Appeals & Waivers
Joint Motions:
  • The DHS may join in a motion to reopen (or a motion to the BIA to remand) for consideration of adjustment of status pursuant to INA § 245 if such adjustment of status was not available to the respondent at the former hearing, the alien is statutorily eligible for adjustment of status, and the respondent merits a favorable exercise of discretion.
  • To request DHS’s consent to file a motion to reopen with Immigration Court or the Board of Immigration Appeals, the Law Offices of Caro Kinsella will contact the District Counsel’s Office that represented the DHS during your immigration proceedings. Such a request must be made in writing and supported by affidavits or other evidentiary material establishing proof of current eligibility for adjustment, to include, if applicable, a complete copy of the adjustment application, and visa petition approval.
  • Statutory Bars: Obviously, DHS’s counsel may not join in a motion to reopen if an alien is ineligible for adjustment due to any applicable statutory bars such as those due to overstaying a grant of voluntary departure (Sec INA §240B[di[2000]; §242B[e][2][1996)) or an in absentia. order (See *240[b][51[20001; §2428[e][1996]).
Board of Immigration Appeals:
  • When you lose a case before the Immigration court, you can file an appeal before the Board of Immigration Appeals (BIA)
  • The BIA is part of the Executive Office for Immigration Review (EOIR) which falls under the Department of Justice
  • The BIA is the highest administrative body for interpreting and applying U.S. Immigration laws
  • Direct appeal to the BIA must be filed within 30 days of the Immigration court’s decision
  • A notice of appeal is filed on EOIR-26 form
Prosecutional Discretion:
  • Director of U.S. Immigration and Customs Enforcement (ICE) John Morton released a June 17, 2011, memorandum intended to provide additional guidance to ICE personnel on exercising prosecutorial discretion. In this context, favorable prosecutorial discretion refers to the government’s ability to choose not to enforce certain penalty provisions within the immigration laws against a particular person, thereby providing some relief in deserving, sympathetic cases
  • Director Morton points out that the agency does not have the required resources to pursue every administrative immigration violation

The term prosecutorial discretion can encompass a wide variety of actions or temporary inaction, depending upon the context.
Favorable and Unfavorable Discretionary Factors for ICE to Consider

Sua Sponte:
  • Sua Sponte reopening may only be used in exceptional circumstances and is not meant to cure filing defects or circumvent the regulations
  • sua sponte definition – legal:
    Regarding a judge or court, to raise an issue or take an action independently of any request or suggestion made by the parties or lawyers; Description of action taken by court in absence of any party urging such action to be taken
  • Neither time nor one motion numerical limitation apply


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