USCIS Issues New Policy Memorandum Requiring the Issuance of NTAs Following Certain Case Denials

By Roujin Mozaffarimehr

Although the immigration court backlog has exceeded 700,000 cases as of May 2018[1], on June 28, 2018, the USCIS issued a guidance regarding Notices to Appear (NTAs), the charging document issued by DHS that schedules a foreign national for removal proceedings in immigration court.

Under the Service’s new policy, NTAs are to be issued for a wider range of cases, including cases where:

• There is evidence of fraud;
• There is evidence of criminal activity;
• An applicant is denied an immigration benefit and is unlawfully present in the United States.See DHS Policy Memo, PM-602-0050.1.The third point is the most troubling of three. Under the new memorandum, persons who receive a denial of anyimmigration benefit that renders them out of status, even if it is due to agency error, will be issued an NTA for removal proceedings. To put this into context:Take for an example a person who has an H-1B extension filed on their behalf whose I-94 arrival departure record has already expired. The person is no longer in H-1B status, but rather pending status. The person has the legal ability to remain in the US until the extension is adjudicated and work for up to 240 days while the petition is pending (and pursuant to the receipt notice). Under the new policy memorandum, if the extension is denied, the person is rendered out of status and will be issued a Notice to Appear in immigration court for removal proceedings.What happens after an NTA is issued?Previously, persons whose cases were denied usually arranged for departure form the US on their own, and if a new petition or application is able to be filed, it is done while a person remains abroad. Under this new policy, persons are forced to remain in the U.S. for removal proceedings. If they choose to voluntarily depart the U.S. and fail to appear in court, they will be issued a removal order in absentia.This will have detrimental impact on a foreign national’s ability to obtain a visa in the future, triggering a 5 bar to entry.[2]If a person does appear in Court pursuant to the NTA, there are two issues to consider:

1. Accrual of Unlawful Presence.
2. Issuance of an Order of Deportation.The accrual of unlawful presence can result in various bars to entry. If persons accrue more than 180 days of unlawful presence, a 3-year bar to entry is triggered.[3] If persons accrue a year or more of unlawful presence, a 10-year bar to entry Is triggered.[4] With the immigration courts backlogged as they are, it is inevitable that these bars will be triggered by every person facing the denial of an immigration benefit that renders them out of status.Currently, the ability to apply for re-entry in the US after an order of deportation depends on the type of proceeding a foreign national faces:

• Foreign nationals issued a removal order in an expedited removal proceeding are barred for 5 years;[5]
• Foreign nationals issued a removal order in a removal hearing before an Immigration Judge are barred for 10 years.[6]

Once the bar has been met, foreign nationals will be required to ask for permission to enter the US after being removed in addition to the forms and documentation required when applying for an immigration benefit.

Anastasia Tonello, President of the American Immigration Lawyers Association (AILA) stated in response to the new memorandum that, “The new guidance will have a chilling effect, discouraging people who are eligible for immigration benefits from applying out of fear that they will be tossed into the deportation machine if they are denied – even if that denial is due to an agency mistake.”[7]

Under this new guidance, USCIS has effectively given itself the broad authority to issue NTAs without the guidance of the DHS’ enforcement agency, Immigration and Customs Enforcement (ICE) which has traditionally been responsible for the issuance of NTAs. By the issuance of this guidance, the USCIS has become an enforcement agency, expanding its scope beyond what was intended by the creation of the Service under the direction of the Department of Homeland Security.