Procedures When Ice Refuses To Accept A Surrender After An I-340 For Removal

May 25, 2017

Action Immigration

When you receive an I-340 for removal, you should make every effort to surrender the alien on the date specified.  If, however, you are unable to do so, you should then try to surrender him/her within the mitigation period.  This period starts on the I-340 surrender date.  I.e., whether or not you receive an I-323 has no bearing on the mitigation period.  It runs for 90 days:

  • Surrender 1-30 days-66% mitigation
  • Surrender 31-60 days-50% mitigation
  • Surrender 61-90 days-33% mitigation

You are entitled to this mitigation as a matter of right.  It is not a matter of discretion for ICE.  Unfortunately, however, you will sometimes have to remind ICE of this fact.

Except for sometimes having to argue about mitigation, things are relatively simple when ICE accepts the surrender.  The following procedures apply when ICE either refuses to accept the surrender, or releases the alien after accepting surrender.  The key principle is that once you present an alien for surrender pursuant to an I-340 for removal either on, or within 90 days, of the I-340 surrender date, you are entitled to either cancellation or mitigation even if ICE either refuses to accept the surrender, or accepts custody but releases the alien.  It is essential, however, that you be able to prove that you did in fact present the alien for surrender. 

The purpose of the procedures set forth below is to aid you in developing the evidence needed to obtain cancellation or mitigation.

  1. If ICE accepts surrender, you want to obtain some documentary evidence of their doing so.  I assume that you already have standard procedures for doing so.  Once ICE accepts custody-even if they subsequently release the alien-you have fulfilled your obligations under the bond, and have a legal right to cancellation or mitigation of the bond.

  2. You also have a legal right to cancellation or mitigation if ICE refuses to accept surrender.  It will be necessary, however, that you be able to prove that you attempted to surrender the alien.  The best evidence is having the Officer note your attempt and his/her refusal to accept custody on the I-340.  Unfortunately, Officers are seldom willing to do so.  Thus, you must improvise.

  3. If at all possible make a note of the name of the Officer with whom you interact.  Often they will be wearing a nametag.  Otherwise ask them for their name.  There is little you can do if they refuse.

  4. If the Officer refuses to give a written statement of his/her refusal to accept custody, the following will provide strong evidence of your attempt.  Take a picture of the alien holding a newspaper for that day-with the date clearly visible-next to a sign with the name of the ICE office.

Finally, you will need to execute a sworn affidavit describing your attempt to surrender the alien.

Note: These procedures apply only to I-340s for removal.  They do not apply to ones for an Interview.  Surrender for an interview does not entitle you to cancellation of the immigration bond.  Thus, ICE can refuse to accept the surrender with impunity.  If they do refuse, it is still a good idea to develop proof of your attempt in case ICE tries to declare the bond breached.   There is no mitigation period on I-340s for an Interview.


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