USCIS publicly released two memos on July 5, 2018 that update and change agency guidance to field officers on when they are to issue Form I-862, Notice to Appear, or NTA, and Referrals to ICE, or RTIs, to people who are considered “removable.”

Specifically, the guidance changes the circumstances under which USCIS must refer a case to ICE and broadens the grounds to issue an NTA. The memos, which are now publicly available on the USCIS website, were officially issued on June 28, 2018 and went into effect that day. We are working to update all CLINIC resources and reference material that is affected by this change.

The new guidance reflects a marked shift in the mission and operations of USCIS under the Trump administration. In the past, USCIS has issued NTAs in limited circumstances involving, for example, national security, criminal conduct, and fraud. This new guidance requires USCIS to issue an NTA to a removable beneficiary when an immigration benefit request is denied, except in very limited circumstances. The second, DACA-specific memo, instructs USCIS adjudicators to continue to rely on the 2011 NTA memo when making determinations about ICE referrals or NTAs for DACA applicants.

 

Key highlights from the policy memos

 

USCIS Policy Memorandum 602-0050.1

Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) and Referrals to ICE (RTIs) in Cases Involving Inadmissible and Deportable Aliens.

The updated policy guidelines call for officers to issue an NTA or RTI in cases where there exists evidence of fraud or criminal activity, or when someone is denied an immigration benefit and lacks legal status.

Summary

• Partially [1] superseding PM-602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, which had been in place since November 7, 2011.
• Requires USCIS officers to issue an NTA or RTI when a case is denied in the following circumstances:
  • Cases where fraud or misrepresentation is verified, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.
• This Policy Memorandum does not change NTA or RTI procedures for TPS cases. See 8 CFR 244 for applicable procedures.
• Applicants for benefits involving confidentiality protections (e.g. VAWA, T, or U status) are subject to this guidance, but the NTA would be served on the attorney of record or the safe mailing address.
• The Policy Memorandum outlines procedures for the exercise of prosecutorial discretion on a case-by-case basis in consultation with a Prosecutorial Review Panel. In these very limited circumstances an NTA would not be issued.

 

USCIS Policy Memorandum 602-0161

Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) When Processing a Case Involving Information Submitted by a Deferred Action for Childhood Arrivals (DACA) Requestor in Connection With a DACA Request or a DACA-Related Benefit Request (Past or Pending) or Pursuing Termination of DACA.

Summary

• Policy Memorandum 602-0161 determines which guidance to use when USCIS is considering issuing an NTA or RTI based on information in DACA applications, DACA-related applications, [2] and when terminating DACA.
• This Policy Memorandum is issued as a corollary to the General NTA Policy Memorandum described above, but takes into account the 2012 policy prohibiting information provided to USCIS in a DACA application from being used for immigration enforcement. [3] This policy must remain in effect due to a federal court injunction. [4]
• In order to enter an NTA or RTI on a DACA case that is subject to the 2012 DACA information-sharing policy, adjudicators must follow the 2011 guidance: PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens .
• When entering an NTA or RTI pursuant to a non-DACA-related case, but using or relying on information submitted in connection with a previous or pending DACA application, the adjudicator must refer to the 2011 Revised Guidance to determine whether to consider or rely upon that information in the NTA or RTI.

 

Background

On January 25, 2017, the president issued Executive Order (EO) 13768, “Enhancing Public Safety in the Interior of the United States.” It sets forth the administration’s immigration enforcement priorities with the aim of significantly increasing detention and deportation. The policy guidance memos issued by USCIS implement this executive order, in part, by advising offices on when to issue an NTA.

 

Who is considered a priority for immigration enforcement under EO 13768?

The executive order instructs DHS to prioritize for removal those persons statutorily inadmissible or deportable who:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense, where such charge has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The purpose of enforcement priorities under previous administrations was to focus limited DHS resources on removing immigrants who have committed particularly serious criminal offenses. This administration’s enforcement priorities are so broad that nearly every removable immigrant is a “priority” for deportation.

 

Related CLINIC resources

• Talking Points on EOs
• Bond Guide
• Working with Child Clients and Their Family Members in Light of the Trump Administration’s Focus on “Smugglers”

 

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[1] See USCIS Policy Memorandum 602-0161 below in this document for the portion of the 2011 PM-602-0050 that still remains in effect.

[2] DACA-Related Applications are the I-765, Application for Employment Authorization; I-765 WS Worksheet; and I-131, Application for Travel Document when filed concurrently with a DACA application or based on the approval of a DACA application.

[3] See FAQ 19 and 20 at www.uscis.gov/archive/frequently-asked-questions

[4] See CASA de Maryland v. DHS , No. 17-cv-2942-RWT (D. Md. Mar. 15, 2018), ECF No. 49, Amended Order