On his first day in office on Jan. 20, 2021, President Biden issued an executive order on the “Revision of Civil Immigration Enforcement Policies and Priorities.” The executive order revoked the previous administration’s 2017 executive order on immigration enforcement and directed relevant agencies, including the Department of Homeland Security, or DHS, to take action to advance the Biden administration’s immigration policy. That same day, the Acting Secretary of DHS issued a memo that, among other things, rescinded two U.S. Citizenship and Immigration Services, or USCIS, policy memoranda from 2018 governing issuance of Notices to Appear — the document that initiates immigration court removal proceedings — for individuals applying for immigration benefits with USCIS. The memo directs USCIS to revert to the previous Notice to Appear, or NTA, guidance memorandum from 2011.

How Does the Newly Operative 2011 NTA Guidance Compare with the Rescinded 2018 NTA Guidance?

The January 2021 memo rescinds general and DACA-specific USCIS NTA guidance policies from 2018 and directs USCIS to follow the 2011 USCIS NTA guidance memorandum. Both the rescinded 2018 and the now-operative 2011 memos instruct USCIS adjudicators about when to issue an NTA, or refer a case to Immigration and Customs Enforcement, or ICE, when a removable noncitizen applies for an immigration benefit. However, the now-rescinded 2018 guidance had significantly expanded the situations in which USCIS was directed to issue NTAs against individuals applying for immigration benefits. Under the now-rescinded 2018 policy, USCIS had been directed to issue an NTA any time the agency denied a noncitizen’s immigration benefit application and the individual was not lawfully present — even in cases of those seeking humanitarian protections such as Special Immigrant Juvenile Status, U and T nonimmigrant status, and Violence Against Women Act relief. The now-operative 2011 guidance restores the previous policy whereby USCIS takes enforcement actions sparingly and in specific situations.

What Are the Key Components of the 2011 NTA Guidance Now in Effect?

The 2011 policy now in effect directs USCIS to issue an NTA in the following circumstances:

• Where NTA issuance is required by a statute or regulation — including but not limited to asylum referrals; termination of conditional permanent resident status and denials of Form I-751, Petition to Remove the Conditions of Residence; and termination of refugee or asylee status. Readers should refer to the 2011 memo for the complete list;
• When a Statement of Findings substantiating fraud is part of the record (except for naturalization cases, see naturalization procedure in next bullet);
• In naturalization cases when an applicant is deportable under INA § 237, including those statutorily eligible to naturalize and those ineligible to naturalize due to being inadmissible at the time of adjustment or admission, if an “N-400 NTA Review Panel” decides that an NTA should be issued; or
• Upon written request of the noncitizen in specified circumstances, in USCIS’s discretion.

The 2011 memo directs USCIS to refer an individual to ICE for a decision on NTA issuance in the following circumstances:

• All “Egregious Public Safety,” or EPS, cases, as soon as identified.
  • An EPS case is defined as a case “where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of” certain specified aggravated felonies as defined in INA § 101(a)(43), “Human Rights Violators, known or suspected street gang members, or Interpol hits,” and those who reentered after removal subsequent to a felony conviction where no Form I-212 has been approved.
• Cases where the noncitizen is inadmissible or removable for a criminal offense falling outside of the EPS definition, after USCIS completes the adjudication. This includes deportable noncitizens whose N-400 applications are denied on good moral character grounds based on the criminal offense.

What’s Next?

Practitioners should watch for further guidance from USCIS on the subject of NTA issuance. The January 2021 DHS memo directed USCIS and other agencies to develop, within 100 days, “recommendations to address aspects of immigration enforcement.” The enforcement priorities articulated in the January 2021 DHS memo are significantly narrower than the categories of noncitizens adversely impacted by the 2011 USCIS NTA guidance memorandum. The DHS memo sets forth three interim priorities in deciding whether to take enforcement actions such as issuing an NTA: (1) national security (related primarily to terrorism/espionage), (2) border security (defined as people who entered the United States on or after Nov. 1, 2020); and (3) public safety (defined as people released from incarceration on or after Jan. 20, 2021, who have been convicted of an aggravated felony and are determined to pose a threat to public safety). On Feb. 18, 2021, ICE issued interim enforcement guidance to implement the January 2021 DHS memo. The ICE guidance does not apply to USCIS, however.

How Does the Lawsuit in Texas Affect the NTA Guidance Policy?

The state of Texas sued the Biden administration on Jan. 22, 2021, arguing that the January 2021 DHS memo was unlawful under a variety of theories. The U.S. District Court for the Southern District of Texas issued a temporary restraining order on Jan. 26, 2021, and then a preliminary injunction on Feb. 23, 2021, enjoining one section of the memo related to a 100-day pause on removals of individuals with final orders. The rest of the DHS memo, including reinstatement of the 2011 USCIS NTA guidance policy, remains in effect at this time.