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Policy Number: 16021.1
OfficI!
o/
/
hr
Astis
/alll Secre/ory
FEA Number: 054-14
II.S. De(lllrtrncnt
or
I lornelnnd
Securi
ty500 12th Street. SWWashington. I).C. 20536
u.s.
Immigration
AUG
20
2010
and
CustomsEnforcement
MEMORANDUM FOR:
Pet
er
S.
VincentPrincipal Legal AdvisorJames ChaparroExecutive Associate Director,Enforcement and Removal Operations
•
FROM:
John Marlon
ssista
nt
SUBJECT:
Guidance Regarding the Handling
of
Removal Proceedings
of
Aliens wi
th
Pending or Approved Applications
or
PetitionsPurposeThis memorandum establishes U.S. Immigration and Customs Enforceme
nt
(ICE) policy for
th
ehandling
of
r
emova
l proceedings before the Executive Office for Immigration Revi
ew
(EOlR)
in
volving applications or petitions filed by, or on behalf of, aliens in rem
ova
l proceedings. Thispo
li
cy outlines a framework for ICE
to
request exped
it
ed adjudication
of
an application orpe
ti
tion
for
an alien
in
removal proceedings that is pending before U.
S.
Citizenship andImmigration Services (USC IS)
if
the approval
of
such an app
li
ca
ti
on
or
petition wou
ld
providean immediate basis for re
li
ef
for the alien.' T
hi
s policy will allow ICE and EOIR to address amajor
in
efficiency in present practice and thereby avoid unnecessary deJay and expenditure
of
resources.BackgroundHistorically, where a
Petition
/or
Alien Relative
(hereinafter Fo
rm
1-
I 30 or petition) was pendingbefore USCIS, this fact tended to promote dela
ys
in removal proceeding
s.
Indeed,
in
July
of
2009, EOIR
id
entified approximately
17
,000 removal cases that have been
co
nti
nued pending theoutcome
of
USC IS decisions on petitions. Recognizing that many
of
these cases may ultimately
re
su
lt
in relief for the alien, I
CE
has been working w
it
h USCIS and EO
IR
to
identify moreeffecti
ve
procedures to resol
ve lh
ese pend
in
g petitions along with o
th
er
app
li
ca
ti
ons to promoteincreased docket efficiency.
t
This memo applies only to applications or petitions that USCIS legally has jurisdicti
on
Subject: Guidan
ce
Regarding the Handling
of
Removal
Pro
ceedings
of
Aliens with PendingApplica
fioll
s or Petiliolls
Pa
ge
2
of
./
To this end, USC
IS
will iss
ue
gu
id
ance
to
co
mpl
ement this memorandum and will endeavor tocomplete the adjudication
of
all applications and petitions
re
ferred by ICE within 30 days fordetained aliens and 45 days for non-deta
in
ed aliens. Close coordina
ti
on a
nd
communicationbetween the ICE Offices
of
C
hief
Co
un
sel (OCC) and USCIS will ensu
re
that a
ll
applicationsand petitions are adjudicated qui
ck
ly to realize our shared goal of efficiently resol
vi
ng
cases inremoval proceedings.New ICE PolicvAs a matter
of
prosecutorial discretion and to promote
th
e efficient use of government resources,I hereby iss
ue
new ICE policy to gove
rn
the handling of removal proceedings
in
volving a
li
enswith app
li
cations or petitions pending with USCI
S.
This policy exte
nd
s both to the prosecution
of
removal proceedings by OCCs and to any associated detention decisions by Enforcement andRemoval Operations (ERO).
I.
£r:pedit
ed
Adjudication
A.
In
any case involving a detained alien whose application or petition is pending withUSC IS, OCC sha
ll
affi
rm
atively request
th
at
USCIS expedite the adjudication
of
theapplication or petition. ICE should promptly transfer
th
e app
li
cant's
A-file to USCIS.USCIS will endeav
or
to adjudicate all the detained cases referred to
it
by ICE within 30days
of
receiv
in
g
th
e A-
ril
es. ICE
wi
ll
ensure that,
if
needed, USCIS has access to thedeta
in
ed individual to conduct an interview.
B.
In any case involving a non-detained a
li
en
whose application or petition is pending withUSC
IS
, OCC shall affinnatively request that
US
CIS expedite the adjudication
of
theapplication or petition. ICE should promptly transfer
th
e applicant
's
A-file to USCIS.USCIS
will
endeavor to adjudicate a
ll
non-detained cases referred to
it
by ICE within 45days of receiving
th
e A-files.
2.
Dismissal
wit/lOll!
Prejudice a/Certain Cases
ill
Re
mOl
'{
t/Pr
oceedi
ll
gs
De
ta
ined CasesWhere
th
ere is
anun
de
rl
y
in
g application or petition filed with USCIS by or on behalf
of
adetained alien and ICE determines as a
maH
er
of
law and in the exercise
of
di
scretion that sllchalien appears eligible for relief from removal, OCC shall promptly consu
lt
with the Field OfficeDirector (FOD) and Special Agent in Charge (SAC) to determine
if
there are any
in
vestigations
or
se
ri
o
ll
s, adverse factors weighing against dismissal ofproceedings.
2
Adverse factors
in
cl
ude,
but are nOllimited
to
,
criminal convic
ti
ons, ev
id
ence
of
fra
ud
or o
th
er criminal misconduct, andn
at
ion
al
security and pub
li
c safety consideration
s.
I
fno
investigations or
se
rious adverse factors
ICE o
ffi
ces in the Fifth and
Ni
nth
Circ
uit
s must
be
sensitive
to
the issuc
of
resjlldic(J/(/
that
m
ay
arise
in
dismissing proceedings without prejudice.
See, e.g. , Brm'o-Pedro:lI l'.
GOII:ules,
475 F.3d 1358 (9th Cir. 2007):
Medi
na
v.
INS,
993 F
.2
d 499, 503
(5th
C
ir.
(993). To protect the govemm
en
f s interests, motions
to
dismiss witho
ut
prejudice in
th
c 5th
an
d 91h Ci
rcuit
s sh
ou
ld
be
made in writi
ng,
i.
e., not orally. The Office
of
th
e
Pr
in
ci
pal legalAdvisor (O
PlA
) has developed a template for mot
io
ns
to
dis
mi
ss witho
ut
prejudice for use
in th
ese t
wo
circuit
s.
Subject: Guidance Regarding the Handling
of
Removal Proceedings
of
Aliens with PendingApplictlfions or
Pe
tilions Page
3
of
4
exist,
th
e OCC should promp
tl
y
mo
ve
to
dismiss proceedings witho
ut
prejudice before EOIR,and noti
fy
the FOD
of
the motion. Once
th
e FOD is noti
fi
ed,
th
e FOD
mu
st release the alienpursuant to the dis
mi
ssal
of
proceedings.Non-Detained CasesWhere there is an unde
rl
y
in
g application or petition and ICE del
enn
ines in the exercise
of
discretion that a non-detained individual appears eligible for relief from removal, OCC shouldpromptly move
to
dis
miss
proceedings without prejudice before
EO
IR.
3
Standard
for
Dismissal
On
ly removal cases that meet the
fo
ll
owing criteria w
ill
be considered
for
dismissa
l:
• The a
li
en must
be
th
e subject
of
an application or peti
ti
on filed with USCIS
to
in
clude acurre
nt
priority date, if required, for
adj
ustment
of
sta
tu
s;"
• The a
li
en appears eligible
for
re
li
efas
a matter of law and
in
th
e exercise
of
discre
ti
on;• The alien
mu
st prese
nt
a co
mpl
eted
Application
10
Register Permanent Residence orAdjllst
Status (Fo
rm
1-485),
ifrequ
ired; and• The a
li
en beneficiary must be statutorily e
li
gible
for
adjustme
nt
of
status (a w
ai
ver mustbe available
for
any ground
of
inadmissi
bi
li
t
y).
An a
li
en
in
removal proceedings may appear e
li
gible
fo
r relief but for a va
ri
ety o
fr
easons, ICEmay oppose re
li
ef
on
th
e basis
of
discretion.
In
those cases, ICE should continue prosecution
of
the ease before
EO
IR
regardless
of
whe
th
er USCIS h
as
approved
th
e underly
in
g application orpetition.Standard Operati
ng
Procedures
In
coordina
ti
on with
th
e local
usc
rs
field office, each OCC
mu
st develop a standard operatingprocedure (SOP)
to
identi
fy
removal cases that
in
vo
l
ve
an app
li
cation or petition pending beforeUSCI
S.
This
SO
P should address the catego
ri
es
of
cases discussed above:
(1)
those identifiedfor expedited
adj
udication, and (2) those
for
w
hi
ch
di
s
mi
ssal
of
proceedings may be appropriate.The request
to
expedite shall be made
to by
OCC
to
usc
r
s.
No obligation
for
such requestssha
ll
be placed on the alien
's
attorney, accredited represe
nt
a
ti
ve, or the immigration judg
e.
TheSOP regarding requests
to
expedite must estab
li
sh
th
e followin
g:
• A mechanism whereby the ICE a
tt
orney w
ho
handles
th
e master calendar hearing in acase detennines whether a request
to
exped
it
e
th
e pending petition or application isappropriat
e;
• A structure to com
mu
nicate the ICE request to expedite to USCI
S;
1
As more
fu
lly stated
in foo
tnote
2,
ICE offices
in
the Fifth and
Ni
nth Circuits
mu
st
be
sen
si
tive to the issue
of
res
judiculll that
may arise
in
dismissing proceedings w
ith
out prejudice. OPLA has developed a template for motions todismiss without prejudice
fo
r u
se in
th
ese two circuits.
4
At
the
OCC's
di
sc
retion, other cases not meeting this crite
ri
on may
be
appropriate for dis
mi
ssa
l.
www. ice.gov