INS General Counsel Opines on Administrative Closure
U.S. Department of Justice
Immigration and Naturalization Service
HQCOU 90/16.1-P
Office of the General Counsel
425 I Street NW
Washington, DC 20536
Dec -7 1999
Memorandum For:
Regional Counsel
District Counsel
Appellate Counsel
From:
Bo Cooper
General Counsel
Subject: Administrative Closure of EOIR Proceedings for Non-Lawful Permanent Resident Aliens Eligible for Repapering
In a memorandum dated December 7, 1998 (attached), we provided guidance for the administrative closure of proceedings for certain lawful permanent resident aliens expected to be eligible for discretionary repapering under a draft regulation. The scope of the draft regulation has been expanded to cover certain aliens who are not LPRs. Accordingly, this new group is also subject to the administrative closure guidelines.
The new group covered by the draft regulation consists of any alien who, at the time of the repapering request:
(1) is not a lawful permanent resident;
(2) would be statutorily eligible for suspension of deportation under former section 244 of the Act but for the stop-time provision in INA section 240A(d)(1) relating to the service of the Order to Show Cause. (This means that the alien, at a minimum: is in deportation proceedings (i.e., not subject to a final administrative order); is otherwise statutorily eligible for suspension of deportation (e.g., continuous physical presence and good moral character); and has not been denied suspension of deportation for another reason.); and
(3) is statutorily eligible for cancellation of removal under section 240A(b). (This means that the alien has at least 10 years of continuous physical presence in the U.S., has been a person of good moral character during that period, has not been convicted of any of the listed offenses, has a qualifying relative, and is not precluded by the criminal offense stop-time rule in INA section 240A(d)(1).)
The existence of hardship, whether extreme under former section 244(a)(1) or exceptional and extremely unusual under former section 244(a)(2) and current section 240A(b), is a matter to be determined by the immigration judge. Therefore, an alien need not demonstrate hardship in order to meet the above requirements. A repapering applicant is also not required to have actually filed a suspension application. As an interim measure until the regulation is published, aliens who meet these criteria may ask that their case be administratively closed.
When requested by an alien or an immigration judge, the INS generally should agree to the administrative closing of a proceeding before an immigration judge where the alien meets the above criteria at the time the request for administrative closing is made. In addition, even in the absence of such a request, if an alien appears clearly to meet the above criteria, the INS attorney assigned to the case should inform the alien or the alien's representative of record of the alien's option to request administrative closure. However, an INS attorney may decline to agree to administrative closure even where the alien meets the above criteria, if there are unusually adverse factors in the case. This should be the exception, however, and must be approved by the Office of the General Counsel. Coordination with the District Director or other offices may be appropriate before reaching a decision on administrative closure in a particular case.
The Board will sua sponte administratively close cases meeting the above criteria on a case-by-case basis, with written notification to the INS attorney of record. The INS attorney may move to recalendar the case if the INS does not agree to administrative closure under the guidelines in this memorandum.
A record should be kept of cases administratively closed, and the file appropriately marked and annotated. Once the regulation is published, these cases should be recalendared for consideration of repapering.
The INS should not agree to join a motion to reopen a proceeding solely for the purpose of administrative closing under this memorandum. However, once a proceeding is reopened on an independent basis, the alien may request administrative closure under this memorandum. Section 309(c)(3) only provides for repapering in proceedings in which there has not been a final administrative decision, and section 309(c)(2) applies to aliens in proceedings prior to their evidentiary hearing, not to those with a final order.
I appreciate your efforts to carry out these instructions. As questions arise, please direct them to Kyle Latimer at (202) 616-2604.
CC: B. Cooper
D. Dixon
C. Hamilton
K. Latimer
Genco Log
Victor Cerda (Chief of Staff)
Scott Rosen, EOIR (fax # 703-605-0570)
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[attachment: 12-7-98 document]
U.S. Department of Justice
Immigration and Naturalization Service
HQCOU 90/16.1-P
Office of the General Counsel
425 I Street NW
Washington, DC 20536
Dec -7 1998
Memorandum For:
Regional Counsel
District Counsel
Appellate Counsel
From:
Paul W. Virtue
General Counsel
Subject: Administrative Closure of EOIR Proceedings For Aliens Eligible for Repapering
The Attorney General is expected to issue a regulation allowing the INS to exercise prosecutorial discretion under section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Sections 309(c)(2) and (3) provide the Attorney General with the authority to consider, on a discretionary basis, conversion of certain exclusion and deportation cases to removal cases ("repapering"). The current regulation on this subject, at 8 C.F.R. § 240.16, requires the Attorney General to publish a notice or issue instructions before the section 309(c) repapering provisions become applicable. The anticipated regulation will satisfy this requirement and is expected to delegate repapering discretion to the INS.
The regulation is expected to allow the INS to consider discretionary repapering for an alien who, at the time of the repapering request:
(1) would be statutorily eligible for section 212(c) relief (under the pre-IIRAIRA INA) "but for" section 440(d) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). (This means that the alien, at a minimum: is in deportation proceedings (i.e., not subject to a final administrative order); is otherwise statutorily eligible for 212(c) relief; and has not been denied 212(c) relief for another reason.); and
(2) would be statutorily eligible for cancellation of removal if repapered. (This means that the alien, at a minimum: has not been convicted of an aggravated felony; has been lawfully admitted for permanent residence for at least 5 years; has resided in the U.S. continuously for 7 years after having been admitted in any status; and is not precluded by the criminal offense stop-time rule or the charging document stop-time rule in INA section 240A(d)(1).).
Criterion one does not require the alien actually to have filed a section 212(c) application.
As an interim measure until the regulation is published, aliens who meet these criteria may ask that their case be administratively closed. In addition, if an alien appears clearly to meet the above criteria, the INS attorney assigned to the case should inform the alien or the alien's representative of record of the alien's option to request administrative closure.
When requested by an alien or an immigration judge, the INS generally should agree to the administrative closing of a proceeding before an immigration judge where the alien meets the above criteria at the time the request for administrative closing is made. However, it is permissible to refuse to agree to administrative closure even where the alien meets the above criteria, if there are unusually adverse factors in the case. This should be the exception, however, and must be approved by the Office of the General Counsel.
Coordination with the District Director or other offices may be appropriate before reaching a decision on administrative closure in a particular case.
We expect the Board to sua sponte administratively close cases meeting the above criteria on a case-by-case basis, with written notification to the INS attorney of record. The INS attorney may then move to recalendar the case if the INS does not agree to administrative closure under the guidelines in this memorandum.
A record should be kept of cases administratively closed, and the file appropriately marked and annotated. Once the regulation is published, these cases should be recalendared for consideration of repapering.
The INS shall not agree to join a motion to reopen a proceeding for the purpose of administrative closing under this memorandum. However, once a proceeding is reopened on an independent basis, the alien may request administrative closure under this memorandum. Section 309(c)(3) only provides for repapering in proceedings in which there has not been a final administrative decision, and section 309(c)(2) applies to aliens at an even earlier stage of proceedings, not to those with a final order.
Questions regarding this memorandum should be directed to Kyle Latimer at (202) 616-2604.
CC: D. Dixon
O. Cooper
C. Hamilton
D. Steinberg
K. Latimer
K. Ryan
I. Hinds
Genco Log
Pat O'Reilly, HQ DDP
Russ Bergeron, OPA
John Morton, DAG's Office (fax = 4-9343)
Ruth Tintery (Congressional Relations)
Chuck Adkins-Blanch, EOIR (fax = 703-305-0443)