CILA€¦ · Call USCIS Attend appointment Submit final order STEP 5. Post-Order Instructions . Filing with the Immigration Court. Withdraw from representation • Confirm next steps

www.cilacademy.orgA project of the American Bar Association, funded by the Vera Institute of Justice.

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CILA


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Overcoming Analysis Paralysis: Practical Considerations for

Adjusting Status Based on SIJS

Dalia Castillo-Granados, DirectorVickie Giambra, Senior Staff Attorney

January 27, 2021


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CHILDREN’S IMMIGRATIONLAW ACADEMY (CILA)

CILA IS A PROJECT OF THE AMERICAN BAR ASSOCIATION’S COMMISSION ON IMMIGRATION.

WE ARE A LEGAL RESOURCE CENTER.

WE ARE A CAPACITY BUILDING ORGANIZATION.

WE BELIEVE EVERY CHILD SHOULD HAVE REPRESENTATION.

http://www.cilacademy.org/





4CILA’s ServicesNationwide & in Texas

Resources

Trainings

Pro Bono Initiatives

Pro Bono Matters for Children Facing DeportationSupport at Emergency Reception Centers

Technical Assistance

Texas Specific Trainings & Resources

Collaboration through Working Groups


5Today’s AgendaAdjusting Status to LPR Based on SIJ Status

DiscretionInadmissibilityAOS before USCIS

AOS before EOIRJurisdictional IssuesBack to Basics


6Yesenia HypoTravels from Honduras to escape abuse from mother.Yesenia is designated an unaccompanied child.

Released from ORR shelter to aunt.Aunt and uncle live in Fort Bend County, Texas.

Aunt obtains Texas custody order.Custody order contains all necessary SIJ findings.

Yesenia’s next master calendar hearing is coming up.

SIJ petition approved.


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Two Key Pr imar y

Sources

Statute & RegulationsStart here

Title 8 of the Code of Federal Regulations (CFR) § 245.1(e)(3);

§ 1245.1(e)(3)

8 U.S. Code § 1255(h);Immigration &

Nationality Act (INA) §245(h)


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Waiver is available for certain grounds of inadmissibility “for humanitarian purposes, family unity, or when it is otherwise in the public interest.”

SIJ SPECIFIC WAIVER AVAILABLE

Requires revision to full list of exempted grounds of inadmissibility.

WAIVER FOR INADMISSIBILITY

SIJ applicants are deemed paroled for purposes of INA § 245(a).

ALLOWS SIJs TO ADJUST STATUS

SIJ applicants paroled for purposes of adjustment, regardless of entry.

ADJUSTMENT PROVISION

Lists grounds of inadmissibility that are waived and waivable.

APPLICABLE GROUNDS OF INADMISSIBILITY

SIJ applicants are not barred from adjustment based on unauthorized employment.

UNAUTHORIZED EMPLOYMENT

SIJ Adjustment Law & RulesINA § 245(h) 8 CFR § 245.1(e)(3)- *outdated*


9Visa BulletinImmigrant visa must be immediately available

EB-4 Preference Category

SIJs are considered “Special Immigrants” under the 4th preference employment-based categories, which is allocated 7.1% of the 140,000 visas available per year, or 9,940 visas per year. There is also a 7% per country limit so each country is allocated about 696 visas per year.

January 2021


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USCIS Policy Manual, Volume 7, Part F,

Chapter 7

USCIS

Agency Guidance

SIJ Adjustment Policy

SIJ Classification

Legal Authorities

Eligibility Requirements

Adjudication

https://www.uscis.gov/policy-manual/volume-7-part-f-chapter-7


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EOIR Policy Manual, Part II, OCIJ Practice Manual

EOIR

Agency Guidance

Filings with the Immigration Court

Delivery and Receipt

Service on Opposing Party

Order of Documents

Filing Fees

https://www.justice.gov/eoir/eoir-policy-manual/3


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Blank Space Policy

USCIS may no longer reject applications for blank spaces

Vangala v. USCIS (N.D. Cal.)

Filling out the I-485


13SIJS I-485 Form Tips


14SIJS I-485 Form Tips (Cont…)


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Jurisdictional Issues


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DEFENSIVE APPLICANT

AFFIRMATIVE APPLICANT

Client is currently in removal proceedings

Client is not currently in removal proceedings

Procedural PostureWhy does it matter?


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EOIRUSCIS

USCIS vs. EOIRWho adjudicates the application?

• 8 CFR 1245.2(a)(1): Applicants in removal proceedings, except arriving aliens

• 8 CFR 245.2(a)(1): Applicants not in removal proceedings

• 8 CFR 245.2(a)(1), 8 CFR 1245.2(a)(1): Arriving aliens, even if in removal proceedings


18Concurrent Filings with USCISFiling the SIJ petition and AOS application simultaneously

SIJ Petition & AOS Application Filed Together

Affirmative applicant + current priority date when filing I-360 petition

Client not in removal proceedings or an arriving alien. Cannot be from a backlogged country (Honduras, El Salvador, Guatemala, Mexico).


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BEFORE USCIS- 2 STEPS BEFORE EOIR- 2 STEPSBEFORE USCIS- 2 STEPS

Client remains in removal proceedings.

Client’s case dismissed/terminated once

the I-360 approved.

Client not in removal proceedings or an arriving

alien. From backlogged country.

Adjudication OptionsAOS application adjudicated by USCIS or EOIR


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This decision does not foreclose respondents, in appropriate circumstances, from

requesting that DHS file an unopposed motion to dismiss proceedings under 8 C.F.R.

§ 1239.2(c).

Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018)

(c) Motion to dismiss. After commencement of proceedings pursuant to 8 CFR 1003.14, ICE counsel…may move for dismissal of the matter on the grounds set out under paragraph (a) of this section.

8 CFR 239.2(c)

• ICE may join or file motion to dismiss proceedings

• Demonstration of prima facie eligibility

• Support discretionary determination

• No asylum application pending

Exercising Prosecutorial Discretion To Dismiss AdjustmentCases

Dismissal of Removal ProceedingsTo allow for adjustment before USCIS

https://www.justice.gov/eoir/page/file/1095046/download


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Other pending applications

Application administratively

closed with USCISRelationship with ICE

OCCPrevious

removal order

What type of removal order does the child have? Is it executed or unexecuted?

What about the asylum application?

How do you reopen? Can the application be transferred to

EOIR?

Who files the motion? What are the local requirements?

How do you negotiate?

Complicating IssuesIt’s almost never easy


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Steps to take

Considerations

• Map it out

• Talk to colleagues

• Talk to your client

• Viable options• Timeline• Client preference• Local practice

Making the Final CallWhich path is best for the client?


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EOIRUSCIS

• Quick hearing

• File AOS immediately

• COVID closures

• Non-adversarial setting

• May not require interview

• Must coordinate with ICE

Yesenia HypoContinued…


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Yesenia decides to move forward with Immigration Court

Choose Your Adventure-Option 1!


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STEP 04STEP 02

STEP 03 STEP 05STEP 01

Adjudication before EOIRIt’s a process

Follow Post-Order InstructionsFollow Pre-Order Instructions Prepare for Merits Hearing

File AOS Application with the Immigration Court

Present Case at

Merits Hearing


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Pre-Order Instructions

Copy of the application(s)

Fee or fee waiver

$85 biometrics fee

Form G-28

Copy of instructions

STEP 1

Follow Pre-Order InstructionsSteps to take before filing the application

Motion to Waive Fee• EOIR Policy Manual guidance

• Must be allowable by DHS• “The request for a fee waiver must be accompanied by a properly

executed affidavit or unsworn declaration made pursuant to 28 U.S.C. § 1746, substantiating the filing party’s inability to pay the fee.”

USCIS Notices• Receipt Notice(s)• Biometrics Appointment Notice

• Preparing for your biometric services appointment

Additional Applications• File I-765, Application for Employment Authorization, separately with I-

485 Receipt Notice• Should not file I-131, Application for Travel Document

https://www.uscis.gov/sites/default/files/document/forms/PreOrderInstr.pdf

https://www.justice.gov/eoir/eoir-policy-manual/3/4

https://www.uscis.gov/forms/filing-guidance/preparing-for-your-biometric-services-appointment


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Filing with the Immigration Court, Chapter 3.3

STEP 2

File AOS ApplicationFiling with the Immigration Court

(A) Applications for relief - An application package should comply with the instructions on the application. The application package should contain (in order):

Form EOIR-28 (if required) Cover page If applicable, fee receipt (stapled to the application) or motion for a fee

waiver Application(s) Proposed exhibits (if any) with table of contents Proof of Service

Exhibits• Medical exam, Form I-693• Photos• Criminal history chart• Proof of positive equities

https://www.justice.gov/eoir/eoir-policy-manual/3/3


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STEP 3

Prepare for Merits HearingPreparing to go to court

Background check• Ensure that client attends biometrics appointment• Follow up with ICE Counsel to confirm background check complete• Fingerprint Check Update Request

Client preparation• Review documents and exhibits• Practice direct examination• Practice cross examination

Negotiating with ICE Assistant Chief Counsel• ICE position on application• Stipulation

Preparing for Immigration Court

https://www.uscis.gov/forms/fingerprint-check-update-request-agreement-between-uscis-and-ice


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STEP 4

Present Case at Merits HearingPresenting the case to the Immigration Judge

Remote hearings• WebEx or phone hearing• Addressing concerns

Adjudication by submission• ICE Counsel stipulation• Complete record

Contested hearing• Trial advocacy skills• Appeal

The final hearing


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Post-Order Instructions

Call USCIS

Attend appointment

Submit final order

STEP 5

Post-Order InstructionsFiling with the Immigration Court

Withdraw from representation• Confirm next steps with client• Motion to Withdraw after final hearing hearing

Production of Lawful Permanent Resident card• Work with USCIS• Copy for the file

Closing letter• Copy of file to client• Clear instructions for next steps

https://www.uscis.gov/sites/default/files/document/guides/PostOrderInstructions.pdf


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Yesenia decides she wants to submit her I-485 with USCIS

Chose Your AdventureOption 2!


32Dismissal of Removal ProceedingsTo allow for adjustment before USCIS

OCC will submit to Court if joining, submit if notIJ will decide to dismiss or not

Immigration Court

Ask for joint motion (prosecutorial discretion)Show priority date is currentSupport discretionary determination

Contact OCC

8 CFR 239.2(c)Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018)

Motion to Dismiss


33Yesenia HypoContinued…

Yesenia denies it.

ORR file contains mental health evaluation indicating gang involvement.

Necessity of filing taxes on earned income.

The campus police involved assault mentioned.

Fight with another girl in high school.

Driver pulled over, all taken to the police station. Uncle came to pick her up very late.

In car with people smoking marijuana, did not participate.


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IMMIGRATION RELATEDECONOMIC/EMPLOYMENT MISCELLANEOUS

CRIMINALHEALTH NATIONAL SECURITY

Terrorism, espionage, Nazi, genocide

Communicable diseases, physical or mental disorder

Conviction for CIMT or controlled substance, vice

Public charge, labor certification

Unlawful presence, removal order, misrepresentation

Polygamy, international child abduction, unlawful voting

InadmissibilityINA § 212


35INA § 245(h)(2)(A)Inadmissibility grounds inapplicable to SIJS

212(a)

7(A) Lack immigration docs

212(a)

6(C) *Includes false claim of citizenshipMisrepresentation 212(a)

6(D) Stowaways

212(a)

6(A)Present without admission or parole

212(a)

(4) Public Charge 212(a)

5(A) Labor Certification

212(a)

9(B) Unlawful Presence


36INA § 245(h)(2)Inadmissibility Grounds WITHOUT Waiver

(4)(2)(I)

(2)(H)(2)(C)

National Security Related*Money Laundering

Traffickers in PersonsControlled Substance Trafficker

INA § 212(a)


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Yesenia remembers that in high school she got into a fight with another girl. The campus police got involved and

someone mentioned assault but she's not sure what happened.


38Yesenia’s StoryTriggers for Inadmissibility

Convicted or admits committing acts which constitute the essential elements of a crime involving moral turpitude

Criminal grounds of inadmissibility

Formal judgment of guilt entered by a courtOR

Admitted sufficient facts + restraint on liberty imposed

Convicted?

Reprehensible conduct + culpable mental state (intent)Crime Involving Moral Turpitude?

01

03

02


39Categorial ApproachCrimmigration - a complicated subject area

Look at the elements of the crime, do the definitions in the statutes match

Compare State vs. Federal

Usually from the federal definition of the offenseDetermine Generic Offense

A statute is “divisible” if it includes multiple separate crimes, and not all match

Divisible?

Can look at the criminal recordModified Categorical

02

03

04

01

Categorical approach prevents judge or adjudicating officer

from looking at the actual facts of the conviction, only look at

the elements of the statutes

ANALYSIS


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Gomez-Perez v. Lynch says no, in most circumstances

Analyze

Is assault in Texas a crime involving moral

turpitude?

CIMT

Not waivable under 245(h)

INA § 212(a)(2)(A)(i)(I)

Juvenile delinquency does not count as a

conviction

Juvenile?

AssaultUnder INA § 245(h)


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Yesenia also mentions that she was in a car with some friends who were smoking

marijuana, but she didn't join them.

The driver got pulled over and the police took them all to the police station. She

remembers her uncle came to pick her up and take her home, but not much else.


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“humanitarian purposes, family unity, or when it is otherwise in the public

interest.”

Waiver

except for…a single offense of simple

possession of 30 grams or less of marijuana

UNLESS

Not waivable under 245(h)*

INA § 212(a)(2)(A)(i)(II)

Was she actually charged and what about INA §

212(a)(2)(C)

Charged?

Marijuana OffenseUnder INA § 245(h)


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DON’T FORGET DELINQUENCY

READ QUESTION CAREFULLY

THINK ABOUTTHE ELEMENTS2

3

1


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State Criminal RecordsFBI Fingerprint Check

Frequently, your initial font choice is taken out

Frequently, your initial font choice is taken out

Criminal RecordsHow to get them


45Conduct-based InadmissibilityINA § 212(a)(1)(A)

To self or others

DangerMagic…Not inadmissible forCIMT or drugs


46WaiversFor inadmissibility

discretionary waiver of one or more CIMTs, show extreme hardship to spouse, parent, or child.

INA § 212(h)“humanitarian

purposes, family unity, or when it is

otherwise in the public interest.”

INA § 245(h)(2)(B)


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Yesenia’s ORR file contains a mental health evaluation indicating that she may have

been involved with a gang.


48Gang MembershipProblematic, but why?

DISCRETION

INADMISSIBILITY

Gang membership is not a direct inadmissibility ground.

Inadmissibility

Gang membership does go towards discretion.

Discretion


49Discretion in SIJS I-485 AdjudicationYour great subtitle in this line

NEGATIVE FACTORS

ELIGIBILITY

POSITIVE FACTORS


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3 4 51 2

Other indicators adversely reflecting the

applicant’s character and undesirability as an LPR

of this country.

Other

Unemployment, unauthorized

employment, illegal sources of income.

Business, Employment, Skills

Violation of Status, removal orders, fraud.

Immigration Status & History

Absence of family or ties.

Family & Community Ties

Criminal tendencies, lack of rehabilitation, safety and/or security threat.

Failure to may taxes/child support.

Community Standing& Moral Character

Negative FactorsThink “inadmissibility”


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3 4 51 2

Absence of significant undesirable or negative

factors and other indicators of good moral character in the United

States and abroad.

Other

Education, skills, training in U.S., employment

history and type.

Business, Employment, Skills

Compliance with immigration laws,

approved humanitarian petition.

Immigration Status & History

Hardship to applicant and close relatives if application is denied.

Family & Community Ties

No criminal record, rehabilitation, cooperation

with authorities, compliance with tax laws, non court

ordered community service.

Community Standing& Moral Character

Positive Factors


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Religious Involvement Community FamilySchool

Letters from family members about client caring for

them or others (i.e. client’s own

children)

Letter from teacher/principal,

transcripts, extracurricular

activities

Letters from those in community that know client and have favorable things to say

Letter from pastor/priest/rabbi/imam,

other congregation members

Positive Factor ExamplesYour great subtitle in this line

Rehabilitation

Completion of rehab, community service,

counselor letter


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Collect supporting documentation, medical exam*

Step 2

Determine filing fees or complete fee waiver request

Step 4

Fill out I-485

Step 1

Fill out I-765

Step 3

Send to Chicago Lockbox

Step 5

Filing ProcessFor I-485 with USCIS


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