On June 28, 2018, U.S. Citizenship and Immigration Services issued a policy memo telling adjudicators when they are required to issue Notices To Appear after denying or while processing a petition or application for benefits.  The NTA is the charging document that, once filed with the Executive Office for Immigration Review (a branch of the U.S. Department of Justice), puts an individual into formal removal proceedings before an immigration judge.

Except in certain, very limited circumstances where USCIS is required by statute to issue NTAs, the agency has discretion whether to refer an applicant or petitioner to immigration court or to Immigration & Customs Enforcement (ICE).  USCIS issued its last formal policy on the exercise of this discretion in November 2011, almost seven years ago.

Under the earlier guidance, adjudicators were told they must issue non-statutory NTAs or refer to ICE only if the person posed a serious threat to national security or public safety or if USCIS could formally substantiate that fraud had occurred.  If people were being investigated or had already been arrested or detained for an egregious crime – murder, rape, sexual abuse of a minor, a serious crime of violence, alien smuggling, child pornography, or felony reentry after removal – they should be issued NTAs or referred.  For citizenship applicants, adjudicators were told to consider the “totality of the circumstances” before issuing an NTA, including how long it had been since a crime was committed, whether people had reformed their lives, how long they had been in the country, and what social contributions they had made, such as pursuing an education or serving in the military.

The new policy keeps all of the prior guidance, but expands on the prior grounds and lists completely new grounds, vastly increasing the numbers of people who must be issued NTAs or referred to ICE.  These new categories include Temporary Protected Status applicants whose countries’ TPS designations have been terminated; cases in which not only fraud, but also misrepresentation and public benefits abuse, have been substantiated; aliens who have been convicted of or charged with any criminal offense, or who have simply committed acts that could be charged; and all citizenship applicants who are denied due to a criminal offense, regardless of mitigating circumstances.

Perhaps the most radical departure from prior policy is that the new memo targets for removal simply anyone whose petition or application of any kind is denied, leaving them with no underlying status.  In virtually all cases, these are people who held valid status at the time of filing because those without status are ineligible to file for any but humanitarian benefits, and there are special exceptions for them.  Thousands of those who will be most affected by the new NTA guidance are people whose underlying status – including work-authorized status for US employers – will have expired while they were waiting for a decision from USCIS.  Although the law confers ongoing lawful presence of up to 120 days past an expiration date while awaiting a decision, USCIS now takes far longer than that to process even the most routine requests.  Waits of 6, 10, even 24 months are common.

Previously, USCIS’s practice was to warn failed applicants or petitioners that if they no longer held valid status when their requests were denied, they should leave the country as soon as possible, allowing for orderly and generally reliable departures among those who were here only temporarily in the first place and who maintained strong ties to their home countries and could easily return to pick up the thread of their former lives.  If those same people now leave the United States after an NTA is filed with EOIR, resulting in their not appearing at a court hearing, they will be issued removal orders in absentia and face 5-year bars to returning to the United States in any status.  In addition, those who are in removal proceedings cannot work legally, and many could be detained for weeks pending their bond hearings.

The new NTA memo has been hugely controversial, with many believing it converts USCIS, which was established by Congress as an immigration benefits agency, into largely an enforcement arm of the executive branch, without congressional authority to do so.  On July 30, 2018, USCIS postponed implementation of the policy memo, citing a delay in “operational guidance” from USCIS components.  No specific new implementation date has been provided.  Please subscribe to our blog for updates.