USCIS Issues New Memo Expanding Power to Initiate Removal Proceedings

The United States Citizenship and Immigration Services (USCIS) released a new policy on June 28, 2018, expanding the reasons that they will issue an I-862 “Notice to Appear” (NTA) to individuals to initiate removal proceedings against them.

The new memo is available here and lists every instance in which individuals will be placed into removal proceedings. It supersedes an Obama-era memo governing the issuance of an NTA by the same agency.

Under the new guidance, USCIS will shift from a benefit-granting agency into an agency that enforces immigration laws. The agency seeks to issue an NTA for a much wider range of cases where the individual is removable from the United States and there is evidence of fraud, criminal activity, abuse of public benefits, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

Basically, what this means is that if an individual applies for a benefit such as adjustment of status (green card), change of status from one non-immigrant visa to another, a U/T visa, and the application is denied, the individual will be placed in removal proceeding if they are deemed to be out of status or have no other authorization to remain in the United States.

This spells the end of prosecutorial discretion for the agency and an awful waste of agency resources, as this change is likely to clog immigration courts further, inundating judges with more removal cases than they can adjudicate. It also has a chilling effect on applicants who may not have the strongest cases, who may choose to remain out of status or undocumented rather than alert the government of their presence by filing an immigration application.

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance under a separate memo issued concurrently, which means USCIS will continue to not refer DACA beneficiaries for removal proceedings and will not share their information with Immigration and Customs Enforcement (ICE). USCIS is supposed to follow the 2011 memo when deciding to issue NTAs to DACA beneficiaries.