US Citizenship & Immigration Services (USCIS) issued guidance that changes when foreign nationals can be put in removal proceedings. The updated guidance aligns USCIS policy for issuing Form I-862, Notice to Appear—a document given to foreign nationals that instructs them to appear before an immigration judge on a specific date and commences removal proceedings against them—with the immigration enforcement priorities of the Department of Homeland Security (DHS).

Under the new guidance, USCIS officers will “now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.” As the American Immigration Lawyers Association (AILA) notes, this move shifts the issuance of NTAs away from Immigration & Customs Enforcement (ICE), which has traditionally handled NTAs and other enforcement matters, to USCIS, which generally focuses on adjudicating immigration benefits and welcoming immigrants to the US.

USCIS Director L. Francis Cissna explains the reason for the updated guidance:

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.

USCIS, ICE, and US Customs and Border Protection (CBP), all have the legal authority under current immigration laws to issue NTAs. The policy memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA. Generally, the revised policy requires USCIS to issue an NTA in the following categories of cases where 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.

USICS says that the revised policy does not change the USCIS policy for issuing an NTA in the following categories:

• Cases involving national security concerns;

• Cases where issuing an NTA is required by statute or regulation;

• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;

• DACA recipients and requestors 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.

Additionally, USCIS states that as explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance 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. Under separate policy guidance issued concurrently USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, dated November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

Anastasia Tonello, current president of AILA, strongly opposes the new guidance, saying in a press release that the guidance could put tens of thousands of individuals into removal proceedings who would otherwise seek appellate review for their case or voluntarily leave the US if their application is denied. She states:

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. It is based on the false assertion that everyone who comes to the United States and seeks an immigration benefit intends to break the law by overstaying if they are denied, when the vast majority comply on their own.

Benjamin Johnson, the executive director of AILA, adds: “The new policy will also create an operational nightmare for both USCIS and the immigration courts by diverting USCIS adjudication resources to enforcement activities and adding more cases to our already overburdened immigration court system with cases that pose no threat to public safety or national security.”

UPDATE JULY 30, 2018: USCIS announced today that the implementation of the above-discussed policy memorandum, “Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” issued on June 28, 2018, has been postponed. The policy memo instructed “USCIS components to create or update operational guidance on NTAs and Referrals to ICE (RTIs)” within thirty days of the memo issuance, and since the operational guidance is still pending, the memo implementation has been delayed.

Since the policy memo announcement in June, many immigration practitioners and advocates have expressed objections and concerns. Attorney Jennifer Minear tells Forbes: “I fear that this policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture. Indeed, that appears to be the intent of these policies—to frustrate and frighten people enough that they will not even attempt to navigate the process of coming here legally.”