> The Denial Of Your Immigration Application Or Petition On Or After October 1st Force You Before The Immigration Court?

by Thomas Esparza

On or after October 1st, immigration offices have been informed by U.S.C.I.S.'s Associate Director for Domestic Operations, Michael Aytes, that once the denial of an application or petition is complete, a notice to appear (NTA) should "normally" be prepared as part of the denial if the applicant is removable and there are no means of relief available, eg voluntary departure, reinstatement of non immigrant status, or eligibility for another status. (Interoffice Memorandum, 7/11/06, "Disposition of Cases involving Removable Aliens"). An NTA is the charging document used by the government which outlines the reasons for which an individual is removable and usually sets a date for appearance in the immigration court for removal proceedings. The new policy is effective for cases adjudicated on or after such date, even cases in the pipeline at this time. Although this move could be anticipated as part of U.S.C.I.S.'s movement toward stricter enforcement of immigration laws, the effect will come as a shock to many hapless applicants for immigration benefits.

U.S.C.I.S. had previously enunciated NTA policy in 2003 that its issuance of NTAs would be mainly focused on cases featuring threats to public safety and or national security, fraud, and certain applications for temporary protected status (TPS) where the basis for the denial or withdrawal constituted a ground of deportability or excludability. The Vermont Service Center in 2004 reiterated that although service centers have the authority to issue NTAs to any individual deemed removable, emphasis was given to those deemed to have been involved in the filing of fraudulent applications/petitions or where public safety issues were present. Now cases in which persons who are just illegal with no aggravating factors and are requesting nonimmigrant changes of status or extensions of stay or adjustment of status to permanent residence could be the vehicles by which a denial is accompanied by an NTA. Because the consequences of failure have been magnified, applicants will have to look harder at their own applications or petitions to weigh the possibilities of success before filing.

This new memorandum comes about as the result of a Memorandum Of Agreement (MOA) between U.S.C.I.S. and U.S.I.C.E. on the issuance of notices to appear to aliens encountered during an adjudication. The MOA itself does not demand the issuance of an NTA except for certain classes, stating only that "U.S.C.I.S. will issue an NTA or otherwise exercise prosecutorial discretion." U.S.C.I.S.'s memo, however, appears to establish a harder line approach including the admonition that "Offices that currently do not routinely prepare NTAs in cases in this category ["all other cases"] should begin to prepare to implement these procedures with cases adjudicated on or after October 1, 2006, and in the interim should insure that NTAs are prepared on any cases deemed significant. "

The memorandum does refer to prosecutorial discretion, specifically referring to legacy INS's November 2000 statement that favorable factors in deciding whether to exercise prosecutorial discretion include the alien's immigration status, length of residence in the United States, criminal history, humanitarian concerns, immigration history, the likelihood of ultimately removing the alien, the likelihood of achieving enforcement goals by other means, whether the alien is eligible or is likely to become eligible for other relief, the effect of action on future admissibility, current or past cooperation with law enforcement authorities, honorable U.S. military service, community attention, and resources available to an INS. However, we fear that the memorandum will be read by most immigration officials as a call to issue NTAs unless some other immediate alternative is available. For example, faced with the memo's direction that an NTA be normally prepared as part of the denial, there will likely be no time nor inclination for U.S.C.I.S. to determine in most cases any humanitarian concerns, likelihood of an alien to become eligible for other relief, current or past cooperation with law enforcement authorities, or community attention. The memo's examples of other possible relief are narrow and may very well be confused or simply viewed by adjudicators as all the consideration needed before NTA issuance. In addition, the memo has placed a premium on swift issuance of NTAs in stating that it is important that the U.S.C.I.S. promptly provide the Executive Office for Immigration Review (EOIR) with an NTA in each case in which an NTA is prepared, and that where U.S.C.I.S. decides to issue an NTA, the case will not be counted as a denial until the NTA is forwarded to EOIR. Under these circumstances, there will be great temptation to cut corners in NTA issuance.