Notices to Appear: More than an Enigma

This post is dedicated to the late Juan Osuna, former director of Executive of Immigration Review. He was a strong proponent of reducing the number of Notices to Appear filed with immigration court and understood the importance of discretion at this stage of the immigration enforcement process.

By contrast and in memoranda dated June 28, 2018, United Citizenship and Immigration Services or USCIS (a hub of the Department of Homeland Security) issue two significant policies on the issuance of NTAs. This post provides some background on the NTA and highlights from the two new policy documents issued by USCIS.

NTAs are defined by the immigration statute and provide written notice to the noncitizen about charges being made by DHS. The NTA form must contain information such as A) nature of the proceedings; B) legal authority under which the proceedings are conducted; C) acts or conduct alleged to be in violation of law; and D) charges and statutory provisions alleged to have been violated. When the NTA is filed with the immigration court (a hub within Department of Justice) deportation (removal) proceedings are triggered. Currently, more than 700,000 cases are pending in U.S. immigration courts. Many of these cases were triggered by NTAs filed with the immigration court.

DHS components (and the predecessor agency known as the Immigration and Naturalization Service or INS) have long had the discretion to draw, issue and file NTAs (see link below to a comprehensive report on this topic). Importantly though, USCIS (and previously the services side of INS) has a distinct role as compared to its sister agencies, Immigration and Customs Enforcement and Customs Border Protection. While the latter two agencies play a role in immigration enforcement (which can include a range of actions that include interrogation, arrest, detention, charges and deportation) USCIS has traditionally had a “customer service” role and functionally processed applications for benefits and humanitarian relief such as asylum, U status for victims of crimes and Deferred Action for Childhood Arrivals. In some cases, USCIS is required by law to issue an NTA. For example, when a person requests asylum at USCIS but is found to not meet the requirements of the refugee definition or subject to a statutory bar, USCIS is required to draw up an NTA is the asylum seekers is otherwise out of status.

While the NTA may appear like a ministerial document, its contents and roles are significant. As described by one federal court, “A Notice to Appear is not meant to be enigmatic. Its purpose is to provide an alien with notice — of the charges against him and the basic contours of the proceedings to come.” Like with the contents, the decision to file or not to file the Notice to Appear is equally significant and as I have described in previous work years ago: “DHS’s decision to commence removal proceedings by filing an NTA with the immigration court represents the defining moment during which prosecutorial discretion can be exercised to save the government the resources of an administrative hearing and possible appeals, and also recognizes the equities and humanitarian situations faced by noncitizens who are ineligible for formal immigration relief.”

It is with this backdrop that the two new policy documents by USCIS can be better understood. The first document is titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Below are some of the highlights (or lowlights) of this new policy, which in short greatly expand the circumstances under which USCIS can or should issue an NTA:

· The memo replaces the November 7, 2011 Policy Guidance on NTAs (see below for FOIA Response on this policy).

· The memo instructs that the issuance of NTAs “fits within and supports DHS’s overall removal priorities” (which in the current administration has included a broad net of priorities).

· In cases where USCIS denies Temporary Protected Status or TPS and the individual has no other lawful status, officers will follow the regulations and once followed (or found to be inapplicable), officers will issue an NTA.

· Noncitizens falling within the inadmissibility ground for “fraud or misrepresentation” will be issued an NTA, even when the application or petition has been denied for a reason other than fraud. USCIS should strive to include the charge of misrepresentation of fraud or misrepresentation.

· Consistent with the administration’s enforcement priorities, the memo instructs USCIS to issue NTAs for those with crime related grounds of deportability and inadmissibility even if the criminal offense is unresolved or involves acts that constitute a chargeable offense.

· The memo defines “egregious public safety” cases as “a case where information indicated that the alien is under investigation for, has been arrested for (without disposition) or has been convicted of several enumerated offenses. USCIS should issue NTAs in all cases that meet the EPS definition regardless of a conviction, if the application is denied and the noncitizen is removable. The memo instructs USCIS to issue NTAs in non-EPS cases if the application or petitions is denied and the noncitizen is removable.

· The memo acknowledges that in “limited and extraordinary” circumstances an NTA may be issued if a noncitizen requests it based on available relief from removal. Given that the majority of removals take place outside of a courtroom, providing some people with a chance to seek relief before an immigration judge is significant.

· The memo devotes a section to the “Exercise of Prosecutorial Discretion” and suggests that prosecutorial discretion to not issue an NTA could be exercised on a case by case basis “after considering all USCIS and DHS guidance,” priorities, individual facts and other interests. How this policy is implemented remains to be seen as the memo also states that prosecutorial discretion will be used in “very limited circumstances” if the individual is a priority for removal as described in the memo.

· The memo creates a “Prosecutorial Review Panel” to be maintained by each office authorized to issue NTAs. The panel is to make recommendations regarding the positive exercise of prosecutorial discretion.

Conclusion: The Updated Guidance on NTAs greatly expands the scenarios where USCIS should or must issue NTAs. This expansion has the potential to interfere with the role of the USCIS adjudicator to process and adjudicate benefits applications and could reduce the number of people who seek these benefits in the first place. Further, the policy gives USCIS a much greater enforcement role and in doing so blurs the lines between the various functions within DHS. The updated NTA memo will increase the number of cases already pending at the court and create additional backlogs. Finally, the policy itself is not required by law and is a choice being exercised by the agency.

The second NTA policy issued by USCIS pertains to the Referral of Cases and Issuance of Notices to Appear for DACA requestors and DACA recipients when the government is seeking to terminate DACA. The policy notes that USCIS will continue to follow the existing DACA information sharing policy which has been effect since June 2012 when DACA was first announced and guidance was first published. The memo instructs that USCIS should follow the existing policy if there is a “perceived inconsistency” between existing policy and the new USCIS policy. Whether information supplied in a DACA request will be used negatively against the applicant or a family member has and continues to be significant to those with DACA or vulnerable to termination in the future. The June 2012 policy on DACA and NTAs is reproduced below:

Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?

A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

Q20: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?

A20: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

Resources on Notices to Appear (2011–2017)

Form I-862, Notice to Appear, https://www.justice.gov/eoir/dhs-notice-appear-form-i-862

Practice Advisory, Notice to Appear, Legal Strategies and Challenges https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/notices_to_appear_fin_6-30-14.pdf

Report, To File or Not to File A Notices to Appear https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/NTAReportFinal.pdf

FOIA Response to NTA Policy, November 7, 2011 https://works.bepress.com/shoba_wadhia/26/