An Incurable Notice to Appear

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Matter of Aguilar Hernandez

Matter of Aguilar Hernandez January 31, 2024, the Board issued a decision in Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) finding: The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).  Full Decision. Basis for the Board’s Decision Prior Decisions  Impact of The Decision This case will help to make some people eligible for cancellation of removal because the Board says that respondents will continue to accrue physical presence in the US for purposes of cancellation of removal until the Department has properly cured the defective Notice to Appear (NTA)1.   As a result, some people who think they were ordered removed can argue they have grounds to reopen their proceedings and then may be able to pursue 42b cancellation of removal in reopened proceedings. Further, respondents that were originally put into removal proceedings before they had 10 years in the US, may actually be eligible for cancellation of removal if their initial NTA was deficient and DHS has yet to cure it, or the Department cured it after they accrued 10 years of presence using this new manner of calculation established by this decision2:   Indeed, it is a strategic decision by a respondent to raise (or not raise) an objection to a defective notice to appear lacking the date and time of the initial hearing before the Immigration Judge. By electing not to raise the objection, the respondent’s notice to appear remains defective and the respondent will continue to accrue continuous physical presence in the United States for the purposes of cancellation of removal.4 Conversely, if after the respondent raises a timely objection, DHS remedies the defective notice to appear, then the “stop-time” rule prevents the respondent from accruing additional physical presence for purposes of cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).   1.Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) 2.  Id at 779. More Information The full decision can be found at https://www.justice.gov/d9/2024-01/4071.pdf.

Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023)

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Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent. [Full Decision] Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) At a 2019 hearing before the Immigration Judge, DHS indicated that it did not have the respondent’s file and sought a continuance to locate it. The respondent did not object but asked that the proceedings move forward as quickly as possible to obtain review of USCIS’ decision denying his most recent I-751 petition to remove the conditions on his residence. The Immigration Judge continued the case for one month. At the next hearing, DHS still had not located the respondent’s file. The Immigration Judge asked the DHS attorney if she was moving to terminate for failure to prosecute the case, and the DHS attorney indicated that she was. The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” The respondent also contended that terminating removal proceedings would leave him without an avenue for review of USCIS’ denial of his Form I-751, which at that point he had been seeking for nearly a decade. The Immigration Judge granted DHS’ motion to terminate the removal proceedings on the ground that the court lacked jurisdiction tointerfere with DHS’ prosecutorial discretion. The respondent timely appealed. The Board found that Congress has provided that a decision by USCIS to terminate anoncitizen’s conditional permanent resident status is reviewable in removal proceedings by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D). Under current regulations, this is the only permitted avenue for review. See 8 C.F.R. § 1216.3(a); cf. 8 C.F.R. § 1216.5(f) (2023) (“No appeal shall lie from the decision of the director [to deny a waiver of the joint filing requirement]; however, the alien may seek review of such decision in removal proceedings.”). Where the basis for USCIS’ denial of a Form I-751 petition is the denial of a waiver of the joint filing requirement, the Immigration Judge reviews the denial of the waiver as well. See 8 C.F.R. § 1216.5(f); Matter of Bador, 28 I&N Dec. at 642 (collecting authority); see also Matter of Herrera Del Orden, 25 I&N Dec. 589, 593–95 (BIA 2011) (discussing the scope of the Immigration Judge’s review of the denial of an applicant’s request for a waiver of the joint filing requirement). Because DHS does not have unilateral authority to cancel a Notice to Appear once removal proceedings have commenced, DHS’ motion to terminate constituted a request that the Immigration Judge exercise his authority to terminate the proceedings. See Matter of G-N-C-, 22 I&N Dec. at 284. The Immigration Judge has authority to adjudicate this request “based on an evaluation of the factors underlying the [DHS’] motion.” Id. The Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so. Instead, the Immigration Judge should have adjudicated the motion after considering the underlying facts and circumstances. Because the Immigration Judge mistakenly concluded that DHS’ motion divested him of jurisdiction, he did not consider the respondent’s interest in obtaining review of USCIS’ denial of his Form I-751 petition. The respondent’s interest in having an Immigration Judge review USCIS’ denial of a Form I-751 is significant. Regulations provide that when USCIS terminates conditional permanent resident status by denying a Form I-751, there is no appeal from that decision to any higher authority within USCIS, and the noncitizen must be placed in removal proceedings. 8 C.F.R. § 1216.3(a). At that point, the denial of the Form I-751, and any associated waivers, is reviewable only by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D); 8 C.F.R. §§ 1216.3(a), 1216.5(f); Matter of Bador, 28 I&N Dec. at 642. The appeal was sustained and the case was remanded to the Immigration Judge to review the Respondent’s petition to remove conditions on his residency. See full decision here.

USCIS Policy Alert: Family-Based Conditional Permanent Residents

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USCIS Policy Alert, PA-2023-33, dated December 12, 2023https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20231212-Family-BasedCPRs.pdf U.S. Citizenship and Immigration Services (USCIS) issued policy guidance in the USCIS Policy Manual regarding family-based conditional permanent residents. The update clarifies what noncitizens must do to change the basis of filing in cases of waivers based on battery or extreme cruelty. It also clarifies that if a noncitizen’s conditional permanent resident status is terminated for failing to timely file Form I-751, they may be eligible to adjust permanent resident status on a new basis. This is true even if USCIS issues a notice of termination of conditional permanent resident status before the noncitizen files Form I-485, Application to Register Permanent Residence or Adjust Status. Under the Immigration Marriage Fraud Amendments of 1986, a noncitizen obtains permanent resident status on a conditional basis for two years if: To remove the conditions on their permanent resident status, conditional permanent residents generally must file Form I-751 within the 90-day period before the two-year anniversary of when they obtained conditional permanent resident status. The new guidance, Volume 6 of the Policy Manual, is effective immediately and applies prospectively to applications filed on or after December 12, 2023. On that date, this policy update will supersede the guidance found in Chapter 25.1 of the Adjudicator’s Field Manual (AFM), related AFM appendices, and related policy memoranda. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. Policy Highlights Summary of Changes Affected Section: Volume 6 > Part I, Family-Based Conditional Permanent Residents • Adds content to previously reserved chapters 1, 2, 4, 5, 6, and 7, and adds content to previously reserved sections A, B, C, D, E, F, H, and I in chapter 3. USCIS may also make other minor technical, stylistic, and conforming changes consistent with this update. Citation: Volume 6: Immigrants, Part I, Family-Based Conditional Permanent Residents [6 USCIS-PM I] (Chapters 1-7).

Emergencies or Unforeseen Circumstances

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Unforeseen circumstances, such as natural catastrophes (hurricanes, wildfires, severe weather, etc.), national emergencies (public health emergencies), severe illness, or conflicts abroad, can sometimes affect the processing of your USCIS application, petition, or immigration request. USCIS has discretion to take the below measures on a case-by-case basis upon request, if you have been affected by an unforeseen circumstance. You can request assistance by calling the USCIS Contact Center at 800-375-5283. In order to request an expedite through the Contact Center, you must have already filed a benefit request and have a USCIS receipt number. When you request help, you will need to explain how the impact of an unforeseen circumstance (domestic or international) created a need for the requested assistance. For example, if you lost all evidence of status or employment authorization, include an explanation in your description and a copy of a police report, insurance claim, or other report, if available, to support your request. Always keep your address up-to-date with USCIS to ensure you receive all correspondence and benefits from us in a timely manner and avoid possible delays related to your case. To update your address with USCIS, visit How to Change Your Address page of USCIS.gov. Note that changing your address with the U.S. Postal Service (USPS) will not change your address with USCIS. Please contact USPS if you need to temporarily hold or forward your mail due to unforeseen circumstances or a temporary relocation. Specific Requests Expedited Processing If you need USCIS to consider your request for a service or benefit more quickly, you may make that request when filing or after you file. In order to request an expedite through the Contact Center, you must have already filed a benefit request and have a receipt number. Read more about expedited processing on our website. Extensions and Changes You may request an extension of stay or change of status using Form I-539, Application to Extend/Change Nonimmigrant Status, or in the case of certain employment-based classifications, Form I-129, Petition for a Nonimmigrant Worker. If an unforeseen circumstance prevented your planned and timely departure, you may extend or change your status and provide an explanation for your failure to depart. If you do not apply for the extension or change of status before your authorized period of admission expires, USCIS may excuse the delay if it was due to extraordinary circumstances beyond your control. Fee Waivers If you are unable to pay the fee for a USCIS service or benefit, you may request a fee waiver for certain forms by filing Form I-912, Request for Fee Waiver. Document Replacement You may also request expedited processing for the replacement of lost or damaged immigration documents, such as your Green Card, your Employment Authorization Document (EAD), or Form I-94, Arrival/Departure Record. If your documents were lost, stolen, or damaged, and you need proof of employment eligibility, see the list of Form I-9 acceptable documents and receipts for other ways to complete Form I-9. Visit I-9 Central for more information. To replace a/n… You must file a… Green Card Form I-90, Application to Replace Permanent Residence Card, or request interim evidence of permanent residence stamp (I-551 stamp) from a USCIS Field Office.You may file Form I-90 online. Form I-94 Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document Employment Authorization Document Form I-765, Application for Employment Authorization Employment Authorization Employees If your documents were lost, stolen, or damaged, see the list of Form I-9 acceptable documents and receipts for more information on other ways to complete Form I-9. Visit I-9 Central for more information. To replace an Employment Authorization Document (EAD), you must file Form I-765, Application for Employment Authorization. You may also request expedited processing for the replacement of a lost or damaged EAD. Employers All requirements for Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place. E-Verify remains available to employers affected by unforeseen circumstances, both directly through the E-Verify web portal and E-Verify employer agents. If you have any questions or issues about using E-Verify from a remote location, please contact E-Verify Support at 888-464-4218 (for employers) or 888-897-7781 (for employees). Severe Economic Hardship to F-1 Students Caused by Unforeseen Circumstances If you experience severe economic hardship because of unforeseen circumstances beyond your control, you may request employment authorization to work off-campus (if you meet certain regulatory requirements). See 8 CFR 214.2(f)(9). Examples of unforeseen circumstances include (but are not limited to): To apply, you must submit Form I-765, Application for Employment Authorization, along with a copy of your Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, and any other supporting materials to USCIS. Your Form I-20 must include the employment page completed by your Designated School Official, certifying your eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control. If your request is approved, you may be able to work off-campus in one-year intervals up to the expected date of completion of your current course of study. See 8 CFR 214.2(f)(9)(ii). Special Student Relief Special Student Relief (SSR) is the suspension of certain regulatory requirements by the secretary of Homeland Security for F‑1 students from parts of the world that are experiencing emergent circumstances. Examples of emergent circumstances include natural catastrophe, war and military conflicts, and national or international financial crises. DHS designates SSR by publication of a Federal Register notice, which provides the start and end dates of the suspension of those requirements, which may include any or all requirements for on-campus or off-campus employment. A list of active SSR notices is available on the ICE Student and Exchange Visitor Program What’s New webpage. You may be eligible to apply for off-campus employment authorization if you: To apply, you must submit Form I-765, Application for Employment Authorization, along with a copy of your Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, and any other supporting materials to USCIS. Failure to Appear for an Interview or to Respond to a Request for Evidence If you did … Read more