Over the past couple of weeks, I have been writing about specific sections of the proposed 2013 immigration reform bill that is currently stalled in the House after being approved by the Senate. The bill, known as S. 744, will need approval from both chambers before it can become law.

In this post, I want to take a look at section 2313 of S. 744. This section speaks to waivers of deportation and inadmissibility for aliens who have families in the United States. It introduces a liberal approach to waivers.

To begin with, the Applications For Relief From Removal policy has been amended by adding the following: “(D) Judicial Discretion. In the case of an alien subject to removal, deportation, or exclusion, the immigration judge may exercise discretion to decline to order the alien removed, deported, or excluded from the United States and terminate proceedings if the judge determines that such removal, deportation, or exclusion is against the public interest or would result in hardship to the alien's United States citizen or permanent resident parent of a child, spouse, or child, or the judge determines the alien is prima facie eligible for naturalization.”

There are, of course, limitations on this eligibility. For instance, an alien is not qualified if he or she has:

• Engaged in conduct related to human trafficking; or
• A felony conviction that would be described as an aggravated felony at the time of conviction.

Along with the above circumstances, an alien may be permitted to obtain this type of relief if the Secretary of Homeland Security exercises his or her discretion and waives a ground of inadmissibility. Generally, the Secretary may exercise discretion when a refusal of admission would be against the public interest or would result in hardship to the alien or family member.

Section 2313 of S. 744 is quite generous and makes some substantial changes to current policy. The proposed legislation allows for judges to stop a deportation for certain situations involving public interest or hardship to family members. Further, the judge may decide the alien is eligible to naturalize in these limited situations.

Current law states that -- with very few exceptions -- if an alien reenters after having been removed or voluntarily departed, the prior order of removal is reinstated and may not be reopened or reviewed and no relief is available. However, S. 744 holds that relief may be available if the reentry occurred before attaining the age of 18 or reinstatement of the prior order of the removal would not be in the public interest or it would result in a family member's hardship.

This proposed section of legislation would be a big step forward by the government. It would show immigrants and the rest of the country that all families are respected. This reform makes a conscious effort to protect families and also permit a path to legalization that is fair, explicit, and acknowledges contributions made by long-time residents.

At The Law Offices of Matthew H. Green, we are dedicated to keeping families together. To schedule an initial consultation at our Tucson office, call (520) 882-8852 or toll free at (877) 882-8852.