On July 5, 2018, the U.S. Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (PM) PM-602-0050.1 that is dated June 28, 2018 subject line “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” This Policy Memorandum outlines how the USCIS’ NTA and referral policies implement the DHS’ removal priorities, including those identified in the January 25, 2017 Executive Order 13768 entitled “Enhancing Public Safety in the Interior of the United States.” It provides updates to USCIS’ guidelines for the initiation of removal proceedings by the issuance of NTAs and supersedes the prior Policy Memorandum 602-0050 dated November 7, 2011.
The PM sets out how USCIS is updating its NTA policy to better align with enforcement priorities. The policy breaks down when the USCIS is to issue NTAs and referrals to ICE into eight subsections, including 1) national security cases, 2) NTA issuance required by statute or regulation, 3) fraud, misrepresentation, and abuse of public benefits cases, 4) criminal cases, 5) aliens not lawfully present in the U.S. or Subject to Other Grounds of Removability, 6) Special Circumstances for NTA issuance, 7) preservation of administrative review, and 8) exercise of prosecutorial discretion.
The PM is intended to further move the USCIS away from the intended purpose of it being the benefits-oriented section of the DHS and closer to another enforcement body. Now, more than ever, it is imperative that persons who are considering applying for immigration benefits consult with a board certified immigration attorney to review their case BEFORE applying for said benefits.
Below is a summary from the American Immigration Lawyers Association (AILA) about who will be impacted and how:
- The new NTA guidance mandates USCIS to issue an NTA upon denial of an application, petition, or immigration benefit request where the applicant, beneficiary, or requestor is removable except in very limited circumstances.
- The new guidance mandates USCIS to issue an NTA to every person who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied. This is particularly significant because USCIS is simultaneously attempting to re-define “lawful presence” more narrowly via policy memo that will take effect on August 9. The NTA memo and the “lawful presence” have to be read together
- New policy will draw agency resources away from threats to national security and public safety by requiring USCIS to issue an NTA in cases when it may not be necessary. Past policy required USCIS to refer most cases to Immigration and Customs Enforcement (ICE) to make that determination.
- Prosecutorial Discretion, a cornerstone of America’s judicial system for centuries, allowing for the efficient and effective prioritization of cases, has been relegated to the dust bin; it is a thing of the past.
- The memos do not change policy regarding issuance of NTAs in cases where it is required by statute or regulation, in cases involving national security concerns, in cases involving criminal conduct that renders a person removable, and in cases involving fraud or misrepresentation. In those cases DHS will continue to issue NTAs.
- In addition to issuing an NTA when fraud or misrepresentation is part of the record (which USCIS has long had the authority to do), USCIS will now issue an NTA when there is “evidence of abuse of public benefit programs.” This change must be read in conjunction with the administration’s impeding changes to the public charge rule.
- A separate DACA-specific memo appears to keep the same general policies for DACA requestors that were in place before the issuance of the 2018 NTA memo, directing USCIS to consult the 2011 NTA memo to determine whether to issue an NTA in a DACA case or refer a DACA case to ICE.
- The guidance also instructs USCIS officers to defer to ICE and CBP regarding the timing of NTA issuance to former TPS beneficiaries after the country’s TPS designation ends.
Impact on USCIS and EOIR Resources.
This aggressive new NTA policy ties the hands of USCIS, is a waste of USCIS resources, and turns the agency into another part of the deportation machine.
- In 2006 NTA guidance, USCIS recognized that it does not have the resources available to issue NTAs in every adjustment of status (green card) case that is denied, and that the courts could not process the volume of removal cases that would be generated by such a policy.
- Since then, USCIS processing times across all product lines have grown consistently worse, and resources today are stretched thinner than ever. In addition, the immigration court backlog has reached crisis proportions, exceeding 700,000 cases as of May 31, 2018.
- The new guidance requires USCIS to issue NTAs in nearly all cases that are denied where the individual is without lawful immigration status. In terms of volume, this would encompass not only adjustment of status cases, but far more than that, including applications to extend/change nonimmigrant status and many more.
Chilling Effect.
This new NTA policy is yet another brick in the invisible wall and sends another message to the world that immigrants are not welcome here.
- This new policy will undoubtedly have a chilling effect on individuals who may be lawfully and legally entitled to immigration benefits but who will forego applying out of fear and will remain in the shadows.
Before filing any petition or application with the United States government, you should consult with a board certified immigration attorney at Shane & Shane to confirm your eligibility for the benefit you are seeking and to learn of the potential consequences if the benefit is denied.