EOIR Policy Memo 19-13, “Use of Status Dockets”  How the Court Administration is Constraining Local Control

Safe Passage, September 4, 2019

Professor Lenni Benson, Safe Passage Project Founder and Senior Advisor, Policy and Research
Alexandra Rizio, Managing Attorney for Training and Partnerships


On August 16, 2019, Executive Office for Immigration Review (the formal name for the immigration court) issued a memo on the use of status dockets. Immigration courts use status dockets for cases that do not require immediate adjudication by an immigration judge. Courts around the country gave judges the power to move an immigration case off of their active calendar and to move it to the court location general “status docket.”  This ability to move cases off their desks was particularly important after the Attorney General’s decision Matter of Castro-Tum (27 I&N Dec. 271 (A.G. 2018)), which eliminated so-called administrative closure, a case could be placed on a “status” docket, with respondents periodically reporting the status of their case to the immigration judge. This reporting was done by motion or document submission, and did not require in-person appearances at immigration court.

Status dockets were especially helpful for Safe Passage Project clients with pending or approved I-360 Petitions for Special Immigrant Juvenile Status (SIJS). There are a limited number of SIJS immigrant quota numbers or “visas” available per country per year, and applicants can only adjust status (receive their “green cards”) once his or her priority date was current and the full process could be completed. For young people from Central America in particular, the wait for an available SIJS visa can be several years—routinely more than one year, and in our experience usually less than four. The status docket allowed young people with pending or approved SIJS petitions to avoid deportation while waiting for a visa to become available to them. Used in this way, the status docket was akin to a long continuance: though there was a wait for the final “greencard”, the final grant of permanent residence was not a “remote” possibility. Matter of L-A-B-R-, 27 I&N Dec. 405,418 (A.G. 2018) (“good cause does not exist if the alien’s visa priority date is too remote to raise the prospect of adjustment of status above the speculative level.”); compare Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982) (where wait time to qualify for permanent immigration was over a decade long).

As of the winter of 2018, the EOIR has been measuring each judge’s performance times. Immigration Judges are under increased pressure to “complete” cases (see Case Priorities and Immigration Court Performance Measures, App’x A, n.7 (Jan. 17, 2018). When a case was moved off an individual judge’s docket to the status docket, the pressure to complete the case was no longer present on that individual judge.

We are unsure why the EOIR administration has limited the use of the status docket tool which could be very efficient. We read the new memorandum to limit the status docket to three (rather confusing) types of cases:

  1. A case “in which an immigration judge is required to continue the case pursuant to binding authority in order to await the adjudication of an application or petition by U.S. Citizenship and Immigration Services (USCIS),”
  2. A case “in which the immigration judge is required to reserve a decision rather than completing the case pursuant to law or policy, or
  3. One which is subject to a deadline established by a federal court order.”

The confusing language of the memo has resulted in varied decisions from judges in New York’s immigration court. Some judges are now placing SIJS cases on the status docket where the respondent has an I-360 Petition that is pending but not approved; other judges are placing cases on the status docket where the petition is approved but not pending. Some judges will not place any case on the status docket where SIJS is the primary form of relief, whether pending or approved.

EOIR’s attempt to limit the use of the status docket in SIJS cases means that in some instances, judges will feel themselves forced to adjudicate whatever relief is, in theory, immediately before them. Immigration judges are not authorized to approve the petition seeking Special Immigrant Juvenile Status—only USCIS can do that. Judges likewise cannot accelerate the individual child’s place in line or pull a “visa number” to make a visa available for those with pending petitions. Therefore, many juveniles who appear before the court will have no relief immediately available to them. If they have no other form of relief before the court, and if a judge feels constrained by the language of PM 19-13 and refuses to place the case on the status docket and is unwilling to grant a further continuance, then, the judge will have no choice but to order the young person removed or push the representative for the young person to contest every aspect of the arrest and charges or to perhaps seek unnecessary forms of relief such as claims for asylum, withholding or removal or protection under the Convention Against Torture. We explain this in greater detail below.

How can Special Immigrant Juveniles avoid orders of removal if their motion to place their case on the status docket is denied?

  • Start earlier and fight removal proceedings at the outset—don’t rely on the status docket or the ability of respondents to wait for years for SIJS availability:
    • Make ICE meet their burden of establishing alienage;
    • Deny DHS allegations on the Notice to Appear (NTA) based on coercive interviews at the border;
    • Refuse to concede improper service of NTAs on unaccompanied minors;
    • Preserve Pereira arguments for appeal. Pereira is a Supreme Court opinion that refused to allow ICE to use a NTA that lacked fundamental information such as the time and location for the removal hearing.
  • Seek a standard continuance, using the factors articulated in Matter of L-A-B-R-, supra. Hopefully, the judge agrees that SIJ status availability is not “too remote” and grants a long continuance in lieu of placement on the status docket.
  • Argue that the respondent’s case is a status docket case based on the new memo.
    • Category 1: a case in which an immigration judge is required to continue the case pursuant to binding authority in order to await the adjudication of an application or petition by USCIS.
      • The memo says that a “body of binding circuit court precedents over the years finding an abuse of discretion when immigration judges have denied motions for a continuance in certain circumstances.” PM 19-13, page 2. Though not binding precedent, there are numerous unpublished BIA decisions that have held that it was error for an immigration judge to deny a continuance where a SIJ petition was pending, or where it was approved and waiting a current priority date.
      • Analogize to Matter of L-A-B-R-, which deals with continuances, and argue that it is binding precedent that requires placement of a case on the status docket.
      • Distinguish Matter of Quintero, which PM 19-13 cites for the proposition that “it is generally not appropriate to continue proceedings simply because a visa number is not current.” However, the wait time for an available visa in Matter of Quintero was over a decade, in stark contrast to the wait time for most SIJ petitioners. In addition, the type of visa at issue in Matter of Quintero was an I-130 Immediate Relative. This class of individuals has not been singled out for special protections in the way that Special Immigrant Juveniles have.
      • The memo notes that “cases in which a confirmed unaccompanied alien child (UAC) has filed an asylum application with USCIS must be continued while that application is pending adjudication with USCIS because USCIS has initial jurisdiction over such applications. INA § 208(b)(3)(C).” So if a minor also has a pending asylum claim, the judge should permit status docket placement while awaiting the outcome of the interview.
    • Category 2: cases where the immigration judge is required to reserve a decision rather than completing the case pursuant to law or policy.
      • PM 19-13 states that this is limited to two types of cases:
        • Cancellation of removal cases—a form of relief where a person has lived for ten years inside the United States, has good moral character, and can establish a requisite level of hardship to a spouse, parent or child who has status. This form of relief is not usually available to the young people because an individual has to have completed the ten years before removal proceedings began; and
        • “cases in which an alien otherwise prima facie eligible for adjustment of status before an immigration judge…had an immediately-available visa at the time the adjustment of status application was filed with the immigration court but the visa category subsequently retrogressed by the time of the hearing.” These cases “should be held in abeyance.” PM 19-13, page 2. Again, most Safe Passage clients will not fall into this group, so Category 2 is unlikely to apply. An example of this type of case is where a person entered the United States with proper inspection at the border and is now married to a U.S. citizen.
      • Though the memo’s examples of Category 2 are restrictive, the category as a whole is reserved for cases where status docket placement is appropriate based on “law or policy.” Practitioners could argue that there is a public policy interest in placing SIJ cases on the status docket, since removing vulnerable young people who have been singled out by Congress for special protections would be against public policy. Further under the TVPRA, if a child is to be removed, the government must ensure that the child can be returned safely. Some Safe Passage Project clients have no adult family to care for them in the home country.
    • Category 3: A case that is subject to a deadline established by a federal court order.
      • There is virtually no guidance on what types of cases might fall within this category. The memo simply states that “[t]he Office of the General Counsel, the Office of the Chief Immigration Judge, and the Office of the Director will determine cases that may fall within category (3) and will advise the immigration courts accordingly.”
      • Practitioners could argue that youth who were affected by USCIS’s denials of SIJ petitions filed by youth who were over the age of 18—a practice held to be illegal in F.M. v. Nielsen, 365 F. Supp. 3d 350 (S.D.N.Y. 2019), are “subject to a deadline established by a federal court order,” since potential R.F.M. class members have until May 31, 2021 to file Motions to Reopen and Reconsider denied I-360 petitions.
    • If applicable based on the respondent’s circumstances, consider filing a non-frivolous asylum application, since the memo states that UACs with pending asylum applications are categorically eligible for the status docket. INA § 208(b)(3)(C).
      • There remain questions about who has jurisdiction over unaccompanied minors’ asylum applications: the issue of who is a UAC is in flux and now USCIS is refusing jurisdiction in some cases. If that happens, a young respondent could be scheduled for a merits hearing child is scheduled for a merits hearing years down the line.
      • Appeal denials.
      • If SIJ status becomes available (the priority date is current) in the meantime, adjust respondent’s status on that basis.
    • Try to get ICE to agree to termination without prejudice. This would make a lot of sense, since if an adjustment application is later denied, ICE could re-initiate removal proceedings. However, given ICE priorities, we know that the attorneys have been unwilling to agree to termination under almost any circumstances.
    • Argue that Special Immigrant Juveniles are paroled into the country for the purposes of adjustment pursuant to INA 245(h) upon grant of their I-360 Petition, and therefore removal is inappropriate.
    • Argue that it violates full faith and credit and customary international law to order a child removed when a state court has found that it is not in the best interests of the child to return to their home country or be reunified with parents due to abuse, abandonment or neglect.
    • Appeal to the Board of Immigration Appeals if the IJ orders removal. Preserving issues of statutory rights and due process protections. If the BIA affirms the removal, the young person may be able to seek review in the Second Circuit Court of Appeals.

Who is this change most likely to affect?

  • Special Immigrant Juveniles, as described above;
  • U visa petitioners (victims of particularly serious crimes and who have been helpful to law enforcement). Their petitions must be adjudicated by USCIS, not the immigration judge, and the wait for available visas is many years backlogged.

This new policy memo is another example of the push-pull of workloads between EOIR and components of DHS.  The memo demonstrates, at best, EOIR’s willful blindness to the impact that status docket elimination will have, particularly on young people whom Congress has singled out for special protections. At worst, it’s a cynical attempt to back-door more removal orders for those same young people. If this is a coordinated policy with a goal of raising new procedural hurdles to discourage people from coming to the United States, the real outcomes are likely not to be speedy removal, but instead more litigation over fundamentals and more defense counsel fighting harder, and more impact litigation.

This new EOIR policy, coupled with ICE’s refusal to exercise any discretion ever, has created quagmires for the agencies and raises strategy, ethical and resource questions for defense counsel.