Introduction
On May 5, 2017, the Acting Director of the United States Immigration and Customs Enforcement (ICE), Thomas Homan, wrote a letter to Senate leadership informing it of changes in ICE policy regarding the granting of stays of removal in connection with private immigration bills [PDF version]. Generally, individual members of Congress may submit private legislation on behalf of specific individuals who have exhausted all other avenues for relief from removal. Acting Director Homan’s letter explains how the ICE will now impose more stringent requirements on private bills.
In this article, we will explain the private bill process as it existed before the change in policy and the new policy articulated by Acting Director Homan.
Overview of Private Bills
The United States Department of State’s (DOS’s) Foreign Affairs Manual (FAM) provides an overview of private bills at 9 FAM 502.7-7(B)(1).
The FAM explains that private bills constitute “an effort to provide extraordinary relief after all other administrative remedies under the [Immigration and Nationality Act (INA)] have been exhausted.”
The FAM explains that, in weighing whether to propose a private bill, Congress must determine whether there “is sufficient equity in the merits of the case.” In short, the merits of the case must be weighed against the fact that a private bill seeks to exempt an individual alien from a provision of law applicable to all other aliens.
9 FAM 502.7-7(E) makes clear that the procedures for private bills are set forth in the rules of the United States Senate and the United States House of Representatives.
The House rules regarding private bills explained that the DHS would only grant a stay of removal if the Subcommittee on Immigration and Border Security requests a report from the DHS (see 90 No. 11, Interpreter Releases, 723, 734-42 (Mar. 18, 2013)). The House rules only permitted such requests in cases designed to prevent extreme hardship to a U.S. citizen spouse, parent, or child. The current Senate rules may be found in 70 No. 11, Interpreter Releases, 591, 597-602 (May 3, 1993). The Senate rules are similar to House rules, although in the Senate’s case, the Judiciary Committee must request information from the DHS on an individual case.
Changes to Procedure Outlined in Homan Letter
Acting Director Homan began his letter by stating that all of the changes therein would take effect immediately (as of May 5, 2017).
Homan noted that private bills “serve as a last resort for individuals who have exhausted ordinary administrative and judicial remedies.” However, he took the position that the majority of current private bills “are introduced to confer lawful permanent resident (LPR) status on beneficiaries by circumventing the normal immigration law framework, including inadmissibility grounds and legal requirements that ordinarily apply to those seeking LPR status.”
Homan noted that, under previous procedures, the ICE would grant a stay of removal when it received a written request from the Chair of the House or Senate Judiciary Committee (or appropriate subcommittee) regarding the beneficiary of the proposed legislation. The stay of removal would remain in effect until one of the following events:
1. Until Congress took action on the bill; or
2. Until Congress adjourned without taking action on the bill and the grace period (March 15 of the new Congress) expired.
Homan noted that the stay mechanism, in conjunction with the repeated introduction of private bills, could prevent the ICE from removing aliens that fall within the new immigration enforcement priorities outlined by President Donald Trump in Executive Order 13768 (Jan. 25, 2017) [see article]. Homan further noted that private bills “are rarely, if ever[,] enacted.”
Accordingly, Homan outlined the following new policies for how it will handle private bills filed on behalf of aliens facing removal (paraphrased):
1. The ICE will only consider and issue a stay of removal if the Chair of the full Committee or Subcommittee expressly makes a written request that the ICE stay the private bill beneficiary’s removal independent of any request for an investigative report. This means that the request for an investigative report will no longer, by itself, trigger the stay of removal.
2. The ICE will no longer grant a single beneficiary more than one stay of removal through the private bill process. This means that the ICE will not honor multiple stay requests regarding the same alien.
3. The duration of a stay of removal resulting from a private bill and request will be limited to 6 months. However, the Director of ICE, in his or her discretion, will be able to provide a one-time 90-day extension beyond the initial 6-month stay. This extension must be specifically requested by the Chair of the relevant Committee or Subcommittee. The stay must be necessary to accommodate extenuating circumstances.
4. The ICE will take appropriate action, including removal of the beneficiary of a private bill, in cases where the ICE discovers “derogatory information” about the beneficiary after issuing a stay of removal. In such an event, the ICE will notify the appropriate Committee or Subcommittee about the enforcement action.
The ICE honors private bills as a matter of policy, rather than pursuant to statute or regulation. Accordingly, this allows the ICE the discretion to change how it handles private bill requests as it sees fit.
Conclusion
In the relief from removal context, private bills are a matter of last resort and are used in a small fraction of the large number of removal cases. The change in ICE policy requires Congress to do more in order for the ICE to honor a private bill request. Furthermore, it limits the duration of a stay of removal granted pending passage of a private bill, and it limits the number of stays it will grant to a single beneficiary to one. Finally, the ICE makes clear that it may remove an individual during the stay of removal period if it discovers information that necessitates such an action.
In addition to citing to problems he saw in the private bill process, Homan noted that the change in policy is being enacted in order to implement President Trump’s Executive Order on enforcement priorities. In short, he found that the previous private bill procedures — which constituted ICE policy rather than statute or regulation — were not consistent with the directives in President Trump’s Executive Order.
When seeking relief from removal, an individual should always work closely with an experienced immigration attorney. An attorney will be able to assess all possible avenues for relief. In extraordinary cases, seeking to have private legislation filed in a case may be an option.
Resources and Materials:
Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1402, Print. Treatises & Primers.
