On October 1, 2018, U.S. Citizenship and Immigration Services (USCIS) began implementing its June 28th policy memo updating the guidance for the referral of cases and issuance of Notices to Appear (NTAs). The full 11-page memo is available here.
An NTA is the “charging document” that initiates removal proceedings and notifies a person that they must appear before an immigration judge. What the June 28th memo initially did, then, is allow USCIS to begin issuing NTAs in cases where it has denied “status-impacting applications,” such as applications for adjustment of status (Form I-485) and applications to change or extend nonimmigrant status (Form I-539) (for example, for visitors to the United States and international students). Of note, while the memo does allow for “prosecutorial discretion” to be exercised on a case-by-case basis to prevent the issuance of an NTA, the availability of this option in practice will be limited and will be difficult in particular for non-represented persons to even know to pursue or know how to obtain.
Initially, USCIS stated that it would not be implementing this new policy for employment-based petitions or humanitarian applications and petitions. However, starting November 19, 2018, USCIS announced that it would begin issuing NTAs based on denials of applications for T visas (for survivors of human trafficking), U visas (for survivors of qualifying crimes), visas for qualifying family members of U visa recipients, Violence Against Women Act (VAWA) and Special Immigrant Juvenile Status (SIJS) protections (for survivors of domestic abuse and unaccompanied minors, respectively), and derivative refugee and asylum status (for those fleeing persecution in other countries) when the beneficiary is present inside the United States.
As one American Immigration Lawyers Association (AILA) lawyer put it, “A denied case does not mean someone is not the victim of horrific violence or of human trafficking. It could mean, merely, that a bona fide survivor lacked the expertise to demonstrate her eligibility to USCIS—a common occurrence in complicated immigration cases when vulnerable applicants often do not have attorneys helping them—or did not satisfy some other requirement for getting status.
This new policy will undoubtedly have a chilling effect on the numbers of immigrants who will come forward to report crimes against them and apply for humanitarian protection. Cities with large immigrant populations have already seen a reduction in reports of domestic violence over the past two years, following implementation of the current administration’s harsh immigration enforcement policies. Faced with the prospect of deportation and separation from their families, many survivors of crimes feel that alerting the authorities is not a tenable option. This not only means that they and their children are continuing to live in unsafe conditions, but that a perpetrator of a violent crime continues to live free to attack someone else.
Furthermore, by deporting survivors who have worked with law enforcement, including in many cases testifying in open court against their abuser or rapist, we are re-traumatizing them and potentially deporting them to harm or death, if their abuser has also been deported or if their trafficker lives abroad.”
At this time, USCIS is still not implementing the memo for employment-based petitions. Additionally, USCIS states: that the agency “will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns,” individuals who have abused public benefits programs, and individuals who are subject to a final order or removal or deportation but have failed to leave the United States; that “[t]here has been no change to the current processes for issuing NTAs on these case types”; and that it “will continue to use its discretion in issuing NTAs for these cases.”
Nevertheless, this change reflects the shifting agency focus from one of service to one of enforcement. Rather than give individuals with denied applications and petitions the opportunity to leave the United States on their own, USCIS can now compel these persons to appear in immigration court for removal proceedings, a system which is already severely backlogged. Moreover, this most recent change harms the very victims of crimes and survivors of abuse that Congress intended to protect when it passed the trafficking and violence protection laws that led to the creation of these humanitarian benefits and forms of relief; and it will also have a chilling effect on the reporting of violent crimes, trafficking, and domestic abuse, and will in effect allow the perpetrators of these crimes to go undetected and unpunished.
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