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Over the last few weeks we have answered dozens of questions about the provisional waiver.  One group of questions keeps appearing- questions about how people in removal proceedings or with a removal order can qualify for the provisional waiver.  Whereas, the initial rule announced by the Department of Homeland Security indicated that the provisional waiver would be unavailable to people in removal proceedings, the final rule is somewhat more forgiving.  The final rule states that an individual in removal proceedings can not seek a provisional waiver with the Citizenship & Immigration Service (CIS) unless proceedings have been administratively closed or terminated.

As Julie Andrews sang, let’s start at the very beginning as it is a very good place to start.  Removal proceedings are initiated when the DHS issues a charging document known as a Notice to Appear (NTA) and lodges it with the Immigration Court.  Any of the three immigration agencies, Immigration & Customs Enforcement, Citizenship & Immigration Services and Customs & Border Protection has the authority to issue NTAs.  Usually, the time between DHS issuing an NTA and filing it with the court is close to simultaneous.  However, on occasion, the NTA is issued and not filed with the court for days, weeks, months or even years.  An individual is not “in removal proceedings” until an NTA has been filed with the court.  Until the NTA is filed with the court, DHS has exclusive authority to choose not to bring removal proceedings against an individual.  In cases where an NTA has been issued and not filed with the court, that individual is not in removal proceedings and should remain eligible for the provisional waiver.  Removal proceedings continue until the immigration judge grants relief and terminates the case or the person departs the U.S. either under an order of voluntary departure or an order of removal.  In cases where there is a final order of removal, but the individual has not been removed yet, even though there are no more proceedings before the court, that individual is still “in proceedings” and would be ineligible for the provisional waiver.

Once a person is in removal proceedings, the provisional waiver rule is clear that those proceedings must be administratively closed or terminated before that individual can seek the provisional waiver.  Termination of removal proceedings can happen in one of two ways.  First, proceedings are terminated where the immigration judge grants relief, allowing an individual to remain in the U.S. in some sort of legal status.  Second, and this is the rarer form of termination, ICE may elect to terminate proceedings because it has decided that seeking removal in a particular case is no longer in the interests of the government.  Although the DHS has exclusive authority to issue and to decide whether to file a Notice to Appear in immigration court,  once proceedings have been initiated, DHS becomes a party to litigation and only the immigration judge has the authority to terminate removal proceedings.

Administrative closure is a tool of convenience for immigration courts.  Administrative closure allows the court to take a case off an active docket and place it into “hibernation.”

By administratively closing a case, the case remains pending before the immigration court, but it is taken off the active calendar.  When a case is pending before the court, it is on an active calendar and at the end of each hearing another hearing must be calendared.  When a case has been administratively closed, it is not on any calendar and no hearings are scheduled.  The case remains before the court, but the court is not acting on the case.  In order to get the case back on the active docket, one of the parties must file a “motion to recalendar” the case.  Cases can be administratively closed for months or years at a time.  Either party may request administrative closure and the immigration judge has authority to grant it.  Until recently, the law required the concurrence of both the foreign national and the government to allow for administrative closure.  However, last year, in Matter of Avetisyan, the Board of Immigration Appeals held that an immigration judge may grant administrative closure over the objection of one of the parties.  In other words, DHS can not unilaterally deny the foreign national’s  ability to obtain administrative closure.

People currently in removal proceedings who would otherwise qualify for the provisional waiver can seek both termination and administrative closure.  We expect that ICE, who represents the government in removal proceedings, will be fairly accommodating to requests to terminate or administratively close cases where the foreign national can present a prima facie case for eligibility for the provisional waiver.  In these cases, your lawyer ought to prepare a motion to terminate or administratively close demonstrating that you qualify for the provisional waiver and that the pending removal proceedings are the only impediment.  These individuals should be able to demonstrate that they are the spouse, parent or children of a U.S. citizen and that their only violation of law relates to entering illegally.  By presenting evidence to the government of qualification for the provisional waiver and readiness to file it, it seems that ICE would exercise its discretion to administratively close the case to allow the applicant to file the provisional waiver application.  Upon approval, termination seems appropriate.  If the case is not approved, it is reasonable to expect that ICE would seek to recalendar the case and proceed with removal proceedings.  Should the government refuse to join a motion for administrative closure, the immigration judge has the authority under Matter of Avetisyan to close the case nonetheless upon the motion of the foreign national.

People with old orders of removal who have not yet departed the United States would need to reopen removal proceedings so that removal proceedings can be administratively closed or terminated.  This is a heavy lift.  If the removal order is more than 90 days old, a foreign national will, generally, need the government to agree to reopen for the purpose of closing.  Makes sense, right?  However, there may be circumstances where the hardship is so clear and extreme and the facts are so compelling that the government agrees to this.  By asking the government to join a motion to reopen, an individual with a final order of removal, who may or may not be on the government’s radar screen for removal, makes herself vulnerable to enforcement of the removal order should the government prove unwilling to join in reopening.  While there are limited circumstances in which an immigration judge can reopen on his own motion, those instances are rare and should not be, generally, relied upon.

Finally, people who have been deported or departed the U.S. under an order of voluntary departure or removal are ineligible for the provisional waiver and must seek the waiver through the traditional means at the consulate in their home country.

The provisional waiver has the potential to help thousands of people in removal proceedings.  Many of them may be waiting for hearings on cancellation of removal which requires a much higher level of hardship than the provisional waiver’s standard of extreme hardship.  It is not really conceivable that anyone can navigate this thicket without experienced counsel.  Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.