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BIA Dismissal of DHS Appeal Actually Supports DHS Leadership

by Joseph P. Whalen

The latest BIA Precedent can be viewed as supporting DHS Leaderships' efforts in improving their use of Prosecutorial Discretion despite the reticence of the various DHS 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 continuance instead. The IJ had had quite enough of the bureaucratic bungling and Administratively Closed the case over ICE Counsel's objection. Why did the IJ do this? After eight (8) continuances, some of which were because the file was bouncing back and forth between ICE and USCIS, the IJ slammed on the breaks or in 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 that have taken place should prevent it from happening again BUT the new system has to get completely up and running first. The USCIS Policy Memorandum (PM-602-0050) entitled: Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens which was issued on 11/07/2011.


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 procedural improvements plus one very significant advancement arising from the naturalization context. That Memo creates a new local body at each USCIS Field Office: the new N-400 NTA Review Panel (Review Panel) will aid in improving overall coordination between USCIS and ICE. The Review Panel is reminiscent of the old Ellis Island Boards of Special Inquiry begun back in 1892. They evolved into the Labor Department's Board in the 1920s which itself was transformed in the BIA by the Attorney General in 1940, still hearing some appeals from Special Inquiry Officers until they became Immigration Judges. The new intradepartmental communication conduit known as a Review Panel, will ostensibly act in the name of the District or Field Office Director in issuing NTAs but will exercise deeply considered judgment and discretion and bring ICE Counsel into the loop in order to manage the initiation of Removal Proceedings more competently and based on a well reasoned and judicious exercise of Prosecutorial Discretion. The USCIS Memorandum initially described the ISO's referral process and the responsibility of 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 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:

15Additional 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.[2]

Specific USCIS and ICE coordination is encouraged and is intended to incorporate and supplement any established communication. The new memo had the following section 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, Precedent should facilitate overall smoother operations in conducting and concluding the overlapping Immigration Adjudications in the Benefits Context and in the Removal Proceedings Context. Let's hope for the best.

One last item to consult is the ICE January 4, 2012, Policy[3] 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 ICE's 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.



About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.