WASHINGTON, DC – On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance, dated June 28, 2018, regarding Notices to Appear (NTA). An NTA is a charging document that is issued to foreign nationals, placing them in removal proceedings and directing them to appear before an immigration judge. Recognizing the need for USCIS to focus on adjudicating immigration benefits and welcoming new immigrants into the United States, as the Homeland Security Act intended, the Department of Homeland Security (DHS) has long-relied upon the enforcement components of DHS, namely Immigration and Customs Enforcement (ICE), to handle NTA issuance in most cases. In a sweeping move, the new guidance shifts more of that function to USCIS and mandates USCIS, except in very limited circumstances, to issue an NTA upon denial of an immigration benefit request where the applicant, beneficiary, or requestor is removable. Perhaps most significantly, NTAs will 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.
Anastasia Tonello, President of AILA, stated, “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. As a result, USCIS will now needlessly sweep tens of thousands of individuals into removal proceedings, including those who have lived and worked lawfully in the U.S. and would otherwise seek appellate review or depart voluntarily if their application is denied. This could include workers who have fully complied with our immigration laws who may unexpectedly be informed by USCIS that they no longer qualify for the visa status they have legally held for years and will now be placed in removal proceedings. This policy erases the ‘Service’ from USCIS and transforms the agency into yet another DHS enforcement tool.”
Benjamin Johnson, AILA Executive Director added, “The Homeland Security Act was designed to have three components, service, enforcement, and border control, each under a different agency, particularly so that the ‘service’ component was not overshadowed by the enforcement and border components. The Trump Administration is re-writing the Homeland Security Act without Congressional action. 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. Over the past decade, USCIS processing times across all product lines have grown consistently worse and the immigration court backlog it at its highest ever, exceeding 700,000 cases as of May 31, 2018. This guidance is a recipe for disaster, further cementing the Administration’s rejection of any exercise of prosecutorial discretion on immigration, a cornerstone of every other law enforcement system in America. This policy is built on the Administration’s belief that every immigrant is unwelcome and undesirable. That is not the story of our nation, which has benefited tremendously from the contributions of immigrants.”
Source: AILA Doc. No. 18070604.