On March 21, 2022, CARECEN (The Central American Resource Center) and United States Citizenship and Immigration Services (USCIS) entered into a Stipulation (settlement agreement) whereby USCIS will generally exercise its prosecutorial discretion by agreeing to jointly re-open deportation orders, move to dismiss removal proceedings and allow certain persons with Temporary Protected Status (TPS) to apply for adjustment of status.
This is a breakthrough development because previously persons who had TPS with deportation orders, and who then left on advance parole in order to have an admission into the United States, were barred from adjusting with USCIS because they were technically in removal proceedings (according to USCIS – even though they left the United States) and, on the other hand, they were also not able to adjust status in court because the advance parole made them arriving aliens, a designation under the sole jurisdiction of USCIS.
So, persons with this set of conditions have been stuck in limbo between two agencies: the courts, which claimed to not have jurisdiction because the person had left on parole and came back as an arriving alien, and USCIS, which claimed to not have jurisdiction because the person was still in removal proceedings.
BUT NOW, FROM THIS POINT UNTIL JANUARY 19, 2025, ANY TPS HOLDER WHO MEETS THE FOLLOWING CRITERIA CAN HAVE THEIR REMOVAL PROCEEDINGS DISMISSED TO ADJUST THEIR STATUS unless the person is an enforcement priority:
- Currently possesses Temporary Protected Status;
- Has a removal, deportation, or exclusion order issued by the Executive Office for Immigration Review or its predecessor agency, the U.S. Immigration and Naturalization Service;
- Has traveled on advance parole since that order was issued; AND
- Is otherwise prima facie eligible to file an application for adjustment of status with USCIS, including but not limited to those with a pending or approved I-130 “immediate relative” visa petition who meet the “inspected and admitted or paroled” requirement of Section 245(a) of the Immigration and Nationality Act, as amended (the “INA”) pursuant to USCIS policy if seeking to adjust under that provision.
If USCIS granted or renewed Temporary Protected Status despite some criminal history (e.g., a single DUI), ICE Office of the Principal Legal Advisor (OPLA) generally would not rely solely on that same criminal history to find someone a public safety priority for enforcement.
During the Relevant Period, ICE OPLA will consider, pursuant to the process set forth in above a request for a joint motion to reopen and a motion to dismiss so long as the request is submitted to ICE OPLA before January 19, 2025
Within 30 days of the entry of this Stipulation (this settlement agreement), USCIS will publish a notice about this process on its website with instructions on how to contact ICE OPLA when a joint motion to reopen and a motion to dismiss is necessary. ICE OPLA will aim to process these requests within 90 days but no longer than 120 days from the time the request is submitted using the appropriate prosecutorial discretion process in the local field office.
FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:
Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association. If you have additional questions or concerns contact Lisa Shea at email@example.com or call us at 703-335-2009.
This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer