Last week, USCIS issued a new policy memorandum instructing their officers when they should start the removal (“deportation”) process and issue Notices to Appear (NTAs). The NTA is a charging document that starts the deportation process. A NTA can be issued by USCIS, CBP or ICE and once filed with an immigration court, deportation proceedings begin and a hearing date will be scheduled.
Traditionally, USCIS has been associated with benefits – that is, adjudicating applications for things like green cards and naturalization. They have always had the ability to coordinate with ICE on enforcement activity, but absent a national security concern or prior deportation order when they denied a case, the file would generally return to a shelf and a person would be given instructions to leave the US voluntarily within a certain amount of time. In some types of cases, like an asylum referral or the denial of an I-751, USCIS will always issue a NTA, but those are a small percentage of the cases adjudicated by USCIS.
The new memo changes all of that. USCIS is now telling all of their officers that if a case is denied and the person has no lawful status to fall back on, that they need to issue a NTA. It doesn’t matter if the denial was a result of filing for an application too early, if government processing times caused the applicant to fall out of status, or if it was a lack of documentation that doomed the application (meaning the case could be refiled). Now, everyone is at risk for removal proceedings to begin.
Why is this a problem?
People will stop applying for benefits they are eligible for. People who have a borderline case won’t take the risk of applying for a benefit if a denial means they’ll be placed in deportation proceedings. I often help people apply for discretionary benefits like Parole in Place or Humanitarian Deferred Action. These cases are for military family members and for people in really dire situations. What if an officer decides that an undocumented parent of a U.S. citizen child with leukemia declines to grant humanitarian deferred action? In the past, the file would simply go on a shelf and everyone would go about their lives. Now, that family is at risk of being torn apart because of the denial and the issuance of the NTA.
Mistakes happen. I cannot tell you how many times USCIS has denied a case because they claim they didn’t receive paperwork from my client, yet the USPS tracking number shows that the paperwork was delivered to their office. People who have cases denied through no fault of their own could be put into deportation proceedings.
People will be stuck in the United States waiting for their cases to get resolved. The immigration courts are facing a historical backlog. It’s taking three years to get a hearing before an Immigration Judge in most jurisdictions. If someone is denied a benefit and issued a NTA, they cannot leave the United States – they have to go to court to get the issue resolved, even if it’s simply asking for voluntary departure. If they leave the U.S. prior to a judge hearing their case, they could be issued an in absentia order of deportation, which will bar them from the United States for five years. How will the courts handle an influx of thousands of cases each month? How do people who want to leave and preserve their ability to return to the United States? Oh – and people don’t receive work permits (generally) while waiting for their court hearing, so how will they function, pay their bills, take care of their families?
Of course, we need to see how this plays out in real life before we jump to too many conclusions. Still, though, judging from the text of the memo, there will be zero to no leniency from USCIS, an agency historically built on service and hope, but is now turning into just another tool of President Trump’s deportation machine.