US DHS Expands Authority to Commence Removal Proceedings

U.S. Citizenship and Immigration Services (USCIS) has issued new guidance to immigration officers, allowing them to initiate removal (deportation) proceedings. The new guidance greatly expands the circumstances when USCIS will issue a Notice to Appear (NTA), i.e. the document that starts proceedings. 

USCIS was never meant to be tasked with immigration enforcement. When the Department of Homeland Security (DHS) was created after 9/11, immigration was separated into three agencies:

• USCIS was created to administer benefits;
• ICE (Immigration and Customs Enforcement) was assigned enforcement responsibilities in the interior of the US;
• CBP (Customs and Border Protection) is responsible for protecting the border.

USCIS has long had the authority to issue NTAs and initiate removal proceedings. However, it typically only did so in serious cases that met DHS’s enforcement priorities. USCIS rarely, if ever, issued an NTA after the denial of an employment-based application for benefits when an applicant had no history of fraud, criminal activity or immigration violations.

In early 2017, however, President Trump issued an executive order that greatly expanded DHS’s enforcement priorities to include a wide range of conduct that was not previously prosecuted, and ordered agencies to develop policies consistent with these priorities. In turn, DHS issued an implementing memorandum limiting immigration officials’ authority to use discretion to decline to prosecute certain classes of foreign national, subjecting many more foreign nationals to removal proceedings. USCIS’s new NTA policy is an extension of the executive order and the DHS memorandum.

Specifically, the new policy "...requires USCIS to issue an NTA in the following categories of cases in which the individual is removable...

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States."

The final bullet point above is one that most alarms immigration lawyers, especially given the increasingly hostile immigration environment in which we work now. USCIS is denying perfectly good cases; issuing arbitrary Requests for Evidence asking for additional information (e.g. asking for proof that a structural engineer really requires a bachelor's degree; requesting a new medical report when the existing medical was unexpired, etc); claiming documents were not provided when they were sent; losing checks, etc.  If a case is denied due to USCIS mistake or overreach and a client is placed into removal proceedings, the consequences are devastating. 

As noted by the American Immigration Council, "This move essentially ends all prosecutorial discretion, a key tool used by law enforcement and prosecutors all over the country to effectively prioritize cases. In the past, immigration agencies used prosecutorial discretion when deciding under what circumstances to issue NTAs.

Past leaders of USCIS have issued memos against the practice of widespread NTA issuance, noting it was impractical, would divert scarce resources, create longer wait times, and clog the immigration courts. Further, denials of immigration benefits applications are often reversed upon reconsideration or appeal. This means that thousands of cases that will ultimately be approved will be needlessly tossed onto the dockets of an already overburdened court system."

​We are very closely monitoring the impact of this and all other changes. We cannot stress enough how dangerous it is to file applications without an immigration lawyer, given the current environment.

Please contact us if you have any concerns.