CLINIC reminds its Affiliates that the CARECEN settlement agreement will end on Jan. 19, 2025. That agreement allows certain Temporary Protected Status (TPS) beneficiaries to join with the government in motions to reopen and dismiss their removal proceedings so they can file for adjustment of status before the U.S. Citizenship and Immigration Services (USCIS). It is important for advocates to submit these prosecutorial discretion (PD) requests for any TPS beneficiary who may be aided by this settlement agreement as soon as possible. Failure to do so may result in the client being unable to adjust his or her status under the next Trump administration. Given President-elect Trump’s stated plans to end most TPS designations, as well as the practice of exercising prosecutorial discretion in nonpriority cases, these individuals would be at risk of removal from the United States.

Background on Dec. 2019 policy and subsequent lawsuit

In December 2019, U.S. Citizenship and Immigration Services (USCIS) announced a new policy stating that authorized travel by TPS beneficiaries did not execute a removal order. Thus, TPS beneficiaries who had outstanding, unexecuted final removal orders at the time of their leaving remained TPS beneficiaries with outstanding, unexecuted final removal orders. As a result, USCIS refused to assume jurisdiction over these applications and claimed instead that only the Executive Office for Immigration Review (EOIR) had jurisdiction over the applications. USCIS would only assume jurisdiction if an Immigration Judge first reopened and terminated the removal order, which is usually a complex process. This policy remained in effect during the Biden administration, even as the administration rescinded other adverse TPS policies such as the Administrative Appeal Office’s decision in Matter of Z-R-Z-C-.

CLINIC, Democracy Forward, and the law firms of Montagut & Sobral, PC, and Debevoise and Plimpton LLP filed a lawsuit challenging this December 2019 policy change on behalf of the organization CARECEN and seven individual TPS beneficiaries. The parties reached a settlement on March 21, 2022, in which the U.S. Department of Homeland Security (DHS) agreed to join motions to reopen and dismiss removal proceedings for certain TPS beneficiaries with prior removal orders who traveled with prior authorization and were otherwise eligible for adjustment of status. However, this prosecutorial discretion policy remains in effect only until Jan. 19, 2025.

Eligibility for Settlement and Process for Requesting PD

To qualify under the settlement, the individuals must demonstrate that they are not an enforcement priority; currently have TPS; have a removal, deportation, or exclusion order; have traveled on advance parole since the order was issued; and are otherwise prima facie eligible to file for adjustment of status with USCIS. Because this settlement agreement is ending, TPS recipients who are eligible are encouraged to file their joint motion to reopen and unopposed motion to dismiss as soon as possible. The Immigration and Customs Enforcement (ICE) Office of Principal Legal Advisor (OPLA) will aim to process requests within 120 days of submission.

OPLA has published a notice on its website with instructions on how to submit requests for joint motions to reopen and dismiss under the settlement agreement. The PD request should be submitted to the local OPLA Field Location using the applicable local procedures. Typically, PD requests are filed via email to a dedicated PD inbox (all email addresses are listed on ICE’s PD website) or ICE E-Service. It is advisable to flag the case as one involving the CARECEN settlement in the subject of the PD request and to attach documentation showing that the noncitizen meets the criteria noted above. Some Chief Counsels at local OPLA offices have even requested to be personally contacted about CARECEN settlement cases.

It is also advisable to include with the PD request a draft joint motion to reopen and unopposed motion to dismiss without prejudice to make the process as simple as possible for the ICE attorney assigned to consider the PD request. A sample motion is available on ICE’s website. USCIS also has information about this settlement agreement on its website.

Please use CLINIC’s Ask the Experts tool for further technical assistance on the mechanics of submitting a PD request pursuant to the terms of the CARECEN settlement agreement. Class counsel in the CARECEN agreement has also published a helpful practice advisory, available here.