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 & USICE ERO Los Angeles, California October 15, 2014 Marty Ryan, Acting Chief Counsel; David Jennings, FOD ERO OCC / OPLA 1. What is your policy regarding the filing of a joint motion to advance the calendar for matters that have been referred to the court but are delayed due to the recent wave of unaccompanied minors from Central America? OCC LA has no specific policy and will consider a non-opposition on a case-by-case basis for this purpose. These requests should be addressed to the attorney assigned to the case. If Respondent s counsel does not know who is assigned the case, counsel should call the duty attorney. 2. Is there a separate duty attorney for detained cases at 300 N. Los Angeles St.? If not, should urgent questions be directed to the 606 duty attorney or directly to the attorneys at 300 N.? OCC does not have a dedicated duty attorney for 300 N. Los Angeles St. There are only four attorneys there. OCC prefers Respondent s counsel to go to the duty attorney at 606 S. Olive St. first. Issues involving detained cases that are not currently pending should be directed at Debra Workeneh. There is an embedded OCC attorney at 300 N. Los Angeles St. but the role of the embedded attorney is to advise ERO and not to act as a duty attorney. The current embedded attorney is Anwar Khan. 3. What kind of coordination or communication takes place between OCC and ERO when a request for a JMTR is filed? If the Respondent is detained, OCC will reach out to the AFOD at the facility where the Respondent is detained. OCC will not reach out to ERO regarding the majority of JMTR 1

2 requests where the Respondent is not detained. If there is an order of supervision or if the Respondent has an ERO appointment coming up, Respondent s counsel should let OCC know and specifically request that OCC reach out to ERO. Regarding the format of motions, OCC wants a hard copy addressed to Sandra Anderson. 4. Is it the standard policy of OCC to refuse to grant prosecutorial discretion postmerits if prosecutorial discretion has previously been declined? No. Review of every case for prosecutorial discretion is made on a case-by-case basis. There are many factors OCC takes into consideration, one of which is the amount of resources already put into case. OCC has authority to exercise PD all the way through the BIA order. If there is a final order and the case is at the Circuit Court level, all requests for PD must go through OIL. OIL has a prescribed mechanism for reaching out to OCC so the request must be initiated through OIL. If the OIL attorney insists that Petitioner s counsel reach out to OCC, Petitioner s counsel should Carlos Maury, copying the OIL attorney on the Will OCC consider terminating proceedings for Adjustment of Status with USCIS when an I-130 has been filed, but is still pending, in the case of a son/daughter petitioning a parent? Assuming the Respondent can show prima facie relationship, i.e. birth certificate. Yes, OCC will consider joining in a Motion to Terminate upon showing of an I-130 receipt in the case of a son/daughter petitioning a parent and a parent petitioning a child if prima facie eligibility is shown. Respondent s fingerprints should be up to date when making the request. Request should go to the ACC assigned to the case. If an ACC has not been assigned, the request should be initiated with the Team Lead. 6. Will OCC consider a Joint Motion to Reopen where the Respondent is now eligible for Adjustment of Status, but failed to report for ERO required check-ins? Yes, OCC will consider joining in a Motion to Reopen. Failing to report to ERO is one of many factors considered and alone will not lead to declination. If a request for joint reopening is declined, it is not the policy of OCC to refer the file to ERO. 7. What is OCC s position on termination for Duran-Gonzalez class members to pursue Adjustment of Status with USCIS pursuant to the settlement? OCC will review Duran-Gonzalez class member cases on a case by case basis. Generally, if OCC agreed on joint reopening on this basis, it will not be terminated. The 2

3 case will then proceed before the Immigration Judge. However, if the case was not reopened for this purpose, and the Respondent seeks termination to proceed with reopening before USCIS, the request for Joint Termination will be considered. 8. Many individuals with prima facie NACARA claims cannot get joint motions to reopen. Many of them have United States citizen spouses or children but are not eligible for adjustment. Is there a reason why Chief Counsel's office summarily agrees to reopen clean adjustment cases and not clean NACARA 203 cases? Is prosecutorial discretion now considered for any joint motion including possible NACARA claims? OCC will not agree to joint reopening for NACARA relief. It is OCC s position that the NACARA motion to reopen statute is a statute of repose and not subject to tolling. However, there may be an exception in cases raising ineffective assistance of counsel. 9. Where USCIS has denied an I-829 petition, but the NTA has been filed with the court, will OCC entertain a motion to terminate without prejudice to allow review by USCIS if OCC agrees that the denial constituted a failure to apply its own policy? The I-829, like the I-751, cannot be appealed and can only be reviewed by the Immigration Judge unless USCIS can still exercise jurisdiction. These cases will be reviewed on a case by case basis, but in general, OCC will not agree to termination in these cases. 10. Does DHS in L.A., through OCC or USCIS, have a procedure to issue affirmative communication on the prima facie determination for eligibility for naturalization (but without reaching the ultimate decision) required before IJ s termination under 8 CFR (f)? Is this something that could be packaged as prosecutorial discretion request? OCC is not involved with this. That determination needs to come from USCIS. 11. Are there any updates on Chief Counsel s Anderson s return date? Please provide an updated schedule of acting Chief Counsels. Sandra Anderson is expected back in December. Marty Ryan is the Acting Chief Counsel for October; Mary Young will be Acting Chief Counsel for November. 12. Could you explain the procedure for submissions served electronically to OCC - are the documents downloaded for any ACC to access; do ACC s assigned to a case check for submissions; are documents sent directly to the ACC assigned to a case? Electronic submissions are immediately available to all ACC s. 3

4 13. What guidance have ACC s received re: Dent v. Holder? Some ACC s seem unfamiliar with the case and insist that Respondents need to do FOIA requests, although the 9 th Circuit expressed due process concerns with FOIA requests in removal proceedings. ACC s will be reminded of the guidance previously provided re: Dent v. Holder. They should provide copies of the I-213, any applications for benefit, entry documents, conviction records and any reasonable request for documents. If Respondent s counsel needs to file a FOIA request, ACC s should not oppose a continuance to await the FOIA response in non-detained cases. In most detained cases, OCC will oppose a continuance for a FOIA. 14. What is the policy on ACCs returning phone calls from attorneys regarding specific cases; Is there an office policy that a phone call should be returned within a certain period of time; If so, is there a specific person an attorney could notify if such policy is frequently violated? There is no specific policy for the ACC to return phone calls within a reasonable time. However, ACCs are instructed to return calls in a timely, professional, and courteous manner. If problems with a specific ACC persist, the affected party can contact the Deputy to resolve the issue. 15. Please provide updated Contact List and UP List. An updated contact list will be provided to AILA and LACBA ICE Liaisons for distribution. ERO 1. Who are the points of contacts for detainee marriages in the local detention facilities? Attorneys should contact the supervisor on duty at local detention facilities. A list with contact information of AFODs and SDDOs is provided. A more detailed list with contact information of supervisors will be provided. 2. When, if ever, will ERO allow aliens who are under the jurisdiction of the San Bernardino, or Santa Ana offices, to fee-in their Stay of Removal applications in those offices, rather than having to come all the way to L.A. to pay the cashier in Room 7621, get the fee stamp, and then go back to the office with jurisdiction over the alien's place of residence. Unfortunately, ERO offices outside of Los Angeles do not have the capacity to accept payments. There are no plans at this time to expand the cashier operation to other locations. Applicants must come to Room 7621 in Los Angeles to fee-in applications. 4

5 3. If a joint motion request is pending with OCC, will ERO still require a stay of removal to be filed? Yes, a stay of removal should still be filed with ERO. 4. Will ICE create a process to issue NTA s for individuals who want to be placed in proceeding before the EOIR? Prior to the reorganization of DHS, legacy INS deportation would agree to a meeting with individuals who had, as an example, disabled citizen children, complete the I -213, and issue an NTA allowing the family to apply for Cancellation of Removal. In the absence of being detained by ICE, there is no current process to place individuals in proceedings other than filing for asylum. No. If the individual does not fall within one of the enforcement priorities, an NTA will not be issued. 5. Please provide an updated ERO contact list, including the detention centers. An updated ERO contact list has been provided, but a more inclusive list will be provided at a later date. JOINT OPLA/ERO QUESTIONS 1. Is there a way for ERO to confirm with OCC that a joint motion is being considered? Yes, ERO can contact the Duty Attorney to confirm whether a joint motion to reopen is being considered. 2. When a motion to reopen is granted and the person has already been removed, who is the contact person in LA Jurisdiction to initiate paroling the alien back into the US to appear for their new hearing? The initial point of contact is Marty Ryan or Debra Workeneh with OCC. The process can take months. Parole will not be appropriate in all cases if the order reopening can be complied with through paperwork, i.e. reopening granted only for voluntary departure. 5