A recent change in immigration policy is adversely impacting a vulnerable population, and is likely to have a chilling effect on immigrants reporting crime and cooperating with law enforcement. Undocumented immigrant victims of domestic abuse, who prior to the updated guidance could freely file petitions for U Nonimmigrant status or Violence Against Women Act (VAWA) self-petitions without fear of bringing on deportation proceedings, now may suffer the very real repercussions of an unfavorable petition or application.  If unsuccessful, they now face a mandated issuance of a Notice to Appear (NTA), which is the charging document that initiates removal proceedings.

In a letter dated June 28, 2018, the United States Citizenship and Immigration Services (USCIS) issued “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Policy Memorandum 602-0050.1, in pertinent part, provides updated guidelines regarding USCIS’s issuances of NTAs in Immigration Court. The new guidelines serve to ensure conformity with Executive Order 13768, and replaced, in its entirety, Policy Memorandum 602-00550 published in November 2011.

The previous Policy Memorandum established guidelines for NTA issuance “in a manner that promotes the sound use of the resources of the Department of Homeland Security (DHS) and the Department of Justice (DOJ)…” Accordingly, NTAs were issued in a manner consistent with the “Government’s overall removal priorities.” This meant that USCIS was only mandated to issue an NTA when required by statute or regulation, and when fraud was substantiated by a Statement of Findings on the record in petitions or applications by an undocumented immigrant. In instances where an undocumented immigrant was under investigation, arrested, or convicted of any serious crime—defined as “Egregious Public Safety (EPS) Cases” in the Policy Memorandum—USCIS was required to refer the case to Immigration and Customs Enforcement (ICE) but was not mandated to issue an NTA. This, among other things, has been changed by the June 28, 2018 letter.

In the updated guidance, USCIS will now be mandated to issue an NTA in instances where an undocumented immigrant has an “unfavorable decision on an application, petition, or benefit request.” This far-reaching guidance would, for instance, encompass vulnerable undocumented immigrants of domestic abuse who are denied Violence Against Women Act (VAWA) self-petitions and U Nonimmigrant status.  A U Visa application provides immigration relief to victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.  Thus, the law creates an incentive for immigrants to report crime and cooperate with law enforcement, which benefits everyone.

While the ramifications of USCIS’s updated NTA issuance policy remains uncertain, this sweeping change raises immediate concerns. Importantly, this new policy may exacerbate the already increasing Immigration Court backlog and overburden DHS resources with hearings at the expense of those who should be prioritized. The policy also has the effect of discouraging undocumented immigrants from reporting domestic violence, and cooperating with authorities, which thereby threatens public safety. Further, the updated guidance may make undocumented immigrants hesitant to file a petition for U Nonimmigrant status or a VAWA self-petition for fear that denial will lead to deportation.  Of course, for lawyers representing this vulnerable population, it is crucial that the potential consequences are discussed with clients before moving forward with applications of any kind.

Update: As of August 2, 2018, the Notice to Appear Policy Memorandum 602-0050.1 has not yet gone into effect. USCIS has announced that it will postpone implementation of this policy until it has issued new “operational guidance” as required by the policy.

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Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.