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BIA Dismissal of DHS Appeal actually supports DHS Leadership

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It's a move in the right direction towards fairness and common sense.

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BIA Dismissal of DHS Appeal actually supports DHS Leadership

  1. 1. BIA Dismissal of DHS Appeal Actually Supports DHS Leadership By Joseph P. Whalen (January 31, 2012)The latest BIA Precedent can be viewed as supporting DHS Leaderships’ efforts inimproving their use of Prosecutorial Discretion despite the reticence of the variousDHS Officers and Counsel that act as barriers to that initiative.Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)1 held: (1) Pursuant to the authority delegated by the Attorney General and the responsibility to exercise that authority with independent judgment and discretion, the Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled. (2) In determining whether administrative closure of proceedings is appropriate, an Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.ICE Counsel opposed Administrative Closure and pushed for a further continuanceinstead. The IJ had had quite enough of the bureaucratic bungling andAdministratively Closed the case over ICE Counsel’s objection. Why did the IJ dothis? After eight (8) continuances, some of which were because the file wasbouncing back and forth between ICE and USCIS, the IJ slammed on the breaks orin other word: stopped the merry-go-round and decided to get off.That idiotic situation should never have happened but it did. Very recent steps thathave taken place should prevent it from happening again BUT the new system hasto get completely up and running first. The USCIS Policy Memorandum (PM-602-0050) entitled: Revised Guidance for the Referral of Cases and Issuance of Notices1 http://www.justice.gov/eoir/vll/intdec/vol25/3740.pdf Page 1 of 3
  2. 2. to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens whichwas issued on 11/07/2011. Purpose This Policy Memorandum (PM) establishes new USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of the resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. This PM supersedes Policy Memorandum No. 110, Disposition of Cases Involving Removable Aliens, dated July 11, 2006.The above purpose is being put into practice via a few specific proceduralimprovements plus one very significant advancement arising from thenaturalization context. That Memo creates a new local body at each USCIS FieldOffice: the new N-400 NTA Review Panel (Review Panel) will aid in improvingoverall coordination between USCIS and ICE. The Review Panel is reminiscent ofthe old Ellis Island Boards of Special Inquiry begun back in 1892. They evolvedinto the Labor Department’s Board in the 1920s which itself was transformed inthe BIA by the Attorney General in 1940, still hearing some appeals from SpecialInquiry Officers until they became Immigration Judges. The new intradepartmentalcommunication conduit known as a Review Panel, will ostensibly act in the nameof the District or Field Office Director in issuing NTAs but will exercise deeplyconsidered judgment and discretion and bring ICE Counsel into the loop in order tomanage the initiation of Removal Proceedings more competently and based on awell reasoned and judicious exercise of Prosecutorial Discretion. The USCISMemorandum initially described the ISO’s referral process and the responsibilityof the Review Panel in the following way. (There is more in the actual memo.) ...... The ISO should: 1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., and prior immigration violations, and contributions to society to include the pursuit of education and military service. 15 2. Once the ISO has made a recommendation on whether or not to issue an NTA, the case should be forwarded to the N-400 NTA Review Panel (Review Panel), along with the written recommendation. A Review Panel must be formed in each Field Office and include a local Supervisory Immigration Services Officer (SISO), a local USCIS Office of Chief Counsel attorney, and a district representative. An attorney from ICE’s local Office of Chief Counsel will be invited to participate and will have an advisory role on Page 2 of 3
  3. 3. the panel. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision. 3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once proceedings have concluded, or if the Review Panel declines to issue an NTA, adjudicate the case appropriately.Footnote From Original: 15 Additional factors to be taken under consideration can be found in the June 17, 2011 ICE memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.2Specific USCIS and ICE coordination is encouraged and is intended to incorporateand supplement any established communication. The new memo had the followingsection devoted to this issue. VIII. Coordination with ICE According to the June 2011 ICE memo regarding the exercise of prosecutorial discretion consistent with priorities, 19 USCIS will receive notice before an ICE attorney exercises prosecutorial discretion and dismisses, suspends, or closes a case. The local N-400 NTA Review Panel will work with ICE to come to a resolution if USCIS does not agree with ICE’s use of prosecutorial discretion in a particular case. If concurrence cannot be reached, the case should be elevated to the USCIS Office of Chief Counsel in headquarters.The BIA and IJs are coming into the mix and the January 31, 2012, Precedentshould facilitate overall smoother operations in conducting and concluding theoverlapping Immigration Adjudications in the Benefits Context and in theRemoval Proceedings Context. Let’s hope for the best.One last item to consult is the ICE January 4, 2012, Policy3 11022.1: Transfer Directive: ICE issued a new transfer directive that will minimize to, the greatest extent possible, the long-distance transfer of detainees within ICEs detention system. This directive establishes requirements for transfer decisions that will substantially reduce the transfer of detainees who have family members in the area, local attorneys, or pending immigration proceedings.2 http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf3 http://www.ice.gov/doclib/detention-reform/pdf/hd-detainee-transfers.pdf Page 3 of 3

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