CIS Issues New Policy Memo Regarding Issuance of Notices to Appear

November 9, 2011

      The United States Citizenship and Immigration Service (CIS) issued a new policy memorandum on November 7, 2011, establishing new guidelines regarding the circumstances under which the CIS will issue a “Notice to Appear” (NTA). The policy memo also details situations when CIS will refer a case to the United States Immigration and Custom Enforcement (ICE). The memo aims to more effectively handle cases involving public safety threats, criminals, and individuals engaged in fraud, and seemingly suggests a softening by the CIS as to which cases it will initiate removal proceedings.

       Removal proceedings are commenced through the issuance of a document known as the “Notice to Appear.” The NTA sets forth the facts as to why the Department of Homeland Security (DHS) seeks to remove an individual from the United States. While both CIS and ICE have authority to issue an NTA, the CIS traditionally did not issue an NTA upon denial of an application as its perception had been that ICE maintained the primary role with respect to removal priorities and administration.

       This perception changed in July 2006 when CIS and ICE issued a policy memo setting forth priorities dictating when CIS will issue an NTA or refer a matter to ICE. The 2006 memo completely changed the landscape as it specifically indicated that “if an applicant is removable and there are no other means of relief available…, then an NTA should normally be prepared as part of the denial.”

       In what appears to be in accordance with DHS’ proclamations of prosecutorial discretion and an effort toward the ensuring that the limited resources of the DHS are maximized, CIS has just issued another policy memo specifically replacing the 2006 memo. The new memo interestingly suggests that the CIS will no longer routinely issue NTAs upon issuance of a denial notice, but will reserve issuance of an NTA or referral to ICE in specific cases that are deemed high priority.

       The memo states that CIS will issue an NTA on all cases wherein issuance of an NTA is required under the law. These cases include the denial of I-751 and I-829 Petitions to Remove Conditions, Asylum applications, NACARA applications, and termination of refugee status. The CIS will also issue an NTA on cases involving fraud.

       The memo further states that the CIS will refer matters to ICE wherein an applicant has a criminal conviction that renders him inadmissible or removable from the US. For cases involving “egregious public safety criminal cases,” which are primarily aggravated felony convictions, CIS will delay adjudication of an application during the ICE referral process. For non-egregious criminal cases, CIS will issue a decision but then refer the matter to ICE. The CIS will defer to ICE as to whether an NTA initiating removal proceedings will be issued or what other course of action may be deemed appropriate.

       The memo also establishes a new process for determining whether an NTA will be issued when an individual who is removable from the US files an application for naturalization with the CIS. This situation arises when an individual has committed a crime outside of the good moral character period that renders him removable or when the CIS realizes that the individual should not have been granted permanent residency to begin with as they were inadmissible at that time. The CIS will be establishing a Review Panel that will determine whether or not to issue an NTA. The Review Panel will receive a recommendation by the interviewing officer. For those convicted of a removable offense, the recommendation will be based on the following criteria: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., prior immigration violations, and contributions to society to include the pursuit of education and military service. For those who were inadmissible at the time of obtaining permanent residency, the recommendation will be based on the following criteria: willfulness of actions, fraud factors, length of permanent resident status, criminal history, and officer error at time of adjustment.
The establishment of a Review Panel suggests that the CIS will be more willing to analyze an individual’s circumstances in determining whether initiation of removal proceedings is actually worthwhile or not. This review therefore potentially reduces the risks associated with applying for naturalization as the panel can determine that removal proceedings will not be initiated even though the individual is removable from the US. If, however, the determination is that an NTA should be issued, the CIS will now delay adjudication of the naturalization application until removal proceedings have been concluded instead of simply denying the application. This action is as well beneficial as individuals who are successful during removal proceedings can simply resume the processing of the naturalization application instead of needing to re-apply.

       The new policy memo detailing the circumstances for issuance of an NTA by CIS or referral to ICE is indeed a welcome revision to the current CIS policy as it more fairly balances the goals of the CIS with the plight that immigrants encounter. The emphasis on public safety threats, criminals, and individuals engaged in fraud should hopefully lead to a more fair and just handling of individuals simply seeking to be with their loved ones or just working tirelessly to achieve the American dream.