john morton memo

8/9/2019 John Morton Memo

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Policy Number: 16021.1 OfficI! o/ /hr Astis/alll Secre/oryFEA Number: 054- 14 II.S. De(lllrtrncnt or I lornelnnd Securi ty500 12th Street. SWWashington. I).C. 20536

u.s. ImmigrationAUG 20 2010 and CustomsEnforcement

MEMORANDUM FOR: Peter S. VincentPrincipal Legal AdvisorJames ChaparroExecutive Associate Director,Enforcement and Removal Operations FROM: John Marlon ssistant

SUBJECT: Guidance Regarding the Handling of Removal Proceedings ofAliens wi th Pending or Approved Applications or Petitions

PurposeThis memorandum establ ishes U.S. Immigration and Customs Enforcement (ICE) policy for th ehandling of removal proceedings before the Executive Office for Immigration Review (EOlR)in volving applications or petitions filed by, or on behalf of, aliens in removal proceedings. Thispo licy outlines a framework for ICE to request exped ited adjudication of an application orpeti tion for an alien in removal proceedings that is pending before U.S. Cit izenship andImmigration Services (USC IS) if the approval of such an app lica tion or petition would providean immediate basis for re lief for the alien.' Thi s policy will allow ICE and EOIR to address amajor inefficiency in present practice and thereby avoid unnecessary deJay and expenditure ofresources.BackgroundHistorically, where a Petition /or Alien Relative (hereinafter Fo rm 1- I 30 or petitio n) was pendingbefore USCIS, this fact tended to promote delays in removal proceedings. Indeed, in July of2009, EOIR id entified approx imately 17 ,000 removal cases that have been conti nued pending theoutcome of USC IS decisions on petitions. Recognizing that many of these cases may ultimatelyre su lt in relief for the alien, ICE has been working w ith USCIS and EO IR to identify moreeffective procedures to resolve lh ese pend in g petitions along with o ther app lications to promoteincreased docket efficiency.

t This memo applies only to applications or petitions that USCIS legally has jurisdiction to adjudicate duringremoval proceedings.www.ice.gov
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Subject: Guidance Regarding the Handling ofRemoval Pro ceedings ofAliens with PendingApplica fioll s or Petiliolls Page 2 o f ./To this end, USC IS will issue gu idance to compl 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 ined aliens. Close coordina tion and communicationbetween the ICE Offices ofChief Coun sel (OCC) and USCIS will ensu re that all applicationsand petitions are adjudicated quick ly to reali ze our shared goal of efficiently reso lvi ng cases inremoval proceedings.New ICE PolicvAs a matter of prosecutorial discretion and to promote th e efficient use of government resources,I hereby issue new ICE policy to gove rn the handling of removal proceedings involving ali enswith app lications or petitions pending with USCIS. This policy extend s both to the prosecutionof removal proceedings by OCCs and to any associated detention decisions by Enforcement andRemoval Operations (ERO).I. r:pedited Adjudication

A. In any case involvi ng 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 licant's A-file to USCIS.USCIS will endeavor to adjudicate all the detained cases referred to it by ICE within 30days of receivin g th e A- ril es. ICE wi ll ensure that, if needed, USCIS has access to thedetained individual to conduct an interview.B. In any case involving a non-detained a lien 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 o f receiving th e A-files.2. Dismissal wit/lOll! Prejudice a/Certain Cases ill RemOl '{t/ ProceedillgsDeta ined CasesWhere th ere is an un de rl yin g appl ication or petition filed with USC IS 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 vestigationsor seriolls, adverse factors weighing against dismissal ofproceedings.2 Adverse factors include,but are nOllimited to , criminal convictions, evidence of fraud or o th er criminal misconduct, andnat ional security and pub lic safety consideration s. Ifno investigations or se rious adverse factors ICE o ffices in the Fifth and Ni nth Circuits must be sensitive to the issuc of resjlldic(J/(/ th at may arise indismi ssing proceedings without prejudice. See, e.g. , Brm'o-Pedro:lI l'. GOII:ules, 475 F.3d 1358 (9th Cir. 2007):Medina v. INS, 993 F.2d 499, 503 (5th Cir. (993). To protect the govemmen f s interests, motions to dismiss withoutprejudice in thc 5th and 91h Circuits shou ld be made in writ ing, i.e., not orally. The Office of th e Pr inci pal l egalAdvisor (OPlA ) has developed a template for motio ns to dismi ss without prejudice for use in th ese two circuits.

www.ice.gov
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Subject: Guidance Regarding the Handling ofRemoval Proceedings ofAliens with PendingApplictlfions or Pe tilions Page 3 of4exist, th e OCC should promp tl y mo ve to dismiss proceedings without prejudice before EOIR,and notify the FOD of the motion. Once th e FOD is noti fi ed, th e FOD mu st release the alienpursuant to the dismi ssal of proceedings.Non-Detained CasesWhere there is an unde rlying application or petition and ICE delenn ines in the exercise ofdiscretion that a non-detained individual appears eligible for relief from removal, OCC shouldpromptly move to dismiss proceedings without prejudice before EO IR. 3Standard for DismissalOn ly removal cases that meet the fo llowing criteria will be considered for dismissa l:

The alien must be the subject of an application or peti tion filed with USCIS to include acurrent priority date, if required, for adj ustment of statu s;" The alien appears eligible for re liefas a matter of law and in th e exercise of discretion; The alien mu st present a completed Application 10 Register Permanent Residence orAdjllst Status (Form 1-485), ifrequired; and The alien beneficiary must be statutorily eligible for adjustment of status (a wai ver mustbe avai lable for any ground of inadmissibi lity).

An a lien in removal proceedings may appear eligible fo r relief but for a variety ofreasons, ICEmay oppose reliefon th e basis ofdiscretion. In those cases, ICE should continue prosecution ofthe ease before EO IR regardless ofwheth er USCIS has approved th e underlying application orpetition.Standard Operating ProceduresIn coordination with the local usc rs field office, each OCC mu st develop a standard operatingprocedure (SOP) to identify removal cases that in vo lve an app lication or petition pending beforeUSCIS. This SO P should address the catego ries of cases discussed above: (1) those identifiedfor expedited adj udication, and (2) those for whi ch di smi ssal of proceedings may be appropriate.The request to expedite shall be made to by OCC to usc rs. No obligation for such requestsshall be placed on the alien 's attorney, accredited representative, or the immigration judge. TheSOP regarding requests to expedite must estab lish the following:

A mechanism whereby the ICE attorney who handles th e master calendar hearing in acase detennines whether a request to expedite th e pending petition or application isappropriate; A structure to commu nicate the ICE request to expedite to USCIS;

1 As more fu lly stated in foo tnote 2, ICE offices in the Fifth and Ni nth Circuits mu st be sensi tive to the issue of resjudiculll that may arise in dismissing proceedings with out prejudice. OPLA has developed a template for motions todismiss without prejudice fo r use in th ese two circuits.4 At the OCC's di sc retion, other cases not meeting this criteri on may be appropriate for dismi ssa l.

www. ice.gov


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SlIbject: GlIidance Regarding the Handling ofRemoval Proceedings ofAliens with PendingApplications or Petitions Page 4 of4

A system to ensure that decisions about the application or petition are received fromUSCIS, uploaded into GEMS, and received by the ICE anomey scheduled to handle thesubsequent hearing; and A method by which A-files will be routed as appropriate so as to avo id delays in eitherthe adjudication or the immigration court proceedings.

Any questions regardin g this memorandum should be directed to OPLA Fie ld Legal Operationsor ERO Field Operations through appropriate channels. Scc: Alejandro MayorkasDirector, U.S. Ci ti zenship and Immigration Services

5 This documen t provides only imernal ICE guidance. It is not intended to , does not. and may not be relied upon tocreate any rights, substant ive or procedural, enforceable at law by any pany in any matter. civ il . or criminal.Likewi se, no limitations are placed on othenvise lawful enforcement or lit igative prerogat ives ofDHS or IC E.

www. ice .gov

john morton memo

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