A new policy guidance memorandum issued by US Citizenship and Immigration Services (“USCIS”) calls for a dramatic increase in the number of situations where the agency issues a “Notice to Appear” (“NTA”) upon denial of an immigration filing. An NTA is the charging document for a removal case – what most people refer to as “deportation” though no longer legally the term most of the time.
In many cases, USCIS in the past would either have refrained from taking any action at all with regard to removal after denying an application for an immigration benefit, or at most would have referred the matter to Immigration and Customs Enforcement (“ICE”) for consideration and review. The new policy now calls for USCIS to directly issue NTAs in certain situations:
Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS under the new policy will issue an NTA even if the case is denied for reasons other than fraud;
Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense. Again here, USCIS is compelled under the new policy to issue an NTA even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS has the option of referring cases involving serious criminal activity to ICE even before adjudication of an immigration benefit request;
Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense; and
Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.
While the first two instances mentioned would most often have resulted in a referral to ICE in the past – nd so would ultimately have resulted in issuance of an NTA in any event – the task is now moved forward in time and made the responsibility of USCIS in these situations.
The biggest impact is likely to be seen in the last two instances – naturalization cases and especially permanent residence cases will have no underlying status if the case isn’t granted.
Petitions based on marriage to a US citizen remain one of the few avenues someone without valid immigration status may have available to become legal permanent residents in the US. While this remains the case, filing a marriage-based permanent residence case without an underlying immigration status has become far more risky endeavor. Even where, as with the great majority of cases, the marriage is completely legitimate and easily provable as such, some other ground for inadmissibility (health related grounds, inability to overcome the public charge exception) resulting in denial will now place the applicant in near-term jeopardy from a removal case.
The same goes for those seeking a new nonimmigrant status – extensions or changes to employment visas, a student seeking Optional Practical Training post-graduation, or a visitor seeking to study in the US may all find themselves immediately in removal proceedings if such an application is denied – even wrongly denied.
A permanent resident seeking to naturalize but with a prior criminal act that isn’t clearly a bar to a good moral character finding can find themselves not only with a denied naturalization case, but in removal proceedings if an immigration offer does choose to find a lack of good moral character (again even if incorrectly adjudicated).
Before this new policy guidance, USCIS was already under direction to issue NTAs in certain cases. However, these situations were relatively rare. They were limited to:
Cases involving national security concerns;
Cases where issuing an NTA is required by statute or regulation;
Some Temporary Protected Status (TPS) cases; and
Some Deferred Action for Childhood Arrivals (“DACA”) beneficiaries or applicants.
The new policy guidance presents many reasons for concern. First of all, in many cases those with a solid case for requesting an immigration benefit such as permanent residence or naturalization now face increased risk of being quickly placed into removal proceedings for pursuing a viable, good faith case – even a completely approvable case, in the event of erroneous denials.
Also, USCIS, the one agency out of the three successor agencies to the old Immigration and Naturalization Service that was actually tasked with granting benefits rather than enforcement (the other two, ICE and BCE, were enforcement agencies form the beginning) is pushed further into an enforcement role. The USCIS agency culture, already corrupted into a “culture of no” from what should be a neutral arbiter of whether particular sets of circumstances meet the legal standards for a given benefit, is pushed even further in that direction.
Finally, there’s the question of what happens once the NTA is issued. There is already an enormous backlog in immigration courts – nationwide this is approaching three quarters of a million cases. The average wait time for a day in court date to first assess the case is approaching two years. This new policy will likely dramatically increase that backlog, while essentially trapping people here until the matter is sorted out before a judge. It will be far more difficult to fix problems once a matter is already in removal proceedings.
The new guidance is likely to have an enormous and almost entirely negative impact on individuals, employers, and the immigration court system.