By Attorney Eric R. Welsh
When the U.S. Citizenship & Immigration Services (USCIS) eliminated the words “nation of immigrants” from its mission statement earlier this year, many advocates worried that the Trump administration was transforming the agency from a benefits provider into another enforcement tool. Last week, the agency confirmed those suspicions, releasing new guidance that will dramatically increase the number of people that will be ordered to appear in immigration court for possible deportation.
USCIS is the component of the Department of Homeland Security that is responsible for making decisions on petitions from family members and employers, applications for green cards and citizenship, asylum applications, and many others. While the USCIS has the authority to issue a Notice to Appear (NTA) (the document that starts the process in immigration court of deporting an alien from the United States), they have traditionally only used its authority to issue NTAs very sparingly, instead deferring virtually all decisions related to prosecution of immigration violations to Immigration & Customs Enforcement (ICE) and Customs and Border Protection (CBP). Until now, USCIS would only decide whether or not to grant or deny the application, focusing attention on eligibility for benefits and allowing ICE to decide if the person should be forced out of the country.
USCIS’ new guidance directs its officers to issue a NTA in virtually every case where USCIS denies a benefit application and the applicant is removable from the U.S. Most significantly, the guidance directs USCIS to issue a NTA to any person who is “not lawfully present in the United States” at the time that an application is denied. The guidance also directs USCIS to issue a NTA regardless of status when the application is denied and the applicant has a criminal record; any record of fraud or misrepresentation (including entering the U.S. with false documents); and many others. The guidance makes clear that the reason for the denial is not relevant: so long as the person applying is removable when the application is denied, USCIS is directed to issue the NTA.
This guidance will result in almost every denied application being referred to immigration court. There are exceptions for USCIS officers based on prosecutorial discretion that will be decided on a case-by-case basis, but this will require a “high level of concurrence” with various field office heads and a Prosecutorial Review Panel. Except for extreme circumstances, any person who applies for a benefit with USCIS and receives a denial should expect to go to immigration court.
It is important to remember that the guidance instructs USCIS to issue an NTA only if an application is denied. If an application is approved, the applicant will receive the benefit (green card, citizenship, etc.), and will never need to go to court. People will not be referred to immigration court simply because they are removable or because they are out of status.
Despite the new policy, people should not be discouraged from applying for an immigration benefit. They should not forego the opportunity to obtain a benefit for which they are eligible simply out of fear of deportation. Burying your head in the sand is not the answer. Rather, people should still pursue their immigration dreams. However, they should proceed with care. The new policy will require greater attention to detail and special care with all potential eligibility issues. The new policy does not mean “do not apply,” it simply means “apply correctly.”
So, how do you make sure you are applying correctly? Because of the stakes now at play in a denial, potential applicants should seek guidance and assistance from an experienced immigration attorney. Effective representation can be critical to securing an approval. Almost all immigration benefits are discretionary, meaning that even when the forms are filled out the right way and the proper fees are paid, USCIS can still deny the application if it deems the applicant unfit for the benefit, or if it decides that not all of the evidence was presently properly or on time. Many applications require a showing of hardship or other equities that will require the applicant to submit extensive evidence and declarations, as well as legal briefs regarding eligibility. Some applications are more complicated and difficult than others, but all should be handled with special care by people who know what they are doing.
