Implementation of EOIR Background Check Regulations for Aliens Seeking Protection from Removal (08/08/2006)
Q. What are the purposes of the Background Check Regulations issued by the Department of Justice’s Executive Office for Immigration Review (EOIR) at 70 FR 4743 (January 31, 2005)(codified at 8 C.F.R. §§ 1003.1, 1003.19, 1003.47, 1208.4, 1208.10, and 1208.14)?
A. The regulations help ensure that persons who are seeking relief from removal, such as adjustment of status to that of lawful permanent resident, cancellation of removal, withholding of removal, asylum, or other relief described in the regulations, are eligible for the benefit that they seek and do not pose a threat to national security or public safety. The regulations also provide that failures of a person in removal proceedings to provide required biometrics and biographical information to DHS within the time specified by the immigration judge, except for good cause, will constitute abandonment of pending applications for relief or protection from removal. EOIR immigration judges and the Board of Immigration Appeals (BIA) cannot grant any of the forms of relief covered by the regulations until the Department of Homeland Security (DHS) reports that the required identity, background and security checks have been completed. In addition, the EOIR regulations will also benefit those individuals who are granted relief on or after April 1, 2005, the effective date of the rule, to obtain their immigration status and work documentation promptly from U.S. Citizenship and Immigration Services (USCIS). USCIS will no longer need to await the results from new background checks before it can issue the individual documentation in the usual case granted after April 1, 2005. DHS reserves its authority, however, to take any appropriate action necessary if DHS discovers or possesses information indicating that the individual is a risk to national security or public safety. Such action may include, but is not limited to, seeking revocation or rescission of the individual’s immigration status, delaying issuance of documentation, or canceling documentation previously issued. DHS will only take such actions in accordance with the law as it exists at the time.
Q. What procedures has DHS implemented to ensure that the identity, background and security checks are completed and do not delay the EOIR proceedings?
A. Since April 1, 2005, the Immigration and Customs Enforcement (ICE) attorney provides written instructions at the Master Calendar hearing to aliens, and their representatives, who express their intent to file certain applications for relief that, if granted, would lead to the alien’s attaining permanent residence, asylum, withholding of removal, or certain other benefits. These "Instructions for Submitting Certain Applications in Immigration Court and for Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services" ("pre-order instructions") may also be obtained at http://www.uscis.gov/graphics/lawsregs/PreOrderInstr.pdf. These pre-order instructions inform the individual that he or she must submit copies of the specified applications to either the USCIS Texas or Nebraska Service Centers, as indicated in the instructions, pay any relevant application and biometric fees, and attend an appointment at a USCIS Application Support Center (ASC) for biometrics collection. USCIS will send the individual an application receipt notice (often called a "fee notice" where fees are required) and an ASC biometrics appointment notice after receipt of the application. Once the individual provides biometrics, USCIS will send the fingerprints to the Federal Bureau of Investigation (FBI) for criminal history checks. ICE will have access to the results of those criminal history checks. USCIS also will initiate other checks in advance of the EOIR merits hearing for an applicant. ICE will ensure that the remainder of the background checks, such as checks of the Interagency Border Inspection System (IBIS), have been conducted before EOIR is ready to decide the case. By initiating these checks as soon as possible after the alien submits the copies of the applications to USCIS and provides biometrics, DHS anticipates that significant delays in the EOIR proceedings will be avoided in the vast majority of cases.
Q. What are the principal applications that must be submitted to the USCIS service centers? Can I also submit copies of applications for Section 212(c) waivers and for other waivers of grounds of inadmissibility that I must file with EOIR?
A. Copies (without supporting documentation), not originals, of the following applications must be submitted to the USCIS Texas Service Center, with the appropriate application and biometric fees:
1. Form I-485 (Application to Register Permanent Residence or Adjust Status);
2. Form EOIR-40 (Application for Suspension of Deportation);
3. Form EOIR-42A(Application for Cancellation of Removal for Certain Permanent Residents);
4. Form EOIR-42B(Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents);
5. Form I-881 (Application for Suspension of Deportation or Special Rule Cancellation of Removal);
6. Form I-191 (Application for Advance Permission to Return to Unrelinquished Domicile);
7. Form I-601 (Application for Waiver of Grounds of Excludability);
8. Form I-602 (Application by Refugee for Waiver of Grounds of Excludability).
Copies, not originals, of the first three pages of a Form I-589 (Application for Asylum and for Withholding of Removal) should be sent to the USCIS Nebraska Service Center.
The written pre-order instructions that ICE counsel provides to the alien at the Master Calendar hearing list all of these applications and the addresses to which the copies should be sent. The original applications, with supporting documents, and evidence of submitting the application fee (where applicable) to USCIS, must continue to be filed with EOIR as instructed by the immigration judge. Biometrics fees must always be submitted to USCIS. If the biometric fee is not received, the application will be rejected by USCIS and the individual will not receive an ASC appointment notice for biometrics collection. Failure to provide biometrics, without good cause, will result in the application being deemed abandoned by the immigration judge. Further information on application requirements, biometrics collection and fees is contained in the form instructions and may also be obtained at www.uscis.gov and www.usdoj.gov/eoir.
Q. Where should I submit and pay the fees for petitions such as the Form I-130 (Petition for Alien Relative), Form I-140 (Immigrant Petition for Alien Worker), and the Form I-751 (Petition to Remove the Conditions on Residence)?
A. You should submit these petitions to the appropriate USCIS office, with the appropriate fees, in accordance with the instructions that accompany those forms. Only USCIS adjudicates the Form I-130 and Form I-140, not EOIR. USCIS also adjudicates the Form I-751, although the immigration judges have jurisdiction to conduct de novo review of a Form I-751 application. If biometrics are needed for background checks on an I-751 applicant in removal proceedings, ICE counsel will provide local instructions for collection of the alien’s biometrics.
Q. I have an application pending with the immigration court or the BIA for relief or protection. Where should I file a Form I-765 for an Employment Authorization Document (EAD) while I am in removal proceedings?
A. You should continue to file the form I-765 (Application for Employment Authorization), including any applicable fees, at the address listed in the accompanying form instructions. It is also helpful to the application adjudicator for you to indicate whether you have a current case in immigration court or with the BIA.
Q. Do I need to wait to receive my USCIS application receipt notice or ASC scheduling notice before I can file for asylum or withholding of removal with EOIR?
A. No. You may file your Form I-589, Application for Asylum or for Withholding of Removal, with EOIR as soon as you complete it. You should file your Form I-589, with all supporting documentation, in accordance with the immigration judge’s instructions. The requirement to submit copies of the first three pages of the I-589 to the USCIS Nebraska Service Center will not affect the date that your application is considered filed with EOIR. Nothing in the EOIR background check regulations changes the existing regulations governing when an asylum or withholding application will be deemed filed or when it will be considered complete. Nevertheless, if you fail to submit the application copy to USCIS so that your ASC biometrics appointment notice can be mailed to you, or you fail to follow USCIS instructions for biometrics capture, the immigration judge may find that you have abandoned your application.
You should make copies of all application receipt notices and ASC scheduling notices and keep them with you. You may need to show them to the immigration judge. You will need to show your original ASC scheduling notice to the USCIS ASC when you attend your appointment for biometrics (e.g., fingerprints and photographs). It contains an important receipt number that the ASC must use to match your biometrics with the correct application in USCIS’ systems.
Q. Do I need to wait until I receive my fee receipt notice and also my ASC scheduling notice from the USCIS Texas Service Center before I can file a fee-based, non-asylum application for relief with the EOIR immigration court?
A. You must wait for the fee receipt notice and file a copy of it along with your original application with the EOIR immigration court, unless the application fee has been waived by the immigration judge. This receipt notice is evidence that you have paid the application and biometric fees. Unless the immigration judge has waived your application fee, the USCIS fee receipt notice must be submitted with your application before EOIR will consider your application properly filed. Remember that you must always pay the USCIS biometrics fee, which cannot be waived under USCIS policy. If you do not pay the biometrics fee, your application will be rejected and you will not receive an ASC notice for a biometrics appointment. Failure to provide biometrics, without good cause, will result in your application being deemed abandoned by the immigration judge. Whether or not you are required to pay the application fee, you may file your application with the immigration court before you receive the ASC notice scheduling you for biometrics. Generally, the fee receipt notice and ASC notice will be mailed to you at the same time, but not always. The fee receipt will be sent first, if not simultaneously, with the ASC biometrics appointment notice. You should keep copies of all application and fee receipts and ASC scheduling and confirmation notices that you receive in your possession. You may need to show them to the immigration judge.
Q. How long will it be before I can expect to receive USCIS’ notices indicating that my application has been received and scheduling me for an ASC appointment, if necessary?
A. You should receive your application receipt and ASC scheduling notices within three weeks, if not sooner. Be sure that you have received all ASC notices applicable to your family members. USCIS tries to send notices to family members at or about the same time, but sometimes this is not always possible. If you do not receive your application receipt notice or your ASC notice(s) after three weeks have passed, please call the USCIS National Customer Service Center, 1-800-375-5283, as indicated in the DHS pre-order instructions you were provided at the Master Calendar hearing. If you submitted copies of your application for asylum or withholding and your FBI fingerprint results are current (i.e., provided within the past 15 months) because you filed an affirmative I-589 with USCIS that was later referred to EOIR, USCIS will not send you another ASC appointment notice. However, you will receive an application receipt notice. USCIS will send ASC notices to applicants for other forms of relief that require FBI fingerprint checks for the applicant and any derivatives. You can also help prevent delays in receiving your fee receipt and ASC scheduling notices by ensuring that USCIS always has your current address. You must submit any change of address notifications to DHS within 10 days of the change on the Form AR-11, Change of Address Form, which can be obtained at www.uscis.gov/graphics/formsfee/forms/index.htm or through 1-800-375-5283. You must also notify the EOIR immigration courts or the Board of Immigration Appeals of any changes in your address within 5 days of any change. The EOIR-33/IC or EOIR-33/BIA change of address forms can be obtained a www.usdoj.gov/eoir/formslist.htm or from the Immigration Courts.
Q. If I am filing an application for asylum or for withholding of removal (I-589) and another type of application for relief from removal, such as adjustment of status or cancellation of removal, at the same time, do I need to go to the ASC more than once? What should I do if I file different applications for relief at different times during my removal proceedings?
A. Please read and follow the instructions on both sides of the pre-order instructions that you were given in immigration court. As indicated in those instructions, you will receive an ASC biometrics appointment notice for each application that you submit to the USCIS. Those ASC scheduling notices contain important, but different, USCIS application receipt numbers related to your case. The ASC must have each of those different application receipt numbers in order to connect your biometrics (fingerprints and photographs) in the systems to the applications that you are filing with the immigration court. Therefore, you should wait for all the expected ASC notices and take them with you to one of your scheduled ASC appointments. Be sure to take all of the appointment notices with you when you attend the appointment and provide them to the ASC. If you have already attended an ASC appointment in connection with one of your applications for relief, but you receive a later ASC appointment notice for a different application that you have submitted to USCIS (regardless of whether you submitted it simultaneously or at a different time in your removal proceedings), then go to the ASC appointment and present your new ASC appointment notice containing the application receipt number so that the ASC can properly associate your biometrics with the additional application type that you are filing with the court.
Q. Do I have to wait until I can actually attend my ASC appointment before I can file my application for relief with the Immigration Court?
A. No. You can file for asylum or for withholding of removal on Form I-589 as soon as your application is ready. Follow the immigration judge’s instructions for filing this application. You can file the other fee-based applications as soon as you receive the fee receipt notice from USCIS reflecting that the fees have been paid. As noted above, if the immigration judge has waived the application fee, you can file your application with the court as soon as you complete it. Again, you must always pay the biometrics fee unless you are filing for asylum or for withholding of removal. You should retain and bring with you to your next immigration court hearing the confirmation paper that the ASC gives you after you have had your biometrics collected, in case it is needed as proof that you did provide biometrics.
Q. Will my Immigration Court proceedings be delayed if I cannot get an ASC appointment quickly?
A. In the vast majority of locations, you will be able to attend an ASC appointment within two weeks of receiving your ASC scheduling notice. If you submit the copies of your application to the USCIS service centers promptly as directed, you should have plenty of time to attend your biometrics appointment before the date that the immigration judge schedules your merits hearing. Immigration courts are also working in coordination with local ICE counsel and USCIS offices to set the hearing schedules so that they take into account any waiting times that may be occurring for ASC appointments. DHS recognizes that in a few of the busiest locations, there are sometimes longer waiting periods for ASC appointments. However, USCIS is working very hard to eliminate and prevent waits in those locations and to accommodate cases in EOIR proceedings promptly.
Q. If the immigration judge has waived my application fee, how can I inform the USCIS Service Center when I submit the copy of my application?
A. You or your representative should request the immigration judge to provide you with written notice of your application fee waiver. EOIR has recently developed a standard order for immigration judges to use in granting application fee waivers. Submit that order with the copy of your application when you mail it to the USCIS Texas Service Center with the application that requires a fee (not required for an I-589 asylum or withholding application). Although the judge may waive the application fees in certain circumstances, the judge cannot waive the $70 DHS biometric fee. Current DHS policy does not permit waiving the biometric fee.
Q. Where should I pay the fees for Motions to Reopen Immigration Court proceedings or BIA appeals?
A. There is no change, at present, in the payment locations for procedural immigration court motions or appeals to the BIA. For now, fees for Motions to Reopen may continue to be paid at the USCIS districts. Appeals to the BIA should be filed with the BIA in accordance with accompanying EOIR Form-26 instructions. You may obtain additional information about filing appeals or motions with the BIA in the BIA Practice Manual at www.usdoj.gov/eoir. Do not submit any motions or appeals related to removal proceedings to the USCIS Service Centers. If you do, they will be returned to you, which may cause you to miss important court or BIA deadlines.
Q. I filed an application for relief from removal before April 1, 2005, but EOIR has not decided my case yet. Do I need to submit a copy of my application to USCIS?
A. No. If you filed an application with the EOIR immigration court before April 1, 2005 and it remains pending, please do not submit a copy to the USCIS Texas or Nebraska service centers under these new defensive application procedures. If your fingerprints are required for FBI criminal history checks or if the FBI results are older than 15 months, the ICE attorney will provide you with local instructions for attending an ASC appointment for that purpose. Some people who have pending, pre-April 1, 2005 applications for relief in the "pipeline" will not need to have their prints retaken because their FBI fingerprint checks are current. ICE will ensure that any other required background checks on the pending pre-April 1, 2005 cases are properly completed before EOIR grants relief.
Q. I paid the DHS biometric fee and went to my ASC appointment, as instructed, but the ASC would not take my fingerprints because they said that I had previously provided fingerprints that were still current. What should I do?
A. USCIS became aware of this problem occurring in limited locations, and has instructed the ASCs to ensure that fingerprints are taken for aliens in EOIR proceedings given ASC scheduling notices. In some cases, an individual may have filed a different kind of application directly with USCIS before he or she was placed in removal proceedings, such as a naturalization application, and had biometrics taken at an ASC. If the ASC declines to retake your fingerprints because you have a current set on file, the ASC will give you a confirmation notice that your biometrics have been collected so that you will have proof to provide to the immigration judge.
Q. The USCIS service center rejected my defensive application for relief from removal, or protection, because I had not signed it, but the instructions on the form state that I must wait to sign it in the presence of the immigration judge. What should I do?
A. USCIS has instructed its Texas and Nebraska service centers not to reject the unsigned application copies that it receives under this new process for cases that an immigration judge will be deciding. Please resubmit your application copy to the service center, as instructed, and sign the application in the presence of the immigration judge, as he or she directs. Such rejections should not occur in the future now that USCIS has provided clarification guidance to its service centers.
Q. Must detained aliens submit copies of their fee-based applications, with any required fees, to the USCIS Texas Service Center?
A. Yes. Local USCIS offices no longer accept the fees for applications for relief from removal or issue the fee receipts. If your application fee has been waived, then submit a copy of the judge’s order waiving the fee along with the copy of your application to the Texas Service Center, as instructed. Please remember that if you are filing a fee-based application and your application fee has not been waived, then you are still required to file your fee receipt along with the original application with the immigration court.
Q. Must detained aliens submit copies of the first three pages of their asylum or withholding of removal applications to the USCIS Nebraska Service Center?
A. Yes. Submitting the first three pages of the I-589 asylum or withholding application to the USCIS Nebraska Service Center assists DHS in initiating certain background checks. This process also helps ensure that USCIS has a record of your I-589 if the immigration judge or the BIA grants your asylum request and you later need to obtain status or work documentation from USCIS.
Q. Since detained aliens cannot go to ASC appointments, how will they be able to provide their biometrics?
A. ICE will collect the fingerprints of detained aliens and submit the fingerprints to the FBI for criminal history checks. If a detained alien should receive an ASC scheduling notice from USCIS after mailing the copy of his application for relief, he is not required to attend the ASC appointment if he remains in detention. These notices are computer generated at the service centers, and USCIS does not always know that the alien is in a detention facility. In some cases, the alien may have been detained, but then released before the ASC notice is mailed. If a previously detained alien receives an ASC notice after release from detention, then the alien must attend the ASC appointment to ensure that biometrics are collected and FBI fingerprint checks can be conducted before the immigration judge decides the application for relief. Aliens always have the responsibility to ensure that DHS and EOIR have their current addresses by filing the DHS AR-11 form and EOIR-33/IC or EOIR-33/BIA each time they change addresses, including upon release from detention. As noted in prior answers above, the AR-11 may be obtained on the USICS website at www.uscis.gov or by calling 1-800-375-5283. The EOIR-33/IC or EOIR-33/BIA may be obtained on the EOIR website at www.usdoj.gov/eoir.gov.
Q. Must unaccompanied minors who have been placed by ICE and the Office of Refugee Resettlement (ORR) in facilities and homes submit copies of their applications to the USCIS Service Centers, and how will their biometrics be collected if they are age 14 or over?
A. Yes, unaccompanied minors must follow the DHS pre-order instructions and submit to the USCIS service centers the copies of the applications that they intend to file with the EOIR immigration court during their removal proceedings. This is necessary to ensure that application receipts and if applicable, any fee receipts, can be mailed to the person; that the service centers can initiate certain background checks; that the service centers can mail ASC biometric scheduling notices to minors age 14 and over; and that the minor’s defensive application is recorded in USCIS’ systems if the immigration judge grants the application and the individual later needs documentation from USCIS. The application copy should clearly indicate that the unaccompanied minor is in an ORR-sponsored facility and that, the alien or his authorized guardian, clearly consents to a copy of the ASC scheduling notice being sent to ORR or the ORR-sponsored facility staff with custody of the unaccompanied minor. If ORR has placed an unaccompanied minor in a home or facility, then ORR will work with those places to assist the minor to attend his or her ASC biometric collection appointments.
Q. What are the specific identity, background and security checks that DHS requires for aliens seeking relief from removal? How long does it take for the government to complete the checks?
A. At present, DHS routinely requires satisfactory completion of an FBI fingerprint check of relevant criminal history records and a check of the DHS-maintained Interagency Border Inspection System (IBIS), which contains certain "watch lists" and other records from over 20 federal law enforcement and intelligence agencies. Results from these checks are usually available to DHS within minutes for the IBIS check and approximately 48 hours for the FBI fingerprint check. In addition, DHS has the discretion to require full completion of an FBI name check on aliens seeking relief from removal, depending on the needs of the specific case. USCIS initiates an FBI name check on all aliens who submit their defensive application copies to the USCIS service centers. Results from the FBI name check are usually available to DHS for the majority of cases within approximately 2 weeks, but may take longer. If a particular background or security check returns potentially derogatory information, it may take additional time for DHS to obtain full information from the record-owning agency and to conduct any further necessary investigation of that information. Checks of other DHS, DOJ, Department of State immigration systems, or other relevant law enforcement or intelligence systems, may also be conducted, depending on the needs of the specific case and application type. All checks are conducted in accordance with the laws governing such systems.
Q. The immigration judge terminated my removal case so that USCIS could adjudicate the original adjustment of status application (I-485) that I had filed with the immigration court. I have followed all the pre-order instructions that I was given in immigration court and submitted the copy of my application to the Texas Service Center, but now USCIS is telling me that they do not have my original application to adjudicate. What should I do?
A. Under a new policy implemented in October 2005, EOIR immigration judges can terminate certain removal cases where the alien has an adjustment application pending with the court by granting an ICE motion to dismiss or a joint motion filed by ICE and the alien. If the immigration judge grants such a motion and terminates your removal proceedings, ICE counsel will forward the your "A" file to the appropriate local USCIS district for adjudication of the adjustment application. The complete I-485, including all supporting documentation, must be in the "A" file when USCIS receives it or USCIS will be unable to adjudicate the request for adjustment. The alien always has the ultimate burden of satisfying all USCIS filing and eligibility requirements. Therefore, you should be certain that you or your representative have served a complete copy of your I-485, with supporting documents, on the ICE counsel so that it can be maintained in your "A" file. You may be requested by the USCIS officer who adjudicates the application later to re-sign the complete copy in the presence of the USCIS officer. Be sure to keep copies of your application fee receipt, your ASC biometric scheduling notice, and, if you have attended your ASC appointment, the ASC confirmation notice that your biometrics were collected. You may need to show these items to the USCIS officer.
Please remember that when you submitted the copy of the basic I-485 application (without supporting documentation) and your fees to the USCIS Texas Service Center under the pre-order instructions that you were given in immigration court, you were not filing the application with USCIS for adjudication at that time. Instead, you were only taking the necessary preliminary steps to pay the fees and get a fee receipt before you actually filed the original I-485 with the immigration court. Now that your removal proceedings have been terminated, you must ensure that your I-485 is properly pending for adjudication with USCIS if you still wish to seek adjustment of status. If your BIA appeal was terminated so that you could pursue adjustment before USCIS but you had not previously filed an adjustment application with the Immigration Court, you must file your original adjustment application with USCIS as discussed in the Q & A below.
Q. If I have not yet submitted the copy of my I-485 adjustment application to the USCIS Texas Service Center, as directed in the pre-order instructions that I received in immigration court, but the immigration judge or BIA terminates my removal case so that USCIS can adjudicate my I-485, what should I do?
A. Since you are no longer in removal proceedings, you should file your original I-485 application, with all supporting documentation and fees, with the appropriate USCIS service center as directed in the instructions that accompany the I-485 form. You do not need to follow the pre-order instructions, which only apply if your removal proceedings have not terminated. USCIS will adjudicate your I-485 under normal affirmative adjudication procedures. You will receive a fee receipt and ASC biometric scheduling notice shortly after you file your application with the service center.
Q. When I filed my I-485 with USCIS, I followed the instructions on the I-485. I did not follow the pre-filing instructions to submit a copy of the defensive application to the Texas Service Center before filing the original with the immigration court. Instead, I filed my original, signed I-485 and all supporting documentation and fees, with the USCIS service center for my residence in accordance with the form instructions. The immigration judge has since terminated my removal case so that USCIS can complete the adjudication of my application, do I need to do anything else to ensure that the original I-485 is in my A file?
A. No. You only need to follow any additional instructions that you may receive from USCIS to provide information, attend ASC biometric appointments, and to attend your interview, or take other actions that USCIS may request. Your original application will be in your A file.
Q. How do I obtain my status and work authorization documentation if the Immigration judge or the BIA grants my application?
A. If an immigration judge grants you relief from removal that provides you status as a lawful permanent resident (LPR) or asylee who is eligible for documentation, the ICE attorney will provide you with a copy of the Post-Order Instructions for Individuals Granted Relief or Protection from Removal by Immigration Court. These instructions may also be obtained at http://www.uscis.gov/graphics/lawsregs/PostOrderInstr.pdf. A BIA decision granting relief or protection will contain similar instructions for obtaining documents from USCIS. The instructions will tell you how to make an appointment with your local USCIS office to be processed for your documents and the items that you must bring to the appointment. Your EOIR order granting you immigration status must be final. Please follow these instructions carefully so that your request for documentation can be processed promptly. If the BIA issued you a final decision granting you status as a permanent resident or an asylee, you must follow these same Post Order Instructions to obtain your documentation. Information on these documentation procedures will be in your BIA decision. If you have been granted other forms of relief or protection, such as withholding of removal, you may be eligible for work authorization. You may submit a Form I-765, Application for Employment Authorization following the form instructions. The form can be obtained at www.uscis.gov/graphics/formsfee/forms/index.htm or by calling (800) 375-5283.
Q. Why do I have to make an appointment with my local USCIS office to obtain my documentation if I have been granted permanent residence or asylum?
A. By making an appointment, you ensure that USCIS knows that you want your documentation and can promptly process you for your permanent resident or EAD cards, or for other appropriate status documentation (e.g., asylum status). In the past, some individuals did not receive their documentation quickly, in part, because they did not inform USCIS of their need for documents, and USCIS did not have sufficient notice of their EOIR grants. In addition, USCIS will be able to update your biographical information, your address, and collect biometrics for your card, if needed, in connection with the appointment. USCIS will also be able to order your card immediately, in most cases, and you should receive it within 7 to 15 days. (EADs for asylees will be issued in accordance with the mandate in section 309 of the Enhanced Border Security Act of 2002, 8 U.S.C. § 1738 for immediate issuance of biometrically secure EADs.)
Q. I am an EOIR-granted lawful permanent resident. Will I still be able to get temporary documentation of my status until my permanent card arrives?
A. USCIS normally will no longer provide a temporary ADIT stamp showing LPR status unless you have an emergency need for such a stamp because secure biometric Permanent Resident Cards (I-551 cards or "green cards") can now be delivered within 7 to 15 days after the person has completed all necessary card processing steps, including attending any ASC appointments for biometrics. Recent improvements in card production times make delivery of the card much quicker, eliminating the need for routine issuances of the temporary ADIT stamp.
You may also be eligible to receive temporary documentation of LPR status under the terms of the federal district court order in Santillan, et al. v. Ashcroft, et al., No. C 04-02686 MHP (N.D. Ca. 2002) if you have not received your Permanent Resident Card and certain circumstances apply. To receive temporary documentation under the Santillan order, you must be (a) a class member with a final EOIR order granting you permanent resident status issued on or after April 1, 2005 and you still have not received your permanent card after 30 days from the date of your USCIS appointment for documentation, or (b) a class member with a final EOIR order issued before April 1, 2005 and you have not received your permanent card after 60 days since your USCIS appointment. You must also have followed all USCIS instructions to provide information and biometrics. There may be other criteria in the Santillan order that also apply in your specific case. You can see procedures for contacting USCIS at a local office or by e-mail if your LPR documentation has been delayed beyond these time periods at http://www.uscis.gov/graphics/services/residency/IJBenefit.htm.
You may also call the USCIS National Customer Service Center at 1-800-375-5283. You may wish to contact your attorney or immigration representative to determine whether the Santillan order applies to you.
Q. I can’t make an Info-Pass appointment with my USCIS office. What should I do? Or I don’t know how to use the computer and do not have anyone who can assist me, what should I do?
A. An Info-Pass appointment may be made from any computer having internet access. If you or your representative do not have access to a computer, you may go to your nearest public library. The address is www.infopass.uscis.gov. You may also make appointments at your nearest USCIS office. At USCIS offices, personnel are available to assist you in making the appointment if you have difficulty using the computer.
Q. If I or my representative have questions regarding my case and the applications for relief that I have submitted, whom should I contact?
A. If you have submitted the copies of your application for relief or protection to USCIS, but you have not received your application receipt notice(s) or ASC biometrics scheduling notices, you may contact the USCIS National Customer Service Center (NCSC) at 1-800-375-5283. If you have questions concerning receiving status documentation or work authorization after you have been finally granted relief from removal or protection by EOIR or a federal court, you may contact your local USCIS district or sub-office. You can find the USCIS office contact information at: http://www.uscis.gov/graphics/fieldoffices/distsub_offices.index.htm. You may also contact the NCSC at the 800 number above. For all other questions concerning your removal case or requests for relief from removal, your representative (if you have one) or you (if you do not have a representative) should contact the local ICE Office of Chief Counsel (OCC) that is handling your case for DHS or the immigration court with jurisdiction over your case. Please be aware that, depending on the nature of your question, you may be directed to a different ICE, EOIR or USCIS office for a response. Contact information for the ICE OCC offices is at http://www.ice.gov/about/district_offices.htm. Contact information for the EOIR immigration courts is at http://www.usdoj.gov/eoir/sibpages/ICadr.htm. You may also obtain case status information from EOIR’s automated number: 1-800-898-7180.
Thursday, January 20, 2011
Saturday, November 20, 2010
Stay of Removal Standard, Nken v. Holder
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, Jr., ATTORNEY GENERAL
HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court ofappeals for the fourth circuit
[April 22, 2009]
Chief Justice Roberts delivered the opinion of the Court.
It takes time to decide a case on appeal. Sometimes a little; sometimes a lot. “No court can make time stand still” while it considers an appeal, Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9 (1942) , and if a court takes the time it needs, the court’s decision may in some cases come too late for the party seeking review. That is why it “has always been held, … that as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.” Id., at 9–10 (footnote omitted). A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.
This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.
I
Jean Marc Nken, a citizen of Cameroon, entered the United States on a transit visa in April 2001. In December 2001, he applied for asylum under 8 U. S. C. §1158, withholding of removal under §1231(b)(3), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 3, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85, see 8 CFR §208.17 (2008). In his application, Nken claimed he had been persecuted in the past for participation in protests against the Cameroonian Government, and would be subject to further persecution if he returns to Cameroon.
An Immigration Judge denied Nken relief after concluding that he was not credible. The Board of Immigration Appeals (BIA) affirmed, and also declined to remand for consideration of Nken’s application for adjustment of status based on his marriage to an American citizen. After the BIA denied a motion to reopen, Nken filed a petition for review of the BIA’s removal order in the Court of Appeals for the Fourth Circuit. His petition was denied. Nken then filed a second motion to reopen, which was also denied, followed by a second petition for review, which was denied as well.
Nken filed a third motion to reopen, this time alleging that changed circumstances in Cameroon made his persecution more likely. The BIA denied the motion, finding that Nken had not presented sufficient facts or evidence of changed country conditions. Nken again sought review in the Court of Appeals, and also moved to stay his deportation pending resolution of his appeal. In his motion, Nken recognized that Fourth Circuit precedent required an alien seeking to stay a removal order to show by “clear and convincing evidence” that the order was “prohibited as a matter of law,” 8 U. S. C. §1252(f)(2). See Teshome-Gebreegziabher v.Mukasey, 528 F. 3d 330 (CA4 2008). Nken argued, however, that this standard did not govern. The Court of Appeals denied Nken’s motion without comment. App. 74.
Nken then applied to this Court for a stay of removal pending adjudication of his petition for review, and asked in the alternative that we grant certiorari to resolve a split among the Courts of Appeals on what standard governs a request for such a stay. Compare Teshome-Gebreegziabher, supra, at 335, and Weng v. U. S. Attorney General, 287 F. 3d 1335 (CA11 2002), with Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d 95 (CA2 2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004), Tesfamichael v. Gonzales, 411 F. 3d 169 (CA5 2005), Bejjani v. INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales, 400 F. 3d 482 (CA7 2005), and Andreiu v. Ashcroft, 253 F. 3d 477 (CA9 2001) (en banc). We granted certiorari, and stayed petitioner’s removal pending further order of this Court. Nken v.Mukasey, 555 U. S. ___ (2008).
II
The question we agreed to resolve stems from changes in judicial review of immigration procedures brought on by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, which substantially amended the Immigration and Nationality Act (INA), 8 U. S. C. §1101 et seq. When Congress passed IIRIRA, it “repealed the old judicial-review scheme set forth in [8 U. S. C.] §1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. §1252.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (1999) (AAADC). The new review system substantially limited the availability of judicial review and streamlined all challenges to a removal order into a single proceeding: the petition for review. See, e.g., 8 U. S. C. §1252(a)(2) (barring review of certain removal orders and exercises of executive discretion); §1252(b)(3)(C) (establishing strict filing and briefing deadlines for review proceedings); §1252(b)(9) (consolidating challenges into petition for review). Three changes effected by IIRIRA are of particular importance to this case.
Before IIRIRA, courts of appeals lacked jurisdiction to review the deportation order of an alien who had already left the United States. See §1105a(c) (1994 ed.) (“An order of deportation or of exclusion shall not be reviewed by any court … if [the alien] has departed from the United States after the issuance of the order”). Accordingly, an alien who appealed a decision of the BIA was typically entitled to remain in the United States for the duration of judicial review. This was achieved through a provision providing most aliens with an automatic stay of their removal order while judicial review was pending. See §1105a(a)(3) (“The service of the petition for review … shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs”).
IIRIRA inverted these provisions to allow for more prompt removal. First, Congress lifted the ban on adjudication of a petition for review once an alien has departed. See IIRIRA §306(b), 110Stat. 3009–612 (repealing §1105a). Second, because courts were no longer prohibited from proceeding with review once an alien departed, see Dada v. Mukasey, 554 U. S. 1 , ___ (2008) (slip op., at 19–20), Congress repealed the presumption of an automatic stay, and replaced it with the following: “Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B) (2006 ed.).
Finally, IIRIRA restricted the availability of injunctive relief:
“Limit on injunctive relief
“(1) In general
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
“(2) Particular cases
“Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f).
This provision, particularly subsection (f)(2), is the source of the parties’ disagreement.
III
The parties agree that courts of appeals considering a petition for review of a removal order may prevent that order from taking effect and therefore block removal while adjudicating the petition. They disagree over the standard a court should apply in deciding whether to do so. Nken argues that the “traditional” standard for a stay applies. Under that standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776(1987) .
The Government disagrees, arguing that a stay is simply a form of injunction, or alternatively that the relief petitioner seeks is more accurately characterized as injunctive, and therefore that the limits on injunctive relief set forth in subsection (f)(2) apply. Under that provision, a court may not “enjoin” the removal of an alien subject to a final removal order, “unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” 8 U. S. C. §1252(f)(2). Mindful that statutory interpretation turns on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole,” Robinson v. Shell Oil Co., 519 U. S. 337,341 (1997) , we conclude that the traditional stay factors—not §1252(f)(2)—govern a request for a stay pending judicial review.
A
An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as “inherent,” preserved in the grant of authority to federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” All Writs Act, 28 U. S. C. §1651(a). See In re McKenzie, 180 U. S. 536, 551 (1901) . The Court highlighted the historic pedigree and importance of the power in Scripps-Howard, 316 U. S. 4 , holding in that case that Congress’s failure expressly to confer the authority in a statute allowing appellate review should not be taken as an implicit denial of that power.
The Court in Scripps-Howard did not decide what “criteria … should govern the Court in exercising th[e] power” to grant a stay. Id., at 17. Nor did the Court consider under what circumstances Congress could deny that authority. See ibid. The power to grant a stay pending review, however, was described as part of a court’s “traditional equipment for the administration of justice.” Id., at 9–10. That authority was “firmly imbedded in our judicial system,” “consonant with the historic procedures of federal appellate courts,” and “a power as old as the judicial system of the nation.” Id., at 13, 17.
The authority to hold an order in abeyance pending review allows an appellate court to act responsibly. A reviewing court must bring considered judgment to bear on the matter before it, but that cannot always be done quickly enough to afford relief to the party aggrieved by the order under review. The choice for a reviewing court should not be between justice on the fly or participation in what may be an “idle ceremony.” Id., at 10. The ability to grant interim relief is accordingly not simply “[a]n historic procedure for preserving rights during the pendency of an appeal,” id., at 15, but also a means of ensuring that appellate courts can responsibly fulfill their role in the judicial process.
At the same time, a reviewing court may not resolve a conflict between considered review and effective relief by reflexively holding a final order in abeyance pending review. A stay is an “intrusion into the ordinary processes of administration and judicial review,” Virginia Petroleum Jobbers Assn. v. Federal Power Comm’n, 259 F. 2d 921, 925 (CADC 1958) (per curiam), and accordingly “is not a matter of right, even if irreparable injury might otherwise result to the appellant,” Virginian R. Co. v. United States, 272 U. S. 658, 672 (1926) . The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders that the legislature has made final.
B
Subsection (f)(2) does not by its terms refer to “stays” but instead to the authority to “enjoin the removal of any alien.” The parties accordingly begin by disputing whether a stay is simply a type of injunction, covered by the term “enjoin,” or a different form of relief. An injunction and a stay have typically been understood to serve different purposes. The former is a means by which a court tells someone what to do or not to do. When a court employs “the extraordinary remedy of injunction,” Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982) , it directs the conduct of a party, and does so with the backing of its full coercive powers. See Black’s Law Dictionary 784 (6th ed. 1990) (defining “injunction” as “[a] court order prohibiting someone from doing some specified act or commanding someone to undo some wrong orinjury”).
It is true that “ ‘[i]n a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam.’ ” Id., at 800 (8th ed. 2004) (quoting 1 H. Joyce, A Treatise on the Law Relating to Injunctions §1, pp. 2–3 (1909)). This is so whether the injunction is preliminary or final; in both contexts, the order is directed at someone, and governs that party’s conduct.
By contrast, instead of directing the conduct of a particular actor, a stay operates upon the judicial proceeding itself. It does so either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability. See Black’s, supra, at 1413 (6th ed. 1990) (defining “stay” as “a suspension of the case or some designated proceedings within it”).
A stay pending appeal certainly has some functional overlap with an injunction, particularly a preliminary one. Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined. But a stay achieves this result by temporarily suspending the source of authority to act—the order or judgment in question—not by directing an actor’s conduct. A stay “simply suspend[s] judicial alteration of the status quo,” while injunctive relief “grants judicial intervention that has been withheld by lower courts.”Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers); see also Brown v. Gilmore, 533 U. S. 1301, 1303 (2001) (Rehnquist, C. J., in chambers) (“[A]pplicants are seeking not merely a stay of a lower court judgment, but an injunction against the enforcement of a presumptively valid state statute”); Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (same) (“By seeking an injunction, applicants request that I issue an order altering the legal status quo”).
An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the Government, but rather for the temporary setting aside of the source of the Government’s authority to remove. Although such a stay acts to “ba[r] Executive branch officials from removing [the applicant] from the country,” post, at 7 (Alito, J., dissenting), it does so by returning to the status quo—the state of affairs before the removal order was entered.* That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v.Mayacamas Corp., 485 U. S. 271, 279 (1988) ; see Fed. Rule App. Proc. 8(a)(1)(A) (referring to interim relief from “the judgment or order of a district court pending appeal” as “a stay”). Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day. The terminology of subsection (f)(2) does not comfortably cover stays.
This conclusion is reinforced by the fact that when Congress wanted to refer to a stay pending adjudication of a petition for review in §1252, it used the word “stay.” In subsection (b)(3)(B), under the heading “Stay of order,” Congress provided that service of a petition for review “does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B). By contrast, the language of subsection (f) says nothing about stays, but is instead titled “Limit on injunctive relief,” and refers to the authority of courts to “enjoin the removal of any alien.” §1252(f)(2).
“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. Cardoza-Fonseca, 480 U. S. 421, 432(1987) (internal quotation marks omitted). This is particularly true here, where subsections (b)(3)(B) and (f)(2) were enacted as part of a unified overhaul of judicial review procedures.
Subsection (b)(3)(B) changed the basic rules covering stays of removal, and would have been the natural place to locate an amendment to the traditional standard governing the grant of stays. Under the Government’s view, however, Congress placed such a provision four subsections later, in a subsection that makes no mention of stays, next to a provision prohibiting classwide injunctions against the operation of removal provisions. See 8 U. S. C. §1252(f)(1) (permitting injunctions only “with respect to the application of such provisions to an individual alien”); AAADC, 525 U. S., at 481–482. Although the dissent “would not read too much into Congress’ decision to locate such a provision in one subsection rather than in another,” post, at 8, the Court frequently takes Congress’s structural choices into consideration when interpreting statutory provisions. See, e.g., Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 13).
The Government counters that petitioner’s view “fails to give any operative effect to Section 1252(f)(2).” Brief for Respondent 32. Initially, this argument undercuts the Government’s textual reading. It is one thing to propose that “enjoin” in subsection (f)(2) covers a broad spectrum of court orders and relief, including both stays and more typical injunctions. It is quite another to suggest that Congress used “enjoin” to refer exclusively to stays, so that a failure to include stays in subsection (f)(2) would render the provision superfluous. If nothing else, the terms are by no means synonymous.
Leaving that aside, there is something to the Government’s point; the exact role of subsection (f)(2) under petitioner’s view is not easy to explain. Congress may have been concerned about the possibility that courts would enjoin application of particular provisions of the INA, see 8 U. S. C. §1252(f)(1) (prohibiting injunctions “other than with respect to the application of [Section IV of the INA] to an individual alien”), or about injunctions that might be available under the limited habeas provisions of subsection (e). Or perhaps subsection (f)(2) was simply included as a catchall provision raising the bar on any availability (even unforeseeable availability) of “the extraordinary remedy of injunction.” Weinberger, 456 U. S., at 312. In any event, the Government’s point is not enough to outweigh the strong indications that subsection (f)(2) is not reasonably understood to be directed at stays.
C
Applying the subsection (f)(2) standard to stays pending appeal would not fulfill the historic office of such a stay. The whole idea is to hold the matter under review in abeyance because the appellate court lacks sufficient time to decide the merits. Under the subsection (f)(2) standard, however, a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a standard—“clear and convincing evidence”—that does not so much preserve the availability of subsequent review as render it redundant. Subsection (f)(2), in short, would invert the customary role of a stay, requiring a definitive merits decision earlier rather than later.
The authority to grant stays has historically been justified by the perceived need “to prevent irreparable injury to the parties or to the public” pending review. Scripps-Howard, 316 U. S., at 9. Subsection (f)(2) on its face, however, does not allow any consideration of harm, irreparable or otherwise, even harm that may deprive the movant of his right to petition for review of the removal order. Subsection (f)(2) does not resolve the dilemma stays historically addressed: what to do when there is insufficient time to resolve the merits and irreparable harm may result from delay. The provision instead requires deciding the merits under a higher standard, without regard to the prospect of irreparable harm.
In short, applying the subsection (f)(2) standard in the stay context results in something that does not remotely look like a stay. Just like the Court in Scripps-Howard, we are loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. Subsection (f)(2) would certainly deprive courts of their “customary” stay power. Our review does not convince us that Congress did that in subsection (f)(2). The four-factor test is the “traditional” one, Hilton, 481 U. S., at 777, and the Government has not overcome the “presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952) . We agree with petitioner that an alien need not satisfy the demanding standard of §1252(f)(2) when asking a court of appeals to stay removal pending judicial review.
IV
So what standard does govern? The question presented, as noted, offers the alternative of “ ‘the traditional test for stays,’ ” 555 U. S., at ___, but the parties dispute what that test is. See Brief for Respondent 46 (“[T]he four-part standard requires a more demanding showing than petitioner suggests”); Reply Brief for Petitioner 26 (“The Government argues … that the [stay] test should be reformulated”).
“A stay is not a matter of right, even if irreparable injury might otherwise result.” Virginian R. Co., 272 U. S., at 672. It is instead “an exercise of judicial discretion,” and “[t]he propriety of its issue is dependent upon the circumstances of the particular case.” Id., at 672–673; seeHilton, supra, at 777 (“[T]he traditional stay factors contemplate individualized judgments in each case”). The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion. See, e.g., Clinton v. Jones, 520 U. S. 681, 708 (1997) ;Landis v. North American Co., 299 U. S. 248, 255 (1936) .
The fact that the issuance of a stay is left to the court’s discretion “does not mean that no legal standard governs that discretion… . ‘[A] motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ ” Martin v. Franklin Capital Corp., 546 U. S. 132, 139 (2005) (quoting United Statesv. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). As noted earlier, those legal principles have been distilled into consideration of four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton, supra, at 776. There is substantial overlap between these and the factors governing preliminary injunctions, see Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14); not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.
The first two factors of the traditional standard are the most critical. It is not enough that the chance of success on the merits be “better than negligible.” Sofinet v. INS, 188 F. 3d 703, 707 (CA7 1999) (internal quotation marks omitted). Even petitioner acknowledges that “[m]ore than a mere ‘possibility’ of relief is required.” Reply Brief for Petitioner 21 (quoting Brief for Respondent 47). By the same token, simply showing some “possibility of irreparable injury,”Abbassi v. INS, 143 F. 3d 513, 514 (CA9 1998), fails to satisfy the second factor. As the Court pointed out earlier this Term, the “ ‘possibility’ standard is too lenient.” Winter, supra, at ___ (slip op., at 12).
Although removal is a serious burden for many aliens, it is not categorically irreparable, as some courts have said. See, e.g., Ofosu v. McElroy, 98 F. 3d 694, 699 (CA2 1996) (“[O]rdinarily, when a party seeks [a stay] pending appeal, it is deemed that exclusion is an irreparable harm”); see also Petitioner’s Emergency Motion for a Stay 12 (“[T]he equities particularly favor the alien facing deportation in immigration cases where failure to grant the stay would result in deportation before the alien has been able to obtain judicial review”).
The automatic stay prior to IIRIRA reflected a recognition of the irreparable nature of harm from removal before decision on a petition for review, given that the petition abated upon removal. Congress’s decision in IIRIRA to allow continued prosecution of a petition after removal eliminated the reason for categorical stays, as reflected in the repeal of the automatic stay in subsection (b)(3)(B). It is accordingly plain that the burden of removal alone cannot constitute the requisite irreparable injury. Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44.
Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make the public interest in each individual one negligible, as some courts have concluded. See, e.g.,Mohammed, 309 F. 3d, at 102 (Government harm is nothing more than “one alien [being] permitted to remain while an appeal is decided”); Ofosu, supra, at 699 (the Government “suffers no offsetting injury” in removal cases).
Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and prolong[s] a continuing violation of United States law.” AAADC, 525 U. S., at 490. The interest in prompt removal may be heightened by the circumstances as well—if, for example, the alien is particularly dangerous, or has substantially prolonged his stay by abusing the processes provided to him. See ibid. (“Postponing justifiable deportation (in the hope that the alien’s status will change—by, for example, marriage to an American citizen—or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding”). A court asked to stay removal cannot simply assume that “[o]rdinarily, the balance of hardships will weigh heavily in the applicant’s favor.” Andreiu, 253 F. 3d, at 484.
* * *
The Court of Appeals did not indicate what standard it applied in denying Nken a stay, but Circuit precedent required the application of §1252(f)(2). Because we have concluded that §1252(f)(2) does not govern, we vacate the judgment of the Court of Appeals and remand for consideration of Nken’s motion for a stay under the standards set forth in this opinion.
It is so ordered.
Notes
* The dissent maintains that “[a]n order preventing an executive officer from [enforcing a removal order] does not ‘simply suspend judicial alteration of the status quo,’ ” but instead “blocks executive officials from carrying out what they view as proper enforcement of the immigration laws.” Post, at 7 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers)). But the relief sought here would simply suspend administrative alteration of the status quo, and we have long recognized that such temporary relief from an administrative order—just like temporary relief from a court order—is considered a stay. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 10–11 (1942) . The dissent would distinguish Scripps-Howard on the ground that Nken does not really seek to stay a final order of removal, but instead seeks “to enjoin the Executive Branch from enforcing his removal order pending judicial review of an entirely separate order [denying a motion to reopen].” Post, at 4, n. But a determination that the BIA should have granted Nken’s motion to reopen would necessarily extinguish the finality of the removal order. See Tr. of Oral Arg. for Respondent 42 (“[I]f the motion to reopen is granted, that vacates the final order of removal and, therefore, there is no longer a final order of removal pursuant to which the alien could be removed”). The relief sought here is properly termed a “stay” because it suspends the effect of the removal order.
Tuesday, November 2, 2010
New Immigration Fees USCIS
New Application and Petition Fees Go Into Effect on Nov. 23, 2010
WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) reminds customers that its new fee schedule goes into effect Nov. 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee, or they will be rejected.USCIS published the new fee schedule in the Federal Register on Sept. 24, following a comprehensive review of public comments received after publication of the proposed rule this summer.
The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.
Final Rule: Schedule of Fees
The following schedule lists the adjusted fees that will take effect on November 23, 2010, alongside the existing fees in effect until that date:
Form No. | Application/Petition Description | Existing Fees (effective through Nov. 22, 2010 | Adjusted Fees (effective beginning Nov. 23, 2010) |
| I-90 | Application to Replace Permanent Resident Card | $290 | $365 |
| I-102 | Application for Replacement/Initial Nonimmigrant Arrival-Departure Document | $320 | $330 |
| I-129/129CW | Petition for a Nonimmigrant Worker | $320 | $325 |
| I-129F | Petition for Alien Fiancé(e) | $455 | $340 |
| I-130 | Petition for Alien Relative | $355 | $420 |
| I-131 | Application for Travel Document | $305 | $360 |
| I-140 | Immigrant Petition for Alien Worker | $475 | $580 |
| I-191 | Application for Advance Permission to Return to Unrelinquished Domicile | $545 | $585 |
| I-192 | Application for Advance Permission to Enter as Nonimmigrant | $545 | $585 |
| I-193 | Application for Waiver of Passport and/or Visa | $545 | $585 |
| I-212 | Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal | $545 | $585 |
| I-290B | Notice of Appeal or Motion | $585 | $630 |
| I-360 | Petition for Amerasian, Widow(er), or Special Immigrant | $375 | $405 |
| I-485 | Application to Register Permanent Residence or Adjust Status | $930 | $985 |
| I-526 | Immigrant Petition by Alien Entrepreneur | $1,435 | $1,500 |
| I-539 | Application to Extend/Change Nonimmigrant Status | $300 | $290 |
I-600/600A I-800/800A | Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petition | $670 | $720 |
| I-601 | Application for Waiver of Ground of Excludability | $545 | $585 |
| I-612 | Application for Waiver of the Foreign Residence Requirement | $545 | $585 |
| I-687 | Application for Status as a Temporary Resident under Sections 245A or 210 of the Immigration and Nationality Act | $710 | $1,130 |
| I-690 | Application for Waiver of Grounds of Inadmissibility | $185 | $200 |
| I-694 | Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act | $545 | $755 |
| I-698 | Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) | $1,370 | $1,020 |
| I-751 | Petition to Remove the Conditions of Residence | $465 | $505 |
| I-765 | Application for Employment Authorization | $340 | $380 |
| I-817 | Application for Family Unity Benefits | $440 | $435 |
| I-824 | Application for Action on an Approved Application or Petition | $340 | $405 |
| I-829 | Petition by Entrepreneur to Remove Conditions | $2,850 | $3,750 |
| I-881 | Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–110) | $285 | $285 |
| I-907 | Request for Premium Processing Service | $1,000 | $1,225 |
| Civil Surgeon Designation | $0 | $615 | |
| I-924 | Application for Regional Center under the Immigrant Investor Pilot Program | $0 | $6,230 |
| N-300 | Application to File Declaration of Intention | $235 | $250 |
| N-336 | Request for Hearing on a Decision in Naturalization Proceedings | $605 | $650 |
| N-400 | Application for Naturalization | $595 | $595 |
| N-470 | Application to Preserve Residence for Naturalization Purposes | $305 | $330 |
| N-565 | Application for Replacement Naturalization/Citizenship Document | $380 | $345 |
| N-600/600K | Application for Certification of Citizenship/ Application for Citizenship and Issuance of Certificate under Section 322 | $460 | $600 |
| Immigrant Visa DHS Domestic Processing | $0 | $165 | |
| Biometrics | Capturing, Processing, and Storing Biometric Information | $80 | $85 |
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