sample motion to terminate removal proceedings (or in the
TRANSCRIPT
Immigration law frequently changes. This sample document is not legal advice or a substitute for independent research, analysis, and
investigation into local practices and legal authority in a given jurisdiction. This document was last updated in June 2019.
Sample Motion to Terminate Removal Proceedings (or in the
Alternative for Transfer to the Status Docket) for Child with
Approved I-360 SIJS Petition
General Notes:
This sample brief was written for individuals with a Notice to Appear (NTA) charge under INA §
212(a)(6)(A)(i). Some of the contents could be adapted for SIJS beneficiaries with certain other
NTA charges.
Practitioners should consider whether it is in the client’s interest to deny the NTA’s allegations
and charges at the outset, rather than conceding removability, even in cases where the practitioner
plans to file an SIJS petition or asylum application or already has.
Practitioners could add any additional termination arguments that may be available based on the
circumstances of the case.
This template contains bracketed placeholders for case-specific facts in yellow highlights and
makes some notes and alternative arguments in bracketed blue highlights. Some information
suggested in this sample motion may be inapplicable to the practitioner’s case.
The cases cited in this template do not constitute an exhaustive search of relevant case law in all
jurisdictions. Practitioners must conduct legal research in their jurisdiction based on the facts of
their case and at the time of their filing and ensure that the facts included in their motion are
accurate and the arguments are viable in their jurisdiction.
This document is intended for practitioners with clients at immediate risk of issuance of a
removal order; it may be wise not to raise these arguments if the practitioner has other
satisfactory options available such as continuances/status docket placement, and/or if the local
court will accept Form I-485 accompanied with a fee waiver request despite lack of current
priority date, in which case the client could then seek an Employment Authorization Document
with USCIS. Similarly, if the child’s case is currently administratively closed, making this motion
is likely not in the child’s interests. Practitioners should investigate local practices and options to
assess what the best option is for the client. In the event that an IJ were to grant termination based
on these arguments, it is likely that DHS would appeal. DHS might also file a new NTA perhaps
with a charge under INA § 212(a)(7)(A)(i); in that scenario practitioners should consider arguing
for termination based on res judicata. See Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA
2017), vacated and remanded by Arangure v. Whitaker, 911 F.3d 333 (6th Cir. 2018); Bravo-
Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007).
CLINIC is not aware of any IJ granting termination based on the arguments herein for a child
with an approved I-360 awaiting a current priority date; however, making these arguments can
help to create the best possible record in the event of an appeal.
[Legal Representative’s Name]
[Legal Representative’s Address]
[Legal Representative’s Phone Number]
[Legal Representative’s EOIR Number]
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
[CITY, STATE]
In the Matter of: )
)
[RESPONDENT’S NAME] ) [A#]
)
)
)
In Removal Proceedings. )
)
Before the Honorable [JUDGE’S NAME] Next Hearing Date: [DATE]
RESPONDENT’S MOTION TO TERMINATE
OR IN THE ALTERNATIVE FOR TRANSFER TO THE STATUS DOCKET
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RESPONDENT’S MOTION TO TERMINATE
OR IN THE ALTERNATIVE FOR TRANSFER TO THE STATUS DOCKET
Respondent [], through undersigned counsel, moves this Court to terminate removal
proceedings based on [her/his] approved petition for Special Immigrant Juvenile Status (SIJS)
classification, Form I-360. In the alternative, Respondent requests that this Court transfer
[her/his] case to the status docket or continue [her/his] case until the visa priority date becomes
available. [Motion should include proposed orders for each outcome. If local court does not
accept compound motions, file motions separately.] [Note, here or elsewhere in motion, if
reached out to Department of Homeland Security Office of Chief Counsel for their position and
result.]
I. FACTS AND PROCEDURAL HISTORY
Respondent [] is a [] year old child. [On [], immigration officers determined that
Respondent was an unaccompanied child and transferred [her/him] to the custody of the Office
of Refugee Resettlement (ORR). Respondent was placed with [her/his] [sponsor relationship] on
[date], with whom [s/he] continues to reside. Respondent attends [] school and is in the [] grade.]
[Tailor this section to individual facts]
[Incorporate brief procedural history of removal case as relevant, including pleadings,
administrative closure and re-calendaring, etc.]
On [], [] filed a [] action in [] Court, seeking [sole legal and physical custody of
Respondent] as well as special findings necessary to seek SIJS. On [], the [] Court entered an
order [awarding [] sole legal and physical custody of Respondent], and making the special
findings necessary for SIJS classification. Specifically, the court found that [paraphrase SIJS
findings]. Respondent subsequently filed a petition for SIJS with U.S. Citizenship and
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Immigration Services (USCIS). USCIS approved the petition on []. See Tab [], Form I-797, I-360
SIJS Petition Approval Notice. Respondent’s priority date is []. The [today’s month] [today’s
year] Department of State Visa Bulletin shows that for EB-4 petitioners like Respondent who are
from [country], the final action date is []. See Tab [], [today’s month] [today’s year] Department
of State Visa Bulletin.
In approving Respondent’s SIJS petition, the Department of Homeland Security (DHS)
recognized that Respondent satisfied “a set of rigorous, congressionally defined eligibility
criteria”1—specifically that:
1. [S/he] has been declared dependent on a juvenile court or legally committed to or placed
under the custody of a state agency or department, or individual or entity appointed by
the juvenile court, Immigration and Nationality Act (INA) section 101(a)(27)(J)(i);
2. [Her/his] reunification with one or both parents is not viable due to abuse, neglect,
abandonment, or a similar state law basis, INA § 101(a)(27)(J)(i);
3. It is not in [her/his] best interest to be returned to [her/his] or [her/his] parents’ previous
country of nationality or of last habitual residence, INA § 101(a)(27)(J)(ii).
DHS’s approval of Respondent’s SIJS petition means that the “Secretary of Homeland
Security [has] consent[ed] to the grant of special immigrant juvenile status.” INA §
101(a)(27)(J)(iii). In exercising the consent function in favor of Respondent, the Secretary of
DHS has recognized that Respondent should not be removed from the United States because
return to [her/his] country of origin is not in [her/his] best interests. See Section II.B infra.
Respondent was paroled by DHS pursuant to the agency’s approval of [her/his] SIJS
petition. See INA § 245(h)(1). This is because SIJS beneficiaries are “deemed . . . to have been
paroled into the United States” for purposes of INA § 245(a). INA § 245(h)(1).
1 Osorio-Martinez v. U.S. Att’y Gen., 893 F.3d 153, 163 (3d Cir. 2018).
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Based on the grant of SIJS, Respondent files the present motion asking that this Court
terminate these removal proceedings. In the alternative, Respondent moves that this Court
transfer this case to the status docket or otherwise grant a continuance until Respondent’s priority
date is current.
II. ARGUMENT
These proceedings must be terminated because the sole charge of removability alleged in
the Notice to Appear (NTA), INA § 212(a)(6)(A)(i), is incompatible with Respondent’s grant of
SIJS and with [her/his] parole for adjustment of status. As the Attorney General has stated, and
as provided in the INA and the regulations, “[i]mmigration judges . . . possess the authority to
terminate removal proceedings where the charges of removability against a respondent have not
been sustained.” Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018); see INA §
240(c)(1)(A) (immigration judge (IJ) “shall decide whether the alien is removable”); 8 C.F.R. §
1240.12(c) (noting that IJ may “direct . . . the termination of the proceedings”). Termination is
proper “‘when the DHS cannot sustain the charges [of removability] or in other specific
circumstances consistent with the law and applicable regulations.’” Matter of J-A-B- & I-J-V-A-,
27 I&N Dec. 168, 169 (BIA 2017) (quoting Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45
(BIA 2012)) (alterations in original). Because the single charge of removability can [not / no
longer] be sustained, this Court should terminate proceedings.
A. Termination Is Warranted Because DHS’s Grant of Parole to Respondent
Overcomes the NTA’s Sole Charge of Inadmissibility for Being Present Without
Admission or Parole, Under the Plain Language of INA § 212(a)(6)(A)(i)
[Note: This argument is directed at an NTA charge under INA § 212(a)(6)(A)(i). It is possible
that DHS could amend the NTA to add a charge under INA § 212(a)(7)(A)(i)(I) which applies to
immigrants who “at the time of application for admission” are “not in possession of a . . . valid
entry document.” In such circumstances practitioners could explore arguments for contesting
such a charge, for example by looking at the definition of “applicant for admission.” See INA §§
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101(a)(4); 235(a)(1). The arguments presented in II.B below could also be adapted for an INA §
212(a)(7)(A)(i)(I) charge.]
Termination is warranted because as an individual who has now been paroled into the
United States pursuant to INA § 245(h)(1), Respondent is not removable as “an alien present in
the United States without being admitted or paroled,” INA § 212(a)(6)(A)(i).[2] See Matter of S-
O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018) (IJ may terminate when charges have not
been sustained); 8 C.F.R. § 1240.12(c) (noting that IJ order may “direct . . . the termination of
the proceedings”). The ground of inadmissibility charged in the NTA renders inadmissible “[a]n
alien present in the United States without being admitted or paroled, or who arrives in the United
States at any time or place other than as designated by the Attorney General.” INA §
212(a)(6)(A)(i). Since neither the first prong of that provision (being present “without being
admitted or paroled”) nor the second prong (arriving “at any time or place other than as
designated by the Attorney General”) applies to Respondent, [s/he] is not inadmissible under the
NTA’s removability charge and this Court should terminate proceedings.
The clear and unambiguous language of INA § 212(a)(6)(A)(i)’s first prong, which
applies to those not “admitted or paroled,” does not apply to []. As a special immigrant juvenile,
[] is “deemed, for the purpose of applying the adjustment of status provisions of section 245(a)
of the Act, to have been paroled into the United States, regardless of the actual method of entry
into the United States.” 8 C.F.R. § 1245.1(a); see INA § 245(h)(1). The inapplicability of the first
prong of INA § 212(a)(6)(A)(i) to Respondent is bolstered by DHS’s own policy guidance. The
USCIS Adjudicator’s Field Manual (AFM) states that when a noncitizen who entered without
inspection subsequently receives parole, that individual “will no longer be inadmissible under the
2 [Although Respondent conceded the charge at the master calendar hearing, [s/he] is no longer bound by that
concession because the facts have changed, rendering the charge no longer accurate. See Tab [], Form I-797, I-360
SIJS Petition Approval Notice; infra note 5 & accompanying text.]
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first ground in section 212(a)(6)(A)(i) (present without being admitted or paroled), because the
person has been paroled.” AFM Ch. 40.6.2(a)(1); cf. Matter of Baires-Larios, 24 I&N Dec. 467,
470 (BIA 2008) (citing AFM provisions for support on derivative citizenship issue); Matter of
Guzman-Gomez, 24 I&N 824, 829 (BIA 2009) (citing AFM provisions for support).
As an SIJS beneficiary and parole recipient, Respondent is also not inadmissible under
the second prong of INA § 212(a)(6)(A)(i). That provision applies to an individual “who arrives
in the United States at any time or place other than as designated by the Attorney General.” By
its plain terms, this provision only applies to a person who “arrives” at an undesignated time or
place and thus does not cover a person who “arrived” in the past. As the AFM explains, an
individual “who arrived in the past is already outside the ambit of that second ground”; instead,
“past arrivals are the subject of the first ground.” AFM Ch. 40.6.2(a)(1). This is “because the
alien is not one who ‘arrives’ (present tense) at an undesignated time or place” and thus the
second part of INA § 212(a)(6)(A)(i) “is already inapplicable (even without the parole).” Id. For
these reasons, as the AFM concludes, “an alien who entered the United States without
inspection, but subsequently receives parole, is not inadmissible under either of the two
inadmissibility grounds contained in section 212(a)(6)(A)(i).” Id.
A 2013 memorandum discussing parole for family of U.S. Armed Forces members
further explains why INA § 212(a)(6)(A)(i) does not apply to those receiving parole, whether in
the military parole-in-place context, or for “anyone else” receiving parole in place from USCIS.3
3 USCIS Policy Memorandum, PM-602-0091, Parole of Spouses, Children and Parents of Active Duty Members of
the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces
or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility Under Immigration and
Nationality Act § 212(a)(6)(A)(i), at 3 (Nov. 15, 2013),
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf.
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The memorandum explains that the use of present tense in the second part of INA §
212(a)(6)(A)(i) means that “it covers the alien who is in the process of entering U.S. territory
without inspection.” Id. The use of present tense is “clearly deliberate”:
In enacting the various inadmissibility grounds in section 212(a), Congress was
very specific as to whether the individual grounds cover past, present, or future
events, or some combination thereof. In particular, when Congress intended that a
ground cover both past and present events, it said so explicitly. In contrast, in the
second prong of section 212(a)(6)(A)(i), Congress used only the present tense.
Moreover, if “arrives” were read as if it said “arrives or previously arrived,” so as
to cover any alien who had ever entered at an undesignated time or place, then the
first prong of section 212(a)(6)(A)(i) would be practically superfluous. Ordinarily,
the only way for an alien to be present in the United States without admission or
parole, as the first prong requires, is to have entered without inspection at some
point in the past. Those individuals would already be covered by the second prong
if “arrives” were read to mean “arrives or previously arrived.”
Id. at 3-4 (footnotes omitted). An individual, such as Respondent, who initially entered without
inspection but subsequently receives parole “is not inadmissible under either of the two
inadmissibility grounds contained in section 212(a)(6)(A)(i).” Id. at 5.
The BIA in an unpublished 2016 decision agreed that a respondent who received parole
after entering without inspection was not inadmissible under INA § 212(a)(6)(A)(i). In that case,
the respondent had entered without inspection, been placed into removal proceedings, admitted
the NTA’s factual allegations underlying an INA § 212(a)(6)(A)(i) charge, and the IJ found him
removable as charged. Tab [], Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
(unpublished). The respondent was later granted parole under INA § 212(d)(5)(A) by DHS while
in the United States. The BIA noted USCIS’s interpretation that the second part of INA §
212(a)(6)(A)(i) “has a temporal limit based on the express language used by Congress.” Id. at *4.
The BIA concluded that “as a matter of law,” the respondent’s parole “invalidates the ground of
inadmissibility contained in the NTA, notwithstanding the fact that the respondent’s parole has
since been terminated.” It reasoned that the parole “rendered the first prong of section
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212(a)(6)(A)(i) of the Act inoperative,” and parole “is irrelevant to the second prong under
USCIS’s own interpretation.” Id. at 5.4 Moreover, in a 2013 unpublished case discussing the INA
§ 212(h) waiver, the BIA noted that parole is an immigration benefit that allows the recipient to
remain in the United States and reasoned that “the absence of either a past admission or a past
grant of parole is usually critical to a determination of inadmissibility for unauthorized presence
in the United States under section 212(a)(6)(a)(i) of the Act.” Tab [], Roberson Joseph, A078 360
606 (BIA Nov. 18, 2013) (emphases in original) (unpublished).
Even if the charge were sustainable when the NTA was issued, [and even though
Respondent previously conceded the charge based on the facts that existed at the time pleadings
were taken], circumstances have now changed and Respondent is now not a person present
“without being admitted or paroled” under INA § 212(a)(6)(A)(i).5 See INA § 240(c)(1)(A)
(directing that “[a]t the conclusion of the proceeding the immigration judge shall decide whether
4 Despite non-binding and unpersuasive unpublished BIA decisions to the contrary, e.g., Josue Alinson Diaz-Turcio,
AXXX XX0 289, 2018 WL 1897721 (BIA Feb. 16, 2018) (unpublished); Abner Alejandro Cubias Rivera, AXXX
XX1 959, 2017 WL 8785903 (BIA Nov. 15, 2017) (unpublished), SIJS parole is a “parole” as that term is used in
INA § 212(a)(6)(A)(i) per the plain language of the statute. See Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018)
(“[I]t is a normal rule of statutory construction that identical words used in different parts of the same act are
intended to have the same meaning.” (internal citations and quotations omitted)); Matter of Alyazji, 25 I&N Dec.
397, 404 (BIA 2011) (citing rule that “a single statutory term should be interpreted consistently”). Federal court
decisions examining SIJS parole in other contexts have concluded that it protects the parolee from certain adverse
legal consequences, supporting the reading that it invalidates an inadmissibility charge of being present without
parole. See, e.g., J.L. v. Cissna, 341 F. Supp. 3d 1048, 1068 (N.D. Cal. 2018) (recognizing that SIJS beneficiaries
are “exempt from a variety of grounds for removal”); Joubert v. Barnhart, 396 F. Supp. 2d 1320, 1326 (S.D. Fla.
2005) (“The presence of the phrase ‘deemed for purposes of subsection (a)’ found in § 1255(h), does not in any way
mean that the subject immigrant might not be found paroled for other purposes as well.”); see also Garcia v. Holder,
659 F.3d 1261, 1271 (9th Cir. 2011) (noting “congressional intent to assist a limited group of abused children to
remain safely in the country with a means to apply for LPR status”); accord Osorio-Martinez v. U.S. Att’y Gen., 893
F.3d 153, 168 (3d Cir. 2018). As discussed in section II.B infra, this reading of the statute is required by its text,
structure, history, and purpose. 5 For illustration, if a lawful permanent resident respondent after having conceded deportability based on a single
criminal conviction subsequently had that conviction vacated during the course of removal proceedings, it would be
error for the court to ignore the changed facts and refuse to consider whether or not the respondent was deportable
because the respondent previously conceded the allegations and charge. The court must consider at the end of the
case whether or not the respondent is removable, even if the respondent previously conceded the allegations and
charge. Immigration judges must decide issues, including removability, in accordance with the law. See Mandujano-
Real v. Mukasey, 526 F.3d 585, 588 (9th Cir. 2008) (“The Government does not argue, nor could it, that the IJ’s
reliance on Mandujano-Real’s concession would suffice as a basis for removal if the BIA or the court were to
determine that his conviction does not, as a matter of law, constitute an aggravated felony.”).
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an alien is removable”). In the unpublished Mora-Espinoza case discussed above, the BIA
concluded that the respondent was not bound by his earlier concessions based on which the IJ
had previously found him removable. This was because his subsequent “parole appears to bear
on the validity of the factual allegations contained in the NTA,” such that “the sole charge of
inadmissibility remains at issue.” Tab [] at 3. The BIA concluded that the “charge brought under
section 212(a)(6)(A)(i) of the Act, although valid when lodged, is no longer legally tenable.” Id.
Likewise, Respondent entered pleadings before [s/he] was paroled through the grant of SIJS, and
the subsequent parole renders the sole charge of inadmissibility no longer legally tenable.
For these reasons, as a matter of law, the grant of parole to Respondent overcomes the
NTA’s charge of inadmissibility under INA § 212(a)(6)(A)(i). This conclusion is required by the
clear and unambiguous language of INA § 212(a)(6)(A)(i) and INA § 245(h)(1). See Pereira v.
Sessions, 138 S. Ct. 2105, 2113 (2018) (observing in that case that “Congress has supplied a
clear and unambiguous answer to the interpretive question at hand”); Octane Fitness, LLC v.
ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014) (where statutory text was “patently
clear,” Court’s analysis “begins and ends with the text” of the statute at issue). This Court must
accordingly terminate removal proceedings. See Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462,
468 (A.G. 2018); Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012) (termination
appropriate when charge cannot be sustained); 8 C.F.R. § 1240.12(c).
B. A Reading of the Statute Consistent with Congressional Intent Leads to the
Inescapable Conclusion That SIJS Beneficiaries Awaiting Adjustment of Status Are
Not Subject to Removal Under INA § 212(a)(6)(A)(i)
The text, structure, history, and purpose of the SIJS provisions support a reading of the
statute by which SIJS beneficiaries awaiting adjustment of status, like Respondent, are not
removable under INA § 212(a)(6)(A)(i). See Kucana v. Holder, 558 U.S. 233, 252 (2010)
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(rejecting statutory interpretation that “would ignore . . . congressional design”); cf. INS v. St.
Cyr, 533 U.S. 289, 320 (2001) (recognizing “longstanding principle of construing any lingering
ambiguities in favor of the alien” (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).
It would contravene the SIJS scheme enacted by Congress to order Respondent, an SIJS
beneficiary, removed based on an INA § 212(a)(6)(A)(i) charge without allowing [her/him] to
pursue adjustment of status. The framework and context of the special immigrant juvenile
provision demonstrates congressional intent that SIJS beneficiaries not be removed, and thereby
denied the ability to seek adjustment of status, based on an INA § 212(a)(6)(A)(i) charge.
First, Congress’s decision to deem SIJS beneficiaries “paroled” reflects its intent that
they not be removed pursuant to INA § 212(a)(6)(A)(i) while waiting to adjust status. Parole
“effectively halts removal of the alien until the underlying humanitarian or public benefit
purpose is achieved.” Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011) (discussing INA
§ 212(d)(5)); see 8 C.F.R. § 212.5(e)(2)(i). In the case of an SIJS parolee, parole is recognized
“for purposes of” applying for adjustment of status, INA § 240(h)(1); see 8 C.F.R. § 1245.1(a),
and would be meaningless unless the parole remains in effect until the SIJS beneficiary
completes the adjustment of status adjudication process.
Federal court precedents confirm that the proper reading of the SIJS statute reflects
Congress’s intent that SIJS beneficiaries be able to remain in the United States in order to pursue
adjustment of status consistent with the juvenile court’s best interest determination and DHS’s
consent, while they await visa availability. In Garcia v. Holder, the Ninth Circuit acknowledged
that SIJS beneficiaries are a “narrow class of juvenile aliens who must meet heightened
eligibility requirements to apply to be classified as a Special Immigrant Juvenile, and SIJS-based
parole affords particular benefits” including “the permission to remain in the country pending the
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outcome of their adjustment of status application, employment authorization, exemption from
certain inadmissibility grounds applicable to other aliens, and . . . expeditious adjudication.” 659
F.3d 1261, 1270-71 (9th Cir. 2011) (emphasis added). The court specifically acknowledged that
the SIJS provisions “show a congressional intent to assist a limited group of abused children to
remain safely in the country with a means to apply for LPR status.” Id. at 1271 (emphasis
added).
More recent decisions in the Ninth Circuit highlight the importance of the protections that
SIJS provides. In a 2019 case the Ninth Circuit recognized that a “successful SIJ[S] application
plainly can to lead to relief from removal.” C.J.L.G. v. Barr, 923 F.3d 622, 627 (9th Cir. 2019)
(en banc) (remanding to pursue SIJS in light of the IJ’s failure to identify child’s potential SIJS
eligibility). And in 2018 a U.S. district court issued a preliminary injunction protecting a class of
SIJS applicants in California and preventing DHS from initiating removal proceedings against
certain SIJS-eligible children. J.L. v. Cissna, 341 F. Supp. 3d 1048, 1068–69 (N.D. Cal. 2018).
In a 2019 decision in the same case denying the government’s motion to dismiss, the court
recognized that “SIJ status confers a large swath of . . . benefits” including being “exempt from
a variety of grounds for removal.” J.L. v. Cissna, --- F. Supp. 3d ---, No. 18-CV-04914-NC, 2019
WL 1230441, at *8 (N.D. Cal. Mar. 15, 2019).
In Osorio-Martinez v. U.S. Attorney General, 893 F.3d 153 (3d Cir. 2018), which held
that SIJS beneficiaries in expedited removal proceedings are entitled to habeas review, the Third
Circuit echoed the Ninth Circuit’s pronouncement that SIJS reflects congressional intent to allow
beneficiaries to “remain safely in the country with a means to apply for LPR status.” Id. at 168
(quoting Garcia, 659 F.3d at 1271). It noted that the INA “explicitly designates SIJ as a ‘status’
that affords its designees a host of legal rights and protections.” Id. at 161 n.7. Noting SIJS
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beneficiaries’ “significant ties” to the United States, id. at 167, the court ruled that expedited
removal would “render SIJ status a nullity” and would be based on a ground of inadmissibility
“from which Petitioners are expressly exempted by virtue of their SIJ status.” Id. at 172
(referring to INA § 212(a)(7)(A)).
Second, a core component of SIJS eligibility requires that a juvenile court6 have
determined that it is not in the child’s best interest to be returned to his or her country of origin,
INA § 101(a)(27)(J)(ii); rather it is in the child’s best interest to remain in the United States. The
child’s best interest thus plays a determinative role in SIJS eligibility. Typically, [and as in this
case], the juvenile court has also granted custody or guardianship to an adult caregiver in the
United States, with whom the court has determined it is in the child’s best interest to reside
permanently. It would be expressly contrary to the child’s best interest, and the court-ordered
placement, to order a child’s removal to a country where the juvenile court has determined the
child’s best interests would not be served—and thereby prevent the child from seeking
adjustment of status—based on a charge of having entered without inspection. Cf. Osorio-
Martinez, 893 F.3d at 172 (noting that expedited removal would “render SIJ status a nullity”).
While SIJS orders are issued under state law rather than federal law, the SIJS scheme
defers to the expertise of the juvenile court to determine what is in the best interest of an eligible
child. This is shown through the statutory consent function – when, as in this case, DHS
approves an SIJS petition, it consents to the state court order serving as the basis of the grant of
SIJS and affirms that there is a reasonable factual basis for the juvenile court’s determinations
that it is not in the child’s best interest to be returned to the home country and that parental
6 The implementing regulations (which are outdated in some respects as they have not been updated to reflect the
2008 TVPRA amendments) define “juvenile court” broadly, focusing on function rather than name, as any court in
the United States “having jurisdiction under State law to make judicial determinations about the custody and care of
juveniles.” 8 C.F.R. § 204.11(a).
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reunification is not viable due to abuse, neglect, or abandonment. INA § 101(a)(27)(J)(iii);
USCIS Policy Manual vol. 6, pt. J, ch. 2.D.5, https://www.uscis.gov/policy-manual/volume-6-
part-j (“USCIS generally consents to the grant of SIJ classification when the order includes or is
supplemented by a reasonable factual basis for all of the required findings.”); see also Flores
Zabaleta v. Nielsen, 367 F. Supp. 3d 208, 217 (S.D.N.Y. 2019) (noting that USCIS’s consent
function is limited and agency may not second guess juvenile court’s best interest
determination). A removal order based on an INA § 212(a)(6)(A)(i) charge would contravene the
state court’s assessment and thwart Congress’s intent that USCIS defer to the state court’s
expertise. Cf. id. (“USCIS relies on the expertise of the juvenile court in making child welfare
decisions. . . .”). In real terms, this means it could cause a child who has been found entitled to
protection under the law to be returned to precisely the situation of abuse, neglect, or
abandonment from which he or she has been granted protection.
Third, the SIJS adjustment provision, found at INA § 245(h)(2)(A), states that INA §
212(a)(6)(A) “shall not apply” to special immigrant juveniles in determining their admissibility
as an immigrant. Removing an SIJS beneficiary awaiting adjustment of status based on an INA §
212(a)(6)(A)(i) charge would contravene Congress’s intent in making this inadmissibility ground
expressly not applicable to SIJS beneficiaries seeking adjustment of status. By making INA §
212(a)(6)(A)(i) not applicable to SIJS beneficiaries and deeming them paroled, Congress created
legal protections necessary to effectuate the purpose of the SIJS scheme itself—to provide
stability and legal permanence to a special group of undocumented children. These provisions
are core to the SIJS framework, because they provide the legal mechanism whereby children
who entered without inspection—the very children the SIJS scheme was intended to protect—
may nevertheless adjust status. Ordering removal based on the very same inadmissibility ground
A#[]
13
that Congress expressly removed as a barrier for SIJS beneficiaries would nullify the statute and
ignore congressional intent.
Fourth, Congress acted to protect SIJS beneficiaries awaiting adjustment by
strengthening SIJS-related provisions through the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 122 Stat. 5044.
Significantly, the title of the TVPRA subsection discussing SIJS protections is “Permanent
Protection for Certain At-Risk Children.” TVPRA § 235(d) (emphasis added); see also Yates v.
United States, 135 S. Ct. 1074, 1083 (2015) (recognizing that although statutory “headings are
not commanding,” they may provide important “cues” about congressional intent). While SIJS is
not literally “permanent” as USCIS can revoke it in certain limited circumstances, see 8 CFR §§
205.1-205.2, there is no provision authorizing the immigration court to revoke SIJS protection.
Thus, in the vast majority of cases SIJS should and does function as permanent protection. The
TVPRA’s provisions framed under this “permanent” rubric (including its exemption of INA §
212(a)(6)(A)(i) for SIJS beneficiaries seeking adjustment of status) confirm that the proper
reading of the SIJS provisions prohibits the removal of an SIJS beneficiary based on an
inadmissibility charge under § 212(a)(6)(A)(i) before he or she has been provided the
opportunity to pursue adjustment of status.
Fifth, Congress chose to use the term “status” when referring to individuals, like
Respondent, who have been approved as special immigrant juveniles. See, e.g., INA §
101(a)(27)(J)(iii) (requiring DHS consent to the “grant of special immigrant juvenile status”
(emphasis added)); INA § 101(a)(27)(J)(iii)(II) (prohibiting parents of “any alien provided
special immigrant juvenile status” from obtaining immigration benefits though the SIJS
beneficiary (emphasis added)); INA § 245(h); INA § 237(c). DHS has also repeatedly used the
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14
term “status” in regulations and policy guidance regarding SIJS beneficiaries. See, e.g., 8 C.F.R.
§ 204.11 (“Special Immigrant Status for Certain Aliens Declared Dependent on a Juvenile Court
(Special Immigrant Juvenile)”); 8 C.F.R. § 204.11(b); Memorandum from Donald Neufeld &
Pearl Chang, USCIS, Trafficking Victims Protection Reauthorization Act of 2008: Special
Immigrant Juvenile Status Provisions (Mar. 24, 2009), available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/200
9/TVPRA_SIJ.pdf. Congress similarly used the term “status” in other parts of the INA to denote
someone with authorization to remain in the United States. See, e.g., INA §§ 101(a)(20)
(referring to lawful permanent residence as a “status”); 101(a)(15)(U) (referring to U
nonimmigrant “status”); 244(a)(1)(A) (describing Temporary Protected Status and noting that
individuals granted such status “shall not [be] remove[d] . . . from the United States during the
period in which such status is in effect”). USCIS classified SIJS petitions as “status-impacting”
in its 2018 NTA policy guidance. See USCIS Teleconference on Notice to Appear (NTA)
Updated Policy Guidance, at 3 (A1) (Nov. 15, 2018), available at
https://www.uscis.gov/sites/default/files/files/nativedocuments/USCIS_Updated_Policy_Guidan
ce_on_Notice_to_Appear_NTA_11.15.18.pdf. An individual on whom USCIS has conferred
special immigrant juvenile “status” should not be subject to removal based solely on an NTA
charge of being present without admission or parole.
Sixth, special protections against removal for SIJS beneficiaries embedded in the statute
since Congress created SIJS in 1990 demonstrate the intent that SIJS beneficiaries not be
removed solely on the basis of a charge of being present without admission or parole. Section
153(a) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, set forth the eligibility
requirements for SIJS. Section 153(b) of the Act, entitled “Waiver of Grounds for Deportation,”
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15
provided that certain specified deportation grounds “shall not apply to a special immigrant
described in section 101(a)(27)(J) based upon circumstances that exist before the date the alien
was provided such special immigrant status.” One of the exempted deportation grounds, former
INA § 241(a)(1)(B), provided for deportation of noncitizens in the United States who “entered
the United States without inspection or at any time or place other than as designated by the
Attorney General or is in the United States in violation of this Act or any other law.” Id. §
602(a). When the deportation grounds were moved from INA § 241 to INA § 237, Congress
largely retained the language of the Section 153(b) provision, now found at INA § 237(c).
Considering INA § 237(c)’s original function to protect SIJS beneficiaries who entered without
inspection from deportation alongside INA § 245(h)(2)(A), which exempts SIJS beneficiaries
from the INA § 212(a)(6)(A) inadmissibility ground, show congressional intent that children
granted SIJS who are awaiting adjustment of status not be removed based on inadmissibility
under INA § 212(a)(6)(A)(i).
Finally, an interpretation of the SIJS statutory provisions that would allow a removal
order to be entered against an SIJS beneficiary based on an INA § 212(a)(6)(A)(i) charge without
allowing him or her to seek adjustment of status would produce absurd results. See Pereira v.
Sessions, 138 S. Ct. 2105, 2116 (2018) (“We are not willing to impute to Congress . . . such [a]
contrary and absurd purpose. . . .” (quotations and citation omitted)). It would mean that DHS
could prevent a child subject to the visa backlog from being able to pursue SIJS-based
adjustment of status merely by placing him or her into removal proceedings based on an INA §
212(a)(6)(A)(i) charge after the SIJS petition is approved. This would effectively nullify the SIJS
statute, which Congress designed to provide “permanent protection” to undocumented abused,
neglected, and abandoned children. TVPRA § 235(d). It would mean that at the same time that
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16
one component of DHS (USCIS) has exercised its consent function and agreed that it is not in a
child’s best interest to be returned to the home country, another component of DHS (ICE) could
pursue removal against that same child based on a ground of inadmissibility from which the
child, as an SIJS beneficiary, is exempt (and, perversely, based upon the very evidence the child
used to establish his or her SIJS eligibility). It would work the functional equivalent of a vast
revocation scheme far beyond the revocation authority found in the statute and regulations,
which Congress clearly did not intend. See Osorio-Martinez, 893 F.3d at 158 (noting “robust
procedural protections to ensure [SIJS beneficiaries’] status is not revoked without good cause”);
id. at 172 (noting that “revocation of these statutory rights without cause, notice, or judicial
review is precisely the consequence of expedited removal” which “would render SIJ status a
nullity”). Entering a removal order against an SIJS beneficiary based only on an INA §
212(a)(6)(A)(i) charge would effectively eradicate the SIJS statute that Congress enacted,
including the adjustment protections for SIJS beneficiaries found at INA § 245(h).
In sum, termination is required because under the plain language of INA § 245(h)(1),
Respondent has been paroled and is [not / no longer] removable under INA § 212(a)(6)(A)(i) for
being present without admission or parole. The text, structure, history, and purpose behind the
SIJS framework show that under a proper reading of these statutory provisions Respondent may
not be removed while awaiting adjustment of status based on an INA § 212(a)(6)(A)(i) charge.
Because Respondent is [not / no longer] removable under the NTA’s charge of
inadmissibility, this Court must terminate removal proceedings. See Matter of S-O-G- & F-D-B-,
27 I&N Dec. 462 (A.G. 2018); Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012)
(termination appropriate when charge cannot be sustained); 8 C.F.R. § 1240.12(c). Termination
furthers the regulatory directive that the Court fairly and expeditiously resolve cases before it,
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17
see 8 C.F.R. §§ 1003.12, 1003.10(b), promotes administrative efficiency and judicial economy,
and conserves scarce court resources. Termination “ensure[s] finality” and “encourage[s] more
accountability, by resulting in a final, transparent order from the immigration judge who ends the
case.” Matter of Castro-Tum, 27 I&N Dec. 271, 292 (A.G. 2018). The Castro-Tum decision
directed that “[c]ases that should not go forward should be terminated (either with or without
prejudice), or dismissed, provided they meet the relevant legal standard.” Id. Because this case
meets the relevant legal standard in that DHS cannot sustain its charge of inadmissibility,
termination is the appropriate result.
C. In the Alternative, This Court Should Continue These Proceedings Until
Respondent’s Priority Date Becomes Current
If this Court declines to terminate, it must, at a minimum, place this case on the status
docket7 or otherwise grant a continuance until Respondent’s priority date is current.8 The SIJS
statute and basic due process require nothing less.
The same features of the SIJS statutory scheme discussed in part II.B above require this
Court, at a minimum, to place Respondent’s case on the status docket or grant a continuance
until a visa number becomes available. It would violate the SIJS scheme enacted by Congress to
order Respondent removed based on an INA § 212(a)(6)(A)(i) charge without allowing [her/him]
to pursue adjustment of status. Instead, continuances to await visa availability for SIJS
7 See Memorandum from James R. McHenry III, Dir., EOIR, Case Priorities and Immigration Court Performance
Measures, App’x A (Jan. 17, 2018), https://www.justice.gov/eoir/page/file/1026721/download (indicating that status
cases are not subject to EOIR case completion time frames). 8 Alternatively, Respondent contends that this case is appropriate for administrative closure and that the Attorney
General’s decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), restricting IJs’ authority to grant
administrative closure was wrongly decided. Respondent understands that the Court must follow the decision of the
Attorney General but raises this issue to preserve it for appeal. Administrative closure would be warranted in this
case under the factors articulated in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27
I&N Dec. 17 (BIA 2017), particularly in light of the statutory scheme discussed herein providing special protections
to vulnerable SIJS beneficiaries who have been subjected to parental mistreatment and about whom a juvenile court
has determined it is in their best interest to remain in the United States.
A#[]
18
beneficiaries like Respondent are required in order to fulfill Respondent’s statutory right to
pursue relief to which [s/he] is entitled. See INA § 240(b)(4)(B) (right to present evidence in
removal proceedings).
The minimum protection of adequate continuances to await visa availability is also
required as a matter of due process and fundamental fairness, to which Respondent has a right in
removal proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). SIJS beneficiaries also have a
“host of procedural rights designed to sustain their relationship to the United States,” Osorio-
Martinez v. U.S. Att’y Gen., 893 F.3d 153, 171 (3d Cir. 2018), which encompass due process
protections, id. at 172, requiring at a minimum that the court grant continuances until
Respondent’s priority date is current. Continuing these proceedings is also consistent with the
agency’s long standing past practice. See id. at 160 (“[A]s far as we are aware, until very recently
DHS has never attempted to remove SIJ[S]-classified children back to their countries of
origin.”); id. at 173 (“[T]he Executive to this point has consistently respected [the rights of SIJS
designees] and allowed [them] to remain in the United States pending adjustment of status.”); see
also, e.g., Tab [], M-C-R-A-, AXXX XXX 536 (BIA Nov. 28, 2018) (unpublished) (reversing IJ
continuance denial and remanding where respondent had approved I-360 but priority date not yet
current).
Respondent maintains that a continuance in this case is required. But even assuming
arguendo that a continuance in this situation is discretionary, Respondent has established good
cause under the framework set forth in Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), which
discusses the regulatory “good cause” standard for continuances to pursue “collateral matters.”
The fact that DHS approved Respondent’s I-360 petition demonstrates a likelihood that
Respondent will be able to adjust status, which “materially affect[s] the outcome of the removal
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19
proceedings.” Id. at 406. Specifically, many grounds of inadmissibility do not apply to SIJS
beneficiaries like Respondent seeking adjustment of status, INA § 245(h)(2)(A), and Respondent
[has not triggered any of the grounds that do apply] [is eligible for and merits a waiver of
inadmissibility for the grounds that do apply here, _______, see INA § 245(h)(2)(B)]. Nor are
there [overriding] adverse discretionary factors in this case; to the contrary, the humanitarian
nature of SIJS relief combined with the positive factors in this case show that Respondent is not
only eligible for adjustment but likely to be granted adjustment in an exercise of discretion.
[Here, practitioners should consider developing arguments, and submitting supporting evidence,
tailored to the L-A-B-R- continuance standard, and address all relevant factors, including
detailing why the positive factors overcome any negative factors present. See CLINIC’s practice
advisory on L-A-B-R-].
Because of the special statutory features of the SIJS protection, the discussion in Matter
of L-A-B-R- about certain remote visa priority dates being too “speculative,” 27 I&N Dec. at 418,
is inapposite in the SIJS context. Instead, the congressional intent to provide children with a
means to “remain safely in the country”9 evidenced in the SIJS statute’s protections are “relevant
factors” that this Court must consider if it finds that the Matter of L-A-B-R- framework applies to
this case. 27 I&N Dec. at 413, 415.
The relative proximity of Respondent’s adjustment stands in stark contrast to the case
cited by the Attorney General in Matter of L-A-B-R- to illustrate relief that might be too
speculative, Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982). At the time of the IJ’s
October 1981 decision in Mr. Quintero’s case, the priority date for Mexican beneficiaries of
9 Garcia v. Holder, 659 F.3d 1261, 1271 (9th Cir. 2011); Osorio-Martinez v. U.S. Att’y Gen., 893 F.3d 153, 168 (3d
Cir. 2018).
A#[]
20
second preference petitions like Mr. Quintero’s was March 1970,10 and the decision did not
indicate that he had been admitted or paroled such that he would even be eligible to eventually
adjust status in the United States. Quintero, 18 I&N Dec. 348. In contrast, SIJS beneficiaries are
deemed paroled for purposes of INA § 245(a) by operation of statute, INA § 245(h)(1), and
Respondent’s priority date of [DATE] is only [number of months/years] from the final action date
set forth in the current Visa Bulletin. See Tab [], [current month] [current year] Department of
State Visa Bulletin (showing final action date for EB-4 petitioners from [country] of [date]).
Thus the relief in this case is much more immediate compared to the Quintero case, and unlike
Mr. Quintero, Respondent is statutorily eligible for, and likely to be granted, adjustment of
status.
The Ninth Circuit in a 2019 en banc decision recognized the appropriateness of
continuances in light of L-A-B-R- based on apparent SIJS eligibility (before any state court
action had even been filed), noting that decision’s requirement that the IJ consider “all relevant
factors.” See C.J.L.G. v. Barr, 923 F.3d 622, 628 n.6 (9th Cir. 2019). In that case, the child had
obtained an SIJS predicate order and filed the I-360 after the IJ ordered removal, and would be
subject to the visa backlog as an individual from Honduras. 923 F.3d at 627. In contrast, here,
Respondent has not merely shown apparent SIJS eligibility; USCIS has already determined that
[s/he] is eligible for SIJS and approved [her/his] petition. Thus to the extent that L-A-B-R-
applies at all to Respondent’s situation, the reasoning of C.J.L.G. supports the granting of
continuances in this case to await adjustment of status.
A final relevant factor is the Attorney General’s endorsement of continuances in cases of
vulnerable respondents including children. In Matter of Castro-Tum, the Attorney General
10 See Tab [], Interpreter Releases Vol. 58, No. 36, at 465 (Sept. 15, 1981) (reporting visa numbers for October
1981).
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21
described continuances as “a superior alternative to administrative closure for cases involving
particularly vulnerable respondents,” because the good cause standard “gives judges sufficient
discretion to pause proceedings in individual cases,” allowing an “immigration judge to oversee
an alien minor’s progress in obtaining appropriate alternative forms of relief.” Matter of Castro-
Tum, 27 I&N Dec. 271, 293 n.13 (A.G. 2018). The Attorney General’s view that children’s
special vulnerabilities weigh in favor of continuances is a “relevant factor” that this Court must
consider under the L-A-B-R- framework. L-A-B-R-, 27 I&N Dec. at 413 (IJ must consider “all
relevant factors” when evaluating continuance request).
For all of these reasons, if this Court declines to terminate it should in the alternative
grant Respondent a continuance or transfer the case to the status docket until Respondent’s
priority date is current.
III. CONCLUSION
This Court should terminate Respondent’s removal proceedings. As an SIJS beneficiary,
Respondent is not subject to removal based on the NTA’s charge of removability. See Matter of
S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018). Termination would also promote the
strong public interest in finality recognized in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G.
2018). In the alternative, the statutory protections afforded to SIJS beneficiaries and basic due
process require that Respondent’s case be placed on the status docket or otherwise continued
until [her/his] priority date becomes current.
Date: Respectfully submitted,
_______________________
[Legal Representative’s Name]
[Legal Representative’s Address]
A#[]
22
[Legal Representative’s Phone Number]
[Legal Representative’s EOIR Number]
A#[]
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
[CITY, STATE]
In the Matter of: )
)
[RESPONDENT’S NAME] ) [A #]
)
)
)
In Removal Proceedings. )
)
INDEX OF EXHIBITS
Tab
Description Pages
Form I-797, I-360 SIJS Petition Approval Notice, dated []
[today’s month] [today’s year] Department of State Visa Bulletin
Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
(unpublished)
Roberson Joseph, A078 360 606 (BIA Nov. 18, 2013) (unpublished)
M-C-R-A-, AXXX XXX 536 (BIA Nov. 28, 2018) (unpublished)
Interpreter Releases Vol. 58, No. 36 (Sept. 15, 1981)
[Add further exhibits related to good cause for granting a
continuance under Matter of L-A-B-R- framework]
[Note to practitioners about including underlying juvenile court records including the
predicate order: Practitioners should submit a copy of the I-360 approval notice with the
motion. However, CLINIC cautions practitioners against submitting the underlying order or
petition with the motion, given the sensitive information that those documents often contain
about the child and other parties not before the immigration court, as well as state
confidentiality laws which may prohibit this type of disclosure. Since the I-360 has already been
approved, there can be no claimed need to make a prima facie determination about the
likelihood of the I-360’s approval. Practitioners should make an individualized assessment about
what supporting evidence to include in light of their client’s interests and local immigration
court practices.]
A#[]
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
[CITY, STATE]
In the Matter of: )
)
[RESPONDENT’S NAME] ) [A #]
)
)
In Removal Proceedings. )
)
ORDER OF THE IMMIGRATION JUDGE
Upon consideration of Respondent’s Motion to Terminate with Prejudice, it is HEREBY
ORDERED that the motion be
GRANTED □
DENIED □
because:
□ DHS does not oppose the motion.
□ The respondent does not oppose the motion.
□ A response to the motion has not been filed with the court.
□ Good cause has been established for the motion.
□ The court agrees with the reasons stated in the opposition to the motion.
□ The motion is untimely per ______________________.
□ Other: _______________________________________.
_____________________________ ______________________
Date Immigration Judge
Certificate of Service
This document was served by: [ ] Mail [ ] Personal Service
To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS
Date: _______________________ By: Court Staff_________________________
A#[]
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
[CITY, STATE]
In the Matter of: )
)
[RESPONDENT’S NAME] ) [A #]
)
)
In Removal Proceedings. )
)
ORDER OF THE IMMIGRATION JUDGE
Upon consideration of Respondent’s Motion to Transfer Case to the Status Docket, it is
HEREBY ORDERED that the motion be
GRANTED □
DENIED □
because:
□ DHS does not oppose the motion.
□ The respondent does not oppose the motion.
□ A response to the motion has not been filed with the court.
□ Good cause has been established for the motion.
□ The court agrees with the reasons stated in the opposition to the motion.
□ The motion is untimely per ______________________.
□ The matter is reset to the status docket on __________ , 20 __, at _____ a.m./p.m.
□ Other: _______________________________________.
_____________________________ ______________________
Date Immigration Judge
Certificate of Service
This document was served by: [ ] Mail [ ] Personal Service
To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS
Date: _______________________ By: Court Staff_________________________
[RESPONDENT’S NAME]
[A #]
PROOF OF SERVICE
I, [Legal Representative or Agent of Legal Representative’s Name], hereby certify that a copy
of Respondent’s Motion to Terminate or in the Alternative for Transfer to the Status Docket was
served by [Mode of Service] to ICE Office of Chief Counsel, [Address of the Office of Chief
Counsel] on the date indicated below.
Date: _______________________ _______________________
[Legal Representative’s Name]
[Legal Representative’s Address]
[Legal Representative’s Phone Number]
[Legal Representative’s EOIR Number]
SEPARATE ARGUMENTS IF NEEDED – NOT FOR FILING AT OUTSET
[The below are potential responses in the event that any of these issues are raised by DHS or the
IJ]
Respondent Cannot Be Bound by [Her/His] Previous Concession of the Allegations and
Charge, Because Circumstances Have Changed Since the Time of the Pleadings and Now,
as a Matter of Law, [S/He] Is Not Removable as Charged in the NTA
[The body of the sample brief addresses this issue briefly. The below is a more detailed
discussion about why a prior concession is not enough to support removability in light of
changed facts. The authors decided not to include this in the opening brief based on the thinking
that this level of detail might invite DHS opposition or argument where it might otherwise not be
raised. Some parts of this section assume that the representative conceded the allegations and
charge. If client conceded while pro se and a minor, consider additional arguments based on
special care that must be exercised in determining removability of a minor, as well as
regulations addressing pleadings by minors. See Matter of Amaya, 21 I&N Dec. 583 (BIA 1996);
8 C.F.R. § 1240.10(c). Some IJs may request that the practitioner file a motion to amend the
pleadings to withdraw a previous concession; practitioners should consider the best option given
the circumstances of the case.]
It would be error for this Court to rely on Respondent’s earlier pleadings, taken before
[s/he] was approved as an SIJS beneficiary, to conclude that removability has been established.
Circumstances have materially changed in Respondent’s case since the date the pleadings were
entered—[her/his] SIJS petition was approved and [s/he] was accordingly deemed paroled, such
that the NTA’s charge of inadmissibility can [not / no longer] be sustained as a matter of law.
See section II.A-B supra.
Immigration courts are required to follow the law and apply it to the facts of the case,
rather than merely relying on a party’s past concessions if those concessions are no longer
factually accurate in light of changed circumstances. The INA requires the IJ to decide, “[a]t the
conclusion of the proceeding,” whether a respondent is removable, and that determination “shall
be based . . . on the evidence produced at the hearing.” INA § 240(c)(1)(A). The Court in
determining removability may not merely rely on a past concession made when circumstances
were different, but must base its removability finding “on the evidence,” INA § 240(c)(1)(A),
which in this case is the evidence of Respondent’s parole grant by DHS. See also 8 C.F.R. §
1240.10(c) (even if respondent admits removability, IJ may only determine that removability has
been established if “no issues of law or fact remain”); cf. Matter of L-O-G-, 21 I&N Dec. 413,
420 (BIA 1996) (recognizing reopening of a final removal order as appropriate if new previously
unavailable evidence proffered was sufficient to “indicate a reasonable likelihood of success on
the merits”).
When, as here, the facts change after pleadings are taken and a respondent obtains legal
status or otherwise is no longer amenable to removal under the NTA’s charge, the immigration
court must apply the law to these new facts in the record in making its removability
determination “at the conclusion of the proceeding.” INA § 240(c)(1)(A); see Matter of A-B-, 27
I&N Dec. 316, 334 (A.G. 2018) (discussing DHS concessions and noting that “[p]arties may not
stipulate to the legal conclusions to be reached by the court” (internal citations and quotations
omitted)). It would be contrary to law and fundamentally unfair to bind a respondent to a
concession of removability that is no longer legally supportable given events that occurred after
pleadings are taken. To illustrate this, consider the example of a respondent who initially
concedes an INA § 212(a)(7)(A)(i) charge but subsequently applies for and obtains lawful
permanent resident status with USCIS as an arriving alien. It would be contrary to law for the
immigration judge to ignore the current facts (the respondent’s lawful permanent resident status)
and order removal based on the prior concession to the INA § 212(a)(7)(A)(i) charge, when that
charge is no longer accurate.11
11 Federal court and BIA decisions discussing the binding nature of attorney concessions have no bearing where, as
here, circumstances change after pleadings are taken. Those cases look at the circumstances present at the time of
the pleadings and provide exceptions to the general rule that the attorney’s concession is binding where for example
the concession reflected unreasonable professional judgment or was incorrect given the facts at the time of the
pleadings. See, e.g., Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986); Guzman-Rivadeneira v. Lynch, 822
F.3d 978, 982 (7th Cir. 2016) (attorney concession of removability may not be binding in situations where the
concession was the result of unreasonable professional judgment, “was so unfair that it produced an unjust result” or
In sum, this Court may not rely on Respondent’s previous concession to determine
removability, where, as here, circumstances have changed since the pleadings were taken. The
Court must instead consider the evidence Respondent has presented, showing that [s/he] was
subsequently paroled by DHS. Given Respondent’s parole which occurred after pleadings were
taken, the prior concession of removability cannot support a removability finding, and
Respondent is not removable as charged as a matter of law. See Matter of Sanchez-Herbert, 26
I&N Dec. 43, 44 (BIA 2012) (“As long as the allegations and charges stated in the notice to
appear continue to be applicable, the alien remains subject to removal” (emphasis added) (citing
Matter of Brown, 18 I&N Dec. 324, 325 (BIA 1982)). Based on the “evidence produced” in this
case, see INA § 240(c)(1)(A), the single charge in the NTA for being present without admission
or parole cannot be sustained.
“was untrue or incorrect”); accord Bernard v. U.S. Att’y Gen., 682 F. App’x 108, 111 n.3 (3d Cir. Mar. 3, 2017)
(unpublished); Santiago-Rodriguez v. Holder, 657 F.3d 820, 831-36 (9th Cir. 2011); Hoodho v. Holder, 558 F.3d
184, 192 (2d Cir. 2009); see also Mandujano-Real v. Mukasey, 526 F.3d 585, 588 (9th Cir. 2008) (“The Government
does not argue, nor could it, that the IJ’s reliance on Mandujano-Real’s concession would suffice as a basis for
removal if the BIA or the court were to determine that his conviction does not, as a matter of law, constitute an
aggravated felony.”).
SIJS Parole Is a “Parole” as That Term Is Used in INA § 212(a)(6)(A)(i)
[The authors elected not to include this language in the opening brief as its complexity could
distract from the principal argument in section II.A.]
The parole conferred by a grant of SIJS is a form of parole as that term is used in INA §
212(a)(6)(A)(i) and thus Respondent as an SIJS parolee is not removable based on that charge.
The BIA in several unpublished decisions12 erroneously rejected the argument that SIJS parole
cures an INA § 212(a)(6)(A)(i) charge. These unpublished opinions are not binding, nor are they
persuasive. The BIA’s cursory analysis in one case13 is based on the premise that the word
“parole” in INA § 212(a)(6)(A)(i) refers to INA § 212(d)(5), and that INA § 245(h)(1) parole is
not a form of INA § 212(d)(5) parole as the statute states that SIJS beneficiaries are “deemed, for
purposes of subsection (a), to have been paroled.” But “[t]he presence of the phrase ‘deemed for
purposes of subsection (a)’ found in § 1255(h), does not in any way mean that the subject
immigrant might not be found paroled for other purposes as well.” Joubert v. Barnhart, 396 F.
Supp. 2d 1320, 1326 (S.D. Fla. 2005).
Because both INA § 245(h)(1) and INA § 212(a)(6)(A)(i) use the same term, “paroled,”
INA § 245(h)(1) must refer to “parole” as that term is used in INA § 212(a)(6)(A)(i). See Pereira
v. Sessions, 138 S. Ct. 2105, 2115 (2018) (“[I]t is a normal rule of statutory construction that
identical words used in different parts of the same act are intended to have the same meaning.”
(internal citations and quotations omitted)); Matter of Alyazji, 25 I&N Dec. 397, 404 (BIA 2011)
(citing rule that “a single statutory term should be interpreted consistently”). Adjacent statutory
provisions in INA § 245(h) confirm that the statute’s parole provision renders inapplicable a
charge of inadmissibility under INA § 212(a)(6)(A)(i). Under INA § 245(h)(2)(A), when USCIS
12 See, e.g., Josue Alinson Diaz-Turcio, AXXX XX0 289, 2018 WL 1897721 (BIA Feb. 16, 2018) (unpublished);
Abner Alejandro Cubias Rivera, AXXX XX1 959, 2017 WL 8785903 (BIA Nov. 15, 2017) (unpublished). 13 Diaz-Turcio, 2018 WL 1897721 (unpublished).
approves an SIJS petition, as in this case, the ground of inadmissibility under INA §
212(a)(6)(A)(i) ceases to apply to the SIJS beneficiary. See INA § 245(h)(2)(A) (“in determining
[an SIJS beneficiary’s] inadmissibility as an immigrant . . . paragraph[] (6)(A) . . . of section
1182(a) of this title shall not apply” (emphasis added)).
While no precedent decision has specifically addressed the effect of SIJS parole on a
charge of inadmissibility under INA § 212(a)(6)(A)(i),14 several federal court decisions
examining SIJS parole in other contexts have concluded that it protects the parolee from certain
adverse legal consequences, supporting Respondent’s position that it also invalidates an
inadmissibility charge of being present without parole. Several federal district courts have
concluded that an SIJS parolee cannot be charged with unlawful possession of a firearm as a
noncitizen “illegally or unlawfully in the United States.” See, e.g., United States v. Santiago-
Hernandez, 113 F. Supp. 3d 966, 968–70 (W.D. Mich. 2015); United States v. Jurado Garcia,
707 F. App’x 231, 234 (5th Cir. 2017) (unpublished). But see United States v. Granados-
Alvarado, 350 F. Supp. 3d 355 (D. Md. Oct. 16, 2018). The Third and the Ninth Circuits have
both discussed the broad protections conferred to SIJS beneficiaries including through the parole
provision. Osorio-Martinez v. U.S. Att’y Gen., 893 F.3d 153, 170-71 (3d Cir. 2018), Garcia v.
Holder, 659 F.3d 1261, 1270-71 (9th Cir. 2011). While the unpublished BIA decisions noted
above also cite Garcia, that case in fact ruled in favor of an SIJS beneficiary but did not address
the question of whether SIJS parole cures an INA § 212(a)(6)(A)(i) charge. In fact, Garcia
supports the view that the statutory SIJS scheme protects SIJS parolees from removal. See
section II.B supra; see also J.L. v. Cissna, 341 F. Supp. 3d 1048, 1068–69 (N.D. Cal. 2018)
(recognizing that SIJS beneficiaries are “exempt from a variety of grounds for removal”).
14 The Third Circuit, in a 2018 decision concerning the rights of SIJS beneficiaries who had been subjected to
expedited removal, declined to reach a similar question. Osorio-Martinez v. U.S. Att’y Gen., 893 F.3d 153, 171 n.14
(3d Cir. 2018).
Respondent’s Receipt of Parole Under INA § 245(h)(1) Does Not Render [Her/Him] an
“Arriving Alien”
[This argument should be raised only in the event that the issue is raised by the IJ or DHS. This
idea is neither beneficial to respondents nor is it legally necessary or relevant to the termination
argument. Hence why the authors did not include this argument in the opening brief.]
Although [s/he] has been paroled pursuant to the SIJS I-360 petition approval,
Respondent is not an arriving alien, since [s/he] is not “an applicant for admission coming or
attempting to come into the United States at a port-of-entry, or an alien seeking transit through
the United States at a port-of-entry, or an alien interdicted in international or United States
waters and brought into the United States by any means.” 8 C.F.R. § 1001.1(q). The DHS has
rightly not charged Respondent as an arriving alien, because [s/he] does not fall within the legal
definition of this term.
A parole grant while inside the United States, as here, does not make an individual an
arriving alien. See, e.g., Cruz-Miguel v. Holder, 650 F.3d 189, 194-202 (2d Cir. 2011) (noting
that non-arriving aliens already present in the United States may be eligible for parole);
Memorandum from Paul Virtue, Immigration & Naturalization Service General Counsel’s
Office, Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens, Legal
Op. No. 98–10, 1998 WL 1806685 (Aug. 21, 1998) (recognizing the authority to parole
noncitizens who are not arriving aliens).