Sixth Circuit Restores Administrative Closure for Provisional Waiver Applicants

The Sixth Circuit has determined that administrative closure is available in removal proceedings to non-citizens eligible for provisional waivers of unlawful presence. Although the court had previously deferred to the Attorney General’s decision in Matter of Castro Tum, it limited its prior holding as inapplicable to provisional waiver applicants. “Administrative closure is ‘appropriate and necessary’ in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.”

The full text of Garcia-Deleon v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0127p-06.pdf

Eleventh Circuit Dismisses Habeas Petitions Brought by Provisional Waiver Seekers

The Eleventh Circuit has found there is no habeas jurisdiction to prevent the removal of applicants for provisional waivers of unlawful presence who are subject to final orders removal.

The full text of Camarena v. ICE can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/201913446.pdf

Third Circuit Dismisses Habeas Appeal for I-212/I-601A Applicant

The Third Circuit has determined that a District Court has no authority to stay a removal order while the applicant pursues a combination of I-212 and I-601A waivers and a motion to reopen. All of these claims must be brought through a petition for review of the removal order.

The full text of Tazu v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/191715p.pdf

Ninth Circuit Remands for Board of Immigration Appeals to Consider Eligibility for Provisional Waiver

In two unpublished cases, the Ninth Circuit faulted the Board of Immigration Appeals (BIA) for denying two motions to reopen to seek provisional waivers where the BIA denied solely on timeliness, without addressing whether exceptional circumstances existed that warranted sua sponte reopening.  

In one case, the Ninth Circuit noted that "[t]he BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered whether Benitez was entitled to the requested relief as a matter of discretion."  In the second case, the NInth Circuit noted that "[t]he BIA indicated that the law precluded reopening, which appears to be contrary to a regulation providing that the BIA always has discretion to reopen proceedings.  Indeed, the Government’s position at oral argument was that the BIA had discretion and that the BIA had exercised that discretion by denying reopening.  In light of the Government’s concession that reopening is a matter of discretion, the BIA’s apparent failure to recognize its discretionary authority and then to consider whether to grant or deny reopening as a matter of discretion warrants remand."

The full decision in Benitez v. Lynch can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-73614.pdf

The full decision in Osegueda de Alfaro v. Lynch can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-72679.pdf

USCIS Announces Expansion of Provisional Waiver Program

USCIS has announced an expansion of the the provisional waiver program, which now includes the spouses and children of lawful permanent residents, certain applicants with removal orders, and diversity lottery winners.  The new rule goes into effect on August 29, 2016.

The full text of the new rule can be found here:

https://www.gpo.gov/fdsys/pkg/FR-2016-07-29/pdf/2016-17934.pdf