USCIS Expands Policy on Initiating Removal Proceedings

October 04, 2018

 

A June 28, 2018, USCIS policy memorandum (PM 602-0050.1) expands the conditions under which USCIS issues a Notice to Appear (NTA), the document that initiates removal (deportation) proceedings, to include situations "where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States."

Read the June 28, 2018 USCIS NTA Policy Memorandum PM 602-0050.1

PM 602-0050.1 instructed USCIS offices to develop or update operational guidance on NTAs and Referrals to ICE (RTIs), within 30 days of the June 28, 2018 memo. On July 30, 2018, USCIS postponed implementation of the new NTA policy, noting that, "Issuance of the operational guidance is pending; therefore the implementation of PM 602-0050.1 is postponed until the operational guidance is issued." By late September, 2018, USCIS had developed operational guidance to announce that it would begin a phased-in approach to implementing the memo starting October 1, 2018, starting with "denied status-impacting applications, including but not limited to" denied Forms I-485 adjustment of status applications and denied Forms I-539 (used for change of status, extension of stay, and F/M reinstatement). Denied Forms I-765 could also trigger the NTA policy, therefore, if after the denial the applicant is also out of status at that time. USCIS also clarified that the new NTA policy "will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect. USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns."

In terms of process, USCIS states:

"USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States."

USCIS held a public teleconference on the NTA memo on September 27, 2018.

Read USCIS's Summary of the September 27, 2018 Teleconference

In addition, the agency "will provide updates and information on the implementation of this PM on the new USCIS Notice to Appear Policy Memorandum page."

Discussion

USCIS has always had the legal authority to issue NTAs, but the agency's current policy, in place since 2011, focuses on findings of fraud, crimes, and abuse of the immigration system; and although the denial of an immigration benefit request that renders the applicant out of status is still a serious matter, the benefit denial is usually accompanied by an instruction that the beneficiary depart the United States immediately, without the agency also initiating removal proceedings. USCIS adjudicators can still issue an NTA outside the scope of current policy, but they must receive concurrence from Regional or Center Directors, who must consult with ICE before issuing an NTA.

The new policy would basically reverse the way USCIS is directed to use its discretion. Under current policy, USCIS exercises its discretion when it chooses to issue an NTA that the law does not require it to issue. Under the new policy, USCIS would be directed to issue an NTA in all cases where the beneficiary is out of status at the time the benefit is denied, and USCIS' discretion to not issue an NTA would be limited. Some examples might help illustrate the scope and impact of the new policy if it is implemented as described in the memo.

  1. A benefit is denied because USCIS determined that the applicant had violated status and was for that reason not eligible for the benefit. Higher risk of an NTA under the new policy. For example:
    • F-1 reinstatement denied. Since a reinstatement applicant admits to a status violation, the applicant would find him or herself out of status after a denial. In the past, this applicant would probably have received an instruction in the denial notice to depart immediately, but it was unlikely that USCIS would then institute removal proceedings. Under the new policy, the likelihood is higher that USCIS would issue an NTA.
  2. A benefit is denied because USCIS determined that the applicant was not eligible for the benefit, for reasons other than a status violation. Lower Risk of an NTA, but only if at the time of the denial the applicant was still in status. Long processing times impact this, since the longer USCIS takes to adjudicate a benefit, the more likely it is that at the time USCIS denies the benefit the applicant will have run out of time in his or her current status. For example:
    • F-1 student applies for economic hardship work authorization. USCIS denies the application because they did not agree that the hardship was beyond the student’s control or unforeseen. If the student is otherwise maintaining F-1 status (full course of study, valid I-20, etc.), there is no status violation involved in the benefit denial, so an NTA would not be issued under the new policy.
    • F-1 student applies for post-completion OPT 30 days before program end date, but more than 30 days after the DSO’s OPT recommendation, i.e., missing that filing deadline. 15 days after the student’s program end date, USCIS denies the OPT because the student did not timely file the OPT application. The student would still have 45 days left in her grace period, and so should not receive an NTA, and would be eligible to file another OPT application.
    • Same scenario as above, but USCIS doesn’t issue the denial until 75 days after the student’s program end date (i.e., beyond the 60-day grace period). USCIS could find that the student is not in status at the time of the denial, and issue an NTA.
    • Denial of an extension of stay or change of status request, where the applicant's prior status expires before USCIS denies the EOS or COS.

Removal proceedings are conducted by an immigration judge in an immigration court, where DHS is represented by an ICE trial attorney, and the noncitizen, referred to as the "respondent," can (and should) be represented by legal counsel as well. The immigration court and immigration judges are part of the U.S. Department of Justice, not the Department of Homeland Security. Regular removal proceedings (deportation) are formally initiated when DHS files a "Notice to Appear" (NTA) (Form I-862) with the immigration court, after having served the NTA on the respondent. USCIS, ICE, and CBP all have legal authority to issue NTAs. The June 28, 2018 USCIS memo deals only with USCIS policy on issuing NTAs.

Immigration advisers should caution anyone who may or could be placed into removal proceedings to seek competent legal counsel. This area of the law is exceedingly complex. Removal proceedings require arguments and pleadings before immigration judges. Only persons who are admitted to the bar or those who are recognized as accredited representatives (certain voluntary agencies, for example) are permitted to represent individuals in these situations.

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