Those managing to keep abreast of the many unpredictable changes affecting our immigration system are aware of the new USCIS policy regarding the issuance of Notices to Appear. In short, the new policy essentially instructs immigration officers to initiate removal/deportation proceedings against applicants who, upon denial of an application or benefit request, are unlawfully present. This is in addition to targeting individuals suspected of fraud, misrepresentation, or abuse of public benefits. What is not as well known is the memorandum’s impact on naturalization N-400 cases.
Under previous guidance, USCIS would normally refer citizenship cases involving criminal and deportability issues to ICE, the enforcement branch of the Department of Homeland Security. Now, under the policy amendments, USCIS will itself begin issuing Notices to Appear for naturalization cases under certain circumstances. According to the memo, “USCIS will issue NTAs on all N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the underlying criminal offense, and provided the alien is removable.” What this basically means is that if you have one or more criminal offenses that USCIS believes renders you removable, and your citizenship application is denied for lack of good moral character because of that conviction(s), you will likely be placed into removal proceedings. Based on the language, there doesn’t appear to be any discretion in determining whether referral to court is appropriate. Just as with permanent residence applications, many naturalization applicants will be faced with an “all or nothing” quandary: if the application goes through, they will become citizens; however, if the application is denied on criminal grounds under the rubric of good moral character, they may be exposing themselves to charges of deportability.
Since the policy memorandum just came out, it may take some time before the public can appreciate and assess its impact. However, there are certainly concerns. The prospect of being placed into immigration court is starkly frightening and can exercise a chilling effect on applicants. Moreover, USCIS has traditionally carried out its role as a benefits branch. This new change imposes not only more but also different responsibilities on adjudicators. Officers who have been trained to assess and evaluate eligibility for benefits will now have to make determinations as to deportability and removability, judgments that were normally the province and focus of ICE.
Given how precarious it may be to apply for naturalization, it may be prudent to consult with qualified counsel prior to applying. Criminal issues can be especially sensitive and prospective candidates for citizenship can certainly benefit from a trained, legal perspective. 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.