New NTA Policy

October 29, 2018 § Leave a comment

In June of 2018, USCIS released a new policy on their issuance power of Notice to Appear documents. Its memo titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” effectively increases the number of NTAs that USCIS is required to issue. A Notice to Appear document is what an individual receives to inform them that removal proceedings will begin.

Following 9/11, in 2002 under the Homeland Security Act of 2002 the federal government divided legacy Immigration & Naturalization Service into three current agencies, all falling under the umbrella of the U.S. Department of Homeland Security (DHS): U.S. Citizenship & Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).  While CBP and ICE were tasked with enforcement responsibilities, USCIS has been tasked with the primary function as an immigration services entity that is separate from the enforcement components.  During the fiscal years 2013 to 2017, USCIS has only issued NTA’s in 12% of the cases, while CBP and ICE accounted for issuing 88% of the NTAs.

Previously, USCIS officers had the ability to issue (or not to issue) NTAs based off of prosecutorial discretion (when an agent can determine whether removal proceedings are necessary based off of the situation). Under the new NTA policy, officers will have much less discretion and are required to issue NTAs more frequently.  Additionally, individuals who were asked to leave were typically given the opportunity to leave by themselves. With the new policy, it will force the individuals to stay in the U.S. until removal proceedings are complete. Finally, NTAs will now be issued if a denied applicant was not lawfully present at the time of the application, if abuse of public benefits or fraud are suspected, if the applicant has been charged with a crime (a conviction is not required) or if a naturalization case is denied for lack of good character.

Experts are concerned about this policy change because of the costly and time-consuming effects. Another concern is that due to the increase in NTAs issued, the immigration court system will continue to be severely backlogged and will get little accomplished. The Department of Justice has addressed this concern by stating that they plan to release more policy changes in the future, hire more immigration judges and increase the members of the Board of Immigration Appeals. However, in May, the Attorney General Jeff Sessions announced that judges and members of the board can no longer administratively close cases to decrease the backlog, exponentially increasing the judges’ workload.  Now with the new NTA policy, the immigration court backlog will continue to grow.

In Fiscal Year 2016, Department of Homeland Security released data showing that 98.5% of denied applicants returned to their home country, leaving less than 2% of denied applicants unlawfully present in the United States. This data shows that denied applicants have a tendency to leave on their own in a timely manner without needing removal proceedings and unnecessary court appearances. Also, denied applicants will have the ability to appeal or refile their applications at the same time as their removal proceedings. If this is the case, it would be unnecessary to take time for removal proceedings if the applicant has a second chance for approval. There are also options for denied applicants to seek outside relief (such as spousal support) and it is likely that these applicants would pursue these options.

A denied applicant begins to accrue time for unlawful presence once their application is officially denied. However, if their application is denied and they receive a Notice to Appear, they are not allowed to leave the U.S. until their proceedings are complete. If the denied applicant had the opportunity to leave on their own, there would be no penalty. If the individual has accrued unlawful presence by being forced to stay in the U.S. until their proceedings are complete, they could be penalized by a three-, five-, or ten-year entry ban.

The new NTA policy is expected to affect many groups of people including families, students, employment-based nonimmigrants and visitors. Employees and students who apply for adjustment of status, change of employer and extensions are being increasingly denied. If an application is approved, there is no problem. If an applicant’s status expires in the process of review and the application ends up being denied, the applicant will receive an NTA and must appear in court. Visitors who fall ill during their time in the U.S. and must stay to seek medical care will also receive NTAs.

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