Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “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.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

• Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
• Aliens who, regardless of the basis for removal:
  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;*
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but have not departed; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs 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,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “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 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.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.

CBP Can Place Foreign Nationals in Removal Proceedings for Failing to Obtain Non-Immigrant Waivers Prior to Applying for Admission at POE

Our firm often encounters individual in a similar predicament - They have recently been placed into removal proceedings in Immigration Court because they continuously appeared at a Port of Entry (POE) seeking admission into the U.S., despite the fact that they were previously advised by U.S. Customs & Border Protection (CBP) that they were inadmissible to the U.S. under INA § 212, whether it be for previous immigration violations, previous criminal convictions, or some other ground of inadmissibility.

This situation also has one other common denominator: these individuals tend to be Canadian citizens, given that Canadian citizens are visa exempt.

So why are these individuals in removal proceedings? In fact, they usually don’t even live in the U.S., but are simply trying to enter for a temporary visit. Well, what happens is that when CBP encounters these individuals at the POE, who after being repeatedly advised that they need a nonimmigrant waiver (Form I-192) to enter the U.S. continue to attempt to enter the U.S. without acquiring the waiver, CBP choses to exercise its authority and places them in removal proceedings in front of an Immigration Judge. CBP will issue a Notice to Appear (NTA), which is the charging document for immigration matters. The individual is then either provided with a date/time to appear in front of the Immigration Judge or receives a notice in the mail at a future date. For those individuals that end up in removal proceedings after appearing at a POE near Buffalo, New York, they end up in removal proceedings in front of the Immigration Judge in Buffalo, New York, who has a backlogged docket of over a year.

Now, this is the situation these individuals have placed them in – they were already inadmissible to the U.S. under INA § 212 (whether it was for previous immigration violations, criminal convictions, etc.), and now they may become subject to yet another ground of inadmissibility if they are ordered removed from the United States (which they may be if they are unable to overcome the charge of inadmissibility being lodged against them). If the individual is ordered removed from the U.S., they are going to be barred from re-entering the U.S. for a period of ten (10) years. If they want to enter the U.S. prior to the expiration of their ten-year bar, they need to apply for yet another waiver – Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. This is in addition to the Form I-192, Application for Advance Permission to Enter as Nonimmigrant, that they already require.

However, one option that may be available for these individuals in order to avoid a formal removal order is to request that they be allowed to withdraw their application for admission. Put simply, it is the individual saying to the Court “I’m sorry I applied to enter the U.S. I would like to take my application back and go home now.” This is a highly discretionary request, and not a right or a benefit, so the Immigration Judge does have the discretion to deny the request. Nonetheless, in some cases, it may be worth pursuing this strategy in order to avoid a removal order that will incur either a ten (10) year bar to the US or require applying for yet another waiver.

For those individuals who have been previously advised by CBP that they require a nonimmigrant waiver to enter the U.S., before re-appearing at the POE to enter, it is highly advisable that these individuals apply for their waivers to avoid being placed in removal proceedings. Should an emergency arise during the pendency of the waiver application, there may be the opportunity to apply for parole while the waiver application is pending.

If you are one of these individuals who has already been placed into removal proceedings based on a scenario described above, please schedule a consultation with our office to determine whether withdrawing your application for admission may be a advisable and feasible strategy.

What Happens Once I am Released on Bond or Parole?

A: Most foreign nationals will be issued a Notice to Appear ("NTA" or Form I-862) that charges him/her with grounds of removal from the U.S. The NTA also has the effect of placing the foreign national into removal proceedings before an immigration judge. Almost all individuals that are encountered and charged with immigration violations in upstate New York are ordered to appear before an Immigration Judge in Buffalo, New York.