New NTA Policy Related to Denied Applications in Effect

New NTA Policy Announcement

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published two new policy memoranda, dated June 28, 2018, regarding Notices to Appear (NTA). The first Policy Memorandum (PM-602-0050.1) is aimed at cases involving inadmissible and deportable aliens. The second Policy Memorandum, (PM-602-0161) is aimed at DACA recipients. An NTA is a charging document that is issued to foreign nationals, placing them in removal proceedings and directing them to appear before an immigration judge.

This new guidance mandates USCIS, except in very limited circumstances, to issue an NTA upon denial of an immigration benefit request where the applicant, beneficiary, or requestor is removable. Perhaps most significantly, NTAs will be issued to every person who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied.

Additionally, when adjudicating an individual’s application for immigration benefits, agency officers will not be permitted to overlook instances where “fraud, misrepresentation, or evidence of abuse of public benefit programs is part of the record,” where the foreign national has been charged with a criminal offense and the case has not been resolved, or where he or she is under investigation for any crime.

“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it,” said USCIS Director L. Francis Cissna.

Policy Memorandum PM-602-0050.1: focus on inadmissible and deportable aliens

Though criminal conduct has long had negative consequences for foreign nationals in the United States, the new guidance indicates that any criminal act, arrest or conviction could subject a foreign national to removal proceedings, even if the conduct was not the basis for denial of an immigration benefit.  A USCIS finding of fraud or willful misrepresentation in prior government matters could also increase the risk of NTA issuance, even if the application is denied for a reason other than fraud or misrepresentation. In addition, USCIS has added a mandate for issuance of an NTA where there is “evidence of abuse of public benefit programs.” USCIS has given its officers the authority to refer groups of cases to -ICE for investigation before immigration benefit applications are adjudicated.

The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

Policy Memorandum PM-602-0161: focus on Deferred Action for Childhood Arrivals (DACA)

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance (PDF, 77 KB) to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

New limitations of prosecutorial discretion

USCIS officers’ abilities to use discretion not to issue an NTA has also been curtailed.  Exercises of prosecutorial discretion will be subject to a narrow and formal agency review process outlined in the memo.  Therefore, it is expected that discretion will not be exercised except in rare circumstances. It is hoped that prosecutorial discretion will be applied with a humane, practical and common-sense approach so as not to burden an already overburdened immigration court system where applicants routinely wait 4-6 years for their Removal Proceedings to take place.