Detained and Not Eligible to File Any Applications With the Judge to Remain in the U.S.? Think Again!

Immigration Court can be a very tricky proceeding, made even more complicated when an individual is detained.  Typically when someone is detained, in order to obtain a bond from a judge, move forward in court, or have a case reopened, a detainee must be eligible to file an application seeking a green card, asylum, or some other permanent form of relief.  There have been countless requests made to judges in Atlanta where the person is eligible to file for Deferred Action for Childhood Arrivals (DACA) or to pursue the provisional waiver program (applications not reviewed in court), but a judge denies the request and only allows for voluntary departure or an order of removal.  The situation is compounded further because detainees are simultaneously denied bond as well.

The argument has been made before immigration judges that DACA or eligibility to apply for a provisional waiver is a form of relief and eligibility to apply should warrant a continuation of proceedings and possible release on bond.  Many judges deny this request (in Atlanta and Stewart Detention Center, at least), and the person only faces immediate removal from the U.S.  Well, the BIA just issued a fantastic (unpublished) decision possibly changing that position.  The BIA remanded a case to the Immigration Court where the detainee requested that his case be reopened so that he could apply for DACA and the provisional waiver.  The judge denied the request, but the BIA issued a decision stating that although the judge pointed out that consular processing would be required, the judge did “not address the fact that the Form I-601A waiver permits aliens to remain in the United States with their families until consular processing is scheduled”.  See Juan Luis Avalos-Avalos, A205-834-943 (BIA Dec. 31, 2013) (unpublished decision).  That certainly sounds to me like the BIA feels families should remain united as long as they can, even if the applicant ultimately has to leave in order to consular process. 

This case can be a very effective tool in immigration court when the applicant is only eligible for relief that is not the type filed before an immigration judge, but can allow them to remain in the United States longer than they would otherwise.    

Please call me at 404.949.8151 with any questions if you know someone in this situation.         

-        Danielle M. Conley