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 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...
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.
On June 21, 2018, the US Supreme Court decided a case (Pereira v. Sessions) that could effect hundreds of thousands of people in the United States.
The case concerned a man from Brazil who entered the US in 2000 and overstayed his visa. He was arrested in 2006 for driving while intoxicated, and then placed into immigration proceedings.
Immigration proceedings are started when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA) to the immigrant. If the government succeeds in its claim, the noncitizen is removed (deported) from the US.
As a defense to removal, a noncitizen may apply for "cancellation of removal." One of the requirements for cancellation is that the applicant have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application” for cancellation." 8 U. S. C. §1229(b)(1)(A).
However, the issuance of an NTA stops the 10-year clock from running. So, for example, a person who entered in 2000 and finally appeared before an immigration judge in 2014 would only have 6 years of continuous physical presence if the NTA was issued in 2006.
Regulations state that the NTA must state “[t]he time and place at which the [removal] proceedings will be held.” Due to the huge backlog of cases in immigration court, the vast majority of NTAs don't list a date, and simply list "TBD," instead of a specific date. This happened to the plaintiff, Pereira. Later, in 2007, a more specific NTA was sent to Pereira. However, it was sent to the wrong address and he didn't receive it (it was returned as "undeliverable").
In 2013, Pereira was arrested for a minor traffic violation and detained by DHS. In proceedings, he requested cancellation of removal and claimed that the initial NTA didn't stop the clock on his continuous physical presence because it didn't specify the time and date of his court appearance.
The Supreme Court agreed, holding that "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under §1229(a),” and so does not trigger the stop-time rule."
Why is this ruling so important?
As a result of this decision, eligible immigrants living in the country without authorization who have received incomplete "notices to appear" can now explore applying for a 10-year cancellation of removal. Many (probably most people) currently in immigration proceedings may get their cases terminated because the NTA was never properly filed. This would certainly eliminate a lot of the immigration court backlog, but DHS would restart proceedings, using a correct NTA (with date, time, etc). This may benefit a client who needs more time to gather the evidence for a cancellation of removal case. Immigration lawyers are already reporting that judges in some jurisdictions are terminating cases based on the Pereira decision, just one day after the ruling.
Immigration lawyers are also considering reopening cases for people whose cases have ended, on the grounds that the original hearings were defective because there was never a properly-filed NTA.
This is a very important case for clients, and we will be monitoring the effect closely. For more information, please call Elaine Martin, Immigration Lawyer
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.