By Attorney Cynthia Milian
Earlier this year, we wrote to you addressing the recent changes coming to United States Citizenship and Immigration Services (USCIS) and their expanded authority to issue Form I-862, also known as the Notice to Appear (NTA). This stems from the June 28, 2018 Memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.
As you may recall, an NTA is a document which is used to initiate removal or deportation proceedings once it has been filed in immigration court. As of October 01, 2018, these changes are now in effect.
There are some exceptions. With respect to employment-based petitions and humanitarian applications and petitions, this memo will not be implemented for the time being.
Before this memo came into effect, only Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) could issue NTAs. Now, USCIS will also be allowed to issue NTAs in the below scenarios:
- National security cases
- Cases required by statute or regulation- USCIS will continue to issue NTAs where there has been a termination of conditional permanent resident status, termination of refugee status, denial of NACARA, and denial of asylum cases. The memo will not change the way Temporary Protected Status (TPS) individuals were treated. For example, if the alien does not have a lawful status after a TPS denial decision, the officer will issue an NTA.
- Fraud, misrepresentation, and abuse of public benefit programs cases– An immigration officer can issue an NTA in cases where there is fraud, misrepresentation, or evidence of abuse of public benefit programs.
- Criminal cases–This includes removing aliens convicted of any criminal offense or charged with a criminal offense that has not been resolved under inadmissibility grounds or deportability grounds, including Egregious Public Safety (EPS) cases, as defined by USCIS and ICE, located in the Policy Memorandum.
- Aliens not lawfully present in the United States or Subject to Other Grounds of Removability– If, upon a denial of a form of relief, the person is not lawfully present in the United States, an NTA will be issued.
- Special Circumstances, which includes certain situations where an application for naturalization has been denied, including when the person was inadmissible at the time of adjustment or admission into the United States, and thus is deportable and not eligible for naturalization.
- Preservation of Administrative Review– It is important to note that the filing of an NTA does not negate the right to seek administrative review, whether by motion to the USCIS office that issued the unfavorable decision, or by appeal to the USCICS Administrative Appeals Office.
USCIS will continue to conduct its administrative review during the course of removal proceedings. If USCIS takes favorable action upon motion or appeal, such that an individual is no longer removable, USCIS should advise ICE counsel so that appropriate action can be taken in removal proceedings.
- Exercise of prosecutorial discretion- In some limited circumstances, in the exercise of prosecutorial discretion, an NTA will not be issued. This is only to be done on a case-by-case basis, and it must go through a Prosecutorial Review Panel.
With the implementation of this Memo taking effect, it is imperative for you to know that there may be consequences that can result in you being placed in court removal proceedings. Therefore, it is our advice that before you file anything with USCIS, you thoroughly review if you are eligible, and as always, that you carefully review that the information you have included is correct. Contact us if you have any questions regarding how this new Memo can impact your case.
For more information on this policy memorandum, please visit: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.