World Journal Weekly on November 5, 2006 Published Mr. Lee's Article - "Will The Denial of Your Immigration Application or Petition on or After October 1st Force You Before The Immigration Court?"

By Alan Lee, Esq.

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.

Other criticisms that we have of the memo are the following:

1 The quality of U.S.C.I.S. determinations on I-485 applications is in our perspective very spotty. Denied cases of persons who have come into our office for consultation in the recent past including a person wrongfully accused by U.S.C.I.S. of having engaged in a crime in another state, an individual without an affidavit of support at the adjustment of status interview, a person whose parole was not considered in an adjustment of status interview - the examiner finding that he entered without inspection, an individual denied because of missing a fingerprint appointment and another for having missed the adjustment of status interview appointment although neither party received notice from U.S.C.I.S. - the examiners stating that the notices had been sent out and not returned although the individuals had been living at the same addresses for years and had received every other notice from the agency. In our view, U.S.C.I.S. should repair its own house before implementing a memo of this magnitude .

2 The field offices of the Service are under tremendous pressure from their headquarters to reduce the backlog of I-485 adjustment of status cases. To this effect, U.S.C.I.S. officers are encouraged to make decisions. A denial counts as a completed case while a pending case does not. Washington thrives on statistics and U.S.C.I.S.'s top managers must explain their actions to Congress in frequent hearings. This emphasis on swift completion of cases comes at the cost of careful decision making. In the New York district, for example, a policy was announced in March 2006 that any case lacking normal required documentation at the time of interview for adjustment of status cases would be denied.

3 Issuance of NTA authority has been delegated to officers too far down the chain of command. Currently this authority is not just held by the District Director or Service Center director, but has also been placed in the hands of supervisory district adjudications officers and supervisory center adjudications officers. In the chain of command, a supervisory adjudications officer is only one step removed from an adjudicating officer - in other words, he/she is the latter person's supervisor. In large district offices, there are many supervisory officers. To give this much authority to a supervisor who typically ranks under the deputy director, assistant district director, deputy assistant district director, and section chief invites trouble as supervisors may not have as much grasp of law or appreciate the implications of actions as would higher level personnel of the agency.

4 No adequate safeguards exist to ensure the alien is given every opportunity to rebut an adjudicator's findings prior to denial in I-485 adjustment of status determinations. How do you remedy adjudicator mistakes before the denial? How can you deal with situations wherein the alien and his/her attorney believe that he/she passed the green card interview only to be surprised by a denial letter based upon an ambiguous answer to the examiner's question that could have been explained had the examiner asked a follow-up question? Or one in which the examiner mistakes a fact situation and makes an impossible finding of law, eg, finding marriage fraud where the question revolved around the applicant's efforts to have his wife (with whom he already had a child) join him in the U.S.? Or where the examiner reviews the file after interview and denies the case based on materials included therein without ever confronting the applicant with such or giving him/her a chance to explain or present countervailing evidence? U.S.C.I.S. published an earlier memorandum on February 16, 2005, "Requests for Evidence (RFE) and Notices of Intent to Deny (NOID)" stating that cases should not be denied without Requests for Further Evidence (RFE) or Notice of Intent to Deny (NOID) except in cases of clear ineligibility, in that additional evidence or explanation could not perfect the filing. We strongly recommend that U.S.C.I.S. strictly adhere to its standards as enunciated in that memorandum even though such would certainly slow down the speed of adjudications. The stakes now are higher with NTAs apparently being issued as a matter of course, and the need for more Service effort in making correct adjudications becomes paramount.

5 The Aytes memorandum is vague on the timing of NTA issuance. For "all other classes" cases, issuance comes "once the denial of the application or petition is complete (including applications for waiver for which the applicant may be eligible)." It does not state that U.S.C.I.S. must wait until appeals or motions to reopen or reconsider are decided. In another section dealing with criminal cases in which U.S.I.C.E. and not U.S.C.I.S. is empowered to issue NTAs, the referral process alludes to the case being transferred to U.S.I.C.E. once an adjudication is completed including the conclusion of any administrative appeals. The memorandum further states that the U.S.C.I.S. NTA standard operating procedure will be issued soon and will describe the mechanics of NTA issuance by U.S.C.I.S. We strongly recommend that where U.S.C.I.S. issues an NTA, it should wait for the completion of all administrative appeals prior to to NTA issuance just as in referral cases to U.S.I.C.E.. Further that since denials of I-485 adjustment of status applications and I-539 applications for non-immigrant extension of status cannot be appealed but only reopened or reconsidered, NTA issuance should only be considered after the completion of a timely filed motion to either reopen or reconsider the denial.

6 The current practice of U.S.C.I.S. is to issue petition denial and I-485 denial at the same time. The I-485 remains denied during the time that the petition is being appealed. If the petition denial is overcome, U.S.C.I.S. will reopen the I-485 determination on its own. One can only hope that the agency does not issue NTAs for denied I-485s which cannot be appealed in situations where the I-140 or I-130 petition is the subject of appeal.

7 The recommendations that we have made are occasioned by the legal seriousness of an NTA issuance and the traumatic effects that it has on persons upon whom one is served. An NTA automatically raises the levels of danger and spirals the legal costs. When an NTA is issued, the individual must now deal with the government's attorney and the immigration court in an adversarial context. There is no longer a chance for an uncomplicated ending to the case since jurisdiction is no longer with U.S.C.I.S. but with the EOIR. Even if a motion or appeal of the initial denial is ultimately successful, an alien must at the least seek to have removal proceedings terminated or the NTA withdrawn before jurisdiction can return to U.S.C.I.S..

Although it is clear that enforcement is on the mind of U.S.C.I.S. at this time, we urge restraint and consideration of the above recommendations in light of the seriousness of NTA issuance.

The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2006 Alan Lee, Esq.


Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.