The first memo, discussed here, authorizes USCIS to place individuals in removal proceedings for merely overstaying their visas if their application for immigration benefits is denied. The second memo, released last Friday, grants USCIS adjudicators broad discretion to deny applications without first issuing a “Request for Further Evidence” (RFE) or “Notice of Intent to Deny” (NOID) in order to allow people to correct errors or omissions in their applications. Taken together, these two memos change USCIS from a customer service agency into an immigration enforcement body that can deny applications without notice, and place people into removal proceedings.
These policies affect all applications for immigration benefits, including people pursuing employment-based visas, green cards through family members, green card renewals, and even U.S. citizenship. We envision the following additional ways in which people will end up in removal proceedings now:
- Sending in a bare-bones asylum application to preserve a one-year bar, may be subject to denial and placing the person in removal proceedings if the application is deemed frivoulous;
- Asylum applications that state a claim of asylum based on domestic violence or gang-based asylum could become subject to summary denial and placing the applicant in removal proceedings;
- USCIS officer perusing their erroneous gang database to deny an application for benefits without issuing any due process;
- An applicant for citizenship has a criminal history and fails to submit evidence of post-conviction relief is denied and placed in removal proceedings;
- An applicant for an employment or family-based green card who fails to include an affidavit of support or submits an affidavit of support that does not meet the income requirements can be denied without an RFE and placed in removal proceedings;
- An applicant for a green card fails to submit a copy of their I-94 or passport with the application;
- Denial of extreme hardship waivers for lacking evidence of extreme hardship without an RFE or NOID; and
- Denial of challenging U, T and VAWA visas without an RFE or NOID.
These are just some examples. In sum, basic routine immigration applications are no longer routine. Applicants for any immigrant benefits may now find themselves in front of an Immigration Judge in the first instance, who is powerless to administratively close proceedings. Moreover, the fact that these new memos have no one listed as an author also goes to the increasing lack of transparency and accountability in what was once a customer service agency.
The only exception appears to be Deferred Action for Childhood Arrivals (DACA) applicants, and that is due to the current injunction where USCIS remains enjoined from making changes to the DACA policy. However, in the recent past, even applicants for DACA have been wrongly categorized as gang members, and denied DACA renewals or initial applications without so much as a warning or any kind of due process to address these allegations. And the injunction will only last till DHS is no longer subject court orders preventing changes to the DACA program.