News and Updates

Administration Implements Notice to Appear Memo; Authorizes Immigration Officers to Refer More Immigrants into Backlogged Immigration Courts


United States Citizenship and Immigration Services (USCIS) has issued a Policy Memorandum which will lead to the referral of more deportation cases into the cataclysmically backlogged immigration courts. The new policy – scheduled to take effect incrementally, beginning on October 1 – targets individuals whose applications for immigration benefits are denied, by placing them in immigration proceedings.

The new policy empowers and encourages USCIS adjudicators to issue and serve Notices to Appear (NTA’s) – referred to as Form I-862 – on persons who have been denied an immigration benefit. The service of the NTA starts the deportation process. Once the NTA is served, the person is under the jurisdiction of the Immigration Court, charged with being illegally in the U.S. and facing deportation – sometimes called “removal” – from the U.S.

The policy is not entirely new. USCIS adjudicators have always had the authority to refer cases to Immigration and Customs Enforcement (ICE) and to issue NTA’s, and did so regularly in cases of fraud, egregious immigration violations, crimes or threats to national security. However, until now, the authority was used sparingly, mostly because of resources and because USCIS viewed its mission as adjudicating applications for immigration benefits i.e. visas, green cards, rather than deporting people. Now, the agency has been directed to aim its enforcement authority at a broader class of people, and to refer denials to the immigration courts for deportation.

In particular, the memo directs officers to target aliens who: (a) have been convicted of any criminal offense; (b) have been charged with any criminal offense; (c) have committed acts that constitute a chargeable criminal offense; (d) have engaged in fraud or willful misrepresentation before a government agency; (e) have abused any program related to public benefits (f) are subject to a final order of removal, but have not departed; or (g) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security”

The problem with the new policy is its unrestrained, unlimited and undefined breadth. It vests adjudicators – who do not have training in law enforcement – with the discretion to commence deportation against a person charged but not found guilty of a crime or when he/she suspects that person has committed a crime or abused a program or poses a risk to public safety. This unbridled authority presents risks of error and invites abuses of power with life-altering impact.

The Trump Administration is continuing to implement the wish-list of anti-immigrant groups such as FAIR, the Center of Immigration Studies and the alt-right, using Executive Orders rather than legislation to implement their restrictionist agenda. The NTA memo is one more step in the Administration’s efforts to use harsh enforcement tactics as a means of discouraging all kinds of immigration. While the new policy will undoubtedly harm non-U.S. persons whose immigration applications are denied, it will also have the unintended but predictable effect of hurting U.S. citizen families, U.S. employers and U.S. communities where new Americans live. As American citizens, if you object to the government’s actions, you can contact your elected officials and the White House to express your opinions. Most importantly, you can vote – against anti-immigrant policies and in favor of policies which are good for America, respect our legacy, stimulate the economy, help struggling cities and keep American families together. For additional information on the NTA memo, please contact us.

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