U.S. Citizenship and Immigration Services ("USCIS") recently published a troubling memorandum that will place more people in removal proceedings. This will be done by USCIS issuing what's known as a Notice to Appear ("NTA"), the government charging document that initiates removal proceedings.
Prior to this guidance, USCIS had a limited role in issuing NTAs to applicants. Its role was primarily as an adjudicating arm of DHS, while Immigration and Customs Enforcement ("ICE") and Customs and Border Patrol ("CBP") served as the main two enforcement arms. The guidance now requires USCIS to issue NTAs to all noncitizens whose applications have been denied who are "not lawfully present" in the United States. It also requires USCIS to issue NTAs to those who are "enforcement priorities" whose applications are still pending and have not yet been adjudicated.
For example, a U Visa applicant (a victim of a serious crime in the United States who suffered substantial harm and cooperated with the investigation of that crime), in the past, would be able to submit his application to USCIS without fear of being placed in removal proceedings. Many U Visa applicants are undocumented and/or entered without inspection. In the past, when USCIS denied these cases, it would not issue an NTA, and the crime victim would not be automatically put in removal proceedings just for being present in the United States unlawfully. Now, under this guidance, any applicant whose application is denied will be placed in removal proceedings if he or she is not lawfully present or is an "enforcement priority."
Another example of someone who would be gravely affected by the new guidance is an engineer who has held H1-B status for years while working in the United States. If her application for an H1-B extension is denied, and her underlying H1-B status has expired, USCIS will place her in removal proceedings.
This NTA memorandum will have a devastating effect on the immigrant community. Firstly, it will create a chilling effect on applications. Those who are otherwise eligible for an immigration benefit may well decide to forgo an application to avoid risk of deportation, thus remaining in the shadows. Secondly, the memorandum will result in more individuals being thrown into the deportation machine. It will lead to even more family separations and some applicants even being deported to countries where they fear persecution.
This guidance does not mean you should simply refrain from applying for an immigration benefit if you are otherwise not in lawful status, or if you have a criminal history. If you are undocumented and in the shadows, you still run the risk of being picked up by ICE, and if you have a strong claim, submitting an application may not only provide you peace of mind, but could be a pathway to citizenship. Now more than ever, it is important to avoid notaries promising miracles. Be skeptical when receiving immigration advice. A good attorney specialized in immigration law will be able to help you weigh the risks and benefits of whether to submit an application to USCIS.
Keep in mind that this policy memorandum is yet another massive brick in the invisible wall Trump's administration is constructing every day. It was issued by a heartless administration that cares more about furthering its xenophobic agenda than the rights of immigrants and their families who make this country great. We must not be deterred.
Bean + Lloyd, LLP is an immigration law firm in Oakland, California
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