New Policy Increases Risks of Deportation
By Reuben Seguritan
July 11, 2018
A new USCIS policy that was published on July 5, 2018 requires the issuance of a deportation notice or Notice to Appear (NTA) to those who are not lawfully present in the US after their applications or petitions are denied.
Also included in the policy are those who 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.
The policy will have a chilling effect on all nonpermanent residents who are eligible, for immigration benefits because of their fear that if their applications are denied, they will be placed on deportation right away.
Additionally, this memorandum will have the effect of further clogging the immigration courts with cases. As it stands now, the immigration courts have a backlog of more than 700,000 cases as of May 31, 2018.
The USCIS has authority to issue Form I-862 Notice to Appear (NTA) which is thereafter filed with the immigration court to commence removal proceedings. The US Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) also have the authority to issue NTAs.
In the recent case of Pereira v. Sessions, the US Supreme Court held that the NTA must include the time, place or date of initial removal hearings sent to nonpermanent residents in order to ensure that the alien will attend the scheduled hearing.
NTAs will continue to be issued by the USCIS for the following cases: termination of conditional permanent resident status and denials of Form I-751, Petition to Remove the Conditions of Residence, and termination of refugee status by the District Director.
If the alien applies for Temporary Protected Status (TPS) and the USCIS denies the initial TPS application or re-registration or withdraws the TPS and the alien has no other lawful immigration status or other authorization to remain in the US, the regulations will first be followed. Thereafter, the officers will issue an NTA to the alien who has no other lawful immigration status or authorization to remain in the US following the final determination to deny or withdraw TPS.
The NTA will also be issued if the removable alien’s petition or application is denied for: lack of prosecution or abandonment; the alien withdraws the petition or application and the petition or application is therefore terminated; approval is revoked; and for N-400, Application for US Citizenship cases, if the N-400 was denied on good moral character grounds based on a criminal offense.
When the USCIS refers a case to ICE for investigation, USCIS will suspend adjudication of the petition or application for 60 days. But the USCIS may resume the process should ICE not respond within the time frame or provide a Case Closure Notice or case status report within 120 days of accepting the referral.