If you have an unexecuted removal order, are married to a US citizen, and live in New England, you may benefit from the Calderon Settlement.
A class action settlement approved by a federal district court on January 16, 2025 in Calderon Jimenez v. Mayorkas (the Calderon Settlement) may help certain noncitizens who have removal orders and live in New England reopen and dismiss their cases.
The Calderon Settlement is in effect from January 16, 2025 to January 16, 2027. During this period, noncitizens who qualify under the settlement (“Class Members”) will have a way to request that their deportation cases be reopened and dismissed so that they may ultimately pursue green cards in the United States or immigrant visas at a US embassy. Also, during this period, the Boston US Immigration and Customs Enforcement (ICE) office will not detain or deport class members.
Who is a Class Member under the Calderon Settlement?
You and your spouse are class members if:
- One spouse is a U.S. citizen;
- One spouse is a noncitizen with a final order of removal (deportation), and they have not departed the United States under the removal order;
- The US citizen spouse has filed an I-130 petition for the noncitizen spouse, and the I-130 petition is pending or has been approved;
- You live in New England, which includes Massachusetts, Rhode Island, Connecticut, Vermont, New Hampshire, or Maine, or the noncitizen spouse is detained in New England;
- Except for the order of removal, the noncitizen spouse would be eligible to pursue an I-601A provisional waiver or file an I-485 adjustment of status application with USCIS.
Why Is the Calderon Settlement Beneficial?
Certain noncitizens who have old removal orders and are married to US citizens may be sponsored by their US citizen spouses, but their removal order prevents them from being eligible to seek US permanent resident status (a green card). The Calderon Settlement makes it possible for these noncitizens who live in New England to reopen and dismiss their removal proceedings, clearing the way for them to apply for a green card in the United States (if eligible) or apply for an I-601A provisional waiver so they can seek an immigrant visa overseas at a US embassy. Additionally, during the 2-year period of the Calderon Settlement, the Boston ICE office will generally not seek to detain or deport members of the Calderon Settlement.
How Can I Benefit as a Calderon Settlement Class Member?
Calderon Class members must submit a request to reopen and dismiss their cases to the ICE OPLA (Office of the Principal Legal Advisor) office having jurisdiction over their removal order. The request must include:
- A copy of the I-130 petition filed with USCIS by the US citizen spouse;
- Proof of residence in Massachusetts, Maine, Connecticut, New Hampshire, Rhode Island, or Vermont;
- A copy of the application that the noncitizen will submit to USCIS once their case is reopened and dismissed (Form I-485 for adjustment of status or Form I-601A for a provisional waiver), and supporting documents showing eligibility to file these applications;
- A written statement by the noncitizen Class Member stating their intention to either file an I-485 with USCIS or depart the United States for an immigrant visa after the I-601A application they filed with USCIS is approved; and
- Any additional documents (like an FBI fingerprint check) required by the specific ICE OPLA office.
Is the Calderon Settlement the same as benefits under INA § 245(i)?
No. INA § 245(i) is a provision of the immigration law that allows certain noncitizens who had an immigration petition filed on their behalf on or before April 30, 2001 to apply for adjustment of status (a green card) in the US even though they entered the United States without a visa, worked illegally in the US, or failed to maintain their nonimmigrant status in the US. In contrast, the Calderon Settlement provides a way for certain qualifying noncitizens to reopen and dismiss their removal orders so that they may apply for green cards in the US or immigrant visas overseas.
What are some examples of seeking benefits under the Calderon Settlement?
- Eligibility for Adjustment of Status (Form I-485): Sara entered the US lawfully with a B1/B2 visitor visa in 2003 but overstayed her visa. She was placed in removal proceedings and applied for asylum, but the Immigration Judge denied her case and ordered her removed from the US. Currently, Sara is married to a US citizen spouse who has filed an I-130 petition for on her behalf. She resides in Massachusetts. Because of her removal order, Sara cannot file her I-485 application with USCIS. However, under the Calderon Settlement, Sara is able to request that her case be reopened and dismissed. Once her case is reopened and dismissed, Sara can file her I-485 application with USCIS to seek a green card in the US.
- Eligibility for an I-601A Provisional Waiver and Consular Processing: Thomas entered the United States without inspection (without a visa) by crossing the Mexico-US Border in 2008. Thomas was detained by ICE when he entered the US and put into removal proceedings. He applied for asylum with the Immigration Judge, but the Immigration Judge denied his case. Thomas filed an appeal of the Immigration Judge’s decision to the Board of Immigration Appeals (BIA), but the BIA denied his appeal. Thomas is now married to a US citizen spouse who has filed an I-130 petition on his behalf. Because Thomas does have a legal entry into the United States, he would not be able to file an I-485 application in the US even if his removal order is reopened and dismissed. But under the Calderon Settlement, Thomas can request that his case be reopened and dismissed. Once his case is reopened and dismissed, Thomas can file his I-601A provisional waiver application to USCIS, and once the I-601A waiver is approved, he can schedule his immigrant visa interview at a US embassy overseas.
Why might ICE OPLA deny my request to reopen and dismiss my case under the Calderon Settlement?
Under the Calderon Settlement, ICE OPLA will “presumptively” agree to a request to reopen and dismiss a class member’s removal case, meaning that unless there are unusual negative factors, ICE OPLA should agree to reopen and dismiss the case. However, ICE OPLA will review the facts of each case, and ICE OPLA may decline to join a motion to reopen and dismiss if:
- The noncitizen is a threat to public safety (due to serious criminal conduct)
- The noncitizen is a threat to national security; or
- The noncitizen has a record of serious immigration benefit fraud or has multiple immigration violations.
If I do not qualify as a Calderon Settlement Class Member Now, Can I Qualify Later?
Yes. For example, if you are not currently married to a US citizen, but you later are married to a US citizen who has filed an I-130 petition on your behalf, and you live in New England, you can submit a request to reopen and dismiss your removal case to ICE OPLA during the two-year Calderon Settlement period (from January 16, 2025 to January 16, 2027).
You can access a copy of the Calderon Settlement and additional information about the Settlement here.
Because the determination of whether you may qualify for benefits under the Calderon Settlement is highly fact-specific, we recommend that you consult with an experienced immigration attorney to discuss your case. If you have questions about the Calderon Settlement and your case, please contact Margaret W. Wong & Associates at 216-566-9908.
