USCIS Expands its Authority to Place Individuals in Removal Proceedings

The enforcement priorities of the Trump administration when it comes to U.S. immigration continue to intensify. Late last week, U.S. Citizenship and Immigration Services (“USCIS”) released guidance, expanding the range of cases in which it can begin removal proceedings. Usually, it is Immigration and Customs Enforcement (“ICE”) of Department of Homeland Security ("DHS") that initiates removal proceedings.  USCIS is considered the Services arm of DHS, adjudicating benefits for foreign nationals.  USCIS historically has referred certain cases to ICE while processing applications for benefits to initiate removal proceedings.  As a practical matter, DHS generally has focused its enforcement priorities and resources on removing violent criminals, drug traffickers,  and individuals with multiple illegal entries.  

Under the new guidance, USCIS officers now can (and should) issue a  Form I-862, Notice to Appear (“NTA”), which instructs the foreign national to appear before an immigration judge, for a wider range of cases where the individual is considered removable.  Specifically, USCIS should issue an NTA for a removable individual in the following cases: 

·     Where there is fraud or misrepresentation;

·     Where an applicant abused any program providing public benefits;

·     Criminal cases where an applicant is convicted of or charged with a criminal offense;

·     Where USCIS has denied a Form N-400, Application for Naturalization for failure to show good moral character because of a criminal offense; and

·     Cases where an applicant is unlawfully in the U.S. following the denial of an application or petition.

It should be noted that Deferred Action for Childhood Arrivals (“DACA”) recipients and requestors are exempted from this updated in guidance in two instances.  First, when processing an initial or renewal DACA request or DACA-related benefit request.  And second, when processing a DACA recipient for possible termination of DACA.  

According to the USCIS press release, announcing the new guidance, interim and final policy memos  are official USCIS policy documents and are effective the date the memos are issued. In this case, the memo was published on July 5, 2018, dated June 28, 2018. 

Between the staggering immigration court backlog of 700,000 cases and the slower processing times across all product lines at USCIS, the impact of this new guidance looks scary.