New USCIS NTA Policy Ambush On Permanent Residence And Citizenship (Immigration Tips & Tidbits)

New USCIS NTA Policy Ambush On Permanent Residence And Citizenship (Immigration Tips & Tidbits)



If you recall a few days ago, I discussed the NTAs in terms of going to the immigration court in a recent Supreme Court decision. In this discussion, I'd like to share with you some recent USCIS memos which have the potential to harm thousands of immigrants and their families when they're applying for permanent residence benefits or even when they're seeking citizenship after being a permanent resident for so many years. In these two memos, USCIS has been converted, in essence, by the Trump Administration from a service benefit agency to a law enforcement agency. Sort of like ICE, sort of like sort Customs and Border Patrol. They have always been primarily seen as law enforcement agencies, and their job typically includes serving individuals that they believe are removable and deportable with Notice to Appears. Well, that function, it's always been part of the USCIS guidelines. It has never been really part of their mission because their mission has been more to review applications find out if someone really qualifies and not so much in terms of sending someone to immigration court to be deported unless they suspected something like fraud or they found some major crime had been committed or that it was a national security issue that this person was involved with. Other than that, USCIS has pretty much taken a softer approach. But these memos change that. These memos changed the role of USCIS in a lot of ways to one of law enforcement, and I don't believe this is new. If you've been watching the Trump Administration over the past 18 months, you know that they're just getting tougher and stricter and harsher on immigration issues and towards immigrants. I believe the image that we saw of Chris Kobach, who is running for Kansas governor, at the beginning of the Trump Administration, where they found him with a memo that was titled immigration and they had some issues lined up on it. I believe this has been part of a master plan. Maybe it's been modified a little throughout the succeeding months. Maybe not. But there's always been a plan to start tackling immigration issues and to tightening the noose around immigrants slowly but surely over the past 18 months. If you've been involved in any way with filing a green card application or filing a permanent, a, a citizenship application, you'll notice that the applications have gotten longer, way longer. What there is now is there are a lot more red flag issues and all that I believe is part of the plan to move USCIS from a service-based industry into one that's also part of the law enforcement mechanism. So let's start with that. In terms of Notices to Appear, what is a Notice to Appear? Well, basically a Notice to Appear is a charging document. It begins the immigration court proceedings. It says that we want to try to deport you. And we have plans to deport you. And because of that, once you receive that, you're no longer eligible to seek benefits through USCIS. You're now under the jurisdiction of the immigration court. So there's basically two major memos that have been released over the past 60 days. The first one is the June 28, 2018 USCIS memo, which for simplicity sake I'm going to call the "NTA guidance" memo. In that memo, they focus in on what types of activities are priority enforcement for the issuance of NTAs by USCIS officers. They listed various ones. I'm not going to go through all of them because that will really take quite some time, but I'm going to briefly cover some grounds here. First, they said anyone has been convicted of any criminal offense. That is a little frightening. Any criminal offense. Imagine that. I mean it could be something as minor as a shoplifting offense perhaps, and they're still going to say, wait a minute, you could be removed for that. We're going to issue an NTA for you to go to immigration court, so that you have to answer to ICE and you have to answer to the immigration judge and see if you're worthy of not being deported. There's also, they also mentioned charges, if someone's been charged with a criminal offense that hasn't been resolved. For instance, I had a woman call me a few months ago that went to her adjustment of status interview with her United States citizen husband. At that interview, she was told that she hadn't totally revealed everything on her application, that she did not reveal an outstanding warrant which she didn't, she claimed, she didn't know anything about. But in any event, she was taken into custody right then and there. Now, her husband, very smartly, quickly bailed her out so that ICE wouldn't have time to place her, to take her into custody and place her in a detention center. So he bailed her out real quickly. The issue went back to like a 2005 driving violation and she still owed some money. He quickly paid that off. They went, they had a lawyer go, a criminal defense lawyer go with them to court, they pulled the warrant. They paid the fine and now they're out of the red zone in terms of that offense. But that's exactly what's going to happen to a lot of individuals who are not careful. Something that may have happened years ago could lead to bigger problems. The memo also mentioned acts that constitute chargeable criminal offenses. Which means it hasn't been charged yet. So what's an chargeable criminal offense? I mean something, so an immigrant, especially if they're not prepared well or they go alone. Maybe an uncle, an aunt, or a notario fixed their papers. They have not been told what to expect and they're questioned at the interview and the officer starts asking some things, and they say something about an act, then the officer starts probing it. And in the officer's interpretation, that act could be a chargeable criminal offense. Wow. That's amazing. That could lead to denial. That could lead to a Notice to Appear in immigration court to face deportation charges. Now, of course, the memo mentioned items, you know, like fraud or willful misrepresentation. But one that goes back, way back, mentioned in the memo was abuse of public benefits. Where this is likely to occur is an undocumented female immigrant has a child. The child is born here. So the child is going to be, is a U.S. citizen. They're entitled to some public benefits. But in the explanation of the benefits, maybe how the money was spent. I don't know how officers are going get it to say it an abuse. But they have something that they abused the public benefits. And that's going to lead to problems and an NTA and going to immigration court. This one, people are going to have to be really careful with this one because this is not uncommon scenario. I really think, as I was reading this memo, that more than ever, immigrants are going to have to talk to lawyers. They're not going be able to just go to notarios and immigration assistants and paralegals and their uncles and cousins. These are some tough issues. Another one that's mentioned in a memo is a good moral character for naturalization applicants. Imagine that. You're applying for naturalization, and they say, "Wait a minute, you did something that was a bad moral act years ago, and so we think that should have precluded you perhaps even from becoming a permanent resident." An individual, I received a call from an individual, who had been denied naturalization and had received a Notice to Appear which leads me to believe, just like the instance from the woman that was actually referred to law enforcement at her interview, leads me to believe that although this memo came out on June 28, that the government has already been implementing these policies at various offices throughout the country. Which ones I'm not really sure. But I do not believe this memo is just doing it now. I think they're doing it even without, even before the memo. So this individual said that he had been denied citizenship, and I said, ”Why?" He said, "I committed fraud." "Oh, what fraud?" “They said that I didn't admit to smuggling in 1972." And I said, "1972? Did you smuggle someone? "No sir." I said, "Well, then what happened? He goes, "When I was coming across the border, and I had my wife with me in the car." And I said, "Okay, so what was your status?" "I was a lawful permanent resident." "Well, what was your wife's status?" "She was a lawful permanent." "Was there anyone else in the car with you?" "My father-in-law." "And what was his status?" "He was a U.S. citizen." "At the time?" "Yes, there were only the three of you in the car?" "Yes." "And all three of you were legalized?" "Yes.” “Where's the smuggling come in?" "Well, as we were crossing, and they asked us for our documents, my wife inadvertently said that she was a U.S. citizen which she quickly corrected and said U.S. lawful permanent resident, but we were sent to secondary and we spent about an hour there and went through questioning and that's all I can think of in 1972. They wrote us up and it shows up as smuggling.” "And they denied your application because of that?" "Yes.” “And so now you have to go to immigration court to face the deportation charges." Now, that case very well could possibly fall under the issue we were discussing a few days ago because I'm not sure that when USCIS issued him the Notice to Appear, that it had the time and place. And in fact, right now, the two memos that I'm discussing here, actually, they are on hold because the government needs more time to write the implementing regulations for the offices to follow. And because of that, I'm assuming that may be related to the recent Supreme Court case, that they have to issue a date and time on the Notice to Appear. Now, that's going to be a problem for them. How are they going to get the date and time, on the day of the interview? Are they going to create a special hotline with immigration courts where an immigration officer tells the person at their interview, "Well, hold for a minute. I’ve got to go to talk to my supervisor." And then the supervisor gets on this hotline to immigration court and they get a date and time. They get it all set up, and then they come back ten minutes later. Boom! They slap the Notice to Appear on the individual. Is that where they're headed? I'm not so sure, but that could very well be what they are talking about. Now, there was a second memo which follows shortly afterwards. It's July 13, 2018. For simplicity's sake I'm calling that the RFE (Request For Evidence) and Notice of Intent To Deny memo because those were the two main issues that were discussed there. Now, how the two issues, how the two memos, connect, there's still some speculation on that. But I think common sense shows that the second memo clarifies and tightens the noose created by the first memo. Let me discuss that. Okay. The notice, the request for evidence, the way it's worked when an individual goes to immigration court, I mean goes to an immigration interview, and the officer is going to deny it, well normally the way it's worked is that the officer would send a letter to the individual or give them a notice that they have 30 days in which, if they feel the decision is wrong, to file a motion to reconsider or a motion to reopen. And in addition, the person, if there was something small that they could have corrected, that they really made a mistake, they could also reapply again. Now, the two new USCIS memos do nothing to change that. USCIS, as I said, has always had the power to issue Notices to Appear. They just didn't execute it because they were more a service-based agency and they would hold back on that and give people time to decide what they were going to do before they would notify them of having to go to immigration court. Now, however, it's going to be more instant, and there are numerous situations where this could be occurring. For instance, if someone applies, let's say, someone applies for adjustment of status for a green card through marriage to a U.S. citizen and the U.S. citizen doesn't submit a certified copy of a divorce to a former spouse. Well, now instead of a request for evidence, that can be the basis of a denial outright because that's something that should be in the initial package and should be given to them and without that, you know, USCIS officers may be instructed now to interpret that as a sign that they don't have it, that this is an indicia of immigration fraud. How about an individual who submits financial documents and they don't quite meet the level of support for their spouse that they should have, or they forget to submit the proper tax returns or recent check stubs or something. That could be a basis of a denial. Or maybe a death certificate of a former spouse, or maybe even a marriage certificate or the birth certificate is not translated from another country. Is that now going to be the basis for issuing a Notice to Appear in immigration court? It very well could, given the emphasis of this administration. In the old days, the policy was, if there if there is no possibility of the individual to correct this error, then they issued a Notice to Appear. Now, that's been totally stripped, so it's not whether there's no possibility. It's whether, is there an error, is there a mistake, is there a ground so we can get them to immigration court? And what this does is it cuts in the individual’s right to defend themselves. Imagine an immigrant spouse, who, someone comes in on a tourist visa, then they fall in love and they file papers. But now when they get sent to immigration court, they're going to be, that time could may be counted as unlawful presence and because, look, immigration courts are already, already overburdened. Okay. We know that at least 700 thousand cases are backlogged in immigration court. So add how many more, a hundred thousand maybe, maybe more? All of a sudden you add that to the immigration court, so now someone is going to be facing and they can't leave without incurring a five-year bar and if they stay here they might go from a three-year bar of unlawful presence to a ten-year bar – because now they've been here instead of 180 days, three-year bar, they move over to 365 days. That could be what happens to them, and that's a real, real, real issue that immigrants have to be worried about. Imagine, too, that the 601A waivers, when someone applies to show hardship to a qualifying relative, to a spouse, so that they can go to the interview abroad, and they're denied that. Well, in the past, that hasn't led to a Notice to Appear. That hasn't led to being forced to go to immigration court. Well, now it very well may. And how about a basic immigrant petition, an I-130? A child over 21 who is a citizen files for a mother, and there's something wrong in that application, and it's denied. Well, they know now, right, that the mother is here without papers? Is that going to lead to her being sent to immigration court as an undocumented immigrant? I was at a recent naturalization interview and the officer was questioning my client about a previous citizenship application she had submitted that was denied several years before, and it was denied and they went to her house and they inspected her. She was still at the time living with her husband. They were living in separate rooms. They had mentally checked out. But they were a couple and maybe they were going to get back together. But it was well after she had cleared the conditions on her green card, as well as after she had been a permanent resident four or five years. She didn't need her husband in order to apply for citizenship at that time. Whoever helped her marked the wrong boxes. She was denied. So we're at this interview and they're questioning her on that. My simple question "Why are you questioning her on the old fraud, if you think it's a fraud?" And they said, "Well, he wasn't denied as a fraud." And I said, "I know that because I've seen her records. What was it denied on? It was denied on a suspicion of something, correct?" I said, "But look at the dates." I said, "Is there anything that when she came in on a fiancé visa, was she denied? No. Was it based on when she got her conditional green card? No. Was it based on when she was given her green card? No. It was at a citizenship interviews years later because they said that she wasn't with her husband. Yet she had already exceeded five years as a permanent resident. She didn't need that. It was misfiled and your records are wrong." Now, if I had not been there? She would probably have received an NTA. That's the danger of what's going on with these memos. They're going to be placing so many individuals in immigration court. Look, here's my view. You’re going to need a lawyer even for the simplest of filings. You can't take the chance of someone not filling out your papers correctly, not knowing what's required, and for a lot of clients, for a lot of immigrants, you got to slow down. Sometimes it takes a while to put that package together completely in an orderly manner. You've got to give your attorneys and the paralegals time. You've got to give them time to do it correctly, especially now, because that quick ride, that quick motorcycle ride to a green card that you're hoping for may be a slow boat to immigration hell. You don't want that and so with that, I am going to close this discussion. And I really want to encourage you to keep an eye on these policy memos. The policy memos are not in full effect yet. They may very well go into full effect any day. Hopefully, they never go into effect. But in any event, immigration can still, or USCIS can still, implement a lot of these policies because it is in the scope of their authority. I do wish you the best. I really hope you're super careful. Don't procrastinate seeing someone that can help you. Don't delay. Don't omit stuff. Tell the truth to whoever helps you. And be very, very careful. Good luck.

20 thoughts on “New USCIS NTA Policy Ambush On Permanent Residence And Citizenship (Immigration Tips & Tidbits)

  1. Will my 8 month stay outside US automatically lead to my citizenship denial? I got pregnant and was too weak to return on time. The rest of my 3 other trips abroad have been less than 3 months?

  2. Which USCIS of which States do you think will adopt these memos more strictly. I m in Northern Virginia and I m wondering whether I should like move to Nee York City I heard interviews are easy there

  3. Those immigration laws are nothing new. Immigrant committing a crime will caused deportation. I stayed law abiding immigrant and naturalized citizen to avoid these problems.

  4. They are trying to keep it replublican.. They look at old crimes . Not having a felony doesn't matter… too many bored federal,agents. No wonder our deficit is so high. Paying 995 million to keep immigrant out with ice

  5. Why should any illegal immigrants get benefits? Illegal's are not the same as legal immigrant. Legal immigrants are American citizens, and do pay full taxes. Illegal's don't pay federal taxes only sales tax. That doesn't give them any rights to our country. Where is the sacrifice? All Americans have worked to make America what it is today. We can't continue to take a 1000 illegal immigrants coming across the border illegally to claim anything. There are others that have paid dearly to become American, and when these illegals come in expecting to just jump in ahead of everyone that has been doing it the right way, is wrong. No benefits should be given to outsiders until becoming an American citizen. Even those that became American don't support open borders.

  6. These claw backs are so unfortunate because we've had a laxed government approach to immigration for decades. My gut told me when the Trump Administration publicly issued the travel ban and when Congress refused to act on a few cases, they would find a path worse than the travel ban. Closing the borders and enforcing the law isn't a bad thing but millions will get caught up in this path with no amnesty in sight. Hire a lawyer! Great post

  7. I was deported , however my wife filed a family based petition. It got accepted what should we do next ? Any info would be appreciated

  8. A friend of mine went to her N-400 interview and lied about her current address, who supports her and the fact that she has been working and getting payed under the table without paying taxes which USCIS knows about. What can she expect they will do in this case. Question, so if you get denied citizenship you automatically will go to immigration court? These new laws will go into effect on Sept. 11 2018

  9. Is this anyway to stop this because it is unconstitutional? Really Trump has no clue of anything and this is not only a matter of immigration this is racism and racial profiling and not having the right to speak I can not say how many ways Trump is violating the constitution.

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