I-130



PROCEDURES AND GUIDANCE – WASHINGTON ICE/ERO*Table of Contents TOC \o "1-3" \h \z \u I-130 PAGEREF _Toc3559315 \h 2REQUEST FOR A STAY OF DEPORTATION PAGEREF _Toc3559316 \h 3HEARINGS GENERALLY PAGEREF _Toc3559317 \h 3REMOVAL CASES PAGEREF _Toc3559318 \h 4BOND CASES PAGEREF _Toc3559319 \h 10DETAINED ALIENS PAGEREF _Toc3559320 \h 10DETAINERS PAGEREF _Toc3559321 \h 11DEFERRED ACTION PAGEREF _Toc3559322 \h 12PROSECUTORIAL DISCRETION PAGEREF _Toc3559323 \h 12PEOPLE ACCUSED/CONVICTED OF CRIMES PAGEREF _Toc3559324 \h 13APPEARANCES PAGEREF _Toc3559325 \h 14REPORTING/APPOINTMENTS PAGEREF _Toc3559326 \h 14JOINT MOTIONS PAGEREF _Toc3559327 \h 15MISCELLANEOUS PAGEREF _Toc3559328 \h 16I-130Are there any updates to ICE’s position on detaining beneficiaries with prior removal orders when going to I-130 interviews? Is there a difference if the individual is married to a USC or if the individual is the parent/child of a USC?Any individual with a final order of removal is subject to being detained. Every case is reviewed looking at the totality of the circumstances, regardless of the familial relationship. Individuals are encouraged to file a stay of removal in any case where the possibility of removal exists.Liaison Note (Jan. 2020) – If you get a stay of removal from a court, or if a stay of removal is automatically in place by filing MTR, bring copy of court order or stamped copy of MTR to show to ERO when they show up at interview. What is the procedure that OCC would like us to follow when submitting Joint Motions to Reopen where there is an I-130 approved and the beneficiary is the spouse of a U.S. citizen military member? The beneficiary is eligible for PIP but for an in absentia order and thus could adjust status if the case was reopened and terminated based on this potential relief. Would ICE adjudicate the PIP? If not, what kind of supporting evidence does OCC want with the JMTR? Also what is the timeframe for receiving a response on this type of request? The procedure is no different than any other Joint Motion to Reopen with an approved I-130. OCC will look at the applicant’s discretionary factors, including criminal history, when making a decision. If the spouse is U.S. military, OCC will take this into account, but there is no policy in place to treat these cases differently than other cases, nor does the military status of the petitioner equate to an automatic grant of the motion. OCC aims to adjudicate JMTRs as efficiently as possible, but the size of the current docket is a consideration when allocating resources, and many of the pending cases fall within OCC’s priorities. If the situation is urgent, attorneys should indicate this in the motion and follow up with a phone call. If a motion is pending longer than 3 months, attorneys should contact OCC or a deputy for a follow up on the case. OCC will not adjudicate the PIP. If the applicant is an enforcement priority according to the November 2014 memo, then ERO will consider adjudicating the PIP. (December 14, 2015)REQUEST FOR A STAY OF DEPORTATION An attorney filed a Request for a Stay of Deportation and Deferred Action in September. She had a messenger hand deliver it. The messenger called and advised that they do not accept a Request for a Stay from a messenger and that the attorney must file it in person. Is this accurate? If so, what is the reasoning for requiring the attorney to appear in person? If the individual requesting a stay is non-detained, he/she must appear in person to file the stay, even if he/she has an attorney. This policy is clearly stated on the back of the form I-246. It is in place such that if any questions arise during the filing of the stay, or if items are missing from the packet, the issue may be quickly reconciled before the stay is officially filed. If the individual is detained, the stay must still be filed in person, either by the attorney of record (preferred) or a family member. (The attorney of record is preferred so ERO can address any issues with the stay package at the time of filing so as not to delay the adjudication process.) (December 14, 2015)HEARINGS GENERALLYWhat is OCC’s position regarding continuances for pending U visas? Are these being opposed at this time? OCC’s policy is to continually try to get cases to conclusion through consideration of relief that is available in Immigration Court. OCC will not agree to continue a case for speculative relief or other relief that is not within the jurisdiction of the immigration court. This is different from a case when an individual with an I-130 requests a continuance so that he/she may then adjust in court, which maintains jurisdiction over the adjustment application. If an individual can eventually adjust in court, a continuance would be moving the court procedures along.If an individual with a pending U visa does receive a removal order, he/she should contact the ICE case officer to begin expedited processing of prima facie determination. (May 2017)[Has] ICE OCC considered any procedures to make master calendar hearings run more efficiently, particularly before new judges who have lengthy dockets, like Judge Hong? Members are experiencing very long hearings on these dockets. In other courts, like Baltimore, there has been success with a group hearing model, in which OCC reviews its files ahead of time to know before court in which cases it would oppose continuances and in which cases it would not.WAS OCC has considered other possibilities for master calendar hearings, but their biggest concern is due process. When doing group hearings, there is not an individualized look into each client’s case. The preparation for a case to be continued is also different from preparing for a case to go forward, so OCC would not be in a position to list out all cases from the beginning where they do not oppose a continuance. OCC prefers a case by case determination where the initial burden is on the attorney to demonstrate good cause for a continuance in accordance with 8 CFR § 1003.29 not for OCC to have the initial burden of proving why a continuance isn’t appropriate. OCC also notes that most of this is dependent on the Court’s policies, and even if ICE were to announce a list of individuals whose cases could be continued, it would be up to the Court to streamline this procedure. (May 2017)A question was also raised regarding continuances. OCC generally will not oppose a first continuance. However, all determinations are on a case by case basis. (May 2017)REMOVAL CASES Can Mexicans who want VD opt to leave by land, or are they required to buy a plane ticket?Non-detained individuals can leave in any manner they wish. Detained individuals are required to buy a plane ticket. The ticket generally must be on a non-stop international flight so that ICE can confirm departure from the United States. (December 2016)What, if any, is the official policy on monitoring and removing ISAP ankle monitor devices? In the past we have seen officers approve the removal of ankle monitors once a master calendar hearing is scheduled or once relief is filed with the court, but that doesn't seem to be the current standard.No formal written policy exists. Removing an ISAP ankle monitor is at the discretion of ICE. Several factors are considered, including whether the individual has complied with a request to obtain travel documents. (December 2016)Liaison Note (Jan. 2020) – Use ERO contact list to find D.O. assigned to your client. Send an email to D.O. requesting removal of ankle monitor and de-escalation of reporting requirements. Cite to lack of flight risk factors in favor of de-escalation, such as retaining counsel, stable address, reliable telephone for telephonic monitoring, positive reporting history, applications lodged or filed in court, appearances in court, etc. The request should read like a mini bond motion.What is the best way for counsel to request that an ankle monitor be removed?Cases are reviewed every 60 days. Counsel can request a quicker review from the case officer and highlight changed circumstances in individual cases. If a response is not received by the case officer, counsel may contact a supervisor or use the was-atd@ice. email address. (December 2016)Liaison Note (Jan. 2020) – See above. WAS-ATD email address not in use. If no response from D.O. in 48 hours, escalate to supervisors and alternate D.O. listed. What is the current policy towards individuals with a pending U visa who have anoutstanding removal order? Is removal being pursued against them? Will a stay beconsidered to give the individual an opportunity to have a decision reached?The stay policies are still in place. ERO and OCC will seek expedited prima faciedetermination when an individual with a removal order has a pending U visa, and if such a determination is made, will provide the individual with an application for a stay. This does not necessarily mean that the stay will be granted.Attorneys are encouraged to notify the case officer once a U visa application has been filed so that these procedures can take place. (May 2017)Under what circumstances, if any, will OCC agree to terminate removalproceedings to enable a respondent to pursue affirmative applications, such asadjustment of status, through USCIS?This is a case by case determination, though it is more limited than it was in the past. If the request for termination in order to adjust is for an individual with nothing derogatory in his/her case, OCC may agree to terminate. The attorney should show that the individual is prima facie eligible and merits an exercise of discretion through humanitarian and other favorable factors. It is recommended that these requests are made as soon as possible rather than waiting until a master calendar hearing. (May 2017)Liaison Note (12/2019) – OCC is still accepting requests for joint motions to terminate for adjustment of status before USCIS, but most of the termination requests for prima facie eligible adjustment cases are being countered with an offer to join a motion to reopen for adjustment before the IJ. It is OCC’s preference to complete cases in court and currently IJs are bound by Matter of S-O-G- & F-D-B-. OCC will not divulge whether it believes Zuniga Romero also cuts the legs out from S-O-G- & F-D-B- in light of that case’s reliance on Castro-Tum reasoning. Is there an effort being made to re-open previously administratively closed cases? If so, which cases are currently being affected? Yes, OCC is beginning to recalendar cases. Factors include, but are not limited to, if the person has committed a crime, allegations of gang activity, if the individual is a danger to the community, and/or if the reason for administrative closure was the application for affirmative relief and the application was never filed. There is no magic formula for determining allegations of gang activity, but ICE works closely with law enforcement to make this determination. (May 2017)What is OCC’s current policy on administratively closing a case in removalproceedings in order to pursue an I-601A waiver, according to the 601Ainstructions? What is OCC’s current policy for terminating a case in removalproceedings upon approval of an I-601A in order for the Respondent to pursueconsular processing?OCC takes the position that court time is to be utilized for making arguments for relief that can be determined before the Court. In the case of 601A, jurisdiction of the waiver or its corresponding application for permanent residency is never with the Court, and thus OCC will be opposing these requests for administrative closure. This is a new national policy. Liaison Note (Jan. 2020) – Outdated. Similarly, OCC will be objecting to termination upon an I-601A approval for the same reason. With the new rule, you can submit a 601A with a removal order along with an I- 212 to re-enter. There may be exceptional circumstances in which OCC would agree to administratively close or terminate in these cases, but this is the exception and not the rule. (May 2017)Liaison Note (12/2019) – OCC will continue to consider these issues on a case-by-case basis and take a position on whether there is good cause for administrative closure. OCC may reserve on some IJ decisions for interlocutory appeal, but that is also a case-by-case determination. Not taking a position on whether Zuniga Romero is limited to a specific type of collateral relief and there is likely a nationwide memo coming down on this issue. What is ICE’s approach to issuing NTAs to pending affirmative asylum seekers who have overstayed their visa? With asylum interviews taking 2 to 3 years, it is very difficult to get an expedited asylum interview.If an individual is encountered who falls into ICE’s enforcement priorities, he or she may be placed into removal proceedings, and the asylum application will need to be adjudicated before an Immigration Judge. Each case is looked at individually by ERO before making this determination. (November 2017)Is OCC willing to review supplemental evidence for an asylum case filed before the MCH and if they agree it is a strong case, support a request for a short individual hearing? This was proposed to Raphael Choi last year and he agreed with the idea as a means to free up the court's time. Now that OCC is so overloaded, will TAs still have time to review these filings before the MCH?OCC has at least twice attempted to begin such a review process. However, each time there were issues that prevented the process from meeting the goal of freeing up court time. OCC notes that in the past it has been administratively difficult to do so, especially when the scheduling is done outside of a master calendar hearing. An issue that arises with this type of procedure is that a background check has never been completed by the time of a MCH, so it is difficult to guarantee that a hearing will last only a certain amount of time. However, if the attorney is prepared before the master, and wants to reach out to OCC, he/she is encouraged to do so. If this occurs more often, OCC may be better be able to determine if it is worthwhile, or whether it creates less efficiency. OCC also cautions that they don’t want to lock the trial attorney conducting the individual into a statement previously made by the trial attorney handling the master because of the possibility of new or changed facts. Attorneys are still encouraged to contact OCC prior to individual hearings to address as many issues as possible before the case is litigated. (November 2017)Liaison Note (Jan. 2020) – OCC will routinely agree to short matter dockets for prima facie eligible AOS cases but attorneys should utilize the OCC Schedules provided to reach out to the assigned TA prior to the MCH to discuss this possibility in individual cases.Is OCC still opposing all I-601A requests for administrative closure? What does OCC suggest be done in place of administrative closure, given the fact that an I-601A cannot be filed if the case is currently pending before the court?Yes. Administrative closure is still being opposed for I-601A waivers. OCC has seen the BIA has remanded several cases back to IJs where the IJ administratively closed the case over DHS’s objection. These have been for cases where the IJ did not lay out enough facts in its reasoning. OCC is aware that the regulations require removal proceedings to be administratively closed in order to pursue I-601A relief. However, OCC’s position continues to be that I-601As are not relief before the court. Respondents can apply for any available relief before the court. Other options include taking voluntary departure and applying for the I-601A at that time. (November 2017)Are there any blanket bond policies currently in place at OCC? E.g, if an individual has a DUI, is bond always opposed?There are no blanket policies in place. ERO makes the first determination on whether to detain an individual, and that individual must meet his/her burden to show that he/she is not a danger to the community nor a flight risk. DUIs have always been considered to be serious charges, but there is not a blanket policy in place. OCC will generally oppose bond and hold the individual to his/her burden. However, depending on the facts, including how recent the conviction is, bonds may be agreed to. Even if OCC doesn’t agree to bond, this does not mean that an appeal will be filed in every case that bond is granted over OCC’s objection. (November 2017)Does ERO still have the ability to grant bond once an individual has been detained?Yes, ERO can still consider bond on a case by case basis, utilizing similar factors to OCC. ERO considers criminal and immigration history and humanitarian needs.Given the new priorities, is there a procedure for encouraging ICE to issue a NTA for a client who would like to present a cancellation application in court? Can an attorney show up at ICE/ERO so that the duty officer can encounter the client? Is there a procedure in place whereby one can set up an appointment to have the client processed for an NTA?The October 2014 guidance provided during the Fall AILA/ICE ERO meeting remains in place, and ICE may issue NTAs to individuals after considering the appropriate factors. Individuals are welcome to report to ERO but there is no official procedure to request issuance of a NTA, and it will only be done for enforcement purposes if ERO determines the individual falls into current enforcement priorities and not for the benefit of the alien. (November 2017) Liaison Note (Jan. 2020) – Outdated. Does ISAP have ultimate discretion on who is on electronic monitoring and who is on telephonic monitoring? A member reports ERO mentioning that ISAP was making these decisions rather than ICE.ICE and ISAP work hand in hand. ISAP has the most regular contact with individuals, and thus their suggestions are closely considered. However, the ultimate determination lies with ICE. Compliance is one of the most important factors to be considered. (November 2017)It was clarified at AILA’s September dinner meeting with OCC that the November 2014 Enforcement Priorities memo makes individuals who were caught at the border a priority only if they entered and were caught after January 1, 2014. However, at this same meeting, it was suggested that UACs are still ICE priorities, regardless of if they entered before or after January 1, 2014. Can you please explain this discrepancy? ICE/OCC priorities for removal include any individual who was apprehended at the border after January 1, 2014. EOIR’s priority docket includes all unaccompanied minors and family units who were apprehended at the border. Therefore, UACs who were caught at the border prior to January 1, 2014 are not an OCC priority, but they still appear on the EOIR priority docket. OCC will take this date into account when determining PD, but it is still a case by case decision. An adult who entered alone (i.e., not as part of a family unit) prior to January 1, 2014, and who does not fall into the other priorities in the memorandum, is therefore not a current ICE/OCC priority. (December 14, 2015)In withholding of removal cases, what considerations does ICE use when determining in which three countries to seek relocation? ICE’s primary purpose is to remove the individual, and thus it will seek countries in which it believes it will have the most success. However, ICE will often talk to the individual and review the file to see if he/she has ties to any other countries, including but not limited to past residence and family in other countries. (December 14, 2015).Liaison Note (Jan. 2020) – Many D.O.s will allow attorneys to select the three countries, and in detained cases the D.O. will often take attorney suggestions for the countries they will contact. For respondents with an order of removal apprehended by ICE and placed on an Order of Supervision with ISAP, what procedures are in place to re-negotiate the reporting terms after proceedings have been reopened by an immigration judge? The attorney can send a request in writing to the reporting officer. Email is preferred. Will be decided on a case-by-case basis. There is no deadline to negotiate different terms of alternative to detention. (October 15, 2014)Liaison Note (Jan. 2020) – Clients should be removed from OSUP after a MTR is granted because OSUP is for individuals subject to removal orders. Reach out to ERO and ask for OREC or placement on non-detained docket. Assuming ICE has jurisdiction, where and with whom it is appropriate to file a request for parole-in-place? Will ICE issue parole-in-place where the person is in removal proceedings or has a final order of removal? These are determined on a case-by-case basis. ICE/ERO has jurisdiction if the person is in removal proceedings. (October 15, 2014)BOND CASESWhat is ICE’s current position on requests for bond? Are they being opposed regardless of the circumstances, or is each case still being considered individually? This remains a case by case determination with an individualized assessment of danger and flight risk. This has not changed with the new administration. DUIs have always been considered to be serious charges, and generally OCC will oppose bond in these cases. However, if there are significant equities and the DUI wasn’t recent, OCC may consider agreeing to bond. (May 2017)DETAINED ALIENSIs there a new procedure for ICE VA to transfer detainees out of their resident states? A member reports a client being transferred to a detention center in Florida after a motion for bond redetermination was filed with the Arlington Immigration Court. OCC has just filed a Motion to Change Venue to Florida, even though the client is a resident of Virginia. The ICE transfer policy is still in place, and ERO will consult with Chief Counsel before moving anyone to confirm there are no issues. ERO is transferring out of Virginia due to operational needs. ERO detains based on custody classification levels. There is a focus to move people with final orders or people who were just arrested whose cases have not yet been venued with the Court; however, exceptions are made because of the lack of bed space. The likelihood of deportability or available relief is not generally used in making these determinations, though there is still a focus on individuals with removal orders. If an individual is given a bond in Virginia and is transferred before someone has posted bond on his/her behalf, that person will be released from the new detention facility as soon as bond has been posted. The bond determination remains in place. (May 2017)Liaison Note (Jan. 2020) – Detained IJs in Arlington will often still hear the bond motion in this scenario – see OCIJ Practice Manual for language on venue and apply it before IJ. If a client is transferred after attorney has provided notice of representation to ERO or Court/OCC, contact SDDO to oppose transfer under the ICE Detainee Transfer Policy. Look for Orantes violations as well (represented Salvadorans) and notify OCC if you suspect an Orantes violation. Detained IJs in Arlington have been known to deny OCC motions for change of venue from time to time, and attorneys are encouraged to submit immediate notice of opposition to DHS motion for COV as soon as transfer has occurred, arguing inverse of COV motion. Reach out to Liaison to request sample filing. Are there any updates with Kurdish Iraqi detainees? A member reports a scenario with a client ordered removed 15 years ago with no relief who was picked up at her annual check-in and detained, subject to mandatory detention. Because she is Kurdish, she doesn’t have travel documents. This attorney has been told that ICE does not know what is going to happen with these detainees, and that they are awaiting instructions. What will happen after the injunction ends and they still can’t get travel documents for all of these detainees?These cases fall under Zadvydas, and OCC cannot speak to what will happen in the future. Every case is different, and the appropriate factors under Zadvydas must be considered. (November 2017)Does ICE typically take an individual’s driver’s license when taken into custody? If so, how can the individual get it back?This answer remains the same from the Fall 2015 Liaison Meeting. ICE has a policy of taking most identity documentation upon detention. The previous meeting minutes described how to get them back if necessary.Fall 2015 Q 6) What is the proper procedure for requesting identification documents (e.g., passport, green card) after a case has been successful on the merits?Attorneys should contact the individual’s case officer, on either the detained or the non-detained list. The case officer will make arrangements to return the documents. For CAT cases, the return of documents depends on each individual case. For withholding cases, the determination depends on whether ICE is still seeking 3rd country relocation. Passports belong to the country rather than the individual, so ICE will often return the passport to the embassy rather than the individual. (November 2017)DETAINERS Please clarify ICE’s policy in regards to placing detainers on individuals located in Virginia local detention centers. Consistent with the DHS enforcement priorities described in Secretary Johnson’s November 20, 2014 Secure Communities memorandum, ICE focuses on targeting individuals convicted of significant criminal offenses or who otherwise pose a threat to public safety. Under prior policy, detainers could be issued when an immigration officer had reason to believe the individual was removable and fell within one or more enumerated priorities, which included immigration related categories and having been convicted of or charged with certain crimes. Currently ICE will only seek transfer of individuals in state and local custody in specific, limited circumstances. ICE will only issue a detainer where an individual fits within DHS’s narrower enforcement priorities and ICE has probable cause that the individual is removable. In many cases, rather than issue a detainer, ICE will instead request notification (at least 48 hours, if possible) of when an individual is to be released. ICE will use this time to determine whether there is probable cause to conclude that the individual is removable. Provided the individual falls within ICE’s priorities an Immigration Detainer or a Request for Voluntary Notification will be filed with state and local jails. In 2015 the General Assembly of Virginia enacted legislation which deals specifically with the “Transfer of certain incarcerated persons to Immigration and Customs Enforcement.” ICE is currently working with jurisdictions to determine how this legislation affects us. If individuals are held past his or her release date, attorneys should contact the specific state and or local jail. (December 14, 2015)DEFERRED ACTION Is WAS currently reviewing requests to renew Deferred Action status?The policy for individuals with a final removal order is to request a stay of removal, not deferred action. Deferred action is not the appropriate course of action regardless of what occurred in the past. (November 2017)There have been rumors that individuals previously receiving deferred action are now being place on an order of supervision. Is this happening at WAS? Anyone with a final order of removal who has been granted a deferred action should have already been issued an order of supervision (OSUP). If an individual has only recently received an OSUP, it is likely due to an error that the individual never received an OSUP in the first place. (December 14, 2015)PROSECUTORIAL DISCRETIONLiaison Note (Jan. 2020) – P.D. as we knew it is dead, but OCC will often note that there are many forms of P.D., such as deferring to the IJ, stipulating to certain eligibility requirements, not filing opposition to a motion, agreeing to file joint MTR, etc. Best practice is to get in contact with OCC whenever you would like to request a certain action or inaction from them. Zuniga Romero restored IJ authority to administratively close cases. Does ICE foresee any changes to the prosecutorial discretion memos currently in place?There are no updates to report at this time. (December 2016)We are aware of the new procedures for ICE to proactively request updated fingerprints in removal cases where the Respondent has previously requested biometrics. However, can you please tell us the process for requesting biometrics when the individual is requesting PD and thus might not have an upcoming hearing date?OCC is generally in charge of requesting updated fingerprints for PD cases, and will reach out to the attorney if necessary for scheduling. This is true for both detained and non-detained individuals. However, in the case of a non-detained individual who has never been fingerprinted, OCC will be scheduling the fingerprints through ERO. These individuals will no longer be reporting to the ASC if they have not previously been printed. (December 2016)OCC is generally in charge of requesting updated fingerprints for PD cases, and will reach out to the attorney if necessary for scheduling. This is true for both detained and non-detained individuals. However, in the case of a non-detained individual who has never been fingerprinted, OCC will be scheduling the fingerprints through ERO. These individuals will no longer be reporting to the ASC if they have not previously been printed.No changes have been made to the current policies for PD. The November 2014 memo remains in effect, and will be interpreted in the same way until further notice. (December 2016)What is the current status of Prosecutorial Discretion in Arlington? Are cases still reviewed individually? What is the best manner to request that PD be exercised in a particular case? PD has always been in place at OCC. However, the exercise of administratively closing a case based on humanitarian factors has been greatly reduced. Administrative closure is still being considered on a case by case basis, and it has been granted in a small number of cases. However, with the new policies and guidelines, the threshold is much higher for administrative closure based on humanitarian factors. Even if a case was submitted for administrative closure several months before the new policies came into effect, the current policies in place will be used to determine whether the individual qualifies. (May 2017)We have heard rumors that the PD email addresses are no longer operationalcountrywide. Is this the case for WAS OCC?Yes, this is the case, but PD applications can still be filed at the window. (May 2017)PEOPLE ACCUSED/CONVICTED OF CRIMESPlease clarify and comment as appropriate as to a program revealed during statements given at the AILA National Conference in Washington DC that indicate that ICE is "developing a capability to provide appropriate release information concerning individuals convicted of crimes to state law enforcement authorities in relevant jurisdictions. The Law Enforcement Notification System has been deployed to Virginia, Louisiana and Texas, with full implementation expected later this year.” Is this program underway? What is the purpose of this program and what are its parameters? This program is currently in place. The program is designed so ICE provides notification to our law enforcement partners of the release of a criminal alien into their local community, particularly those criminal aliens who have reporting requirements with other law enforcement agencies, such as convicted sex offenders. The law enforcement agencies are notified prior to the individual’s release from ICE custody. The main purpose of this program is to notify law enforcement of individuals who plan to reside in their locales for public safety reasons. (December 14, 2015).APPEARANCESWhat is the protocol for making sure that individuals detained by ICE appear at any state/local criminal hearings?ICE needs a writ from the Judge which goes to the case officer and the person will be transferred. Cannot make transfer without a writ from the Judge because ICE is giving up custody. Local/state authorities are responsible for coming to the ICE facility and picking up the detainee for appearance before trial court and returning the detainee to ICE custody. The writ must specify that transportation to and from ICE is provided by the receiving agency. (October 15, 2014)REPORTING/APPOINTMENTSCan you please clarify the current procedure for an individual to change their reporting location with ERO? If the individual has already moved to the WAS area without informing their prior officer, may they simply appear for an appointment in Fairfax? Should an attorney reach out to the case officer first?It is always best to notify the office where an individual is currently reporting before moving. However, if this was not done, then the case officer should be contacted at Fairfax prior to reporting. There is always a chance the individual will be taken into custody, especially if they have a history of being out of compliance with the old reporting office. Similarly, if an individual misses a regularly scheduled report date with ERO Fairfax, the attorney should contact the case officer, via e-mail or telephone, and either request a new date or alert him/her that the individual will be reporting the next day instead. (May 2017)If a client missed a report date several years ago, and has now contacted an attorney about court in the future, would you like attorneys to reach out to the case officer so that they can begin reporting again?Counsel may contact the individual case officer to request that the individual be re-entered into the reporting program. Once the individual is in compliance with the program, the frequency of report dates will tend to lessen. (December 2016)JOINT MOTIONSWhat is the procedure that OCC would like us to follow when submitting Joint Motions to Reopen where there is an I-130 approved and the beneficiary is the spouse of a U.S. citizen military member? The beneficiary is eligible for PIP but for an in absentia order and thus could adjust status if the case was reopened and terminated based on this potential relief. Would ICE adjudicate the PIP? If not, what kind of supporting evidence does OCC want with the JMTR? Also what is the timeframe for receiving a response on this type of request?The procedure is no different than any other Joint Motion to Reopen with an approved I-130. OCC will look at the applicant’s discretionary factors, including criminal history, when making a decision. If the spouse is U.S. military, OCC will take this into account, but there is no policy in place to treat these cases differently than other cases, nor does the military status of the petitioner equate to an automatic grant of the motion. OCC aims to adjudicate JMTRs as efficiently as possible, but the size of the current docket is a consideration when allocating resources, and many of the pending cases fall within OCC’s priorities. If the situation is urgent, attorneys should indicate this in the motion and follow up with a phone call. If a motion is pending longer than 3 months, attorneys should contact OCC or a deputy for a follow up on the case. OCC will not adjudicate the PIP. If the applicant is an enforcement priority according to the November 2014 memo, then ERO will consider adjudicating the PIP. (December 2015)Will OCC still consider joining Motions to Reopen or Motions to Re-calendaradministratively closed cases when a respondent has new relief available?Yes, OCC will consider joint motions to reopen in certain circumstances. However, OCC generally will not agree to a joint motion for relief when it can be filed unilaterally with the Immigration Court, such as a motion to re-calendar. OCC should generally notify attorneys if they are not going to agree to sign, but attorneys are requested to follow up if there has been no answer. Please also note that Joint Motions to Reopen, though considered, are not high on the list of OCC’s priorities. (May 2017)Please provide any guidelines for approvability regarding Joint Motions as well as general decision timeframes. Does ERO more favorably consider releases or stays if Joint Motions are filed? As of October 15, 2014, ICE/OCC is reviewing joint motion requests filed in May, 2014. Two or three months are required to get current as a result of staff/resources now devoted to border detention (e.g. Artesia) hearings. If the individual is detained or there is another emergency situation please let ICE/OCC know so response can be expedited. (October 15, 2014)Liaison Note (Jan. 2020) – Liaison experience in 2019 was that Arlington OCC is still taking 3-4 months to respond to requests for JMTRs. Is there an update to the formal procedure for joint motions, or are these still filed at the window? Members report that no one gets assigned to the joint motion until shortly before the hearing, so it is hard to follow up on these.These are still filed at the window. If it is a joint motion to reopen, and no one has been assigned to the case, the issue can be raised to Raphael Choi. All motions should be assigned to a trial attorney shortly after filing. If an AILA attorney wishes to find out which trial attorney is assigned to the motion, he or she can contact the duty officer 1 to 2 weeks after filing. It is best if motions are filed with plenty of time to be reviewed and considered before the next court date. In the case of an emergency, attorneys should contact the duty attorney, and then raise the issue to a deputy chief counsel. (November 2017)Attorneys have heard that in another state and jurisdiction that all joint motions to reopen that are denied are resulting in a referral to ERO. Can you confirm whether this is happening in our jurisdiction?There is no practice of referring a case to ERO in this situation unless someone appears to be a priority. OCC has the ability to refer a case to ERO if necessary, but this is not a standard procedure. (November 2017)MISCELLANEOUS Are there any other new policies or updates since the new administration took office in January 2017? There is a new detainer policy regarding issuing warrants of arrest, though this deals mostly with the local jails. In May, a new stay of removal policy was passed such that a limited stay of removal is received when a private bill is filed in Congress. (See: ) ERO is arresting individuals for removal. No classes of individuals are exempt from this. Criminal activity is a priority, but when others are encountered at the same time, action will be taken against these individuals as well. (May 2017)Are there any updated contact sheets? The latest we have from ERO is April 2017. We do not currently have anything on file for OCC.Currently OCC has 28 attorneys and is hoping to have 31 by the end of calendar year. (May 2017)Is there any update on the process for UAC designations?There are no updates. The ORR policies are still in place. If ICE is making the UAC designation themselves, there is a process to request a medical examination to determine the child’s true age. (May 2017)What is OCC’s policy for continuances/administrative closure/termination forminors with an approved I-360 SIJS Petition?This is a case by case determination. Administrative closure is not appropriate in this case. Continuances and termination decisions will be based on the priority date of the individual. (May 2017)Is it possible to obtain guidance on how to correct information in a client’s ERO file? E.g., if clearly erroneous information exists in the system, such as an erroneousconviction that does not exist in an FBI background check, who should attorneyscontact to correct the file? The question specifically relates to the EARM (EnforceAlien Removal Module), but we are interested in responses for any and all ICEsystems.The appropriate procedure is to contact the docket officer or case manager. Attorneys should note that not all convictions will appear on an FBI background check. Much of this is determined by whether the individual was fingerprinted when they were arrested. However, if an attorney believes information to be inaccurate, they should certainly alert ERO so that an independent investigation can be performed. As always, these requests should be elevated if the case officer is not responding to the request. Also note that if the problem is with the A file, this issue must be addressed with USCIS. (May 2017)Are there any updates with PD requests since the spring (2017) meeting?PD has always been in place at OCC. However, the exercise of administratively closing a case has been greatly reduced. Administrative closure is still being considered on a case by case basis, and it has been granted in a small number of cases. However, with the new policies and guidelines, it is much more difficult to obtain administrative closure. (November 2017)Are PD decisions being denied across the board? Or just merely granted where it is an extremely compelling case?There are no new updates. Decisions to exercise PD are based on a case by case evaluation and may be exercised in appropriate cases consistent with ICE and DHS enforcement priorities. With the new priorities and new guidance, there may be a change in how often PD gets granted, but it is still a possibility. Even though the memos have been rescinded, some of the same general factors would still be considered when making a determination. (November 2017)It was reported in the news that ICE is texting undocumented immigrants. If such a person receives a text from ICE what is the protocol?If an alien receives instructions from ICE, they need to follow them. ICE uses multiple methods of communication. (November 2017)Attorneys have heard that ICE is communicating with schools or school resource officers. If this is true, when is this being done, and in what manner?ICE reaches out to schools and other community and civic leaders as part of its normal outreach efforts. These opportunities are used to dispel rumors about ICE’s operations. Recently, ICE/ERO hosted a meeting with about 30 elected officials from Northern Virginia and DC and provided an overview of ICE/ERO operations and procedures. Please note that ICE’s sensitive locations policy is still in effect. (November 2017)How is ICE interpreting a crime of domestic violence as it relates to the November 2014 Enforcement Priorities memo? Should a similar analysis take place as that referenced in Matter of Velasquez such that VA Code 18.2-57.2 (assault and battery against a family or household member) is not categorically a crime of violence? Refer to the FAQs for the memo. In cases like these, it is the facts of the case that matter. This individual likely could not be charged as deportable based on the charge alone because this statute is not categorically a crime of violence, and therefore it is not a crime of domestic violence under the INA or the November 2014 memorandum. However, there will be a case by case analysis to determine if the individual should be considered a different priority under the November 2014 memorandum. If there is evidence of violence, the individual may still be treated as a federal interest priority. Police reports and charging documents may be used to demonstrate whether a crime is violent or not. A letter from the spouse/victim may be helpful, but it is not per se evidence that the accused did not commit a crime that was violent in nature. Note: Is this analysis accurate regarding the difference between a crime of domestic violence under the memo and other ICE priorities? (December 14, 2015)What is the policy regarding initiation of ISAP and ankle bracelet monitoring of UAC children merely for reaching age 18 who are without any criminal history? Does such monitoring apply only to "priority" cases and/or are their other considerations, such as whether the youth attends a regular high school, that ERO takes in making this decision? If a minor ages out while in proceedings, he/she will be individually evaluated for a custody determination at the time of their 18th birthday. The decision can include the full range of options that any other adult would face, including ERO reporting or ISAP reporting. (December 14, 2015)Liaison Note (Jan. 2020) – Clients who entered as part of FAMU while minors, who received OREC, are required to report to ERO when they reach 18 years of age. Attorneys should reach out to D.O. to arrange initial report date. What is the proper procedure for requesting identification documents (e.g., passport, green card) after a case has been successful on the merits? Attorneys should contact the individual’s case officer, on either the detained or the non-detained list. The case officer will make arrangements to return the documents. For CAT and Withholding cases, the return of documents depends on each individual case. (December 14, 2015)Is there any protocol in place to alert family or the attorney of record if an ICE detainee has a health issue? The detainee needs to notify his family or attorney of health issues. If the detainee is incapacitated/incoherent then ICE will notify next of kin, but not attorney due to HIPAA regulations. (October 15, 2014)Please advise the protocol at Rappahannock and Farmville when detained clients are in need of medication. May the treating physician fax the detention facility or do they fax ICE with the prescriptions? What steps are taken if a physician faxes the prescription information to ICE or the facility? If a detainee enters the facility with currently prescribed and on hand meds, these are evaluated to determine if they are compatible with the IHSC formulary. If the current meds are on the formulary, they would continue as needed. If the meds are not on the formulary, it would be determined if there was a compatible medication on the formulary and this medication would be prescribed. If a medication is not on the formulary and no formulary medication is compatible, a request for the medication would have to be approved by the HQ IHSC clinical director. If an outside doctor sends in a prescription for a new medication, the detainee would first be evaluated to determine if the detainee has a condition requiring the use of an outside prescription and if deemed necessary this medication would then be evaluated using the same criteria as described above. (October 15, 2014)Who has primary responsibility for authorizing and procuring medication for detainees at Rappahannock and Farmville? Please provide us and ICE/DRO officers with the protocols for ensuring detainees have their medications immediately. Rappahannock Regional jail and ICA Farmville operate under IGSA contracts. The facility Health Services Administrator (HSA) is responsible for the management of the detainees healthcare under the contract and IAW the applicable detention standards for medical care. If an issue is raised that a detainee is not receiving adequate health care services of any kind, the AFOD for Detention Management is responsible for notifying the IHSC Field Medical Coordinator (FMC) who will work with the facility HSA to resolve the status of the case at hand. (October 15, 2014)Is a doctor physically present at Rappahannock and Farmville 24/7, 365 days a year? Rappahannock has a doctor onsite 16 hours a week, ICA Farmville has a full time (40 hours per week) Doctor. (October 15, 2014)Marriages. Please advise protocols for obtaining permission for the celebration of marriage ceremonies at Rappahannock and Farmville. Is permission from both ICE and the detention facility required? Both parties (alien and fiancé) must request in writing to get married through the detainees Deportation Officer. Approval for the marriage is done at the AFOD level for ICE. (October 15, 2014)Expert Witnesses. Members have recently experienced delays in securing permission from ICE/DRO for a forensic psychologist to go to Rappahannock to perform a forensic psychological evaluation. Please advise protocols on obtaining permission, including documentation needed in support of request, time frame for a response and factors considered in granting permission for expert witness visits. Please advise if permission from both the detention facility and ICE is required and please disseminate the protocols to AILA, to ICE officers and jail officials.The request has to be granted by the facility. Per NDS/PBNDS, the facility must provide time and space to conduct these evaluations in a timely manner. In instances where the facility refuses a request, it can be brought to the attention of the AFOD for Detention Management to resolve. (October 15, 2014)Production of Form I-213: OCC will consider requests for production of I-213 on a case-by-case basis. I-213 is a law enforcement document that may be used for impeachment and they may choose not to produce it. OCC takes the position that respondents are not entitled to the document because there is no formal discovery in immigration court. Liaison notes that denying all allegations and charges on the NTA will force OCC to file the I-213. (January 2019).Will OCC refer undocumented witnesses in court to ERO?No set answer, not off limits. All decisions are case-specific. If people are removable they are certainly subject to enforcement, but many people show up and are not detained or referred to ERO for enforcement. There is no amnesty, waiver, or promise of non-enforcement for court witnesses. (January 2019). ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download