This roundtable covered issues relating to EOIR docket efficiency and attempts to resolve the challenges of high-volume caseloads through interagency partnerships with ICE and USCIS.
Moderator: Debra Rogers, Ombudsman's Office
- The Honorable Gary W. Smith, Executive Office for Immigration Review
- Ellen Gallagher, USCIS Office of Chief Counsel
- Michael Davis, U.S. Immigration and Customs Enforcement (ICE)
Judge Smith explained that the Docket Efficiency Working Group began in late July 2009 and met to identify ways to coordinate agency action in order to make court docket more efficient. The working group decided to focus on cases on the EOIR docket that have a petition or application pending with USCIS. The working group identified 18,000 pending cases that required continuances three and four times when the underlying petition was not adjudicated. This totaled around 72,000 hearings, requiring judges, government and private attorneys, as well as respondents to expend time and resources.
The working group, comprised of representatives from EOIR, ICE Office of the Principal Legal Advisor (OPLA), and USCIS, began to address these issues by January 2010. More than 25,000 cases before EOIR had pending USCIS petitions, of which 17,000 cases had a pending Form I-130, Petition for Alien Relative as the basis for relief. The group discussed the possibility of administrative closure, termination without prejudice, and expedited processing for detained and non-detained cases. The working group also discussed logistical issues surrounding the transfer of A-files between DHS components.
On August 20, 2010, ICE published, "Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Application or Petitions," and on February 4, 2011, USCIS published its companion policy "Guidance for Coordinating the Adjudication of Applications and Petitions Involving Individuals in Removal Proceedings; Revisions to the Adjudicator's Field Manual," which called for expedited processing of selected cases within 30 calendar days for detained respondents and 45 calendar days for non-detained respondents.
Since June 2010, DHS and ICE have set clear priorities to ensure resource optimization. The ICE guidance has two key policy developments aimed at promoting docket efficiency: (1) a shared commitment with USCIS to expedite adjudication by USCIS of applications/petitions for aliens currently in removal proceedings; and (2) a policy supporting ICE attorneys in seeking dismissal without prejudice of certain removal proceedings. In terms of ICE motion to dismiss the removal proceedings of certain aliens, the August 2010 guidance policy memo provides three basic considerations. First, the individual must have an underlying application or petition with USCIS that would provide relief from removal. Second, the individual must appear eligible for the relief as a matter of law and discretion. Third, the favorable exercise of prosecutorial discretion must appear warranted to ICE (i.e. ICE will look to any adverse discretionary factors). Mr. Davis explained that ICE has focused on detained cases. ICE OPLA was instructed to process the longest pending cases and work backwards.
Ms. Gallagher explained how historical foundations of USCIS, EOIR, and ICE have contributed to these current issues; the breakup of INS into three DHS components had unintended consequences. The working group now focuses on how to identify cases, developing a method to notify and receive a decision from USCIS, and the smooth routing of A-files. Standard operating procedures (SOPs) have been developed in each USCIS district. Many SOPs call for dedicated channels of communication between USCIS and ICE. Ms. Gallagher noted that the USCIS memoranda's 30 day and 45 day guidelines are still ambitious targets that USCIS strives to meet.
Tips for Practitioners from the Panelists:
- If your client is a respondent before the immigration court and has an application pending with USCIS, notify the judge early in the process, at the master calendar hearing or earlier. Provide proof of the filing, a copy of the receipt number, and, if applicable, proof of any waiver application.
- Present derogatory information. The government attorney may exercise prosecutorial discretion (PD) and it is better to identify an old conviction and subsequent rehabilitation at the front end of the process. PD requires balancing the pros and cons of each case. A marginal case could be balanced with an early and direct explanation addressing the negative factors. If ICE learns about problems later in the process or believes that derogatory information has been concealed, a favorable exercise of PD may be less likely and the practitioner's credibility could be undermined.
- Compelling humanitarian facts may influence a decision. Inform ICE early in the process, and be detailed as you explain why your client merits a positive decision. Be direct and bring up any matter that could influence the decision. ICE officers want a full picture of the case and they may not be privy to personal information that would be important to a full, considered application of PD.
- Do what is best for your client. Joinder of parties and administrative closure may not be advantageous for your individual client. If ICE terminates before the petition has been adjudicated by USCIS, how will this affect the processing of the case? There may be no need to expedite once the EOIR case has been terminated.
- PD is a case-by-case decision. Be sure to manage your client's expectations.
Conference attendees also had an opportunity to ask questions of the panelists, some of which are included below.
Can ICE adjudicate the family petition (I-130) so that the A-file would not have to be transferred to USCIS?
Panelists suggested that since Director Mayorkas invited suggestions from the private bar, the individual should submit this question; however, this adjudication authority currently falls within USCIS' purview.
How do we respond when the operations people convey an attitude of "no confidence" and secure communities has increased NTA issuance. How is the prioritization memo being put into operation?
Panelists shared that the working group allows the DHS components and EOIR to communicate. The group set in motion a new process, tackling the oldest cases first. The next project for this working group will be to continue to share ideas, implement Director Morton's Memo, and monitor implementation of the SOPs.
What does a practitioner do if they have a problem with a specific attorney?
Let the ICE Chief Counsel know you have a problem with an attorney. ICE meets periodically with AILA at the national level, ICE field leadership meet locally with advocates and practitioners, and there is always an opportunity to comment about your concerns.
With the ICE policy of promoting docket efficiency by prioritizing cases, how is USCIS deciding to issue an NTA?
USCIS released Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, PM-602-0050, 11/17/2011. EOIR is currently studying the efficiencies.
Conference attendees also submitted questions which the panelists were unable to answer due to time constraints. However, the panelists have since answered these questions and they are included below.
When a case has an underlying approved I-130 petition and is dismissed to have the Form I-485, Application to Register Permanent Residence or Adjust Status adjudicated by USCIS, why is it taking so long for USCIS to schedule an interview, sometimes as long as 16 months?
USCIS explained that the adjudication of an I-485 under these conditions should not take that long. USCIS District Offices have all established SOPs related to cases dismissed by ICE/EOIR where relief applications are pending before USCIS. These procedures are designed to ensure timely, effective adjudications and communication between USCIS and ICE. If you have specific examples of cases pending beyond USCIS processing times, please forward them to the Ombudsman's Office at email@example.com.
Can you tell us more about ICE efforts to monitor or streamline which cases will continue on to proceedings after a prosecutorial discretion review?
Please see the following recently issued guidance from USCIS and ICE:
- Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, PM-602-0050, 11/17/2011
- Case-by-Case Review of Incoming and Certain Pending Cases, 11/17/2011
When might the guidelines for the "new" prosecutorial guidelines be expected for field agents, supervisors, FODs and AFODs with ERO?
While OPLA is not certain as to what specific guidance may be issued in the field in the future, OPLA expects that any such guidance will build upon Director Morton's memoranda, "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens" (June 30, 2010), and "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" (June 17, 2011), both of which already apply to ICE attorneys, officers, and agents. Moreover, while written guidelines can serve as helpful tools for the exercise of discretion, such discretion has always been and will remain inherently a case-by-case consideration.
How does USCIS adjudicate an I-130 for a husband/wife when an interview is ordinarily needed and the beneficiary is detained?
Under Director Morton's memorandum, "Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions" (Aug. 20, 2010), ICE is obliged to facilitate USCIS access to applicants or beneficiaries who are in ICE custody. Once ICE provides USCIS with access to the detained beneficiary and the A-file, USCIS should – absent unusual circumstances such as fraud/national security or other public safety concerns – process the I-130/485 according to established guidelines and within the expedited (30 day) timeframe set forth in the February 2011 memo. Again, specific cases pending beyond USCIS processing times should be emailed to the Ombudsman's Office at firstname.lastname@example.org.
When will A-files be digitized so cases are not delayed while paper is moved around the country from service centers to ICE offices to USCIS district offices, etc.?
USCIS explained that this is an ongoing process. It is noteworthy, however, that all USCIS attorneys in the Office of the Chief Counsel recently gained limited access to GEMS (ICE's General Counsel Electronic Management System), which provides real-time information on cases being litigated in immigration court and the federal courts and includes materials relating to the litigation of a particular case.
Could an automated system be established to transfer detained clients to the non-detained docket (automatically) after they are bonded out?
ICE indicates that the docketing of released cases is generally a function of local immigration court arrangements and will depend on whether a particular judge has both a detained and non-detained docket or specializes only in one or the other. Also, if the release of the individual will result in his or her relocation to a different court jurisdiction, there may be legal requirements that need to be satisfied in terms of a formal change of venue, which would not be practical to automate. EOIR indicates that when a respondent in removal proceedings is released from detention on bond, the case remains before the court where the Notice to Appear was filed as that court has jurisdiction of the case, per 8 C.F.R. ¤ 1003.14(a). If the respondent wishes to have the case moved to a different court, the individual must file a Motion for Change of Venue and establish good cause under 8 C.F.R. ¤ 1003.20, and follow the guidance in the Immigration Court Practice Manual, Chapter 5.10(c). There are a limited number of courts co-located in the same base city (a court at a detention location and another court with principally non-detained cases), where clerical transfer of cases may be done under 8 C.F.R. ¤ 1003.11 (for example, El Paso Immigration Court and El Paso SPC; Buffalo Immigration Court and Batavia Immigration Court).
What is being done to speed up background checks for court? Is there a way to let attorneys and respondents know ahead of time when a background check will not be complete and a hearing will not go forward?
Immigration Judges address this when setting individual hearing dates and emphasize to respondents the need to obtain biometrics. Also, the biometrics form is provided to the respondent during a hearing. Both parties should be attentive to the need for biometrics to be current before an individual hearing.
How likely is ICE to join in a motion to reopen a case where, for example, a person granted withholding of removal wishes to pursue adjustment of status based on an approved I-130 petition? What is the procedure?
The exercise of prosecutorial discretion is inherently case-specific, but ICE will always consider requests to file joint motions. ICE has 26 Chief Counsels, each with established office-specific practices for the receipt and consideration of such requests, and ICE encourages individuals to touch base with counsel at the local level to learn more about those practices.
Have the August 20, 2010 ICE "Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Application or Petitions" and February 4, 2011, USCIS "Guidance for Coordinating the Adjudication of Applications and Petitions Involving Individuals in Removal Proceedings; Revisions to the Adjudicator's Field Manual" reduced the EOIR docket?
Yes. ICE explained that during the period September 1, 2010, to September 9, 2011, over 12,300 cases that had underlying petitions pending before USCIS were completed, either by termination without prejudice, administrative closure, relief granted, or other action.
Has the working group dealt specifically with efficiency of petitions involving unaccompanied children (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and Form I-589, Application for Asylum and Withholding of Removal under TVPRA)? Are these petitions also subject to the 30 day adjudication expediting process if the children are detained?
ICE responded that I-360s are petitions that go to USCIS for adjudication and were within the grouping of cases in removal proceedings that the working group addressed. Form I-589s, not granted by the Asylum Officer and in which charging documents are issued, are referred to the Immigration Court by the Asylum Offices (affirmative asylum applications) for removal proceedings under 8 C.F.R. ¤ 208.14 and adjudication by the Immigration Judge, or are filed in immigration court (defensive asylum applications). Asylum applications are governed by Immigration and Nationality Act ¤ 208 and timelines are provided in ¤ 208(d)(5).