In July, Citizenship and Immigration Services (USCIS) published an updated policy memorandum. The memorandum updates USCIS’ guidance for adjudicators on the issuance of Notices to Appear (NTA). The purpose of this updated policy is to “better align with [the] enforcement priorities” outlined in Executive Order 13768, Enhancing Public Safety in the Interior of the United States, which was signed by the President on January 25, 2017.

Notice to Appear

A Notice to Appear (NTA) is a document which is issued to an immigrant informing him or her to appear before a judge in Immigration Court. It is similar to a criminal complaint and indicates why the Department of Homeland Security is requiring the immigrant to appear. The NTA includes the alleged violations and charges against the immigrant. Multiple immigration agencies have the authority to issues NTAs including Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and USCIS.

Prior Policy

Under the prior policy, USCIS typically only issued NTAs where it was required by law, where there was substantiated fraud, and in naturalization cases where the applicant was deportable. In other cases, USCIS referred the case to ICE, which then determined whether an NTA should be issued.

New Policy

Under this new policy, USCIS will issue NTAs in certain circumstances, namely:

* Cases involving an immigrant who poses a threat to national security
* Cases where the issuance of an NTA is required by law
* Cases where there is substantiated fraud, misrepresentation, or abuse of public benefits, the immigrant is deportable, and there is a “negative eligibility determination” (i.e. a denial, withdrawal, termination, etc.)
* Cases involving criminal conduct by the applicant
* Cases involving an unfavorable decision when an applicant is not lawfully present in the United States

USCIS may issue an NTA in other cases, such as:

* Cases where the applicant requests the issuance of an NTA
* Cases where a grant of asylum is denied or rescinded
* Cases where an applicant naturalization is deportable, or it is determined their permanent residence was issued in error
* Cases involving confidentiality protections (such as U Visa and VAWA applications) where the benefit is denied, and the confidentiality protection has ended

Note regarding DACA holders:

In a separate memorandum, USCIS indicated it will continue to protect information provided on an application for DACA from being disclosed to ICE or CBP. However, certain information may be disclosed if the applicant meets the criteria for the issuance of an NTA outlined in the 2011 policy memorandum.

Impact of the New Policy

Although the impact of the updated policy remains to be seen, it will undoubtedly have many repercussions for many people, particularly those with criminal issues. It likely means an increase in the number of NTAs issued, which will mean an increased backlog in immigration courts. It may also discourage some immigrants, such as survivors of domestic violence and naturalization applicants, from applying for benefits which they would otherwise be eligible for.

The issuance of this memo is particularly concerning because of another USCIS policy update, related to the issuance of Requests for Evidence (RFE) and Notices of Intent to Deny (NOID).

Implementation of the New Policy

Although the memo states it would be implemented 30 days from issuance, on July 30, 2018, USCIS indicated the implementation of this memo is postponed. The memo instructs USCIS to issue or update operating procedures on NTAs and allotted USCIS 30 days to do so. However, no such guidance has been issued to date. So, the implementation of the memo is postponed until that guidance is issued.

Lopez Immigration Law will continue to monitor the effects of the memorandum and hopes to publish an update on our blog in the future.

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