June 6, 2013 , Chief Counsel Office of the Chief Counsel Immigration and Customs Enforcement U.S. Department of Homeland Security 500 12th Street, SW, Mail Stop 5902 Washington, DC 20536-5902

Re:

Dear Mr.

Request for Favorable Exercise of Prosecutorial Discretion; Joint Motion to Reopen and Terminate Removal Proceedings Respondent: (A ) ,

Catholic Charities Immigration Legal Services of the Archdiocese of Washington represents the Respondent, Mrs. (“Mrs. ”). Mrs. respectfully requests Arlington District Counsel exercise favorable prosecutorial discretion by joining in her Motion to Reopen and to Terminate Removal Proceedings to the Board of Immigration Appeals (“Board”) so she may apply with U.S. Citizenship and Immigration Services (“USCIS”) for adjustment of status pursuant to INA §245(i) based on her status as a grandfathered beneficiary who complies with all the statutory and discretionary requirements of this benefit. The U.S. Supreme Court in Arizona v. United States stated that “[d]iscretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, […].” 132 S.Ct. 2492, 2499 (2012). Mrs. is such an individual presenting immediate human concerns and presenting many compelling equities—such as her U.S. citizen children, her Legal Permanent Resident husband and her over 20 years of residence in the United States. STATEMENT OF FACTS Mrs. is a forty-one year-old native of Guatemala who entered the United States in early 1993 without inspection or admission. See Exh. A, Respondent’s Declaration; Exh, B, Respondent’s Birth Certificate. Mrs. came to the United States at the age of twenty-two primarily because the country was at war and her brother, , was killed. See Exh. A, Respondent’s Declaration. Once here, and like the majority of Guatemalans who made it 1    

safely to the United States, she finally felt safe and created a new life with her now Legal Permanent Resident spouse . She married on February 14, 1998 and they have two U.S. citizen children, and , aged 19 and 10 years, respectively. See Exh. B at 2, Respondent’s Spouse’s Declaration. Mrs. ’s two siblings are also U.S. citizens. See Exh. A, Respondent’s Declaration. Mrs. ’s father is deceased and her mother, who lives in Guatemala, suffers from cancer. See Exh. P, Father’s Death Certificate; Exh. Q, Letter from Mother’s Doctor. After years of leading a family-oriented and hard-working life in the United States, Mrs. was driving in Virginia and made a wrong turn into federal property. As a result she was stopped and questioned by the guard who subsequently called legacy INS agents. See Exh. A, Respondent’s Declaration. Mrs. was then placed in removal proceedings before Arlington EOIR where Mrs. pro se applied for asylum and withholding of removal under section 241(b)(3) of the INA. Mrs. was denied these benefits and instead received an order for voluntary departure from the Immigration Judge. Mrs. through counsel appealed this decision to the Board, which the Board affirmed without opinion providing until September 30, 2002 to comply with the voluntary departure order. Despite the outcome of the appeal, Mrs. still feared returning to Guatemala and was pregnant with her son at the time of the Board’s decision so she failed to leave the United States. See Exh. C, Birth Certificate for . When Mrs. was in removal proceedings, a labor certification was filed on her husband’s behalf and the Department of Labor ultimately granted the labor certification on November 23, 1998. See Exh. I, Notice of Approval by Department of Labor. Her spouse then submitted an I-140, Immigrant Petition for Alien Worker, listing Mrs. as his spouse and that petition was granted on January 20, 2004. See Exh. H, I-140, Immigrant Petition for Alien Worker. Based on that approved petition, Mrs. ’s spouse became a Legal Permanent Resident on October 21, 2008. See Exh, E, Mr. ’s LPR Card. The family currently lives in Riverdale, MD, in the home they have owned since 2006. See Exh. M, Proof of Home Ownership. Mrs. is the primary caretaker of the home and her family while also working three to four days a week cleaning private homes to supplement the family income. See Exh. A, Respondent’s Declaration. When not caring for her family or working, Mrs. is very active in at her church, , serving in many capacities including Sunday School and Bible study teacher. See Exh. A, Respondent’s Declaration; Exh. S, Letter from Rev. , Pastor; Exh. U, Accolades awarded to Mrs. Mrs. has been a member of this church for many years, almost the entire duration of her residence in the United States. Id. Mrs. is well liked and regarded in her community. See Exh. S, Letter of Support from the Community. Mr. , Mrs. ’s spouse, works at as a laborer. See Exh. P, Letter from Mr. ’s Employer. In the past, Mr. has volunteered in the community as a soccer coach. See Exh. O, Accolades awarded to the family. The couple has filed taxes since at least 2000. See Exh. T, Federal Income Tax Returns. Their daughter third grader at

attends Elementary. See Exh. L,

Community College and their son a ’s Declaration; Exh. O, Accolades for 2  

 

, a teenager mother, credits her mother for being able to graduate high school and attending college while being a single mother. See Exh. L, ’s Declaration. receives the unconditional support of her parents who financially assist her and her son, their grandson. Id. ARGUMENT I.

The Department of Homeland Security has the right and responsibility to exercise prosecutorial discretion in appropriate cases.

It is a matter of general agreement that the Department of Homeland Security enjoys the power of prosecutorial discretion. Attorneys within the Department have long been encouraged, both within INS and subsequently within DHS, to exercise prosecutorial discretion in appropriate cases. See John Morton, Director: Prosecutorial Discretion: Certain Victims, Witnesses and Plaintiffs (June 17, 2011); Bo Cooper, Deputy Director: INS Exercise of Prosecutorial Discretion (July 11, 2000). The exercise of discretion is positively encouraged both by DHS and legacy INS policy memoranda. See Doris Meissner, Commisioner: Exercising Prosecutorial Discretion (Nov. 17, 2000) (hereinafter, “Meissner Memorandum”) (stating that “Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process.”) (Emphasis in original). The exercise of prosecutorial discretion by DHS has been approved by both the federal courts and the immigration court system. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489-92 (1999) (finding that the INS retains inherent prosecutorial discretion as to whether to bring removal proceedings); Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009) (noting that DHS has prosecutorial discretion over deferred action and citing cases). Departmental policy and court precedent concur that prosecutorial discretion is within the power of DHS attorneys. II.

Mrs. Meets the Criteria for Joint Motions to Reopen for Adjustment of Status Purposes

In general, District Counsel may join in a Motion to Reopen for consideration of adjustment of status pursuant to INA § 245 if: (1) such adjustment of status was not available to the respondent at the former hearing, (2) the alien is statutorily eligible for adjustment of status, and (3) the respondent merits a favorable exercise of discretion. Memo, Cooper, Gen. Counsel, HQCOU 90/16.22.1 (May 17, 2001). A. Section 245(i) Adjustment of Status was not available to Mrs. former hearing.

at her

Mrs. was not eligible to apply for adjustment of status at her prior hearing on January 27, 1999 because at that time The Legal Immigration Family Equity Act (“LIFE Act”) creating 245(i) adjustment benefits had not become law. LIFE Act, Pub. L. No. 106-553 (Dec. 21, 2000), and the LIFE Act Amendments, Pub. L. No. 106-554 (Dec. 21, 2000). Passage of the 3    

LIFE Act occurred after the Honorable Judge granted Mrs. voluntary departure on January 27, 1999. Since adjustment of status pursuant to INA § 245(i) was not available at her former hearing, reopening Mrs. ’s removal proceeding is therefore appropriate to allow her to apply for adjustment of status. B. Mrs.

is statutorily eligible for 254(i) Adjustment of Status.

Mrs. is prima facie eligible for adjustment of status pursuant to INA §245(i). The Legal Immigration Family Equity Act (“LIFE Act”) permits adjustment of status for certain aliens who would otherwise be ineligible to adjust their status under INA § 245(a). LIFE Act, Pub. L. No. 106-553 (Dec. 21, 2000), and the LIFE Act Amendments, Pub. L. No. 106-554 (Dec. 21, 2000). Under section 245(i) of the Act, adjustment of status is available to, inter alia, an alien who entered without inspection. INA § 245(i)(1)(A)(i)-(ii). This law sunset on January 14, 1998, but was revived under the LIFE Act, which extended section 245(i) to April 30, 2001. Section 245(i) adjustment of status continues to be available to “grandfathered” beneficiaries. To be grandfathered under INA § 245(i), the alien must be the beneficiary of either a labor certification under INA § 212(a)(5)(A) or a petition under INA Section 204 (including I-140, I-130, I-360, I526) that was filed on or before April 30, 2001. A beneficiary can adjust status based on an immigrant visa petition or labor certification that was approved after April 30, 2001, so long as his petition or application for certification was “properly filed” (postmarked or received by the Department) on or before April 30, 2001, and “approvable when filed.” 8 C.F.R. § 1245.10(a)(2). “Approvable when filed” means the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (“frivolous” being “patently without substance”). 8 C.F.R. § 1245.10(a)(3). Mrs. , having entered without inspection in 1993, does not qualify for adjustment under section 245(a) and must prove eligibility for adjustment pursuant to section 245(i), which she does for the following reasons. Mrs. and Mr. married on February 14, 1998. See Exh. D. Marriage Certificate. Mrs. ’s spouse submitted a properly filed application for labor certification on April 9, 1998. See Exh. J, Receipt Notice from Department of Labor. The Department of Labor approved that labor certification on November 23, 1998. Section 245(i) defines the term “beneficiary” as spouses or children “accompanying or following to join the principal alien”, who in this case is Mr. . An alien who is accompanying or following to join an alien who is a grandfathered alien is thus also the “beneficiary” of the grandfathered labor certification and is also grandfathered. See Robert L. Bach, Executive Associate Commissioner of Office of Policy and Programs for the INS: Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act (June 10, 1999). Therefore, Mrs. is a 245(i) grandfathered beneficiary spouse. Aside from being a 245(i) beneficiary, Mrs. meets all of the statutory requirements. Mrs. is physically present in the United States. An immigration visa number is immediately available to her, she is not inadmissible to the United States, and she was present in the United States before December 21, 2000. See e.g., Exhs. A, C, D, H, K, L, R, S, and T; INA § 245(i)(2)(A); 8 C.F.R. § 1245.10(b)(3). The last of these is relevant to Mrs. because if the labor certification or petition was filed after January 14, 1998, the applicant must have been physically present in the U.S. on December 21, 2000. INA § 245(i); 8 C.F.R. § 1245.10; LIFE Act § 1502(a)(1)(B), Pub. L. No. 106-553. 4    

To seek adjustment under INA § 245(i), the alien must pay a penalty (currently $1,000) and file a Form I-485 with Supplement A. 8 C.F.R. § 1245.2(a)(3)(iii). Mrs. is willing and able to pay this penalty as well as submit all required applications. Mrs. is not inadmissible from the United States. Mrs. is also willing to undergo the required medical examination and submit the results of this examination. Mrs. deserves a favorable exercise of discretion as described in detail in the subsequent section. Therefore, Mrs. submits proof of her prima facie eligibility for section 245(i) adjustment of status thereby complying with the standard of proof required for reopening proceedings. C. Mrs.

merits a favorable exercise of discretion.

Factors to be considered in determining whether a favorable exercise of discretion is warranted include: (1) the hardship to the alien and/or his USC or LPR family members if the alien were required to procure a visa through consular processing (including the potential applicability of section 212(a)(9) should the alien depart the United States); (2) the alien’s criminal history, if any; (3) the number and severity of the immigration violations; and (4) whether the alien’s removal is consistent with ICE objectives. Memo, Cooper, Gen. Counsel, HQCOU 90/16.22.1 (May 17, 2001). Furthermore, on June 17, 2011 ICE Director John Morton issued a policy memorandum concerning prosecutorial discretion, which added to the list of established prosecutorial factors (5) the person’s length of presence in the United States and (6) whether the person has a U.S. citizen or permanent resident spouse, child, or parent. See John Morton, Director: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter, “Morton Enforcement Priorities Memorandum”). 1. If Mrs. is removed in the future, her Legal Permanent Resident husband, U.S. citizen children, and other U.S. citizen family members would incur extreme hardship. Mrs. ’s removal will result in extreme hardship to her and her entire family. If Mrs. ’s removal order is enforced, her departure would trigger the ten year unlawful presence bar and she would not be able to return to the United States for at least ten years notwithstanding the approval of an I-601 waiver, which will likely require her to be in Guatemala and away from her family for approximately a year or more during adjudication of the waiver. Being away from her family for this long will cause them extreme hardship because Mr. cannot support their family on his income alone, much less send support to Mrs. in Guatemala where it is unlikely she will be able to find employment. More importantly, the family will face extreme emotional hardship as Mrs. is the main source of support, stability, and care for her family in the home. See Exhs. K & L, Declaration from Mr. , the spouse, and , their daughter, respectively. Mr. would be left in the United States and would be expected to both financially and emotionally support his two children. Without Mrs. ’s support, Mr. will be 5    

the sole caregiver for their children. Their ten-year old son , who has continuously excelled in school, will face his formative years in a single parent household without a mother who has proven essential to his scholastic excellence. See Exh. O, Accolades for . Continuing to have a desired two-parent household will ensure that continues on the right path of excellence. , their nineteen year old, daughter, has a baby and through the difficult trials that come with being a teenage mother, she credits her mother, Mrs. , for her ability to persevere and manage both college and a baby. See Exh. L. ’s Declaration. considers her mother her best and only friend, and is very attached to her. Id. In addition, Mr. would be left without the love and support of his wife and partner of over twenty years. Additionally, the couple will experience extreme hardship if they were forced to leave the United States and live in Guatemala. Mrs. and her spouse lack contacts and support in Guatemala after not having lived there for over twenty years. Given the known widespread unemployment and social strife in Guatemala, it is unlikely that the couple will find jobs or a way to support their family. In addition to their financial struggles, ten-year-old will be forced to leave his school and to adapt to a culture very different from his American culture and upbringing the consequences of which can be traumatic on any child of this age. Furthermore, Mrs. would not be able to consular process without further delay or complication because she will need to resolve the removal order on her record and its consequences. However, if her removal proceedings are reopened while she is here, Mrs. can pursue adjustment of status given her 245(i) eligibility. 2. Mrs.

has no criminal history.

Mrs. has lived in the United States for over twenty years. During this prolonged residence, she has not committed any crimes or been arrested. Instead, she has dedicated herself to her family and her community. The recent realignment of DHS priorities, which includes “an increased focus on criminals,” should be taken into consideration by the Office of Chief Counsel as it determines whether to pursue its case against Mrs. . See Statement of John Morton, Director, U.S. Immigrations and Customs Enforcement, Before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement (Oct. 12, 2011). 3. Mrs.

has incurred one immigration violation1.

Mrs. failed to depart on the Board’s order for voluntary departure entered on August 30, 2002. By this time, Mrs. had created a new life and family in the United States. In fact, she was approximately five months pregnant with her son . The prospect of her spouse’s imminent grant of immigration status gave her hope that she too could soon obtain immigration status. Moreover, she still feared returning to Guatemala. For these valid reasons, she failed to depart.                                                                                                                         1

Technically, Mrs. previously accrued a violation when entered the United States without being inspected or admitted in 1993. However, Mrs. incurred this violation because she was fleeing for her safety in light of the Guatemalan civil war and the assassination of her brother, . 6    

Failure to depart the United States on an order of voluntary departure shall subject the alien to ineligibility for a period of 10 years for any further immigration relief. INA § 240B(d). The ten-year period since the date that the voluntary departure order was violated (September 29, 2002) has elapsed and Mrs. may now seek and benefit from immigration relief. Though Mrs. regrets violating civil immigration law, she asks that given the totality of the circumstances, this violation not be counted heavily against her. 4. Mrs.

’s removal would be inconsistent with ICE objectives.

Removing Mrs. from the United States is inconsistent with ICE’s objectives. As an agency of the United States government, the Department of Homeland Security has an interest in promoting family unity and the safety and welfare of U.S. citizens and permanent residents.2 The Department of Homeland Security also has an interest in focusing its limited resources and taxpayer dollars on criminal aliens who pose a threat to the public safety. Removing Mrs. would not further these objectives. Further, Mrs. ’s long presence in the United States of over twenty years without criminal incident demonstrates that she presents no danger to American society and is not a priority individual for removal. Mrs. , a homeowner since 2006, has successfully integrated herself into American society as demonstrated, in part, by her completion of English as a Second Language Courses. See Exh. U, List of Awarded Accolades. Mrs. has been a leader at her church for years teaching Sunday School and Bible study sessions as well as singing in the choir. Id. She aspires to have her own business if she becomes a legal permanent resident. See Exh. A., Respondent’s Declaration. In addition, she has paid her taxes since 2000. See Exh. T, Federal Income Tax Returns. Given these factors, removing Mrs. would be contrary to the public interest. 5. Mrs.

would be inconsistent with ICE objectives and

has a lengthy period of residence in the United States.

Since Mrs. arrived in the United States in 1993, she has continuously resided in the United States. See e.g., Exhs. A, C, D, H, K, L, R, S, and T. During the past 20 years, she has been a law-abiding resident, and since 1998, she has been married to , a Legal Permanent Resident who is eligible for Naturalization later this year. It is unlikely that many individuals in unlawful status have had as lengthy period of residence in the United States as Mrs. . 6. Mrs.

has many U.S. citizen and permanent resident family members.

As stated throughout this request, Mrs. ’s spouse is a legal permanent resident who is eligible to apply for U.S. citizenship later this year and their two children, and , are U.S. citizens. See Exhs. C & E, Proof of family members’ status. In addition, Mrs. has two U.S. citizen siblings. See Exh. A, Respondent’s Declaration.                                                                                                                         2

This principle of family unity was most recently promulgated by DHS in the leaked USCIS Memorandum entitled “Administrative Alternatives to Comprehensive Immigration Reform”.     7    

CONCLUSION Mrs. respectfully requests the Arlington Office of Chief Counsel join in her Motion to Reopen and to Terminate to the Board of Immigration Appeals to allow her to apply for section 245(i) Adjustment of Status before USCIS. Mrs. is statutorily eligible for 245(i) adjustment and merits a favorable exercise of discretion. Thank you very much for your time and consideration as I know and appreciate the many requests your office receives for joint motions to reopen. Please do not hesitate to contact me should any questions or concerns arise.

Respectfully,

Michelle N. Mendez Attorney for Respondent Catholic Charities Archdiocese of Washington Immigration Legal Services 12247 Georgia Avenue Silver Spring, MD 20902 Telephone: (301) 942-1790, ext. 135 Cell: (540) 907-1761 Fax: (301) 949-1371 [email protected]

Enclosures

8    

EXHIBIT LIST FOR RESPONDENT’S REQUEST FOR A JOINT MOTION TO REOPEN AND TERMINATE REMOVAL PROCEDINGS EXH.

NAME Mrs.

’s Declaration & Biographic Documents

A.

Declaration of Respondent

B.

Mrs.

C.

Birth Certificates of two U.S. Citizen Children: • , born on October 4, 1993 (19 years old) • , born on January 8, 2003 (10 years old)

D.

Marriage Certificate for Ms.

E.

Mrs. ’s Spouse’s Legal Permanent Resident Card issued on October 21, 2008 pursuant to category E36 “Skilled Alien Worker” (Section 203(b)(3)(A)(i) of the INA)

’s Birth Certificate with English translation

and Mr.

dated February 14, 1998

Eligibility for Section 245(i) Adjustment of Status F.

Mrs. ’s Spouse’s Notice of Approved I-140, Immigrant Petition for Alien Worker, dated February 4, 2011

G.

Mrs.

’s Spouse’s Notice of Receipt dated January 20, 2004

H.

Mrs.

’s Spouse’s I-140, Immigrant Petition for Alien Worker, listing Respondent as the spouse

J.

Mrs. ’s Spouse’s Final Determination from the Dept. of Labor certifying his Form ETA 750 (Labor Certification) on November 23, 1998 Mrs. ’s Spouse’s Receipt Notice from the Department of Labor for his Alien Employment Certification bearing the date of acceptance for processing as April 9, 1998 Evidence of Hardship to Mrs. ’s Legal Permanent Resident & U.S. Citizen Family Members

K.

Declaration of

, Respondent’s Legal Permanent Resident spouse

L.

Declaration of

, Respondent’s U.S. Citizen child

M.

Proof Mrs.

N.

Letter from Mrs.

O.

Accolades awarded to Mrs. ’s U.S. citizen children and legal permanent resident husband: Son, • Certificate of Achievement for Achieving A and B Grades, June 16, 2011 • Certificate for Perfect Attendance, April 2011

I.

and Mr.

’s home ownership since 2006

’s spouse’s employer noting his date of hire and hourly wage

9    

Certificate for A or B in all subjects, November 2010 Certificate for Maintaining High Scores in Reading and making two Honor Rolls, June 18, 2010 • Certificate for being Student of the Year, June 18, 2009 • Certificate for Best in Memory Verses, Phonics, Math, and Reading Daughter, • Certificate for Most Improved Academically • Certificate for Outstanding Academic Excellence in the Areas of History and Most Improved in Pre-Algebra Spouse, • Recognition of (“ ”) Soccer Team for being the Champion of the Soccer League; Mr. coached this team • Newspaper photo of Coach with his champion team • Photo of Coach with a soccer league business sponsor • •

P.

Death Certificate for Mrs.

Q.

Letter from Doctor in Guatemala stating that Mrs. was diagnosed with cancer, with English translation

R.

Pictures of Mrs.

T.

U.

, with English translation ’s s mother,

,

with her family over the 20 years she has lived in the United States

Evidence Mrs.

S.

’s father,

Merits Favorable Prosecutorial Discretion

Letters from Community • Letter from , Academy Principal • Letter from Rev. , Pentecostal Church Pastor • Letter from , Pentecostal Church friend • Letter from , Pentecostal Church friend • Letter from , Mrs. ’s Friend • Letter from , Mrs. ’s Sister-in-Law Respondent’s IRS Individual Identification Number Card and Tax Records: 2000, 2001, 2004, 2006, 2007, 2008, 2009, 2010, 2011 Accolades awarded to Mrs. • Certificate of Appreciation awarded by her church for her support and unconditional cooperation with the church mission and vision, December 17, 2009 • Certificate of Recognition awarded by her church for her contribution and support to Christian Education in Sunday School, December 5, 2009 • Certificate of Completion for the Student Focused Training by The National Sunday School Department, November 20, 2007 • Certificate of Attendance for the English as a Second Language Fall Semester at , November 18, 2004 • Certificate of Recognition awarded by her church for her excellent work as a leader and supervision of bible study sessions, April 3, 2003 • Certificate of Recognition awarded by her church for her leadership and support for the church as a bible study leader 10