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.
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