AMERICAN IMMIGRATION LAWYERS ASSOCIATION, SOUTHERN CALIFORNIA CHAPTER LOS ANGELES COUNTY BAR ASSOCIATION, IMMIGRATION SECTION

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1 AMERICAN IMMIGRATION LAWYERS ASSOCIATION, SOUTHERN CALIFORNIA CHAPTER & LOS ANGELES COUNTY BAR ASSOCIATION, IMMIGRATION SECTION LIAISON MEETING WITH USICE OCC/OPLA, ERO & HSI in Los Angeles, California on September 22, 2015 Sandra Anderson, Chief Counsel; David Jennings; FOD, ERO, Claude Arnold, SAC, HSI OCC / OPLA 1. What is the process by which a case that is granted in court is transferred to USCIS for production of the I-551? USCIS claims that they send s to the OCC requesting that they forward the file to USCIS but the OCC does not respond. What is the average length of time that this process should take? Is there something that Respondent's counsel can do to facilitate or speed up the process? It is the policy of the OCC to transfer the file to USCIS immediately following a grant where appeal has been waived. If you encounter problems with this, you can contact the Duty Attorney at (213) or dutyattorney.los@ice.dhs.gov. Attorneys are also encouraged to ask USCIS to double check whether the file is actually with litigation. 2. No solution has been reached to address the overload of fingerprint requests on CIS District 23 and it is rumored that D23 will limit the number of requests that will be processed to a small number each day. This will lead to even more drastic delays and possible serious prejudice to our clients. Has Headquarters been approached or can they be approached to try to come up with a technological solution to the demand. OCC is currently working with USCIS on this issue and hopes to have a solution soon. Ultimately, however, the resolution is up to USCIS. 3. a. Approximately how many written notifications has ICE received that a Duran Gonzalez Subclass A Member with a reinstated removal order filed a request to reopen with USCIS? 1

2 Unable to provide an estimate. b. Of these, how many were from USCIS, how many were from the Subclass A Member/attorney (both before and after August 25th)? Unable to provide an estimate. c. Of these, how many resulted in ICE's cancellation of the reinstated removal order within 30 days (both before and after August 25th)? Unable to provide an estimate. d. What has ICE been requiring as the proof of filing/ written notice from Subclass A Members who filed Duran Gonzalez requests with USCIS before agreeing to cancel a reinstated removal order under INA 241(a)(5) (both before and after August 25th)? A copy of the Motion to Reopen filed with USCS should suffice. 4. How is OCC treating cases that fall under the same factual basis of the 9 th Circuit s recent decision in Acosta-Olivarria v. Lynch, case no , decided on August 26, 2015, for example, Respondents who also filed their AOS before the BIA s decision in Briones and relied on the 2006 decision of Acosta v. Gonzales? There are many cases with identical fact patterns which have been administratively closed. Will OCC agree to re-calendar these cases to address the issue of retroactivity? OCC will not oppose a motion to recalendar. In determining whether Acosta-Olivarria applies, OCC will look at whether the applicant reasonably relied on the original Acosta decision and whether the adjustment application was filed between February 23, 2006 and November 29, What is OCC's policy regarding granting PD to individuals (non-detained) suffering from mental illness? We refer to cases involving non-violent individual who are capable of earning a living through manual labor, but suffers from serious mental conditions that prevents them from being able to effectively present their case, with or without attorney representation. The OCC will look to Secretary Johnson s November 20, 2014 enforcement priorities memo as guidance to determine whether PD will be offered. Where an individual is considered an enforcement priority, only certain supervisory officials can assess the 2

3 cases for PD. 6. What is OCC s policy as to whether an expunged conviction not falling within those set forth in Level I renders a person an enforcement priority? All expunged convictions will be considered on a case-by-case basis. 7. What is the current PD policy for those with NTAs filed with the court, no criminal record, legal entry and an I-130 receipt based on marriage to a USC? Attorneys in charge of PD seem to be rotated in; some will allow admin closure and maybe even termination in that circumstance. Others will not agree to admin closure in that circumstance, but will agree to termination after the I-130 is approved. OCC is guided by the August 20, 2010 Morton memo to determine whether to agree to termination in the case of a person who appears to be statutorily eligible for adjustment of status before USCIS. Where an I-130 has been filed, and the bona fides of the I-130 are evident, the OCC may agree to termination before the I-130 has been approved. 8. Please provide an updated UP Chart and Contact List. This will be ed. 9. How does OPLA interpret the temporal reach of the phrase aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States found in Level 1 of the 11/20/2014 enforcement priorities memo? Does it include people apprehended prior to 1/1/2014? If so, how far back and what sort of entries would it include? The OCC will look to Secretary Johnson s November 20, 2014 enforcement priorities memo as guidance to determine whether PD will be offered. All entrants apprehended after January 1, 2014 are considered an enforcement priority. An entrant apprehended before January 1, 2014 will not be considered an enforcement priority on the basis of that apprehension. [Ed. Note: Recent entrants and enforcement priorities can still apply for prosecutorial discretion. Unique facts and circumstances must be present.] 10. Is a misdemeanor conviction for driving without a license still considered a minor traffic offense or has there been a recent policy change? There has been no policy change. A misdemeanor conviction for driving without a license is still considered a minor traffic offense. 3

4 ICE/ERO 1. Why is it that when detainees are released from Adelanto on bond or after credible fear they are not given I-94 s indicating parole? This used to be the procedure at Lancaster and at Musick. It is Adelanto s policy to issue an I-94 after a detainee has been paroled after a positive CFI. However, given the report that this may not be happening in all cases, ERO will look into this for further clarification. REQUEST FOR FOLLOW UP: Another member is reporting this week that her client was released on parole with his I-94 stamped not authorized work authorization. Why would an officer write this when this is clearly inconsistent with 8 CFR 274a.12(c)(11) for a person paroled under 212(d)(5)? ERO Response: There are multiple reasons why subjects would be paroled from Agency custody. In adherence to the January 4, 2010, guidance entitled, Parole of Arriving Aliens Found to Have a Credible Fear of Prosecution or Torture section 8.8 states, Therefore, under these circumstances, employment authorization would not be granted. Private Bar attorney should provide specific information, if further review is requested. 2. A member expressed concern especially about the Camarillo ICE office. He said that ICE has an office in the county jail and that people get picked up by ICE as they leave the jail; also outside the courthouse. In Santa Barbara, they even get picked up inside the courthouse. Please clarify your policy. ERO works in conjunction with local authorities to target individuals who are considered enforcement priorities. 3. What is the procedure for filing a stay, Form I-246, and where should a stay be feed in vs. where it is filed? Who ultimately makes the decision on a stay? Does the Applicant's residence affect where, when and how a stay of removal is filed? 4

5 All stays must be filed at 300 N. Los Angeles, Room After a stay is filed, the stay request will be forwarded to the office having docket control. The office having docket control will adjudicate the stay, but only the FOD has the ultimate authority to deny a stay. If a person is detained, the local office having jurisdiction over the detention center has docket control over the stay. If deportation is imminent, the adjudication of the stay will likely be imminent. Where deportation is not imminent, turn around times have generally been 30 days lately because of a backlog. 4. Is there any room to submit legal analysis that a conviction does not render a person an enforcement priority when filing for a stay of removal? Should legal analysis be submitted with every stay request? Applicants are encouraged to file what they find is necessary. All stays are adjudicated on a case-by-case basis and are based on a balancing of equities and enforcement priorities. 5. Will a stay request be denied automatically if there is a conviction that makes an individual a priority? E.g., a DUI? No. All stays are adjudicated on a case-by-case basis. 6. If a file is sent to the NRC prior to the release of an I-551 or passport after a grant of relief, what is the procedure for obtaining the documents? Counsel should always ask ACC in court to return documents after relief is granted. After that, Counsel may contact ERO to request file back in order to return documents. 7. Attorneys have reported that the people at the OC Jails and the workers for the GEO Group are refusing to pass along messages to the detainees when the attorney calls. What is ERO s policy to ensure our clients receive the messages in a timely fashion? What suggestion does ERO for attorneys to ensure that clients receive their messages? ERO believes that messages can be left for clients at Adelanto. EROA is not able to get those arrangements at the OC jails. Attorneys can leave messages for detainees at the Adelanto Desk by calling (760) REQUEST FOR FOLLOW UP: Today, a member was told by GEO that they have a new policy of not taking messages for detainees, even from their legal representatives 5

6 and even in urgent cases. The member was told that her only options for contact with her client are to mail a letter to the client or to go see the client. Can ERO please clarify this new policy and the reasons for it? ERO Response: There is no such new policy implemented at the Adelanto Detention Facility. 8. What changes are the ERO/GEO Group planning to ensure that "low level" detainees can meet with their attorneys after a hearing in Adelanto? Currently, it is taking in excess of 4 hours to get an opportunity to see these clients because there are no "low level" meeting rooms in Adelanto West. All detainees should be able to meet with their attorneys. ERO is trying to make better arrangements for attorneys to meet with their clients. ERO is considering technological solutions. 9. What is the OC detention facilities' policy on giving prepaid FedEx envelopes/us mail envelopes to clients? You may give detainees pre-paid US mail envelopes, not Fedex, but the detention facilities will send mail for detainees even if not pre-paid. ERO will also look into whether family members can get documents signed by detainees to help facility attorney client dealings without the attorney having to go personally to the detention facility. 10. ICE Officers have said time and time again that a PRIOR ORDER OF REMOVAL issued prior to 1/1/2014 renders someone an enforcement priority. The officers cite different sources. First, the officers cite the 11/20/2014, but this does not appear anywhere in the memo. Can you please identify this in the memo? Second, ICE Officers identify an Internal Policy ICE Memo from D.C. Can you please identify this memo? There is no other memo. The 11/20/2014 memo is the most recent guidance. If the removal order was issued prior to January 1, 2014, the person is not considered an enforcement priority. 11. This is a particular concern given that one of our clients was detained he had a prior order of removal from the 90's. He had four traffic violations, and has been detained for weeks. We have filed a stay, but they continue to say he is a priority. He had never violated any ISAP guidelines, etc. He was originally detained b/c they thought he had a PC 242 conviction (which is not a CIMT/DV offense either 6

7 way), we provided the judicial clearance demonstrating the fingerprints were wrong, but he continues to be detained. This is a case-specific question and should be directed to the officer or supervisor. 12. If a person that was mandatory detainee was granted a Rodriguez Bond, will ICE detain them again based on the new PEP guidelines? A bond granted for a detainee will be respected unless there are changed circumstances, e.g. a new crime. 13. At what point in an alien s case does ICE believe that it has the authority to ignore a Rodriguez bond order and re-detain an alien? Rodriguez bonds will not be ignored unless there are changed circumstances. 14. Can we please obtain an updated and detailed contact list for the officers at various detention facilities? The contact list has been provided. JOINT OPLA/ERO QUESTIONS 1. What is the OCC's position regarding travel documents issued by "Honorary Consuls"? Members have reported individuals being ordered removed to countries (mostly small countries in Africa) such as Cameroon using travel documents issued by Honorary Consuls, as opposed to an actual consular official from a Diplomatic Mission. Is this an official ICE policy to seek travel documents from Honorary Consuls to effectuate removal in cases involving countries that do not have a significant diplomatic presence in the U.S.? A travel document issued by Honorary Consuls will be recognized and used to effectuate removal so long as ICE believes the official has been authorized to issue such documents. 2. What is ICE's position on UAC children who are not granted asylum but whose parents are already in the US are not enforcement priorities? If the child loses his/her case, will the child be deported even though the parents would not be? In the alternative, would ICE move to deport the undocumented parents along with the child? 7

8 Each case is reviewed on a case-by-case basis. An individual with a final order of removal issued after 1/1/2014 should be removed unless that individual is not a threat to the integrity of the immigration system or there are factors suggesting the individual should not be considered a priority. HSI QUESTIONS 1. In May 2014, a member asked a question about ICE (actually it s HSI) still pursuing individuals who are mere overstays with no criminal or immigration history, insisting on having the individual come into their office for issuance of an NTA. NTAs are issued unless an attorney goes and reminds ICE about enforcement priorities. This is still happening. Why is ICE still pursuing such individuals? [This was OCC s response in May: The HSI SAC will appear at our next liaison meeting. It is agreed that priority memos are supposed to be the guidance for the decisions to detain a person and/or issue the person an NTA. Although an individual may appear to be a mere overstay, there may be other issues.] HSI agents sometimes pursue individuals based on leads from headquarters or sometimes based on travel patterns. 2. Can you please provide an overview of what types of investigations HSI performs under its legal authority to investigate immigration, document and benefit fraud.? HSI SAC, Claude Arnold, appeared and explained that HSI is the criminal investigative division of DHS. HSI does not investigate benefit fraud, e.g., marriage fraud, at the individual level. Instead, HSI focuses its document and benefit fraud investigations at larger oganizations, and mostly deals with criminal activities that have a nexus to the border. The cases that they investigate include large-scale benefit fraud, document fraud, financial crimes, smuggling, trafficking and child exploitation over the internet. 3. ERO has stated that it does not collude with the CA DMV in order to identify applicants for removal. Nevertheless, over and over again, our clients report similar stories being arrested and placed in proceedings or deported within days of applying for an AB60 driver s license. What contact has HSI had with the California DMV? 8

9 HSI conducts joint investigations with DMV regarding large-scale fraud issues, e.g. where a corrupt individual at DMV was colluding with criminals to sell identities. 9