The Legal and Practical Effects of Private Immigration Legislation and Recent Policy Changes

The Legal and Practical Effects of Private Immigration Legislation and Recent Policy Changes

CRS Reports & Analysis
Legal Sidebar
The Legal and Practical Effects of Private Immigration
Legislation and Recent Policy Changes
06/30/2017
For many years, private immigration bills have served as the last step to prevent the removal of certain aliens who are
subject to final orders of removal. Generally, this practice has been reserved for a very small group of aliens who, while
having been deemed by the private bills’ sponsors to have extraordinary equities in the United States, are also—for
whatever reason—statutorily ineligible for any relief under existing federal immigration laws. Supporters of the use of
private immigration bills argue that they serve as “a critical safety net” in situations where the aliens’ removal would
result in great hardship for their families in this country. On the other hand, opponents contend that private bills
undermine the fair and uniform administration of the nation’s immigration laws.
Generally, the goal of a private immigration bill is to confer lawful permanent resident status on an alien beneficiary,
thus bypassing the normal procedures to obtain such status in this country. By contrast, most aliens who wish to
legalize their status have to apply for adjustment of status based on an approved visa petition, and demonstrate their
admissibility for permanent residence (or if they are in removal proceedings, they may apply for cancellation of removal
if they can meet certain statutory requirements). Nevertheless, private immigration bills have rarely been passed by
Congress. In fact, out of nearly 400 such proposed bills within the last ten years, only a few have been signed into law.
When a private immigration bill is introduced, the identified alien’s legal status remains unchanged. However, it had
been a longstanding policy for Immigration and Customs Enforcement (ICE) (and before that, the Immigration and
Naturalization Service) to authorize a stay of removal upon receiving a request for a report on information about the
alien from either the Senate or House subcommittee where the private bill is referred. Until recently, after receiving the
request, ICE would typically grant a stay until Congress took action on the private immigration bill, or, if no action was
taken, until February 1 of the first session of the next Congress. The agency also could extend the stay of removal
beyond that period. With the stay in place, the alien could remain in the United States pending the bill’s disposition in
Congress, and, if ICE granted him or her deferred action, the alien could receive work authorization during this period.
Further, the sponsor of the private immigration bill could reintroduce the bill in the new Congress, and potentially start
the stay process all over again. Consequently, through repeated introduction of a private immigration bill, an alien’s
removal could be postponed for many years.
On May 5, 2017, however, ICE’s Acting Director Thomas D. Homan sent a letter to Senator Charles Grassley, the
Chairman of the Senate Judiciary Committee, advising of immediate changes to the agency’s policy with respect to
stays of removal pending the outcome of private immigration bills. Homan expressed concern that the long-standing
stay process could thwart ICE’s efforts to remove aliens who, under the Trump Administration policy, are priorities for
removal, such as criminal aliens, aliens who have committed fraud, aliens who have abused a public benefits program,
aliens subject to a final order of removal, and aliens “who pose a risk to public safety or national security.”
Homan thus announced four “policy changes” with respect to private immigration bills: (1) ICE will only grant a stay of
removal if the House or Senate committee/subcommittee expressly makes a written request for a stay of removal
“independent of any request for an investigative report”; (2) ICE will not grant an alien more than one stay of removal
during the private immigration bill process, and will not consider subsequent stays requests from the House or Senate
committee/subcommittee; (3) ICE will grant a stay of removal for only six months, but, upon request by the House or

Senate committee/subcommittee, may issue a one-time 90 day extension “to accommodate extenuating circumstances”;
and (4) ICE will take “appropriate action,” including the removal of the alien, if it receives “derogatory information”
about the alien after granting a stay.
Therefore, while private immigration bills have previously delayed an alien’s removal from the United States—
sometimes indefinitely—ICE’s new policy markedly changes that established procedure. Aliens who are the
beneficiaries of private immigration bills can no longer count on automatic stays of removal as their respective bills
wind their way through the legislative process. Moreover, even if ICE is willing to grant a stay of removal, such a stay
will be more limited in duration than in the past. Given these developments, Congress may be urged to modify its own
existing rules governing the private immigration bill process to ensure that aliens seeking to benefit from such
legislation receive prompt consideration by the agency of their requests to remain in the United States during that
process. In addition, ICE’s change in policy may encourage some Members of Congress to work to expedite the
disposition of private immigration bills in the future—potentially increasing the likelihood that some of these bills will
be acted upon before the agency takes action. Congress also may consider legislative initiatives that would offer some
removable aliens alternative and more practical ways to legalize their status and remain in this country.
Posted at 06/30/2017 10:02 AM