INS General Counsel Issues Memo on Motions to Reopen Adjustment of Status Applications

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS GENERAL COUNSEL ISSUES MEMO ON MOTIONS TO REOPEN ADJUSTMENT OF STATUS APPLICATIONS
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

Anticipating an increase in adjustment of status applications filed under Immigration and Nationality Act section 245(i), on May 17, 2001, Immigration and Naturalization Service General Counsel Bo Cooper issued a memo reviewing circumstances when the INS may join in motions to reopen based on status adjustment applications.

The Legal Immigration and Family Equity (LIFE) Act extended until Apr. 30, 2001, the deadline by which individuals could apply to adjust their status under INA section 245(i). That section allows immigrants who entered the U.S. without inspection and who qualify for immigrant visas to adjust to lawful permanent status while in the U.S., provided they pay an additional $1000 fee. Immigrants who filed adjustment of status applications and are in removal proceedings before the immigration court or the Board of Immigration Appeals may file motions to reopen their cases based on those applications. The general counsel's memo addresses how and under what conditions local district counsel may join such motions. The memo supercedes a Dec. 23, 1996, memorandum which set forth a standard of "extraordinary and compelling circumstances" that applicants must have met in order to obtain the INS's acquiescence for filing motions to reopen.

The memo states that the INS may join in a motion to reopen (or a motion to remand before the BIA) for consideration of an adjustment of status application pursuant to INA section 245(i) if (1) adjustment of status was not available to the immigrant at the former hearing; (2) the individual is statutorily eligible for adjustment of status; and (3) the individual merits a favorable exercise of discretion.

Process for Obtaining Motions to Reopen. To obtain INS consent to file a motion to reopen with the immigration court or BIA, the immigrant's attorney or representative must contact the district counsel's office in the jurisdiction that represented the INS during the individual's immigration proceedings. The request must

be in writing;
be supported by affidavits or other evidence establishing proof of current eligibility for adjustment; and
include, if available and applicable, a complete copy of the adjustment application and visa petition approval.

The motion should include a stipulation that the INS may still contest the merits of the individual's case in a reopened proceeding. As a condition for giving consent, the district counsel's office may request that the joint motion be revised. The general counsel directs local counsel to reply to requests for joint motions in a timely manner.

Statutory Bars. The memo states that the INS may not join motions to reopen if individuals are ineligible for adjustment due to any applicable statutory bars. The memo specifically references bars triggered due to overstays of grants of voluntary departure.

Under INA 240B(d), an individual in removal proceedings who is permitted to voluntarily depart and fails to do so is ineligible to adjust status for a ten-year period. Under prior law (INA § 242B(c) (1996)), except in exceptional circumstances, an individual in deportation proceedings who was granted voluntary departure and remained in the U.S. beyond the departure date was not eligible for adjustment of status under INA section 245 for a period of five years after the scheduled departure date. That restriction only applies where the individual received a written notice in English and Spanish and an oral notice in the individual's native language or in a language comprehensible to the individual. The notice had to contain information about the consequences of remaining in the United States after the scheduled departure date.

In deportation cases commenced before section 242B took effect and in 242B cases where the written and oral warnings were not provided, failure to depart the U.S. pursuant to a voluntary departure order does not act as a statutory bar to relief. However, such a failure would be considered a negative factor when the INS exercises discretion.

Discretion. The memo outlines factors that the INS should consider in favorably exercising discretion (it notes that the list is not exhaustive):

the hardship to the individual and/or to his or her U.S. citizen or lawful permanent resident family members if the individual were required to leave the U.S. and adjust status through consular processing (the three- and ten-year bars should also be considered);
the individual's criminal history, if any;
the number and severity of the immigration violations (a deportation or removal order resulting from a failure to depart after a grant of voluntary departure is considered a weighty negative factor);
whether the individual has cooperated with a law enforcement agency or whether his or her continued presence in the U.S. is necessary for a criminal or civil investigation or prosecution; and
whether the individual's removal is consistent with INS objectives.

The INS memo also states that if INS counsel decides to join in a motion to reopen based on an adjustment of status application, and if the INS counsel is confident that the INS would approve it, the joint motion to the immigration judge should simultaneously propose a "remand" of the proceedings to the INS for its adjudication. The memo instructs counsel to use Form I-471 or a similar local procedure for this purpose. In addition, any remand or joint motion to terminate should contain a stipulation, such as that contained in Form I-471, that the termination is conditioned upon approval of the adjustment of status application.

Memorandum of INS General Counsel Bo Cooper, May 17, 2001.