During the July 4th break, U.S. Citizenship and Immigration Services issued a very important policy change that drastically departs from previous agency guidance issued in 2011. Memo 602-0050.1 is titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” and supersedes previous policy under which people were placed into immigration court by USCIS. Except in very limited circumstances, the revised guidance will now govern when NTAs should be issued, or individuals referred to Immigration and Customs Enforcement (ICE) for further action.
The impetus and raison d’etre is an increased emphasis on strict enforcement of our immigration laws. Drawing its mandate from President Trump’s Executive Order and a prior DHS implementation memo, the memo implements new measures that markedly expand the nature and range of cases that must be placed into immigration court. Practically speaking, the new changes essentially convert USCIS, which is traditionally the benefits branch of the Department of Homeland Security, into an auxiliary of ICE, the enforcement division.
Besides situations implicating national security concerns and those regulated by statute, USCIS officers are now directed to issue NTAs for the following types of cases:
· Fraud, Misrepresentation, and Abuse of Public Benefits. If a case is denied (or negative eligibility determination made) and there is a substantiated record of fraud or misrepresentation, and an applicant is removable, an NTA will be issued. Similarly, if there is evidence of abuse of public benefits, and a case is denied, a removable alien will be issued an NTA.
· Criminal Cases. Under the memo, aliens described in INA 212(a)(2) or 237(a)(2); removable aliens convicted of any criminal offense; removable aliens charged with any criminal offense that has not been resolved; and removable aliens who committed acts that constitute a chargeable criminal offense fall under its purview. In short, if a “criminal” alien’s case is denied and he/she is removable, an NTA will generally be issued.
· Naturalization Denials. If a citizenship application is denied on good moral character grounds based on a criminal offense, and the alien is deemed removable, an NTA will be issued.
· Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability. Simply put, if an applicant is not lawfully present in the US, and receives a denial of an application, petition, or benefit, he/she will be subject to an NTA. As an illustration, if an out-of-status individual applies for adjustment of status and is denied-even if not due to fraud or some criminal issue-USCIS will issue a Notice to Appear. Another example: if an individual here on a visitor’s visa applies for an extension and remains in the US awaiting a decision that is ultimately denied and comes after the person’s initial period of stay, he/she will now be issued an NTA–even if the person intended to leave!
It should be noted that the above are not the only categories amenable to NTAs. They are just some of the more prominent changes from previous policy. To be fair, the memo does refer to a “Prosecutorial Review Panel” to “facilitate the exercise of prosecutorial discretion,” but what standards will be implemented remains to be seen. In reality, “prosecutorial discretion” has been vitiated to such an extent that for most types of cases, it is nothing more than an antiquated Hail Mary. If the new memo is implemented literally without any measure or provision for officer discretion, thousands of individuals will be at risk of deportation/removal. The new climate only underscores how important it is to assess eligibility and carefully weigh the risks and benefits of applying before actually applying. For most people, especially if out-of-status or undocumented, with so much at risk, this should not be a “DIY” project.
For more information on this topic, please contact our office for a confidential consultation. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.