sample motion to terminate removal proceedings (or in the

34
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.

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Page 1: Sample Motion to Terminate Removal Proceedings (or in the

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.

Page 2: Sample Motion to Terminate Removal Proceedings (or in the

[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

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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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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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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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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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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.

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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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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).

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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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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]

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[Legal Representative’s Phone Number]

[Legal Representative’s EOIR Number]

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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.]

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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_________________________

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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_________________________

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[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]

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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),

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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

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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.”).

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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).

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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).

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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).