USCIS Notice to Appear (NTA) Memo Could Result in Harsh Consequences

On July 5, 2018, the U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum that dramatically expands the circumstances under which the USCIS intends to issue a notice to appear (NTA), or refer cases to the U.S. Immigration and Customs Enforcement (ICE) for NTA issuance. An NTA is a charging document that is filed with an immigration court to commence removal (i.e. deportation) proceedings against a foreign national. This new NTA policy is a drastic change from past practice and potentially will have serious negative consequences on nonimmigrants who have extension petitions or applications denied, leaving them with no lawful status. More details on the content of the memo are available in the MurthyDotCom NewsFlash, USCIS to Place Far More Foreign Nationals in Removal Proceeding, Per New Memo (06.Jul.2018).

Background: Notice to Appear

As mentioned above, an NTA is a charging document that is issued to foreign nationals who are deemed “removable” from the United States. It is analogous to a formal complaint in the civil law context and essentially is notice of the start of formal court proceedings. When one receives an NTA, the individual must appear before an immigration judge. The judge, after reviewing all the evidence and the law, determines whether the person should be removed from the United States. The foreign national, or the lawyer representing the individual, has the opportunity to present arguments before the court regarding eligibility for relief from removal and why s/he should be allowed to remain in the United States.

Fighting the case in court carries risks of its own, however. In most situations, the foreign national continues to accrue unlawful presence while waiting for the court date, and is not eligible for work authorization during this period. Further, if one loses in court and is removed from the U.S., at a minimum, s/he generally becomes subject to a 5-year bar on reentry to the United States. The same penalty typically applies if the individual leaves the U.S. rather than attending the court hearing, which is a process commonly referred to as self-deportation.

Rather than fighting the matter in court, one may negotiate with the U.S. Department of Homeland Security (DHS), typically to request voluntary departure. By agreeing to voluntary departure, one agrees to leave the United States and forgo any right to fight the charges in court. The benefit is that it may help the individual avoid many of the costs and long-term consequences of being ordered removed from the U.S.

New Guidance Diverts USCIS Resources to Focus on Enforcement

Historically, the USCIS very rarely has issued NTAs. This task primarily has been the responsibility of ICE, which is the enforcement arm of the DHS. The USCIS, on the other hand, was designed primarily to focus on the adjudication of immigration benefits. Although technically a person may be out of status immediately upon the denial of an extension of stay or change of status application, this generally has not resulted in the issuance of an NTA. Rather, the foreign national typically would be expected to depart shortly thereafter, without the need to involve law enforcement. Per the terms of this memo, however, it seems that the USCIS is expected to divert its already thinly stretched resources to focus more on immigration enforcement, which will inevitably result in further straining the already overburdened immigration court system. Worst of all, it could result in dramatic, long-term penalties against foreign nationals who have complied with all U.S. immigration laws, but suddenly found themselves out of status because of a denial.

Conclusion

This new memo continues the Trump Administration’s trend of converting the U.S. immigration system into one that is overtly hostile to foreign nationals. It will drain limited resources and force a huge number of individuals into the already overwhelmed immigration court system.

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