USCIS Notice to Appear Policies in 2018
In the past, USCIS and ICE did not work that closely. If a case were denied with USCIS and the applicant was not legally present in the United States, the individual would generally not be placed in removal (AKA deportation) proceedings. In fact, it could even work against the immigrant in cases where judicial review was needed – resulting in a type of legal “limbo.”
Now if a case is not strong, and does not have a great likelihood of approval, it should not be filed in the first instance as a denial will most certainly trigger removal proceedings. In an policy memorandum from USCIS entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear(NTAs) in Cases Involving Inadmissible and Deportable Alien, USCIS made clear that it will place individuals in removal proceedings if their case is denied, even absent criminal history, so long as they are not otherwise lawfully present in the United States (see Section V).
This is a radical departure from past policy. Incredibly, USCIS will also implement this policy against applicants for Violence Against Woman Act protection (i.e., U-Visa victim cases and human trafficking cases). In a press release dated November 11, 2018, USCIS indicated that these individuals will be placed in removal proceedings starting November 19, 2018. USCIS News Update. This policy is part of Trump’s War on Immigration, representing another brick in the invisible wall. It will prevent victims from seeking assistance and working with law enforcement out of fear of being removed from the United States.
Fortunately, DACA recipients are not included in the net – perhaps partly because it would be too politically unpopular. According to a clarifying policy memorandum published on June 28, 2018 (HERE):
Notwithstanding the issuance of the PM titled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA, USCIS will continue to follow the existing DACA information-sharing policy regarding any information provided in a DACA request or DACA-related benefit request. Consistent with that policy, which has been in effect since June 2012, and notwithstanding the General NTA PM, adjudicators must continue to refer to PM 602-0050,Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, 6 dated November 7, 2011, to determine whether an RTI or NTA should be issued in such cases.
