USCIS’ NEW POLICY ON WHEN APPLICANTS ARE REFERRED TO IMMIGRATION COURT FOR DEPORTATION PROCEEDINGS

BACKGROUND

The Department of Homeland Security (DHS) divides immigration related functions between three separate departments: ICE (Immigration and Customs Enforcement) for enforcing immigration laws, CBP (Customs and Border Protection) for controlling the inspection and admission of foreign nationals into our country at our land ports of entry and at airports. Additionally, CBP is responsible for patrolling and enforcing our borders; and USCIS (United States Citizenship and Immigration Services) for granting immigration benefits. Separating the benefits branch from the law enforcement branches of DHS was logical and good policy, since these are separate functions and separate roles that are best performed by specialization. Why USCIS of course has always had the ability to and role of identifying foreign nationals that are deportable for serious or public security offenses, this was secondary to their role of analyzing and simply granting or denying a benefit.

Now, based on USCIS’ July 5, 2018 memorandum, starting on October 1, 2018, USCIS will begin placing a much larger number of individuals in immigration court for deportation proceedings. The new USCIS NTA policy can be found in its entirety here. 

THE BIGGEST AND MOST IMPORTANT CHANGE TO THE POLICY

The new policy states that USCIS officers must issue NTA (notices to appear in immigration court) in all cases where a benefit is denied and the individual is not lawfully present at the time of the decision. This is a big departure from past policy.

Previously, if a person had no criminal history or serious immigration violations such as fraud, prior deportation orders or a ground of deportability, USCIS would not place them in immigration court if they denied their benefits application. This was good policy for several reasons. First, many people choose to leave the country on their own if their application is denied. Therefore, it is a tremendous waste of resources to place such individuals in immigration court. Second, the courts are already immensely over-burdened so to add a large new group of individuals, who have never been deportation priorities in the past is only going to exacerbate the resources issues occurring in the immigration court system.

USCIS HAS ALSO BROADENED THE DEFINITION OF UNLAWFUL PRESENCE FOR STUDENTS AND EXCHANGE VISITORS

USCIS has simultaneously broadened the definition of “unlawful presence”, now applying this concept to students who violate their status, even though they were never given a finite end date on their permitted stay in the U.S. Students and exchange visitors are granted a term of stay for the “duration of their status, or “D/S””. Even with minor violations of their status, they were not previously deemed “unlawfully present”. But now, USCIS is applying this concept to them if they violate their status, even for minor reasons such as falling below the required course load. This rule in conjunction with the new NTA rule will further clog the courts with individuals who should not be there.

Sadly, these new policies are a continuation of the illogical, inefficient and inhuman immigration policy of the Trump administration. IF you have questions about how these new rules may effect your situation, give us a call at (303) 872-6985, or email us through our contact forms on our website.