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Practice Advisory Motions to Reopen for DACA Recipients with Removal

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Practice Advisory Motions to Reopen for DACA Recipients with Removal Practice Advisory Motions to Reopen for DACA Recipients With Removal Orders1 October 12, 2020 Table of Contents I. Introduction ...............................................................................................................................................3 II. DACA Recipients with Removal Orders .................................................................................................4 III. Overview of Types of Removal Orders and Their Consequences ......................................................7 A. Removal Orders Issued by an Immigration Judge ............................................................................7 1. Removal Orders Issued at a Hearing Where the Respondent Is Present ....................................8 2. Voluntary Departure Order That Converts to a Removal Order .............................................. 11 3. In Absentia Removal Order ........................................................................................................ 13 B. Removal Orders Issued by an Immigration Officer ....................................................................... 14 1. Expedited Removal Orders ......................................................................................................... 14 2. Reinstated Removal Orders ........................................................................................................ 16 1 Copyright 2020, The Catholic Legal Immigration Network, Inc. (CLINIC). This is an update of a practice advisory originally published in 2018. This practice advisory is intended to assist lawyers and fully accredited representatives. It does not constitute legal advice, nor is it a substitute for independent analysis of the law applicable in the practitioner’s jurisdiction. The authors of this update are Katy Lewis, Consulting Attorney, Defending Vulnerable Populations Program; Aimee Mayer-Salins, Staff Attorney, Defending Vulnerable Populations Program; and Michelle Mendez, Director, Defending Vulnerable Populations Program. The original version of this practice advisory was written by Michelle Mendez, Director, Defending Vulnerable Populations, and Rebecca Scholtz, Senior Attorney, Defending Vulnerable Populations Program. The following individuals provided invaluable contributions to the original version of this practice advisory: Bradley Jenkins, Federal Litigation Attorney, CLINIC; Katy Lewis, Consulting Attorney, CLINIC; Rachel Naggar, BIA Pro Bono Project Manager, CLINIC; Victoria Neilson, Managing Attorney, CLINIC; Gail Pendleton, Retired Co- Director, ASISTA Immigration Assistance, and Trina Realmuto, Executive Director, National Immigration Litigation Alliance. The Catholic Legal Immigration Network, Inc. | Updated October 2020 | cliniclegal.org 1 IV. Legal Remedies for Individuals with Removal Orders....................................................................... 17 A. Motions to Reopen for Individuals with Orders Issued by an IJ or the BIA ................................. 18 1. Motions to Reopen Generally .................................................................................................... 19 2. Equitable Tolling of the Motion to Reopen Deadline ................................................................ 22 3. Motions to Reopen Based on Ineffective Assistance of Counsel .............................................. 29 4. Motions to Reopen Based on VAWA Relief .............................................................................. 30 5. Motions to Reopen Based on Changed Country Conditions Related to Asylum Eligibility .... 32 6. Joint Motions to Reopen .............................................................................................................. 35 7. Motions to Reopen Based on Sua Sponte Authority ................................................................. 37 B. Motions to Reopen for Individuals with In Absentia Orders ......................................................... 44 1. Did the Respondent Fail to Appear? .......................................................................................... 46 2. Did DHS Meet Its Burden to Prove Removability by “Clear, Unequivocal, and Convincing Evidence”? ........................................................................................................................................ 47 3. Statutory Bases to Rescind and Reopen In Absentia Orders ................................................... 48 C. Strategies for Overcoming the Ten-Year Bar to Immigration Relief After Overstaying a Grant of Voluntary Departure ............................................................................................................................. 55 D. Legal Remedies for DACA Recipients with Reinstatement Orders ................................................ 57 V. Practical Considerations for Motions to Reopen ................................................................................ 61 A. Investigating the Case and Preparing the Motion to Reopen ....................................................... 61 B. Strategic Considerations .................................................................................................................. 63 C. Filing the Motion to Reopen ............................................................................................................ 65 VI. Conclusion ........................................................................................................................................... 67 The Catholic Legal Immigration Network, Inc. | Updated October 2020 | cliniclegal.org 2 I. Introduction On June 15, 2012, President Obama announced the creation of the Deferred Action for Childhood Arrivals (DACA) program. The purpose of the DACA program was to implement some of the DREAM Act provisions after Congress repeatedly failed to pass that bill into law.2 President Obama created DACA as a temporary protection “in the hope that Congress would eventually pass the Dream Act and broader immigration changes.”3 During DACA’s five-year existence prior to President Trump’s rescission announcement on September 5, 2017, nearly 800,000 youth were approved for DACA.4 Under the DACA program, certain youth who had come to the United States as children and met other requirements were able to obtain deferred action, a form of prosecutorial discretion where the government does not take action to deport a noncitizen who lacks lawful status. The DACA program was expressly available to youth with prior removal orders, so long as they met the DACA requirements. Some number of DACA recipients, whose DACA protection may now lapse if DACA rescission goes forward, have prior removal orders. When their DACA protection expires, these individuals will be subject to the possibility of swift deportation at any time despite growing up in the United States since childhood. If and when the DACA protections expire depend on ongoing litigation. On June 18, 2020, the U.S. Supreme Court issued a decision in Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) holding that the Trump administration’s effort to end DACA had not complied with the requirements of the Administrative Procedures Act. As a result, the Supreme Court upheld a lower court ruling issuing an injunction against the DACA rescission and remanding the case for further proceedings. While this reprieve from terminating DACA was very welcome news, the Trump administration has indicated that it does not plan to restore DACA protections to its pre- September 5, 2017 status. On June 30, 2020, Attorney General William Barr withdrew a letter by his predecessor, former Attorney General Jefferson Beauregard Sessions III, that raised doubts about the legality of DACA and the 2014 Obama-era Justice Department legal opinion that concluded the program was a lawful exercise of executive authority. The Department of Homeland Security (DHS) then issued a memorandum on July 28, 2020, making immediate changes to the administration of 5 the DACA program while it considers the Supreme Court’s ruling. Meanwhile, the legal challenges 2 See Yamiche Alcindor & Sheryl Gay Stolberg, After 16 Futile Years, Congress Will Again Try to Legalize “Dreamers,” N.Y. TIMES, Sept. 5, 2017, nytimes.com/2017/09/05/us/politics/dream-act-daca-trump-congress-dreamers.html (describing history of DREAM Act legislative failings). 3 Id. 4 See USCIS, Data Set: Form I-821D Deferred Action for Childhood Arrivals, uscis.gov/tools/reports- studies/immigration-forms-data/data-set-form-i-821d-deferred-action-childhood-arrivals (data set for fourth quarter of fiscal year 2017 shows 798,980 cumulative initial requests approved). This webpage also provides a breakdown of the number of DACA requests accepted, pending, denied, and approved during specified time periods. 5 Memorandum from Chad F. Wolf, Acting Sec’y, Dep’t Homeland Sec., Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (July 28, 2020), dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf. The Catholic Legal Immigration Network, Inc. | Updated October 2020 | cliniclegal.org 3 to restore DACA protections continue, and the results of the litigation and the 2020 presidential election results will determine what will happen to DACA recipients.6 This practice advisory discusses potential legal options available to DACA recipients with prior removal orders.
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