In a pair of policy memoranda released to the public in July 2018, the Administration is drastically changing the U.S. Citizenship and Immigration Service’s (USCIS, formerly INS) role in adjudications. Initially formed as the immigration benefits-adjudicating sub-agency when the Department of Homeland Security took over immigration functions from the Department of Justice after 9/11, USCIS is typically involved in a very low percentage of the overall enforcement actions of the DHS agencies. (Most enforcement is done by DHS’s other immigration sub-agencies, ICE and CBP.) For example, unless fraud or criminality is suspected, USCIS traditionally has not initiated removal (deportation) proceedings in the course of adjudicating benefits applications, such as nonimmigrant and immigrant visa petitions, applications for adjustment of status to U.S. permanent residence, or naturalizations. However, in a new policy memo released on July 5, 2018 (but dated June 28), entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Memo”) and effective immediately, the Administration announced that USCIS will now initiate removal proceedings in a wide variety of circumstances.
Under the new regime, USCIS announced that it intends to serve the individual with a “Notice to Appear” (the document that initiates removal [deportation] proceedings) in cases “in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.” The key to this new policy is the term “unlawfully present.” Not everyone who is denied an immigration benefit is “unlawfully present.” There can be situations where someone does have an unexpired, pre-existing status to fall back on if the requested status or extension is denied. However, there are many situations where there isn’t another option or the status has lapsed while awaiting adjudication.
Prior to the new policy, an applicant who received a denial of benefits and had no underlying unexpired status to fall back on would become unlawfully present, but would not ordinarily be placed in deportation proceedings. They would typically depart the U.S. on their own in that situation, because accruing 180+ days of unlawful presence prior to departure can result in years-long bars to re-entering the United States. However, simply attending to the removal proceedings may not be enough to avoid bars. Due to severe backlogs at the immigration courts, it may take many months or years before even a simple request for “voluntary departure” can be heard by a judge and approved; if it takes too long, years-long bars to re-entry may apply. Further, the proceedings will become something the applicant must disclose and deal with in every future encounter with the U.S. government.
Compounding the questions and issues surrounding the NTA memo is a companion memo that was released by USCIS on July 13, 2018 entitled Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b) (“RFE Memo”). In this memo, USCIS directs its adjudicators to deny cases without issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) if required “initial evidence” is not submitted or if the evidence in the record does not establish eligibility for the visa or immigration benefit sought. Typically if there is a missing document or question regarding eligibility, USCIS adjudicators have issued a RFE or NOID, giving applicants the opportunity to supplement the record before USCIS issues a decision in a case. Under the new policy, adjudicators are empowered and encouraged to deny applications without asking for additional information. Read alongside the new NTA memo described above, and given USCIS’s October 2017 memo rescinding "deference" to prior adjudications (thereby allowing, e.g., denial of an extension of visa status even if there had been a prior approval on the same facts), the RFE Memo appears to be a mechanism to quickly deny cases, even for people who have been in the U.S. for long periods, and to immediately institutive the punitive removal process.
Advocates are rightly calling these policy memos and roadblocks “bricks” in an “invisible wall,” and it’s clear that it will take specialist, experienced and nimble lawyers to advise and advocate on any type of immigration case under this Administration. It remains to be seen how these policies will be implemented given the backlog at the immigration courts, and the vast number of applications that USCIS processes every year.
© Jewell Stewart & Pratt PC 2018