In a shocking turn of events, USCIS released a policy memorandum dated June 28, 2018 (PM-602-0050.1), “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” on 7/6/2018 that indicates those who apply for a benefit, and who are denied, will be issued a Notice to Appear (“NTA”).  An NTA is a charging document that initiates immigration court proceedings. This means that a denial will result in getting placed into immigration proceedings, where there will be an immigration judge who will decide whether the person will be deported or not. There is an exception to the policy for DACA applicants, who should not be referred for prosecution.  See PM-602-0161, June 28, 2016 “Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) When Processing a Case Involving Information Submitted by a Deferred Action for Childhood Arrivals (DACA) Requestor in Connection With a DACA Request or a DACA-Related benefit Request (Past or Pending) or Pursuing Termination of DACA.”

After reading these new policy memoranda, and as the change of policy sinks in, many concerns arise.  In the years I have been practicing immigration law, USCIS and prior to that, INS, has held the position that their mission is to service applicants, not to dissuade applicants from applying.  In fact, sometimes I wanted CIS to issue a Notice to Appear, but they would not do it. This was the case where CIS denied an Adjustment of Status application that I felt was strong enough to win in immigration court.  But since USCIS would not refer my client to court, they could not have an opportunity to have their application adjudicated. In the past, USCIS would likely only issue an NTA after a denied I-751 application to remove conditions, a denied asylum application, and denied NACARA applications.  Now, the floodgates have been opened for issuance of an NTA.

Now, that will not be a problem for the vast majority of applicants who are denied.  Simply being denied a benefit, coupled with being unlawfully present in the United States, will now be referred for deportation proceedings.

Why this is a bad idea?

First of all, this will negatively impact the big goal of USCIS – to process people for legalization.  USCIS is not an enforcement agency. ICE is. If the benefit granting arm of DHS has a direct path that leads to immigration court, fewer will even apply for a benefit, even when they are eligible because there is now a new larger risk of getting deported. People who, for example, are applying for protection of the Violence Against Women Act or for a U-Visa for victims of crime may be out of status, and if denied, now risk deportation. This policy change will deter many immigrants who are eligible for relief from applying for that relief. For example, those applying under a Matter of Quilantan issue (see my blog on Quilantan by clicking here) may have limited amount of proofs.  A simple affidavit may be all the proof that is there, and the officer may not be convinced and may deny the matter.

In the past, the matter would very unlikely be referred to the immigration court.  And if it were referred, and there was an alternative form of relief, such as consular processing (Consular processing) then the person could request that the matter be administratively closed in the court, and proceed to apply for a provisional waiver.  As I state in my article (Jeff Sessions case on closing admin) only a very limited number of cases will be administratively closed. This leaves the person only with the ability to get voluntary departure, and apply for a waiver from without the United States. The processing time for the waiver alone approaches or surpasses one year!

Second, it will clog the courts.  My firm litigates a lot of cases in court.  It is much more expensive for the client and much more stressful for the client and his family.  It is extremely inefficient to pour more cases unnecessarily into the immigration court system that is already backlogged several years.  This will also serve to clog the courts with people who are NOT a priority for removal, namely people who simply have overstayed their visas.  The courts' limited capacity needs to be prioritized for individuals who are dangerous, who are detained, and who are flight risks, not those who merely overstayed a visa.

Third, a process that a person could potentially handle on their own – like filing applications at USCIS, turns into a process where an attorney may need to be involved, if for nothing else to advise a person whether to file for legalization or not.  The filing costs for forms have skyrocketed. I remember 15 years ago it was $110 to file for an I-130 petition. Now the price is $535. Add to that, the need to find a good, knowledgeable attorney, along with paying for consultation fees and other legal feels, the costs will be even more prohibitive, even for individuals who clearly qualify.

Fourth, it will create more victims among the vulnerable immigrant population.  Notarios may advise their clients to apply when they are not eligible. Instead of merely losing fees and money, the person may find themselves in immigration proceedings with no real options and very serious consequences.

This policy change will also result in many more unreported crimes, since many immigrants, including victims of crime, will fear going to the police for fear of being encountered by ICE. Note that most police departments have a strict policy to not report victims, however this has not always been the case, and it has a negative effect on immigrant relationship with police.  Now, immigrants may have the same distrustful relationship with the body who is supposed to help them through the legalization process.

What if you already submitted an application?

First, one can always attempt to withdraw the application.  I say “attempt” to withdraw because some applications require USCIS to consent to the withdrawal.  For example, the I-485 application to adjust status to lawful permanent residence is one application that is commonly filed, and sometimes denied.  If you try to withdraw it, CIS can deny that request, and then proceed to deny it, and then automatically place you into removal proceedings.

Second, even if you are denied and issued an NTA, you can still appeal the denial in some cases.  Sometimes you can motion for USCIS to reconsider its decision, or appeal to the Administrative Appeals Office.  The guidance says that the appeal will still be considered while the person is in removal proceedings. What is left unanswered, is what is supposed to happen with the person who is done with immigration court, or who has no relief in immigration court, yet USCIS has not yet decided the appeal?  Well, administrative closure isn't an option. So the case remains on the immigration court docket, clogging it further, utilizing continuances until due process has been accomplished and USCIS has decided the appeal.

What if you haven't yet submitted an application and have concerns about getting deported?  You need to talk to an attorney now more than ever. The risks for embarking on even a simple application process with USCIS has risen in great proportion.