U.S. Citizenship and Immigration Services (USCIS) has agreed to allow certain Temporary Protected Status (TPS) beneficiaries who have traveled outside the country with an advance entry permit to apply for permanent residence within the United States.
TPS beneficiaries, including citizens of the following countries El Salvador, Honduras, Nicaragua and Venezuelacovered by this new agreement will be able to reopen and dismiss their orders of removal, deportation or exclusion, as well as apply for adjustment of status to become permanent residents within the United States, if they meet all the necessary requirements.
The settlement is the result of the case CARECEN v. Cuccinellia lawsuit filed by Democracy Forwardthe Catholic Legal Immigration Network, Inc. (CLINIC), Montagut & Sobral, PCand Debevoise & Plimpton, LLP in August 2020.
In that case, a number of TPS beneficiaries and the Central American Resource Center (CARECEN) sued the Trump administration for illegally depriving thousands of TPS beneficiaries of the opportunity to change their immigration status and become permanent residents. Based on the new pact, the plaintiffs will have the possibility of obtaining permanent residency.
The lawsuit alleged that the change violated the Administrative Procedure Act and the Immigration and Nationality Act, was motivated by the Trump administration's racial and anti-immigrant bias, and was illegally authorized by Ken Cuccinelli, whose appointment was declared unlawful by a federal court in March 2020 in response to another lawsuit filed by Democracy Forward, CLINIC, ROOTS and Debevoise & Plimpton LLP.
Summary of settlement guidelines that will help certain TPS beneficiaries
The Stipulation of Settlement and Dismissal (Stipulation)The document, which specifies the guidelines for the agreement, details how it will help certain TPS beneficiaries apply for permanent residency within the United States. Here are some of the key points:
1. The Stipulation shall be effective from March 21, 2022 through January 19, 2025 (the "Relevant Period").
There are exceptions for individuals who are considered a priority for removal from the United States, according to Department of Homeland Security (DHS) guidelines on how civil immigration law should be applied.
The Office of Chief Counsel ("OPLA") of U.S. Immigration and Customs Enforcement ("ICE") will generally exercise its prosecutorial discretion by agreeing to join in a joint motion to reopen and dismiss ("joint motion to reopen and dismiss") removal, deportation, or removal proceedings of an individual who meets the following requirements:
a. Currently has Temporary Protected Status.
b. Is the subject of an order of removal, deportation, or exclusion issued by the Executive Office for Immigration Review or its predecessor agency, the U.S. Immigration and Naturalization Service.
c. You have traveled with an advance parole since the order was issued.
d. Is prima facie eligible to file an application for adjustment of status with USCIS, including but not limited to those with an "immediate relative" family petition that is pending or has been approved and meets the "inspected and admitted or paroled" requirement of Section 245(a) of the Immigration and Nationality Act.
If USCIS granted or renewed Temporary Protected Status, despite a criminal past, including a single DUI conviction, ICE OPLA would not normally rely simply on the same criminal history to determine that someone is a public safety priority for law enforcement.
3. During the relevant period, ICE OPLA will consider a joint motion to reopen and dismiss, in accordance with the process detailed in the Stipulation, provided that the request is submitted to ICE OPLA during the relevant period.
4. Within 30 days of the entry of the Stipulation, USCIS will post a notice about this process on its website, along with instructions on how to contact ICE OPLA in the event a joint motion to reopen and dismiss is required.
This notice shall be published in English, Spanish, Arabic, Haitian Creole, and any other language commonly spoken by those who may benefit from the Stipulation.
ICE OPLA will also update its website with information on how to file a joint motion to reopen and dismiss request in the languages specified above.
5. During the Relevant Period, qualified noncitizens will file requests for joint motions to reopen and dismiss using ICE's existing OPLA prosecutorial discretion process.
ICE OPLA will issue internal field guidance to implement the Stipulation and will establish internal points of contact to process these requests during the Relevant Period to ensure that these cases are processed as quickly as possible given the existing workload at the appropriate ICE OPLA field location within 30 days of entry of the Stipulation.
Using the appropriate prosecutorial discretion process at the local field office, ICE OPLA will attempt to process these requests within 90 days, but no more than 120 days, from the time the request is received.
6. The Stipulation includes a model joint motion to reopen and dismiss for use in these cases.
For individuals who have an attorney, ICE OPLA will cooperate with their attorney to file these motions with the appropriate immigration court within the relevant time period.
Individuals who do not have an attorney should contact ICE OPLA directly to request that the federal government agree to file a joint motion to reopen and dismiss.
7. CARECEN shall prepare and distribute informational notices within 60 days of the entry of the Stipulation, which shall include a model joint motion to reopen and dismiss.
8. Within 60 days of the Stipulation, USCIS and ICE OPLA will post on their websites information about legal service providers. pro bono authorized by the U.S. Department of Justice, and ICE OPLA will report on its website that the federal government does not require a fee to request prosecutorial discretion, link to other government websites that discuss the unauthorized practice of law, and post the model joint motion to reopen and dismiss.
9. If an individual's order of removal, deportation, or exclusion is terminated, individuals who have already applied for adjustment of status with USCIS and have been denied solely for lack of jurisdiction, or denied solely for lack of jurisdiction and inadmissibility (where a waiver was available but was not filed or adjudicated for the ground of inadmissibility), may file a new application for adjustment of status or apply to reopen their denied adjustment of status application with USCIS, if timely filed.
Within 60 days of the effective date of the Stipulation, USCIS will create a procedure to allow persons whose motions have not been timely filed, but who are otherwise eligible, to file a late motion to reopen.
Recommendations for people in the TPS
Anyone who is currently protected by TPS and has traveled abroad with an advance entry permit must immediately consult with an immigration attorney to determine your legal options under the Stipulation and U.S. immigration law.
TPS beneficiaries who have not yet traveled with an advance entry permit should consult with an immigration attorney to determine whether or not they should apply for this immigration benefit.
Persons on TPS must be of good character and not commit any crime that would cause them to lose TPS.
Do not seek legal advice from notaries, immigration consultants, paper fillers and multiservices. These people are not authorized to give you legal advice.
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