MurthyDotCom : Service Centers May Now Start Removal Proceedings

Service Centers May Now Start Removal Proceedings
Posted Oct 17, 2003

William Yates, Associate Director for the U.S. Citizenship and Immigration Service (USCIS), issued a memo on September 12, 2003, outlining the guidelines for Service Centers to follow when issuing Notices to Appear (NTAs). This is the initial implementation of the authority of the CIS Service Centers to issue NTAs. The NTA initiates the removal proceedings of a foreign national. It is the equivalent of, what was formerly called, an Order to Show Cause (OSC), which placed foreign nationals in deportation proceedings. The initial phase of the program is limited to certain, defined situations.

Timing to Start Issuing NTAs

The initial phase and new guidelines were scheduled to begin by the end of September 2003. The precise timing is dependent upon the completion of all Standard Operating Procedures (SOPs), as well as the CIS’s ability to address all training, systems, and resource needs.

Who is Subject to NTA Issuance by Service Centers?

The initial phase will focus on three specific types of immigration violations. Noticeably absent are common status violations, which could subject individuals to removal proceedings, should the CIS choose to act. The three initial areas are:

violations of the laws that constitute a threat to public safety or national security;

instances in which a fraud scheme has been detected;

certain applications for Temporary Protected Status (TPS) where the basis for the denial or withdrawal constitutes a ground of deportability or excludability.

Prosecutorial Discretion to Exercise Refrain Exists

The Memo issued by the USCIS, in addition to discussing the NTA guidelines, also notes that the Service Centers are expected to exercise prosecutorial discretion when adjudicating cases. Prosecutorial discretion is the authority given to law enforcement agencies to decide whether to take enforcement action against any particular individual. The Service Centers were reminded of a memo on the topic of prosecutorial discretion issued in November 2000. This Memo indicates that the Legacy INS and, by extension, the CIS may refrain from exercising law enforcement authority against an individual, as well as the degree to which those powers may be exercised.

It is not clear how the CIS examiners will have sufficient knowledge to weigh the factors that are to be used in determining prosecutorial discretion. Included in these factors are: humanitarian concerns, eligibility for other immigration relief, immigration history, likelihood of the foreign national ultimately being removed, and the likelihood of achieving enforcement goals by other means.

Additional Workload and Fear of Bona Fide Filings

This program of NTA issuance by the Service Centers raises numerous concerns. Not the least of which is an additional burden upon already backlogged Service Center adjudicators. While the current program is limited, it is only in the initial phase. We fear that, if the enforcement powers are expanded, foreign nationals will be afraid to file cases that have a well-founded basis, if the likelihood of success is uncertain. Family members may be fearful of filing petitions for relatives who are not lawfully in the U.S., but who may be able to benefit from a family petition many years in the future. Additionally, if this procedure extends to status violations, the workload backlogs could rise to explosive proportions. On one hand, the "zero tolerance memo" was recently withdrawn. [See our October 3, 2003 article, 'Zero Tolerance' Policy Withdrawn, available on MurthyDotCom.] This gesture serves as a reminder to Service Center adjudicators that they may, when appropriate, overlook minor status violations in adjudicating extensions of status. Therefore, it is appropriate for such an individual to attempt to extend his or her status, and, if denied, to leave the U.S. and reenter lawfully. The individual should not have to fear that legitimate efforts to obtain a benefit might result in issuance of an NTA and removal from the U.S. Certainly, it would be a waste of government resources for an NTA to be issued if a problem may be solved simply by an individual's departing the U.S. and re-entering in valid legal status.

CIS Now Has Both Benefits and Enforcement Responsibilities!

We find it rather strange that one of the primary goals in restructuring Legacy INS was to clearly demarcate or separate agencies whose primary responsibilities were related to services or benefits from those related to enforcement. Now, with this new power vested in the Service Centers to issue NTAs, the service / benefits and enforcement roles are combined as never before!

Posted Oct 17, 2003