The USCIS is instructed that asylum-seekers who had a case pending at the EOIR (immigration court) can file the applications with the USCIS if the EOIR dismisses their application cases.

Why would this happen?

In 2021, US Attorney General Garland instructed the ICE and ICE attorneys that cases pending before the immigration courts should be triaged, with the non-criminal cases and non-national security cases being eligible for “prosecutorial discretion”. That instruction was challenged by several states, including Texas. The case went all the way up to the Supreme Court. The Supreme Court decided that the Attorney General did have the authority to promulgate such instructions, and consequently, the “prosecutorial discretion” instruction can be implemented again.

As a result, DHS attorneys have begun accepting requests for prosecutorial discretion, and in addition, have been reviewing cases on their own accord, and offering respondents (aliens in immigration proceedings) that they are eligible for prosecutorial discretion. Sometimes, the aliens have the option to choose whether or not they wish their case be dismissed, and in other instances, the DHS is moving unilaterally with the immigration courts to dismiss these cases.

Immigration courts, faced with an incredibly huge backlog of cases, have therefore began to dismiss cases before them if the USICE files a motion to dismiss, or a joint motion is filed both by USICE and the respondent.

The question then becomes, where do these cases go?

If these cases were never filed at the asylum office, or the case was filed at the asylum office, but the asylum office relinquished jurisdiction and sent the case to the EOIR directly, without first reaching the merits of the case, the matter can be refiled at the asylum office.

Authority for refiling:

The asylum office of the USCIS issued an instruction effective October 16, 2023, clearly stating that USCIS will accept asylum application submitted by individuals whose removal proceedings were dismissed or terminated by the Executive Office of Immigration Review (EOIR, or, the immigration court).

Interestingly, if the applicant had originally filed an asylum application with the USCIS, and the application was transferred to the immigration court, then if a new asylum application is filed with the USCIS, the USCIS “intends” to issue a new “discretionary notice to appear”, and will send the application back to the EOIR.

Whether the USCIS will firmly implement this choice is questionable, given that the courts will once again be flooded with the same cases which the courts had already dismissed or terminated.

 

Legal outcome:

There seem to be two strategies in which cases may be refiled with the asylum office:

First, in cases where the asylum application was never filed with the USCIS, but was filed directly with the EOIR, it seems very clear from the EOIR memorandum that the USCIS asylum office has jurisdiction on a refiled asylum application.

In the second instance, if the asylum application was filed with the USCIS, but the USCIS then forwarded the application to the EOIR without ruling on the merits of the application, then it also seems clear that an application may be refiled with the USCIS.

However, it is not very clear what would happen if the case was filed with the USCIS, and the USCIS then denied the application, but referred it to the EOIR as is required by the regulations. In such a case, because the USCIS already made a negative decision on the application, the regulations prohibit refiling the application with the USCIS. In such a case, a dismissal by EOIR would leave an asylum applicant in legal “limbo”, without a pending asylum case, and conceivably, no basis to apply for or extend and employment card (EAD), or driver’s license or State ID.

Conclusion

It is my opinion, after reviewing the memorandum and the appropriate regulations, that cases in the first two categories above clearly merit filing (or refiling) with the USCIS asylum office. Doing so will keep the respondent’s asylum application “alive” and the clock for issuance of their employment authorization document will restart, thereby enabling the applicant to reapply for that EAD card, or perhaps even apply for the EAD card for the first time. More about applying for the EAD card is elsewhere on my website.

Accordingly, the grant of prosecutorial discretion and dismissal of a pending asylum case should not be seen as a detriment to a pending asylum-seekers, but rather, viewed as a way to refile the asylum application with a non-adversarial adjudicating agency, which gives the applicant much more leeway in terms of presenting their testimony and evidence, to a trained and receptive asylum officer.

Please do contact us if you have any further questions on this matter. Issues are constantly evolving within immigration, especially as the EOIR and the DHS strived to alleviate the backlog of millions of cases pending before the immigration court.

 

© Farhad Sethna, Attorney, 2023

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.