Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Tuesday, September 24, 2013

BIA on reopening for DACA or provisional ULP waiver

In two separate unpublished decisions, the BIA denied motions to reopen to allow noncitizens to seek administrative closure for DACA or for a provisional unlawful presence waiver.

In re Heron-Morales, A097-550-281, 2013 WL 5208969 (BIA Aug. 12, 2013) (Memphis) - noncitizen filed motion to reopen sua sponte for administrative closure so she could then apply for an I-601A provisional unlawful presence waiver.  The BIA denied the motion, finding that she is ineligible for a provisional waiver because she is subject to a final order (circular reasoning at its best).  The BIA also found no regulatory basis for reopening for this purpose.

In re Guzman-Vargas, A205-005-710, 2013 WL 5208911 (BIA Aug. 5, 2013) (Detroit) - noncitizen filed motion to reopen for administrative closure based on pending DACA application.  He was ineligible for DACA at the time of the removal order because he had not yet completed the educational requirements.  He apparently meets them now but his DACA application has not been approved.