Notice to Appear

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U.S. immigration policy has changed quickly and substantially in the past two years. While a handful of policies have received the majority of media attention—such as the separation of families at the border—the Department of Homeland Security has implemented numerous, far less visible changes that have dramatically impacted the ability to seek immigration relief in this country. These policy changes have transformed the way in which lawyers and their pro bono clients must navigate the immigration system.

Accounting for Unpredictability

As a result of the exceedingly fast changes to immigration policy, it has become increasingly challenging to predict a client’s likelihood of obtaining certain types of immigration relief or to assess the risks associated with attempting to do so.

For example, in October 2018, the United States Citizenship and Immigration Services (USCIS) began implementing a new policy that mandates USCIS to issue Notices to Appear (NTA) in immigration court removal proceedings upon making an unfavorable decision on an immigration application where the applicant is an undocumented immigrant.  This far-reaching guidance would, for instance, encompass vulnerable undocumented victims of domestic abuse seeking humanitarian-based relief, thus creating a perverse disincentive for them to come forward and cooperate with law enforcement.  In June 2018, the Attorney General’s decision in Matter of A-B- purported to make it harder for immigrants to qualify for asylum based on gang or domestic violence, a decision that was, in turn, blocked in December by a federal judge in Washington, D.C.

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.