Introduction

On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released Policy Memorandum (PM)-602-0050.1, titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” [PDF version]. The new USCIS PM supersedes PM 602-0050, which was issued on November 7, 2011, and titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,”.The new PM revises the USCIS’s NTA and referral policies in order to align them with the current Department of Homeland Security (DHS) removal priorities. President Donald Trump revised the immigration enforcement priorities on January 25, 2017, with the issuance of Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States” [see article]. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a Memorandum implementing the new enforcement priorities [see article], titled “Enforcement of the Immigration Laws to Serve the National Interest” [PDF version].

In this article, we will examine the new USCIS NTA and referral policies found in its PM-602-0050.1.

November 9, 2018 Update: Beginning on November 19, 2018, the USCIS will begin implementing the PM for the Form I-918/I-918A, Form I-914/I-914A, Form I-360 (VAWA and SIJ self-petitioners), Form I-730, Form I-929, and Form I-485 petitions based on the foregoing applications and petitions in accordance with the PM. The PM will still not be applied to employment-based petitions at this time. You may learn more about this expansion in our full post on the news [see article].

September 27, 2018 Update: The PM will take effect on October 1, 2018 for status-impacting applications only [see blog].

July 30, 2018 Update: The USCIS is delaying implementation of PM-602-0050.1 until its components complete new operational guidance [see blog]. There is no indication that the USCIS intends to abridge or otherwise modify the NTA issuance policies set forth in the PM after the requisite operational guidance is completed. We will provide further updates on the issue as they become available.

Background

As we noted in the introduction, President Donald Trump revised the immigration enforcement priorities in his Executive Order 13768 [PDF version]. In the Order, the President stated that “[w]e cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.” Accordingly, he set forth new enforcement priorities.

Less than one month later, then-Secretary Kelly provided for the enforcement of these new priorities in his February 20, 2017 Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” [PDF version]. In changing prior DHS policy, the Secretary wrote that the DHS would “no longer [] exempt classes or categories of removable aliens from potential enforcement.”

Both the President’s Executive Order and the DHS Memorandum prioritized the removal of aliens described in the following sections of the Immigration and Nationality Act (INA):

212(a)(2)
212(a)(3)
212(a)(6)(C)
235
237(a)(2)
 237(a)(4)

In addition to aliens described in the foregoing INA provisions, the Executive Order and the DHS Memorandum prioritized enforcement against removable aliens who, regardless of the basis of removal (quoted):

a. Have been convicted of any criminal offense;
b. Have been charged with any criminal offense that 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 have not departed; or
g. In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The USCIS PM on NTAs and referrals explains that the USCIS has the authority to issue the Form I-862, Notice to Appear, where appropriate. This authority is found in sections 103(a) and 239 of the INA, and 8 C.F.R. 2.1 and 239.1. Filing the NTA with the immigration court commences removal proceedings. The U.S. Customs and Border Protection (CBP) and the U.S. Immigration and Customs Enforcement (ICE) also have the authority to issue NTAs. However, it is important to note that the instant PM only provides binding guidance for the USCIS.

The PM explains that “USCIS must ensure that its issuance of NTAs fits within and supports DHS’s overall removal priorities…” These priorities are “promoting national security, public safety, and the integrity of the immigration system.” In addition to providing guidance for the issuance of NTAs, the PM also provides guidance for when USCIS officers should refer cases to ICE.

New Policy

In the PM, the USCIS updated its policies on the issuance of NTAs “to better align with enforcement policies.” The PM describes the new policies in several subsections. We will examine each subsection below.

1. National Security Cases

President Trump specified that aliens who present certain national security concerns are enforcement priorities. These “include aliens engaged in or suspected of terrorist or espionage, or those who are otherwise described in INA [sections] 212(a)(3) or 237(a)(4).” If a USCIS officer determines that an alien otherwise presents a risk to national security, that alien will be a priority for removal.

The new PM does not change the USCIS’s policies for the handling of cases involving national security concerns. A 2008 memorandum issued by the Fraud Detection and National Security Directorate (FDNS) titled “Policy for Vetting and Adjudicating Cases with National Security Concerns” [PDF version] remains binding.

2. NTA Issuance Required by Statute or Regulation

There are certain cases in which the issuance of an NTA is required by statute or regulations. The USCIS will continue to issue NTAs in these cases, which include the following:

Certain Conditional Permanent Resident Cases

Under 8 C.F.R. 216.3, 216.4, and 216.5, the USCIS must issue an NTA upon the termination of conditional permanent resident status for those who obtained such status through a subsequently terminated marriage and upon denial of a Form I-751, Petition to Remove the Conditions of Residence. Further guidance on these points is found in the following two USCIS memoranda:

“Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (Oct. 9, 2009) [PDF version]; and
“I-751 Filed Prior to Termination of Marriage” (Apr. 3, 2009) [PDF version].

Under 8 C.F.R. 216.6, the USCIS must issue an NTA upon the termination of conditional permanent residence for entrepreneurs and upon denial of a Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.

To learn more about the removal of conditions, please see our full section on site [see category].

Termination of Refugee Status

Under 8 C.F.R. 207.9, if the District Director terminates an individual’s refugee status, the USCIS must issue an NTA.

NACARA and HRIFA Adjustment of Status Denials

Under 8 C.F.R. 1245.13(m), the USCIS must issue an NTA when it denies a Nicaraguan and Central American Relief Act (NACARA) section 202 adjustment of status application.

Under 8 C.F.R. 245.15(r)(2)(i), the USCIS must issue an NTA when it denies a Haitian Refugee Immigration Fairness Act (HRIFA) adjustment of status application.

Certain Asylum, NACARA Section 203, and Credible Fear Cases

First, it is important to note that the PM does not apply to the following cases:

The Asylum Division’s initiation of recession proceedings for lawful permanent residents (LPRs) granted LPR status under NACARA 203 by the Asylum Division;
The Asylum Division’s issuance of a Form I-863, Notice of Referral to Immigration Judge.

The USCIS may, in its discretion, issue an NTA when an asylum applicant withdraws his or her asylum application. However, the USCIS is not required to do so under statute or regulation, and the PM leaves this decision open to discretion.

If an asylum applicant appears to be inadmissible under section 212(a) of the INA or deportable under section 237(a), the USCIS is required under 8 C.F.R. 208.14(c)(1) to issue a referral to an immigration judge.

Under 8 C.F.R. 208.24(e), the USCIS is required to issue an NTA upon the termination of asylum, the termination of withholding of removal, or the termination of withholding of deportation. Section 208(c)(3) of the INA addresses removal when asylum is terminated.

In the event that the USCIS makes a positive credible fear finding, it must issue an NTA under 8 C.F.R. 208.30(f).

8 C.F.R. 240.70(d) requires the USCIS to issue an NTA in NACARA 203 cases “where suspension of deportation or cancellation of removal is not granted and the applicant does not have asylum status or lawful immigrant or nonimmigrant status…”

Under 8 C.F.R. 246.1, the USCIS is required to issue an NTA in cases where NACARA 203 was granted to an individual who was ineligible to receive either suspension of deportation or special rule cancellation of removal at the time such relief was granted.

No Change in Rules Regarding Temporary Protected Status

The PM makes no changes to the NTA notification procedures for temporary protected status (TPS), which are set forth in 8 C.F.R. 244. Guidance on this issue is found in a USCIS memorandum titled “Service Center Issuance of Notice to Appear (Form I-862)” (Sep. 12, 2003) [PDF version].

In cases where an individual has no other lawful immigration status or basis for remaining in the United States and where the USCIS denies an initial TPS application or re-registration or withdraws TPS, USCIS officers will continue to follow the regulations in 8 C.F.R. 244, “where required.” After following the applicable regulations in 8 C.F.R. 244 or determining that the regulations do not apply, the USCIS will generally “Issue an NTA to such an alien who has no other lawful immigration status or authorization to remain in the United States following the final determination to deny or withdraw TPS…” However, the USCIS may opt against issuing an NTA if there is sufficient reason to delay issuing the NTA or forego doing so entirely. For example, the PM states that the USCIS may decide to delay issuing an NTA “if another law enforcement agency makes a reasonable request to not issue the NTA, so as not to disrupt an investigation.” A USCIS officer may not issue an NTA to an individual with a pre-existing un-executed final order of removal without approval from his or her local USCIS counsel.

In cases where the DHS Secretary terminates a country’s designation for TPS, certain TPS beneficiaries who remain in the United States after TPS is terminated but who lack any other lawful basis for remaining in the United States may become DHS enforcement priorities. However, the PM states that the USCIS should defer to ICE and CBP “regarding timing of any NTA issuances to former TPS beneficiaries after the country’s TPS designation ends.” Furthermore, if an individual described in this section makes a benefit request or has a request submitted on his or her behalf, and the request is denied, USCIS officers must follow the policies and procedures in part 5 [see section] of the PM regarding NTA issuance.

3. Fraud, Misrepresentation and Abuse of Public Benefits Cases

The President’s Executive Order specified that aliens who are described in section 212(a)(6)(C) are enforcement priorities. It also included as enforcement priorities any removable aliens who “have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency…” This provision encompassed the defrauding of the government in matters outside of the immigration context as well. Finally, the Executive Order prioritized aliens who have abused any program related to the receipt of public benefits.

The PM instructs USCIS officers to issue an NTA if it denies a benefit request for an alien who is otherwise removable and described in the above paragraph. In this circumstance, the USCIS would issue an NTA “even if the petition or application is denied for a ground other than fraud…” Therefore, provided that an alien is removable and described in the above paragraph, the USCIS will issue an NTA upon denying the application regardless of the particular reason for the denial.

An NTA issued on these grounds is not required to include the charge of fraud or misrepresentation. However, the PM provides that “efforts should be made to include these charges whenever evidence in the record supports such a charge.”

The USCIS may refer groups of cases where there are fraud concerns to ICE during the course of adjudication. In this case, the USCIS will suspend adjudication of the applications or petitions for 60 days. The USCIS may resume adjudication “if ICE does not respond within that time frame or provide a Case Closure Notice or case status report within 120 days of accepting the referral.” However, the USCIS will not refer individual applications to ICE absent a general agreement between the two agencies.

4. Criminal Cases

The Executive Order prioritizes for enforcement: (1) Aliens described in sections 212(a)(2) or 237(a)(2) of the INA; (2) Removable aliens convicted of any criminal offense; (3) Removable aliens charged with any criminal offense that has not been resolved; and (4) Removable aliens who have committed acts that constitute a chargeable criminal offense.

The PM distinguishes between Egregious Public Safety (EPS) and Non-Egregious Public Safety (Non-EPS) cases. This distinction is not made in the President’s Executive Order or the implementing DHS memorandum. The distinction is used by USCIS and ICE for administrative guidance purposes. The distinction is discussed further in “Memorandum of Agreement Between United States Citizenship and Immigration Services and United States Immigration and Customs Enforcement On the Issuance of Notices to Appear to Aliens Encountered During an Adjudication” (Jun. 15, 2006).

EPS Cases

The USCIS and ICE define an EPS case “as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following (quoted with minor alterations):

Murder, rape, or sexual abuse of a minor, as defined in section 101(a)(43)(A) of the INA;
Illicit trafficking in firearms or destructive devices, as defined in section 101(a)(43)(C);
Offenses relating to explosive materials or firearms, as defined in section 101(a)(43)(E);
Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year, as defined in section 101(a)(43)(F);
An offense relating to the demand for, or receipt of, ransom, as defined in section 101(a)(43)(H);
An offense relating to child pornography, as defined in section 101(a)(43)(I);
An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons, as defined in section 101(a)(43)(K)(iii);
An offense relating to alien smuggling, as defined in section 101(a)(43)(N);
Human Rights Violators, known or suspected street gang members, or Interpol hits; or
Re-entry after an order of exclusion, deportation, or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, has not been approved.

The majority of EPS cases thus reference specific immigration aggravated felony provisions. The final two items on the list reference specific cases that do not fall under specific aggravated felony provisions.

The PM directs USCIS officers to issue an NTA against any removable alien who meets the EPS definition if their application or petition is denied. This includes aliens who do not have a criminal conviction.

The USCIS may also refer an EPS case to ICE before adjudicating the application or petition “if there are circumstances that warrant such action.” In the event of a referral, ICE may decide if and when to issue an NTA. If ICE does not provide notice to USCIS that it has accepted or denied the referral within 60 days, “USCIS will resume adjudication of the case.”

If an individual files a Form I-90, Application to Replace Permanent Resident Card, and the USCIS determines that there are EPS concerns, the USCIS will refer the case to ICE after adjudicating the application.

Non-EPS Criminal Cases

The USCIS defines a non-EPS criminal case “as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of any crime” that is not listed under the EPS cases.

The PM guidance for handing non-EPS cases is similar to the guidance for handling EPS cases. This is likely due to the lack of distinctions in the current enforcement priorities. USCIS officers will issue an NTA in all non-EPS cases where an application or petition is denied and the alien is removable. Where the USCIS does not issue an NTA, a USCIS officer will refer the non-EPS case to ICE prior to adjudicating the application or petition if the alien is otherwise inadmissible or deportable based on a non-EPS criminal offense. The USCIS’s handling of the adjudication of non-EPS cases referred to ICE will be the same as its handling of EPS cases referred to ICE.

Form N-400, Application for Naturalization Denials

The USCIS will deny a Form N-400, Application for Naturalization, if it determines that the applicant could not establish good moral character for the statutory period. If the Form N-400 is denied on good moral character grounds due to an underlying criminal offense, the USCIS will issue an NTA provided that the alien is removable.

5. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability

If the USCIS denies an application, petition, or benefit request, and determines that at the time of the denial, the applicant or beneficiary is not lawfully present in the United States, the USCIS will issue an NTA.

If an alien is removable on a ground not specifically addressed in the PM, “USCIS will ensure all grounds for removability supported by the record are addressed and result in the issuance of an NTA, whenever appropriate.” In short, this means that the USCIS will issue NTAs for aliens who are determined to be removable on grounds not discussed in the PM in accord with its policies.

6. Special Circumstances for NTA Issuance

In this section, we will examine special cases where USCIS officers may issue NTAs.

Upon Request by Removable Alien

The USCIS may issue an NTA if a removable alien requests that it does so, but only “[i]n limited and extraordinary circumstances…” An NTA may be issued on request “either before or after the adjudication of an application or petition, in order to seek lawful status or other relief in removal proceedings.”

In order to request that the USCIS issue an NTA, the alien must make the request in writing to the USCIS office which has jurisdiction over the case. The USCIS has discretion to deny a request to issue an NTA.

Upon Request to Asylum Office

An asylum applicant who has already been issued an NTA may make a request, in writing, for the Asylum Office to issue NTAs to family members not included on the asylum application as dependents for family unification purposes. The USCIS may deny such a request in its discretion.

If the USCIS denies the asylum application of an individual who is in lawful immigration status, the individual may request, in writing, that the Asylum Office issue an NTA after he or she falls out of lawful immigration status. The USCIS may deny such a request in its discretion.

If the USCIS rescinds asylum status based on the determination that it did not have jurisdiction to grant asylum status in the first place, the Asylum Office may issue an NTA “if the applicant does not currently have an outstanding order of removal or is not otherwise in removal proceedings.”

If the Asylum Office dismisses a request for NACARA 203 relief because the NACARA applicant was not removable, and the NACARA applicant subsequently falls out of lawful immigration status, the applicant may request the issuance of an NTA. The applicant must make the request in writing and the Asylum Office may deny the request in its discretion.

NTA Requests in Connection With Form N-400 Filing

As we noted in part 4, the USCIS will issue an NTA to a Form N-400 applicant if the application is denied on good moral character grounds and the basis for the negative good moral character determination was a criminal conviction that renders the applicant removable.

Here, we will examine two distinct cases in which the USCIS may issue an NTA to a Form N-400 applicant. In general, the USCIS will issue NTAs in these cases before adjudication of the Form N-400 application unless it exercises prosecutorial discretion in favor of the alien [see section]. If the NTA is issued while the Form N-400 is pending, the USCIS will place adjudication of the Form N-400 on hold until removal proceedings have concluded. Once removal proceedings have concluded, the USCIS will resume adjudication of the Form N-400.

If a Form N-400 applicant is eligible to naturalize but simultaneously deportable under section 237, the USCIS will issue an NTA. The PM provides two examples of such cases:

An applicant convicted of an aggravated felony prior to November 29, 1990 (aggravated felony convictions after that date bar establishment of good moral character); and
An applicant convicted of a deportable offense after becoming a lawful permanent resident, provided that the offense does not preclude good moral character or make the applicant ineligible for naturalization.

If a Form N-400 applicant is determined to have been inadmissible at the time of admission or adjustment of status (and thus deportable under section 237 of the INA) and not eligible for naturalization under section 318 of the INA, the USCIS may issue an NTA.

A Form N-400 applicant may ask for the issuance of NTA if it is determined that he or she was inadmissible at the time of adjustment or admission to the United States (thus deportable under INA 237) and if he or she is also ineligible for naturalization under section 318 of the INA.

Cases Involving Confidentiality Provisions of 8 U.S.C. 1367

Under 8 U.S.C. 1367(a)(2), the USCIS is generally prohibited from disclosing information about applicants for relief or benefits under the Violence Against Women Act (VAWA) and applicants for U nonimmigrant status and T nonimmigrant status unless the application for relief is denied and all opportunities for appeal of the negative decision have been exhausted. Please see below for the PM’s description of 8 U.S.C. 1367(a)(2):

Once any one of the benefit requests covered by 8 U.S.C. 1367(a)(2) has been denied, USCIS officers will follow the guidelines established in the PM regarding NTA issuance. However, the USCIS cannot serve the NTA on the physical address of the individual unless all 8 U.S.C. 1367 protections have been terminated.

USCIS officers must also follow 8 U.S.C. 1367(a)(1) in applying the PM. With limited exceptions, 8 U.S.C. 1367(a)(1) prohibits any DOJ, DHS, or U.S. Department of State (DOS) official from making an adverse determination of an alien’s admissibility or deportability based on information furnished solely by certain prohibited sources, with limited exceptions. The prohibited sources are generally linked to VAWA cases and T and U nonimmigrant cases. Unlike 8 U.S.C. 1367(a)(2) prohibitions, (a)(1) prohibitions do not expire upon the denial of a benefit petition or application and do not even depend on the filing of a petition. Accordingly, USCIS officers must comply with the 8 U.S.C. 1367(a)(2) prohibitions when applicable in the issuance of NTAs.

7. Preservation of Admin