Visa Lawyer Blog

Articles Posted in Priorities for Removal

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On August 8, 2018, DHS issued a policy memorandum directing USCIS to change the way in which the agency counted the days of unlawful presence for F, M, and J status violators.

Under that policy memorandum, F, M, and J nonimmigrants who accrued more than 180 days of unlawful presence during a single stay, and then departed the United States, would trigger either a 3- or 10-year bar to admission depending on the period of unlawful presence accrued in the United States prior to departure. The new policy would begin counting the days of unlawful presence the day after an F, M, or J status violation, unless an exception applied.

These bars would prevent the foreign national from applying for an immigration benefit in the future, without the approval of a waiver of inadmissibility.

This policy was to become effective on August 9, 2018; however, it quickly grew controversial and inspired a slew of lawsuits. Prior to this attempted policy change, USCIS did not begin counting a period of unlawful presence until a USCIS immigration official or immigration judge made a formal finding of a status violation.

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The White House recently issued a Presidential Memorandum to strengthen asylum procedures and safeguard the asylum system against fraud.

The Presidential Proclamation specifically orders the Attorney General and Secretary of Homeland Security to take several measures to enhance the security of the asylum system by July 28, 2019.

These measures require the Attorney General and Secretary of Homeland Security to enact proposals and/or regulations that would:

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The immigrant caravan from Central America has now reached the Southwest border. Thousands of migrants are now waiting in Tijuana for an opportunity to apply for asylum at the San Ysidro and Otay Mesa ports of entry.

Over the Thanksgiving weekend, tensions begin to mount as members of the immigrant caravan rushed the border fence at the San Ysidro port of entry, attempting to enter the United States illegally. In response, U.S. Customs and Border Protection officers shut down both south and northbound traffic at the San Ysidro border crossing south of San Diego for approximately six hours.

The decision to close the San Ysidro port of entry during the holiday weekend was unprecedented considering that the San Ysidro port of entry is one of the busiest land border crossings in the world with 70,000 northbound vehicles and 20,000 northbound pedestrians seeking to cross each day. Many Americans were left stranded in Mexico waiting for the port of entry to re-open to re-enter the country after Thanksgiving.

The saga unfolded on November 25, 2018 when San Diego MTS suspended trolley services at the San Ysidro Transit Center due to increased tensions at the border. Passengers seeking to cross into Mexico were forced to transfer to bus routes traveling to the Otay Mesa border. In similar fashion, Caltrans San Diego announced several closures.

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Several months ago, we reported that the United States Citizenship and Immigration Services (USCIS) amended its policy regarding the issuance of Notice to Appear (NTA) documents in removal proceedings.

During the month of June, USCIS released a policy memorandum indicating the agency’s intent to revise NTA policy to better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States.” NTAs are documents that are issued to alien’s subject to removal from the United States. Issuance of an NTA initiates the process of removing an individual from the United States.

Specifically, the Executive Order 13768 called on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order called for the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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“Fake Dates” Appear on Notices of intent to Deny

Across the nation, news outlets are reporting that dozens of individuals have received court orders from Immigration and Customs Enforcement (ICE) ordering them to appear in court by a certain date.

The problem? When these individuals showed up to court on the date indicated on the notice, they were turned away by court staffers who notified them that their names were not listed on the judge’s official dockets.

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Beginning next year, the United States Citizenship and Immigration Services (USCIS) will launch a task force located in Los Angeles, designed to identify, detect, and prosecute individuals who have fraudulently gained United States Citizenship, for example by entering into a ‘sham’ marriage to obtain permanent residence, or engaging in other fraudulent activity, such as using a false identity to apply for permanent residence and/or naturalization.

USCIS has already begun to process of hiring lawyers and immigration officers who will review cases of individuals who have been deported, who the agency believes may potentially use a false identity to obtain permanent residence and/or citizenship. Such cases will be referred to the Department of Justice, who will then initiate the removal of individuals who have committed immigration fraud.

Of the denaturalization task force, USCIS Director L. Francis Cissna told reporters, “We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place. What we’re looking at, when you boil it all down, is potentially a few thousand cases.”

The denaturalization task force will be funded by immigration application filing fees. The denaturalization task force will be primarily focused on targeting individuals who have used false identities to obtain immigration benefits.

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In this post, we bring our readers important information regarding revisions to the Notice to Appear “NTA” policy guidelines. On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released new policy guidance outlining the Department’s priorities for enforcement and removal of undocumented immigrants from the United States.

Form I-862 also known as a Notice to Appear is a document that is given to an individual to initiate removal proceedings. The Notice to Appear instructs the individual of a date and time to appear in immigration court for removal proceedings.

To better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” USCIS has revised its NTA policy expanding the class of individuals who may be referred to ICE and issued a Notice to Appear. Under the revised policy, USCIS may now refer cases “with articulated suspicions of fraud to ICE prior to adjudication,” of cases filed with USCIS. The revised policy does not apply to recipients and requestors of Deferred Action (DACA) when (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. For this class of individuals the 2011 NTA guidelines will apply.

The President’s Executive Order 13768 specifically calls on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order prioritizes the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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A recent Supreme Court decision may enhance the pool of individuals eligible for cancellation of their removal proceedings. Cancellation of removal is a form of relief granted to individuals unlawfully present in the United States, who have been physically present in the United States continuously for a period of no less than 10 years, immediately preceding the date of an application for cancellation of removal. Under 8 U.S.C. section 1229(b)(1)(A), however the period of continuous presence ends when the alien has been served with a notice to appear in immigration court, also known as an “NTA.” A notice to appear is a document issued by the government that initiates a noncitizen alien’s removal proceedings.

Section 1229(d)(1)(A) mandates that the United States government must serve noncitizens in removal proceedings with a written “notice to appear,” specifying the time and place where the removal proceedings are expected to take place.

However, the Department of Homeland Security has followed a regulation dating back to the year 1997 wherein the agency has failed to notify noncitizens of the time, place, or date of initial removal hearings “whenever the agency deems it impracticable to include such information.”

The Board of Immigration Appeals (BIA) has held that even though these notices do not specify the time and date of removal proceedings as required by 8 U.S.C. section 1229(b)(1)(A), the period of continuous presence is still considered to have ended at the time the notice to appear (NTA) is served on the noncitizen alien.

The 1997 regulation along with the BIA ruling has created problems for individuals who would otherwise qualify for cancellation of removal under section 1229(d)(1)(A) of the law, because a deficient NTA served upon a noncitizen would mean that the individual would continue to remain physically present in the United States, despite being served with a deficient NTA.

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On Wednesday June 20, 2018, President Donald Trump signed executive order, “Affording Congress an Opportunity to Address Family Separation,” in response to mounting outrage over the administration’s controversial policy of separating immigrant parents from their children at the border.

The executive order clarifies that it will remain the policy of the United States to detain and remove aliens who have unlawfully entered or attempted to enter the United States outside of a designated port of entry, and that such individuals remain subject to a fine or imprisonment under U.S. law. The administration however promises to maintain family unity “by detaining alien families together where appropriate and consistent with law and available resources.”

What the order does

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Our fears have come true. On May 4, 2018, we reported that the Department of Homeland Security would be making an official announcement terminating the TPS designation for the country of Honduras. Shortly after our report, DHS published a formal announcement terminating the Temporary Protected Status (TPS) designation for Honduras, with a delayed date of termination for a period of 18 months. The official date of termination will be January 5, 2020.

This means that nationals of Honduras living in the United States under TPS will have a period of 18 months to arrange for their departure from the United States or seek alternative legal status to remain lawfully present in the United States.

According to a statement released by DHS, the decision was made after the Secretary determined that “the disruption of living conditions in Honduras from Hurricane Mitch that served as the basis for the TPS designation” in 1999 were no longer substantial enough to justify continuation of the designation.

The report also claims that conditions in 1999 have greatly improved, and the country has made “substantial progress in post-hurricane recovery and reconstruction from the 1998 Hurricane Mitch.”

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