11061.1: Facilitating the Return to the
of Certain Lawfully Removed
Issue Date: February 24, 2012
Effective Date: February 24, 2012
Architecture Number: 306-112-002b Enterprise
1. Purpose/Background: Under the Immigration and Nationality Act (INA), as amended, aliens who petition the circuit courts of appeals for review of their administrative removal orders may continue to litigate their petitions after their removal from the
a court-ordered stay of removal, U.S. Immigration and Customs Enforcement (ICE)
may lawfully remove such aliens while their petitions for review (PFRs) are pending.
This Directive describes existing ICE policy for facilitating the return to the United States United States of certain lawfully removed aliens
whose PFRs are granted by a
appeals or the U.S. Supreme Court. This Directive applies only to supervisors
Enforcement and Removal Operations (ERO), Homeland Security Investigations (HSI), and the Office of the Principal Legal Advisor (OPLA). This Directive does not apply to bargaining unit employees.
2. Policy: Absent extraordinary circumstances, if an alien who prevails before the
Court or a U.S.
court of appeals was removed while his or her PFR was pending,
ICE will facilitate the alien's return to the U.S. if either the court's decision
restores the alien to lawful permanent resident (LPR) status, or the alien's presence
is necessary for continued administrative removal proceedings. ICE will regard the
returned alien as having reverted to the immigration status he or she held, if
any, prior to
the entry of the removal order and may detain the alien upon his or her return
to the United States .
If the presence of an alien who prevails on his or her PFR is not necessary United States
to resolve the administrative proceedings, ICE will not facilitate the alien's return. However, if, following remand by the court to the Executive Office for Immigration Review (EOIR), an alien whose PFR was granted and who was not returned to the United States is granted relief by EOIR or the Department of Homeland Security (DHS) allowing him or her to reside in the
lawfully, ICE will facilitate the
alien's return to the United
States . United States
3. Definitions: The following definitions apply for purposes of this Directive only:
3.1. Facilitate an Alien's Return: To engage in activities which allow a lawfully removed alien to travel to the
(such as by issuing a Boarding Letter
to permit commercial
air travel) and, if warranted, parole the alien into the United
upon his or
her arrival at a United States
port of entry. Facilitating an alien's return does not necessarily include
funding the alien's travel via commercial carrier to the U.S.
or making flight arrangements for the alien. United States
3.2. Petition for Review (PFR): A request for a
court of appeals to review a
entered by ICE or EOIR under 8 U.S.C. § 1252, INA § 242. The U.S. courts of appeals'
PFR decisions are subject to review by the U.S. Supreme Court through a petition
for writ of certiorari. U.S.
3.3. Restore an alien to lawful permanent resident (LPR) status: To enter a judicial decision which renders non-final an administrative removal order against an LPR. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981) (holding that an LPR retains such status until the entry of a final administrative order of removal), aff'd, 681 F .2d 107 (2d Cir. 1982). Practically speaking this means that, when a PFR is granted that returns a former LPR to the posture of a pre-order alien, the alien will once again, in contemplation of law, be an LPR even though removal proceedings may still be pending before EOIR on remand from the circuit court.
3.4. Stay of Removal: An order issued by EOIR or a federal court which prevents ICE from
executing a removal order.
4.1. ERO, HSI, and OPLA supervisors must fully coordinate at the local, international, and
Headquarters levels to effectuate this policy.
5. Procedures/Requirements: None.
6.1. INA § 101 (a)(20), 8 U.S.C. § 1101(a)(20).
6.2. INA § 212(d)(5), 8 U.S.C. § 1 1 82(d)(5).
6.3. INA § 242, 8 U.S.C. § 1252.
6.4. 8 Code of Federal Regulations (CFR) § 212.5.
6.5. DHS Delegation Number 7030.2, "Delegation of Authority to the Assistant Secretary for
the Bureau of Immigration and Customs Enforcement" (November 13,2004).
6.6. Memorandum of Agreement (MOA) between
Immigration United States
Services (USCIS). ICE, and Customs and Border Protection (CBP), "Coordinating the Concurrent Exercise by USCIS, ICE, and CBP, of the Secretary's Parole Authority Under INA § 212(d)(5)(A) with Respect to Certain Aliens Located Outside of the United States" (September 29, 2008).
6.7. MOA between ICE and CBP, "Significant Public Benefit Parole Protocol for U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement for Law Enforcement Purposes" (September 22, ~005).
6.S. Maller of Lok, 18 I&N Dec. 101 (BfA 1981), ajJ'd, 681 F.2d 107 (2d Cir. 1982).
7. Attachments: None.
S. No Private Right. This Directive is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, criminal matter.