ICE Directive 16021.1, Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions (Apr. 20, 2010) | Rescinded August 2017

Policy Number: 16021.1 FEA Number: 0:54-1~ AUG 2 0 2010 I' .s. Dtparrmrnl of llomcl:tnd Snurity 500 12th Street. SW Wa.;binglon. D.C. 20536 U.S. Immigration and Customs Enforcement MEMORANDUM FOR: PeterS. Vincent Principal Legal Advisor James Chaparro Executive Associate Director, Enforcement w1d Removal Operations John l'vlonon Assistant Secretary Guidance Regarding t.he Handling of Removal Proceedings of Aliens wilh Pending or Approved Applications or Petitions FROM: SUBJECT: Puroose This memorandum establishes U.S. Immigration and Customs Enforcement (ICE) policy for the handling of removal proceedings before the Executive Office for Immigration Review (EOIR) involving applications or petitions tiled by, or on behalf of, aliens in removal proceedings.

This policy outlines a framework for ICE to request expedited adjudication of an application or petition for an alien in removal proceedings that is pending before U.S. Citizenship and Immigration Services (USCIS) if the approval of such an application or petition would provide an immediate basis for relief for the alien. 1 This policy will allow ICE and EOIR to address a major inefficiency in present practice and thereby avoid unnecessary delay and expenditure of resources. Background Historically, where a Petition for Alien Relmiw (hereinafler Forrn I-130 or petition) was pending before USCJS, this fact tended to promote delays in removal proceedings. Indeed, in July of 2009, EOlR idenlified approximately 17,000 removal cases that have been continued pending the outcome ofUSClS decisions on petitions.

Recognizing that many of these cases may ultimately result in relief for the alien, ICE has been working with USCTS and EOIR to identify more eftective procedures to resolve these pending petitions rtlong with other applicat.ions ro promote increased dockel efficiency. 1 This memo applies only ro applications or petitions thai USCIS legally hasjurisditrion ro :~djudicate during removal proceedings. www.ice.gov Subject: Guidance Regarding the Handling of Removal Prm:eeding.\' of Ali em· with Pending Applications OY Petitions Page 2 of./ (;/) To this end, USCIS will issue guidance to complement this memorandum and will endeavor to complete the adjudication of all applications and petitions referred by ICE within 30 days for detained aliens and 45 days for non-detained aliens. Close coordinalion and communication between the JCE Offices of Chief Counsel (OCC) and USC IS will ensure that all applications and petitions are adjudicated quickly to realize our shared goal of efficiently resolving cases in removal proceedings. New ICE Policv As a maner of prosecutorial discretion and to promote the cJlicieDl use of government resources, I hereby issue new ICE policy to govern the handling of removal proceedings involving aliens with applications or petitions pending with USCIS.

This policy extends both to the prosecution of removal proceedings by OCCs and to any associated detention decisions by Enforcement and Removal Operations (ERO). I. Expedited Acljudicfllion A. In any case involving a detained alien whose application or petition is pending with USCIS, OCC shall affirmatively request that USCIS expedite the adjudication of the application or petition. ICE should promptly transfer the applicant's A-file to USCIS. USCIS will endeavor to adjudicate all the detained cases referred to it by ICE witl1in 30 days of receiving the A-tiles.

ICE will ensure that, if needed, USCIS has access to the detained individual to conduct an interview. B. In any case involving a non-detained alien whose applicarion or petition is pending with USC IS, OCC shall affirmatively request that USCIS expedite the adjudication of the application or petition. ICE should promptly transfer the applicant's A-file to USCIS. USCIS "~II endeavor to adjudicate all non-detained cases referred to it by ICE "~thin 45 days of receiving the A-files.

2. Dismissal without Prejudica of Certain Cases in Removal Proceedings Detained Cases Where there is an underlying application or petition filed with USCIS by or on behalf of a detained alien and ICE detcnnines as a maner of law and in the exercise of discretion that such alien appears eligible for relief from removal, OCC shall promptly consu with the Field Oftice Director (FOD) and Special Agent in Charge (SAC) to detennine if there are any investigations or serious, adverse factors weighing against dismissal of proceedings. 2 Adverse factors include. but are nol Hmiled to, ·criminal convictions, e-.·idence of fraud or other criminal misconduct, and national security and public safety considerations. lf no investigations or serious adverse factors ~ JCE offices in the Fifth and Ninth Circuits must be SL'11sit1ve to the issue of res judic:uto that may arise in dismissing proc-c<."t!:ings wit how prejudice. See. e.g .• /l.rlll"tl·Petlroza v. Gou;ul.rrs, 475 F.3d I 358 (9th Cir.

20<l7); ,\Jtedn)a v. INS. 993 F.2d 499, 503 (5th Cir. 1993). To protet:t the govenunent's interests, motions to dismiss wi!JlOUI prejudice in the 5th and 9rh Circuits should be made in writing. i.e .. not ornlly.

The Office of the Principal Legal Advisor (OPLA) has developed a template for mo1ions 10 dismiss withour prejudice for usc in these two circuits. www.icc.gov ~) Subject: Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending Applications or Petil;on.s Page 3 of 4 exist, the OCC should promptly move to dismiss proceedings without prejudice before EOIR, and notify the FOD of the motion. Once the FOD is notified, the FOD must release the alien pursuant to the dismissal of proceedings. Non-Detained Cases Where there is an underlying application or petition and ICE determines in the exercise of discretion that a non-detained individuaJ appears eligible for relief from removal, OCC should .promptly move to dismiss proceedings without prejudice before EOIR.3 Standard for Dismissal Only removal cases that meet the following criteria will be considered for dismissal: • The alien must be the subject of an application or petition tiled with USCIS to include a current priority date, if required, for adjustment of status;4 • The alien appears eligible for relief as a mat1er of law and in the exercise of discretion; • The alien must present a completed Application to Register Permanem Residence o1· Adjust Status (Fonn I-485), ifrequired; and • The alien beneficiary must be statutorily eligible for adjustment of sratus (a waiver must be available for any ground of inadmissibility). An alien in removal proceedings may appear eligible for relief but for a variety of reasons, ICE may oppose relief on the basis of discretion.

In those cases, ICE should continue prosecution of the case before EOIR regardless of whether USCIS has approved the underlying application or petition. Standard Operating Procedures In coordination with the local USCIS field office, each OCC must develop a standard operating procedure (SOP) to identify removal cases that involve an application or petition pending before USCIS. This SOP should address the categories of cases discussed above: (I) those identified for expedited adjudication, and (2) those for which dismissal of proceedings may be appropriate. The request to expedite shall be made to by OCC to USCIS.

No obligation for such requests shall be placed on the alien's attorney, accredited representative, or the immigration judge. The SOP regarding requests to expedite must establish the following: • A mechanism whereby the ICE anomey who handles the master calendar hearing in a case detennines whether a request to expedite t.he pending petition or application is appropriate; • A structure to communicate the ICE request to expedite to USCIS; 3 As more fully slated in footnote 2, ICE offices in the Fifth and Ninrh Circuits musr be sensitive to the issue of res judicaJa thai may arise in dismissing proceedings wirhoul prejudice. OPLA has developed a remplare for motions ro dismiss without prejudice for use in rhese two circuirs. ·• At the OCC's discretion. other cases not meeting this criterion may be appropriate for dismissal. www.ice.gov Subject: Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending Applications or Petitions Page 4 of 4 • A system to ensure that decisions about the application or petition are received from USCIS, uploaded i.nto GEMS, and received by the ICE attorney scheduled to handle the subsequent hearing; and • A method by which A-files will be routed as appropriate so as to avoid delays in either the adjudication or the immigration court proceedings. Any questions regarding this memorandum should be directed to OPLA Field Legal Operations or ERO Field Operations through appropriate channels . .s cc: Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services ' This document provides only internal ICE guidance.

II is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any pany in any maller, civil, or criminal. Likewise, no limitations are placed on otherwise lawful enforcement or litigative prerogatives ofDHS or ICE. www.ice.gov