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USCIS's NTA Memorandum

When Denial Leads to Deportation

On June 28, 2018, USCIS issued a Policy Memorandum instructing its officers to issue Notices to Appear in cases involving individuals deemed to be inadmissible or deportable. While this may sound logical on its face, the policy is actually a significant departure from both past practice and the mission of the agency itself. It also imperils a lot of would-be applicants to change or adjust their status.

PM-602-0050.1 “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” lists various circumstances in which adjudicators are bound to issue NTAs, including cases relating to criminal offences, fraud, etc. It also discusses a very nuanced procedure for assessing the exercise of prosecutorial discretion against NTA issuance. One sentence at the bottom of page 7, however, illustrates the sheer breadth of the policy change: 
USCIS will issue an NTA where, upon issuance of an unfavourable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.

Thus, in a case where, for example, a student is applying to change status to a work visa following the conclusion of their studies, upon denial of the application to change status, the student would be out of status and hence deportable. In the past, one would have an opportunity to depart on one’s own accord or pursue an appeal without accruing unlawful presence. Under the new guidance, the denial of the application renders the applicant inadmissible and “USCIS will issue an NTA.”

In addition, the Policy Memorandum specifically discusses issuance of NTAs to applicants for naturalization who are determined to be deportable (e.g. Because of fraud or criminal offences). Obviously, the notion of having one’s application for citizenship not only denied, but also being deported as a result is mind boggling.

This is about deporting “Deportable Aliens”--what’s the big deal?

As noted above, the memorandum represents a significant departure from agency past practice and its mission.  In the aftermath of 9-11, the Immigration and Naturalization Service was reinvented under the Department of Homeland Security as three distinct agencies: Customs and Border Protection (CBP, for enforcement at the border, e.g. Entry refusal); Immigration and Customs Enforcement (ICE, for enforcement within the US, e.g. Deportation); and the Bureau of Citizenship and Immigration Services (renamed USCIS, devoted to benefits services). Generally ICE would be the agency charged with determining removability and issuing NTAs, with limited exceptions for certain US immigration applications where USCIS officers would issue NTAs (e.g. Asylum Officers issuing NTAs to allow an individual to pursue an asylum claim before an Immigration judge). This memorandum makes USCIS benefits officers enforcement officers.

I have an arrest record, but I was granted a waiver when I got my Greencard, will I be deported if I apply for naturalization?

Unless you are deportable for other reasons (e.g. Fraud or criminal activity after becoming a lawful permanent resident), you should not be affected by the new memorandum.  Of course, each case is different, so for a specific legal opinion, you should consult with an attorney.

If my application is denied, but I’m still in lawful status, does this policy affect me?

Probably not. If you are to otherwise deportable, the denial of a petition or application in itself should not affect your status in the US. Again, as every case is different, you should consult with an attorney for specific legal advice.

I thought I was allowed to stay while it was pending; if I am denied, can I appeal?

You can still seek administrative review of a denial, but if you have fallen out of status, you would be deportable and would likely receive an NTA under the new policy.

Can I just leave if I am denied?

If you are issued an NTA and you depart, you would effectively have self-deported, which would make you inadmissible and could jeopardise future travel to the US. Other avenues of relief may be available in removal proceedings.  Again, you should seek advice of an attorney for specific legal advice.