Memo on Instruction for Suspension Seekers
HQ 505/5.11.1(P)
Subject: Instruction Regarding OSC-Seekers
Date: March 13, 1997
To: Regional Directors
District Directors
Border Patrol Sector Chiefs
Officers in Charge (Including SPCs)
Asylum Office Directors
Regional Counsels
District Counsels
On April 1, many provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) will go into effect, including those relating to removal proceedings. Suspension of deportation will no longer be an available remedy for aliens placed in removal proceedings on or after April 1, since IIRIRA provides for a new type of remedy called “cancellation of removal.” Cancellation of removal will be more difficult to obtain. Aliens whose charging document is filed with the immigration court on or after April 1 must apply for cancellation of removal rather than for suspension of deportation.
This memorandum will clarify the position of this office concerning any case where an alien not already in removal proceedings, requests to be placed into proceedings between now and April 1 because the alien prefers to keep open the possibility of applying for suspension of deportation. We are aware that certain offices have already encountered these “OSC-seeker” situations and that other offices are not sure how to react to them, particularly since they ordinarily might not interrupt normal work to deal with them. Accordingly, we have provided guidance for your consideration in dealing with these kinds of cases. It should be emphasized, however, that this communication provides internal guidelines to field offices and is in no way intended to create any right or cause of action that would allow any person to seek enforcement of this guidance.
1. Field offices should process as many OSC-seekers as practicable, to the extent that such processing does not significantly undermine their priorities or other important mission activities. Each office must make its own determination in this regard, and should take into account such factors as the personnel and other resources it has available, its priorities and other operational demands, and the rate of incoming receipts of these and other cases, etc. We realize that these factors will differ greatly from office to office.
2. Any field office that finds that there are more incoming cases than the office can readily keep up with, should develop a system for determining how the cases will be prioritized for action. At least one office has decided to prioritize the requests according to those that have extremely compelling humanitarian circumstances and those which involve aliens who have other family members that are already in immigration proceedings. However, depending on the number of OSC-seekers involved, other offices might find that a simple “first come, first served” approach affords them the best way to balance this extraordinary demand with the regular work of the office. We believe that each office should be permitted the flexibility to determine the kinds of cases that might warrant prioritizing, based on its evaluation of the OSC-seeker cases being encountered locally and the consequences of handling an OSC-seeker case rather than regular cases/work.
3. It is essential that OSCs served on OSC-seekers be filed with the immigration court before April 1. Merely serving the OSC on the alien is insufficient for placing the OSC-seeker under the pre-April 1 suspension rules. For many offices, this will likely mean that they will have to stop serving OSC-seekers after March 24, in order to allow enough time for the paperwork to be filed with the immigration court before April 1. Some offices may be able to use a date later than March 24 as the cut-off for serving OSC- seekers. In cases where filing is not accomplished until April 1 or later, any OSCs already written up will no longer be valid and will no longer be accepted for filing by EOIR. In such a case, the alien must be served anew with a Notice to Appear (Form I-862) in conformance with the new INA section 239. Charging documents filed before April 1 will not have to be re-written and re-issued.
4. ABC-eligible OSC-seekers who are not currently in proceedings must withdraw asylum applications with the appropriate INS asylum office before an OSC is issued. In order to do this, they must sign and return the letter distributed to the asylum office by the Office of International Affairs under cover of its May 14, 1996 memorandum. A copy of that letter, in English and Spanish, is attached. When an ABC-eligible alien signs and returns this notice, they will be considered to have waived their ABC rights, and thus will considered ineligible for ABC benefits.
5. In addition to actions you might be able to take regarding OSC-seekers, of course, each office should also ensure that any OSCs recently served on other aliens in the normal course of business are filed with the immigration court before April 1, including OSCs served from now until March 24 (or a later date as determined by each office). Additionally, INS offices should file with the court before April 1 any other readily identifiable OSCs for which service on the alien has been achieved.
In order that we can be kept apprised of ongoing developments regarding these types of cases, each field office should submit a weekly report to HQOPS, through their Regional Offices, to be due by COB each Monday. The report should cover the previous weeks experience. (Asylum Offices should report such information to HQASM, which will in turn, report to this office.) The first weekly report will be due on March 17, 1997. Each report should contain the following information: 1) how many OSC-seekers were encountered; 2) how many could be processed (meaning the OSCs were filed with the immigration court); 3) how many could not be processed; 4) what system is being used to prioritize the ones encountered to determine who is processed first; 5) any other information considered of interest.
Any questions regarding this matter should be directed to HQOPS, Attn: Kenneth Elwood, telephone (202) 307-1983 or facsimile (202)616-2726.
[signed]J. Scott Blackman
Acting Associate Commissioner
Attachment