When a person in immigration enforcement proceedings turns out to be the parent, spouse, or child of an active duty service member or veteran, there may be a legal pathway for that family to stay together. The tools exist in immigration law. ICE attorneys have the authority to exercise prosecutorial discretion and may join a motion to reopen a case, and immigration judges have the authority to give these cases more careful review.
The problem is that almost none of this happens in time, because cases are moving so quickly and the federal government does not systematically track which people in removal proceedings have a military family connection. By the time anyone identifies the crucial connection, it is often too late.
Sui Chung is the Executive Director of Americans for Immigrant Justice (AIJ), a statewide legal defense organization in Florida celebrating its 30th anniversary. She started her career reviewing Haitian asylum cases at the Board of Immigration Appeals, where she saw how many people facing removal had no attorney arguing for them, and left the federal government to become a removal defense attorney.
AIJ launched a dedicated veterans initiative after their hotlines began reflecting a scenario they were receiving calls about: family members of service members and veterans, people with a pathway to status, were being arrested without anyone pausing to check the military connection. The administration’s approach to review, Sui says, has moved away from case-by-case assessment and toward volume. “Very broad sweeps, and let’s arrest people and figure it out later,” as she put it today in our live conversation with a virtual audience.
Identifying the military connection is the first barrier, and it falls mostly on private attorneys and organizations like AIJ because no federal agency is systematically tracking which people in removal proceedings have family members who serve. Immigration attorneys need to screen every client for military family connections, because those connections may open doors to relief that would otherwise stay closed. The most common case Sui describes involves someone who received a removal order as a child or young adult, built a life in the United States, and went on to have a son or daughter join the military. But the old order is still on the books with no statute of limitations, which means the person could be picked up at any time.
Parole in Place (PIP) is one tool that is available. PIP grants a one-year parole to the immediate family members of active duty service members or veterans, including spouses, parents, sons, and daughters, and may open a pathway to adjustment of status through an immediate relative petition, depending on the individual facts of the case. A joint motion to reopen, filed with the agreement of ICE’s Office of Principal Legal Advisor, can bring an old case back before a judge with fresh options. None of this requires new law, either; it simply requires identification and the willingness to use the law on the books to support veterans and active duty military.
As Sui explains, the legal concept connecting many of these tools is prosecutorial discretion. The current administration has nearly eliminated that discretion from the standard review process, but the legal authority itself remains. Sui connects the principle to a daily experience everyone already understands. “Prosecutorial discretion, we benefit from it every day. Me, everybody. Driving 59 in a 55. We’re benefiting from prosecutorial discretion every single day in our country.” The Office of Principal Legal Advisor has the authority to join a motion to reopen and may decline to oppose relief for a military family member with no criminal history and a potential path to permanent residency. Cases are not reaching those attorneys in time.
This is the work AIJ is doing inside one of the most enforcement-intensive environments in the country. The Miami Field Office now ranks first in the nation for ICE arrests, with a 2,450% increase in the arrest of people with no criminal history. Florida has more 287(g) agreements than any other state. And yet Florida rarely drives the national immigration news cycle. “What is happening in Florida? Seamlessly and quietly, all these arrests are happening. Florida state troopers, it’s something like 1,800 have been deputized. So many of the arrests are happening with very, very basic traffic stops… The numbers have exploded, but we’re not seeing the images that we see in Minnesota or Chicago.” Local law enforcement, state highway patrol, and federal immigration officials are deeply integrated, which means that there are no dramatic operations to film—you have to understand the systems at work.
I make a similar argument in my current series on the immigration court’s mega master hearings.