USCIS to Begin Enforcing New Policy Memo on Notices to Appear

On October 1, 2018, USCIS is set to begin implementing their new policy memorandum for referring cases and issuing Notices to Appear (NTA) in cases involving inadmissible and deportable aliens. USCIS advises that it will be taking an incremental approach to implementing the memorandum which was initially released in June of this year.

A Notice to Appear (NTA) is the first step in initiating removal proceedings and is issued to inform an individual that they are to appear before an immigration judge. Starting October 1, 2018, USCIS may issue NTAs on denied status-impacting applications which include applications to adjust status (Form I-485), applications to extend/change nonimmigrant status (Form I-539), among others.

Pursuant to the new policy memorandum, USCIS will send denial letters for status-impacting applications and if applicants are no longer in a period of authorized stay, and do not depart the US, an NTA may be issued. USCIS advises that they will be providing details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate their departure from the US.

Notably, employment-based petitions and humanitarian applications and petitions are not subject to the June 2018 NTA Policy Memo at this time and USCIS has indicated that existing guidance for these case types will remain in effect. USCIS has also indicated that they will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and that there has been no change to the current processes for issuing NTAs on these case types.

So, what types of cases does this policy memorandum affect if an individual is deemed removable?

• Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence that the applicant abused any program related to receiving public benefits.

• Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability.

• Cases where USCIS denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense. 

• Cases where an applicant will be unlawfully present in the United States when USCIS denies the petition or application.

What types of cases remain unchanged by the USCIS policy memorandum?

• Cases involving national security concerns.

• Cases where NTA issuance is required by statute or regulation.

• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal would result in an individual having no other lawful immigration status.

• Cases involving deferred action for childhood arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA. (There is a separate policy memorandum that applies to cases involving DACA recipients and requestors.)

USCIS will be providing updates and information on the implementation of their new NTA Policy Memo on their website.  If you have questions regarding USCIS’ new NTA Policy Memo and/or how it may impact you, please reach out to our office to schedule a consultation.

ICE adds administratively closed cases to the docket

ICE (Immigration and Customs Enforcement) is planning to restart thousands of deportation cases in accordance with the agency’s new policy. Specifically, ICE’s new policy affects foreign nationals in the U.S. whose cases are currently administratively closed. The initiative could result in the recalendaring of more than 355,000 cases – bringing the already overburdened immigration court backlog to over 1 million cases.

As background, administrative closure is a mechanism used to temporarily pause removal proceedings by removing the case from the immigration judge’s docket. Over the years, administrative closure has proven to be a vital docket-management tool for Immigration Judges across the country.  Both DHS and the immigrant have the ability to request that a case be administratively closed.   

Administrative closure does not terminate removal proceedings and it does not provide a noncitizen with any immigration status. It is merely a temporary measure that effectively tables the matter until either party moves to recalendar (reschedule) the case. Deferring removal hearings can allow the individual an opportunity to find relief that the immigration court cannot provide. During this time, the immigrant could possibly obtain an immigration benefit that is not available while an immigration case is active.

Recently, the highly effective docket-management tool has come under fire.  Thanks to a May 2018 decision issued by Attorney General Jeff Sessions, Immigration Judges and the Board of Immigration Appeals no longer have the authority to administratively close cases.  Additionally, ICE is now responsible for making the decision to recalendar cases that are currently administratively closed.  

Under the new policy, ICE prosecutors are instructed to prioritize the recalandering of cases in the following order:

1. Cases involving a foreign national being detained.

2. Cases pertaining to an immigrant with a criminal record.

3. Cases where ICE’s most recent motion to recalendar was denied.

4. Cases that were administratively closed over ICE’s objections.

5. All other cases will be recalendared on a case-by-case basis at the local office’s discretion.

These recently released instructions make it clear that ICE intends to recalander virtually all cases that have been administratively closed. This development will put an already overwhelmed immigration court system even further behind. Currently, the immigration court backlog is at 730,000 cases. With ICE’s new guidance, the backlog will exponentially grow while immigrants with administratively closed cases wait for ICE to determine their fate.

As of today’s date, ICE has already started to recalander affected cases.

Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

• Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
• Aliens who, regardless of the basis for removal:
  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;*
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but have not departed; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs be issued 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,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.

Mexican Citizen Approved for Second Re-entry Permit

LPR Since: February 2011

Reasons for Residing Abroad: Client had previously retained our firm to obtain a two-year reentry permit. As his expiration date neared, he determined that his family circumstances prevented him from returning to the U.S. as soon as he had hoped. Sadly, his father had recently passed away, and he needed to remain close to his aging mother to continue assisting her with medical needs and support her emotionally as she dealt with the loss of her husband. Additionally, our client was in the process of petitioning for his foreign spouse to immigrate with him to the U.S. As a newly married couple, they did not want to be separated during the potentially lengthy process of obtaining her immigrant visa. Our client anticipated being able to transfer back to the U.S. after these family matters were resolved.

Ties to the U.S.: U.S. bank accounts and credit cards, filing U.S. Income Tax Returns, maintaining U.S. 403K account

Approx. Adjudication time: 3 months and 8 days

Re-entry Permit Validity: 2 years

Time outside U.S.: 4-5 years

Country of Citizenship: Mexico