Published July 11, 2018

 

Under a new policy guidance memo released by U.S. Citizenship and Immigration Services (US CIS) earlier this month, the agency will now be taking a more active role in initiating removal proceedings against denied applicants.     Applicants for permanent residence, naturalization, change of status or other immigration benefits now will be more vulnerable to being placed in removal proceedings if they are deemed ineligible for the benefit sought and are in the U.S. in violation of immigration laws.   

Pursuant to the new guidance, US CIS is required to issue a Notice to Appear (NTA) – the document that initiates removal proceedings – to all applicants “not lawfully present” in the United States after their application, petition, or other request for an immigration benefit is denied.  A common example of such a case would be that of a visa overstay who seeks to adjust status in the U.S. by way of marriage to a U.S. citizen but is denied because the marriage is deemed to be fraudulent or because of the applicant’s criminal history.  Pursuant to the new policy, in addition to issuing a denial in such a case, US CIS will also send the denied applicant a notice of when and where to appear for court.

The recent US CIS memo also sets forth a new policy of issuing an NTA when there is “evidence of abuse of public benefit programs.”   The memo also reiterates longstanding US CIS policy of issuing NTA’s in cases involving national security concerns, criminal conduct that establishes a basis of removability, and in cases involving fraud or misrepresentation.

Further, lawful permanent residents who apply for citizenship but are denied due to “moral character” shortcomings because of the commissions of certain criminal offenses may also find themselves receiving an NTA, and having to defend against removal proceedings.

Importantly, most Deferred Action for Childhood Arrivals (DACA) applicants appear to be exempt from the provisions of the new memo, such as those submitting an initial request or an application to extend their current DACA status. 

Finally, it should be noted that just because a person receives an NTA and is called to appear before an immigration judge to defend against removal proceedings, it does not mean they will be removed or deported from the U.S.  On the contrary, a host of defenses are available for both lawful and undocumented residents, especially those with a lengthy residence in the U.S., extensive family ties in the U.S. and/or other hardship considerations.    To maximize the chances of identifying and succeeding with such a defense,  it is imperative that a consultation with experienced immigration counsel takes place, and preferably before the foreign national submits the application in question.

 

 

PUBLISHED July 11, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois