A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, October 5, 2018

From Application Denials to Deportation

On June 28, 2018, USCIS released a guidance allowing a Notice to Appear (NTA) to be issued when an application is denied and the applicant has lost his or her legal status in the U.S. An NTA is serious -- it calls for the recipient to face an immigration judge in court and begins formal removal procedures. The guidance's wording suggested officers would have substantial leeway to issue the document upon denying an application. USCIS further clarified this new policy through a recent memo and a public conference.  

Under the recent memo, removal proceedings can be initiated for application denials due to fraud, abuse of public benefits, criminal issues (for N-400), and threats to national security. It will also apply to those without lawful status after having their case denied.  USCIS has begun implementation the new policy since October 1st. This covers I-485, I-539, and N-400 applications.

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TPS denial and subsequent unlawful status will still result in an NTA, as the 2003 memo dictates. The Oct. 1 implementation does not cover I-129, I-140, and asylum cases. DACA is also not covered in this memo.

As mentioned above, criminal issues are a targeted basis of issuing an NTA. Specifically, crimes of moral turpitude (based on having evil intent) and multiple criminal convictions are grounds for deportation. On October 1st, USCIS also gains the authority to issue NTAs on cases of egregious public safety or crimes instead of referring them to ICE.

USCIS will generally wait 33 or 18 days (periods for filing appeals and motions) after denial before issuing an NTA, or after the decision on an appeal or motion if applicable. Adjudicators can also consult a panel of immigration officers and legal counsel (prosecutorial discretion review panel) to help make the decision. Cases involving children will similarly be looked at by such a panel. 

Immigrant and non-immigrant workers sponsored by their employer as well as asylum seekers are not subject to the new guidelines. Still, any non-immigrant should carefully consider their options and take any application seriously.

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