children of foreign workers living in the U.S.), while the M-1 visa is specifically reserved for vocational and technical schools[i]. There are several visa options that match the duration and type of education program involved.

Before applying for a visa, the student must first be accepted to an approved school.

If students first apply and are accepted to approved schools, they are then able to apply for the proper student visa through a U.S. embassy or consulate.  Some student visa applicants are already in the U.S. under other types of visas and applications to transfer to a student visa can be difficult and immigration attorneys help students and their families with the application processes.

Recipients of student visas often find that they have a need, during or at the conclusion of their tenure as a student, to transition to an employment-based visa or perhaps a family-based upon.  It is important that students know their legal options well ahead of graduation as these processes can often take a great deal of time and planning.

The process of obtaining a visa and transferring to a new visa is complex and it is best to work with an immigration attorney.

The attorneys at the Law Offices of KiKi M. Mosley work with student visa applicants and can explain the process and what a student visa applicant can expect. It is important to be careful and be aware of “notarios” and/or “immigration consultants” who are not attorneys and are not allowed to represent student visa applicants. Anyone considering applying for a student visa should ask many questions and be assured they and their families understand the process.

Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues and can help with the process of applying for and maintaining student visas.  Ms. Mosley can practice immigration law in any of the 50 United States, U.S. territories, and consulates abroad.   For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.

Coming to study in the U.S. can be a big decision not to take lightly.

Finally, anyone considering coming to the U.S. to study should think about the impact on friends, families and employers. Some students come to the U.S. to study and intend to move back to their home country immediately after graduation. What happens if you come to the U.S. and fall in love and get married. Will you still return to your home country? Will you stay in the U.S. and get married? If so, will your mother, sister or brother want to come to the U.S. to share in adventure? There are so many questions we can all ask when thinking about student visas and immigration. Please feel free to contact the Law Offices of KiKi M. Mosley to ask any questions you may have about student visas and immigration.


[i] U.S. Department of State website: Student visas

Decreases in deportation: less enforcement is not immigration reform, but appreciate the policy effort.

If ICE officials have more choices in enforcing immigration laws, who is not being deported?

If ICE officials have more choices in enforcing immigration laws, who is not being deported?

Under President Obama’s oversight, the U.S. Department of Homeland Security office of Immigration and Customs Enforcement (“ICE”) is deporting less undocumented immigrants in connection with its new policy limiting enforcement resources on, ““public safety, national security and border security,” said ICE spokeswoman Barbara Gonzales.[i]” “ICE has been vocal about the shift in our immigration-enforcement strategy,” she said. “Our removal numbers illustrate this.” The Center for Immigration Studies published their report in October 2013, titled, “Deportation Numbers Unwrapped. Raw Statistics Reveal the Real Story of ICE Enforcement in Decline,” and as to the source of information, CIS states, “This report examines data from a collection of mostly unpublished internal Department of Homeland Security (DHS) and ICE statistics, to provide an alternative evaluation of the administration’s record on immigration enforcement that is based on raw statistics rather than pre-packaged press kits.[ii]

If ICE officials have more choices in enforcing immigration laws, who is not being deported?

Central to the disagreement among Democrats and Republican lawmakers are many of the approximately 12 million undocumented immigrants who may, for all intents and purposes, live among U.S. citizens day to day without any call to consider their immigration or citizenship status. As indicated in the CIS report, a 2011 ICE memorandum directed officers, “not to arrest certain broad categories of illegal aliens, including minor criminals, long-time residents, students, parents, caregivers, and a long list of other excepted categories for whom there was otherwise no statutory basis for special treatment.” Despite a policy decreasing the number of new arrests and detentions, there are still thousands of the same people stuck in the immigration court system, waiting for asylum hearings, waiting in detention facilities, and waiting to move forward with life.

How will ICE officers determine who should be targeted for arrest and detention?

A policy directive suggesting ICE officers not arrest and detain the less threatening illegal immigrants to the U.S. does not guarantee any sense of safety for undocumented residents living in fear. Imagine you are driving around on a suspended drivers license and fear all it would take is for another driver to hit you to expose your illegal presence to a law enforcement officer. No, you probably should not drive on a suspended drivers license, but many do, and have little choice. The necessity to get yourself and family members to work or school, for instance, can create fear in undocumented immigrants who may wonder when their luck may run out and they are arrested and detained for not being present in the U.S. with a lawful immigration status.

President Obama said during his (re)election campaign(s) that he would work to provide undocumented residents with a pathway to citizenship. The decrease in the number of ICE arrests and deportations must give some people a feeling of safety. Meanwhile, critics of immigration reform must argue that an effort to reduce enforcement of out-of-date laws does not cure the underlying problem that those old laws do not reflect the spirit of the will of the people in the United States.

In the event you, a friend or family member is arrested and detained by ICE officers, you should immediately contact an attorney to learn what, if any, rights you or the detained person has, and how the detention and removal processes work and how the attorney can help.

The Law Office of KiKi M. Mosley, works to counsel and represent detained immigrants and file the proper petitions with immigration courts necessary to protect an undocumented man, woman or child. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Bloomberg Businessweek: Deportations Drop as Obama Pushes for New Immigration Law. By Michael C. Bender, Dec. 17, 2013.

Immigration Detention: Why legal representation can be crucial to detainees

The American Civil Liberties Union (“ACLU”) recently reported that the United States has a crisis situation managing almost half a million immigrants in more than 250 detention center facilities as reported in 2011 by the Department of Homeland Security (“DHS”). What concerns people connected to the immigration system is the large percentage of detained immigrants who did not need to be locked up and were not charged with any crimes. This group includes undocumented people seeking asylum from torture, families with small children, elderly people and those with serious physical and mental health conditions. Also being kept in detention centers are “…lawful permanent residents with longstanding family and community ties who are facing deportation because of old or minor crimes.[i]

"ICE's primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration. The agency has an annual budget of more than $5.7 billion dollars, primarily devoted to its two principal operating components - Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO)." DHS Website.

“ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration. The agency has an annual budget of more than $5.7 billion dollars, primarily devoted to its two principal operating components – Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO).” DHS Website.

In 2012, ICE removed 409,849 individuals according to the DHS website page of removal statistics[ii].

In one example from several years ago, an unnamed undocumented California resident moved to Illinois for a job. Living in the suburbs of Chicago he met a woman to whom he became engaged. On his wedding day, Immigration and Customs Enforcement (“ICE”) officers arrested the man and detained him in a nearby ICE holding facility. The couple later determined the application for marriage license sent the red flag triggering the arrest and detention. The detained man was transferred to an out of state county detention center which made it difficult for his fiancée and lawyer to travel the increased distance to meet. Conditions for the man’s release were troublesome, as his application for asylum indicated his original home country no longer existed and he would likely face corporal punishment for other reasons if sent to alternative locations.

What happens if you don’t agree to comply with the proposed conditions for release from detention? You could sit in your detention facility for a long time. A recent publication on the website Immigration Equality highlights that, “Due to a series of harsh immigration laws that were passed in the 1990s, persons with minor visa violations, even asylum seekers, often end up in detention for months or years.[iii]” While in detention, many immigrants file complaints to the office of Civil Rights and Civil Liberties at DHS. Immigrants who are LGBT and/or HIV-positive have additional concerns for their health and safety at detention centers and in general detainee populations. The Immigration Equality website has additional links to articles addressing these issues.

Humans rights lawyers and organizations created “Know Your Rights” a video published by the American Bar Association: ABA Know Your Rights.

The video first suggests that detained immigrants find and hire a licensed attorney and warns against something called a Notario because they are not allowed to represent you in immigration courts because notarios are not licensed attorneys. The video also discusses the Notice to Appear that might have been filed with the court and outlines a few of the situations where detention occurs. You may be able to stay in the United States even if you are arrested and detained by ICE officers. Even if you are ordered to be removed from the United States, an attorney can file motions with the immigration court seeking relief from removal for certain reasons.

The Law Office of KiKi M. Mosley, works to counsel and represent detained immigrants and file the proper petitions with immigration courts necessary to protect an undocumented man, woman or child. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i][i] American Civil Liberties Union Website: Immigrants Rights, Immigration Detention.

[iii] Immigration Equality Website: Detention.

USCIS and U.S. Senators respond with measures pushing for relief for victims of Typhoon Haiyan/Yolanda

The massive devastation and lack of resources to clean up and start recovery makes the Philippines seem like a lost cause. Filipinos who might otherwise consider visiting their friends and family in the U.S. may today be considering moving in with them, at least on a temporary basis, until they can get back on their feet.

Filipinos may find relief in applying for temporary protected status (“TPS”).

Philippine nationals in the U.S. are also concerned about being deported to a country no longer able to receive them. In response, the “American Immigration Lawyers Association (“AILA”) and a growing list of lawmakers have been petitioning the federal government to grant TPS to Philippine nationals who are here on temporary visas or without legal status.[i]” The Department of Homeland Security designates TPS eligibility for countries when conditions prevent the safe return of their nationals. Conditions of this sort are ongoing wars, extraordinary conditions and natural disasters such as Typhoon Haiyan. The USCIS website[ii] contains a list of countries currently designated for TPS including: El Salvador; Haiti; Honduras; Nicaragua; Somalia; Sudan; South Sudan; and Syria.

Click/Tap (or copy and paste into your browser) the link to the petition page: Grant Temporary Protected Status (TPS) to Filipinos in the US to Sustain the Flow of Yolanda/Haiyan Relief Support.

Twenty senators sent the Obama administration a letter urging the grant of TPS to Filipino nationals. The senators stated that the conditions make the victims of Typhoon Haiyan eligible for the TPS designation and they urge prompt action. The letter requests an automatic extension of visas in categories where feasible and the temporary suspension of deportations to the Philippines and the use of alternatives to detention[iii].

USCIS responds with offers of relief for eligible Filipinos.

The United States Citizenship and Immigration Services (“USCIS”) acted, within a week of the typhoon hitting the Philippines on the 7th of November. On the 15th of November, USCIS released its statement offering immigration relief for eligible and affected Filipino nationals. Below is the bullet point list of relief measures listed on the USCIS website[iv]:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Extension of certain grants of advance parole, and expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Assistance to LPRs stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

If you are a Filipino in the U.S. and/or are seeking TPS for yourself or a friend or family member you may contact the Law Offices of KiKi M. Mosley for assistance in reviewing your current status and to apply for whatever relief for which you may be eligible.

Attorney KiKi M. Mosley is licensed to practice law by the States of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.

Diversity Immigrant Visa program “Green Card Lottery”

You can't win if you don't play!

You can’t win if you don’t play!

The proposed immigration reform bill, S 744 could has disrupted the Diversity Immigrant Visa program, the lottery for lawful permanent residence better known at the “Green Card Lottery.” Under the current program, United States Permanent Resident Cards are provided by the U.S. State Department according to the congressionally mandated lottery system.

How the Lottery Works

When a potential immigrant is selected in the lottery, they must be eligible and be interviewed. Eligibility requirements include a high school diploma, equivalent, or two years of work equivalence in an occupation requiring at least two years of training. Applicants are asked to provide additional information about their education levels, current country of residence, lack of criminal history, and general admissibility issues under the Immigration and Nationality Act. Many praise the current lottery system and argue it should be preserved to ensure the continued benefits of a diverse immigrant pool.

What few people know is the diversity immigrants come from all over the world, with no more than 7% of issued visas going to immigrants from any single country. The net effect is representation in the diversity immigrant pool from some of the countries less considered when people discuss immigration. Currently a large number of lottery winners are coming from Africa and Europe.

The Argument for Diversity

Some claim there are benefits to diversity in immigration. Cited in a recent article[i] a new paper by Alberto Alesina[ii] and colleagues from Harvard University suggests benefits of the visa lottery system that allows for a more diverse immigrant pool. “Building on previous studies suggesting companies with more diverse management gain higher market share and profits, the authors similarly find that countries with more diverse foreign-born populations have more patents granted each year and higher overall incomes.”

An example of a lottery winners are Yuri and Lyudmila, a Russian couple who lived in a tiny apartment outside Kiev. The college educated couple worked hard but were not able to find many opportunities until good news came one day when they won U.S. green cards in the lottery and would be headed to Seattle! “Yuri and Lyudmila weren’t tech wizards; neither had ever owned a computer, and they didn’t speak much English. But the lottery required only that they have high-school diplomas and wouldn’t need financial assistance from the U.S. government.[iii]

Now U.S. homeowners, Yuri is a bus driver and works at Trader Joes while Lyudmila works as a bookkeeper.

Some critics of the diversity visa lottery system complain that at random, highly skilled (H-1B and L-1 visas) workers may arrive and remain on temporary visas alongside others immigrants with little or no skills other than general labor. What critics might not consider is the scarce opportunities to gain specialized skills in less developed nations where obstacles to someone’s future are removed in the U.S. At the end of the day, someone who wins any lottery may feel empowered to do great things.

Immigrants to the U.S. contact the Law Offices of KiKi M. Mosley for assistance with their visa petitions and the lottery process. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.


[i] Bloomberg Businessweek: The U.S. Can’t Afford to Scrap the Visa Lottery. By Charles Kenny, Nov. 4, 2013.

[ii] Harvard University website: Alberto Alesina, Nathaniel Ropes Professor of Political Economy.

[iii] Bloomberg Businessweek: The U.S. Needs Immigrant Bus Drivers and Bookkeepers, Too. By Carol Matlack, Nov. 4, 2013.

The Child Status Protection Act (CSPA) issues before the U.S. Supreme Court

Mayorkas v. Cuellar de Osorio. Set for argument on Tuesday, December 10, 2013.

Mayorkas v. Cuellar de Osorio. Set for argument on Tuesday, December 10, 2013.

To be heard by the U.S. Supreme Court this December 10, 2013 is the question whether children included as derivative beneficiaries on petitions filed by U.S. citizens are covered under the protection extended by the Child Status Protection Act, 8 U.S.C. §1153(h)(3). Cueller de Osorio’s mother, a U.S. citizen filed a petition for a visa (for a married daughter of a citizen) for her daughter in 1998 and on the petition, Cueller’s then 13 year-old son was listed as a derivative beneficiary. By the time his mother’s (the primary beneficiary of the visa petition) priority date for visa eligibility became current, the son “aged out” (losing “child” status) and the issue before the Court involves derivative visa eligibility and priority dates.

Will the court agree with the 9th Circuit that the derivative beneficiary’s priority date should be retained for purposes of being considered a “child” in light of the Child Status Protection Act?

The eligibility and priority date (and priority date retention) issues before the court involve the Child Status Protection Act (CSPA) and its rules for determining whether certain aliens qualify as “children” under the act for the purposes of obtaining visas or adjustments to their immigration status. The court may address and interpret the language of the law in determining what happens when a primary beneficiary (mom) by law, has a different priority date of eligibility than would the derivative beneficiary (son) whose immigration status could be affected based on the determination of the son’s visa eligibility.

The priority date is important to understanding the issues before the Court in this case. A limited amount of immigrant visas may be issued every year by law[i]. An immigrant visa number distributed by the U.S. Department of State is issued to visa applicants in limited numbers (226,000 per year for family sponsored preference categories and 140,000 per year for employment based preference categories) in order of the preference category and the individual’s priority date, used to determine their place in line, specifically stating the date upon which the individual can apply for an immigrant visa when one becomes available.  There are also per country limits that have led to backlogs that are sometimes over 20 years long for certain countries such as the Philippines, Mexico, China, and India.

Did the derivative beneficiary son properly “age out” or should he be given “child” status?

In this case, in 2005, the United States Citizen and Immigration Services (USCIS) denied a request for priority date retention under the CSPA, holding that Cuellar de Osorio’s son, at age 21 was ineligible for a derivative visa, despite her son being 13 when he was listed on his mother’s visa petition in 1998 as a derivative beneficiary.

CSPA became law August 6, 2002, and prior to its inception, a beneficiary (an alien who is sponsored by a relative or business, or has self-petitioned for an immigration benefit[ii]) who turned 21 years old any time before receiving permanent residence would not be a “child” for immigration purposes, hence the term “aging out” which CSPA may prevent. Aging out is an issue since the processing times for immigration petitions can be excessive. For purposes of immigration, a “child[iii]” is unmarried and under the age of 21 (as opposed to a “son” or “daughter” married and/or age 21 and over).

Definitions of “child(ren)” and retention of priority dates in the INA.

The Immigration and Nationality Act, in Section 1153(h)(3)[iv] defines the qualifications for “children” for the purposes of obtaining visas or immigration status adjustments as derivative beneficiaries of sponsored family member immigrants. The law is clear that an alien may qualify as “child” derivative beneficiaries on the filing date a visa petition. What’s unclear is what should happen if the putative “child” is 21 years old by the time the visa becomes available to the primary beneficiary. The Supreme Court must decide whether the Board of Immigration Appeals properly interpreted the law.

Section 1153(h)(3), Retention of priority date, states in pertinent part as follows: “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon the receipt of the original petition.”

In immigration law, the intersection of laws in the U.S. Code and USCIS policies are complex. Many immigrants fail to obtain legal status when they do not understand the nuances of immigration law. At the Law Office of KiKi M. Mosley, clients seek petitions for visas seeking to include derivative beneficiaries. Attorney KiKi M. Mosley is licensed to practice law by the State of Illinois and Louisiana. She is skilled and experienced in complex immigration law issues. For more information about the law firm, please tap/click here to visit the rest of the website, and do not forget to “Like” the firm on Facebook and “Follow” on Twitter or Google Plus.