Emergent Details on Implementation of USCIS’s New Approach to NTA Issuance

We previously discussed the recent implementation of a new United States Citizenship and Immigration Services (USCIS) policy centered around their June 28 policy memorandum (PM), Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens. An NTA is a document issued in instructing an individual to appear before an immigration judge, its issuance being the first step in commencing removal proceedings.

An incremental approach to this PM went into effect beginning October 1st, 2018. We will now go into further detail regarding some of the specifics of USCIS’s implementation of the policy, as detailed in a September 27th teleconference on the subject.

The Cases Affected

The June 28 PM, which supersedes the 2011 PM titled Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, will feature policy updates concerning the issuance of NTAs in the below case types involving deportability. It is important to remember it is not necessary for the case to have been specifically denied for the following categories of conditions in question for an NTA to be issued:

• Cases where fraud or misrepresentation is substantiated, or there is evidence that the individual abused any program concerning public benefits.

• Criminal cases where the individual is convicted of or simply charged with a criminal offense, or has committed acts that are chargeable as a criminal offense. USCIS will in some circumstances refer cases to ICE before adjudicating a pending immigration benefits request pending before without issuing an NTA.

• Certain N-400 (naturalization) cases where applicants are deportable, ineligible to naturalize, or where the application has been denied due to the individual not meeting good moral character grounds.

• Cases in which the individual will be unlawfully present in the U.S. upon denial of the request.

USCIS may also issue NTAs on denied status-impacting applications, which may among others include Form I-485, Application to Register Permanent Residence or Adjust Status and Form I-539, Application to Extend/Change Nonimmigrant Status.

Other case categories will not be affected by the newly implemented PM, including:

• Cases involving concerns of national security.

• Cases where NTA issuance is required by statute or regulation.

• Cases involving Temporary Protected Status (TPS), with the exception being situations in which, after the application of TPS regulatory provisions, a TPS denial or withdrawal results in the possession of no alternatively lawful immigration status.

• Cases involving DACA recipients and requestors, including when processing an initial or renewal DACA request or DACA-related benefit request, or when processing a DACA recipient for possible termination of DACA.

Moreover, and contrary to some of the above information in this nascent stage of the NTA PM’s implementation, the following case types will also for the time being not be impacted:

• Cases with evidence of abuse of public benefits.

• Cases involving fraud.

• I-140 cases (immigrant employment-based petitions).

• I-129 cases (non-immigrant employment-based petitions).

• Provisional waivers.

Furthermore, for cases that are implicated in this new PM, the time in which a petition or application is filed is irrelevant as upon implementation the policy will affect all denials issued following the commencement date of October 1st.

Situations to Consider in Light of the New NTA Policy

If, after receiving a denial, an applicant wishes to depart the U.S. before appearing before an immigration judge, can an NTA be cancelled if his or her case is reopened and approved?

An NTA cannot be cancelled once USCIS has filed it with the Executive Office for Immigration Review (EOIR), however USCIS will coordinate with ICE, which will then determine the motion to terminate removal proceedings.

If a removable individual withdraws his or her application, will USCIS still issue an NTA?

USCIS may still do so, as its authority to pursue such enforcement actions isn’t hindered in such a scenario.

Do negative factors such as fraud or criminality have to be present for USCIS to issue an NTA upon denying a benefit?

No, all that is necessary for the issuance of an NTA is that the applicant is removable, though the above referenced cases are indeed prioritized.

Is USCIS’s operational guidance regarding the PM’s implementation available?

No operational guidance is available to the public. Updates will instead be issued regarding the NTA PM’s incremental implementation through a public-facing webpage hosted on USCIS’s website. USCIS also plans to host future public engagements as the PM’s implementation progresses.

In cases involving the timely and non-frivolous filing of extension or change of status petitions, can a 10 to 14 day grace period be granted in allowing an individual to depart the U.S. before an NTA is issued?

Language will be added to many denial letters in order to help ensure that sufficient notice is provided, allowing an applicant to depart before an NTA is issued. USCIS has stated that it will generally abstain from issuing an NTA immediately upon denying a benefits request and will wait for the expiration of the period for which one may file an appeal or motion. In its denials USCIS will also provide details on how to review information regarding the period of authorized stay, check travel compliance, or validate departure.

Will there be exceptions in cases in which individuals are physically unable to depart?

If the adjudicator believes such an exercise of prosecutorial discretion is justified, a recommendation may be submitted to the Prosecutorial Review Panel where the use of this discretion will be determined in light of the individual facts of the case.

Will NTAs be issued in circumstances in which one request has been refused but the applicant has other good faith applications or petitions still pending?

It will generally be ensured that all requests that impact authorized stay or status are adjudicated prior to the issuance of an NTA, but one may still be issued in specific circumstances as deemed appropriate.

How will officer’s determine what constitutes a chargeable criminal offense, and will “probable cause” determinations play a role?

NTAs are to only contain legally supportable charges as well as being in line with the Immigration and Nationality Act (INA). Furthermore, under the current stage of implementation the process for issuing NTAs on cases with criminal issues remains unchanged.

What will happen in cases in which a Motion to Reopen has been filed successfully but an NTA has already been issued?

While an NTA will normally not be issued before a decision on an appeal or motion has been completed, USCIS will work with ICE in such scenarios in ensuring that the agency is made aware of the favorable development.

Will children be treated differently from adults in USCIS’s application of the NTA PM?

Subjection to removal proceedings through NTA issuance is applied regardless of age, though prosecutorial discretion is possible on a case-by-case basis.

Will this PM affect the adjudication of cases?

No, the only difference will be that adjudicators will now issue NTAs in a much broader range of cases than formerly.

Will the arrival of this PM be followed by an increase in ICE arrests at USCIS offices?

NTAs may be issued by mail or in person, and USCIS maintains that activities of ICE enforcement are not directly linked to NTA issuance policy.

In light of the new RFE policy, will NTAs be issued in cases of suspected fraud without USCIS first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), thereby denying the applicant the opportunity for rebuttal?

USCIS states that it will generally continue to issue an RFE or NOID in cases where fraud is suspected.

If a non-DACA related immigration benefit is applied for, can the information submitted in an applicant’s DACA relevant request be used to issue an NTA against the applicant or his or her family members listed in it?

Cases such as this depend on specific factors. When processing a non-DACA-related application, petition or request, USCIS adjudicators are to refer to the 2011 Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens PM in determining whether any information submitted may be included in or used to issue any NTAs or Rights to Information (RTIs).

This PM Could Have Substantial Effects on Many Immigration Benefit Seekers

It is paramount that any individuals that could potentially be affected by this PM understand its contents and implications. Be sure to look over the new PM in its entirety, which can be found in a link at the top of this article. As always, never hesitate to contact us if you have any further questions or service requests.