New policy on deportation

On November 7, 2011, the U.S. Citizenship and Immigration Services issued a new policy memo regarding the priority that they will follow to place certain immigrants in removal ("deportation") proceedings .

Although all three branches of the U.S. Department of Homeland Security established under President Bush to replace the U.S. Immigration & Naturalization Service ("INS"), the U.S Citizenship and Immigration Services ("USCIS"), the U.S.Immigration and Customs Enforcement ("ICE") and the U.S. Customs and Border Protection ("CBP") have the authority to issue Notices to Appear in Removal Proceedings ("NTA"), the official document that is used to formally place an immigrant in deportation/removal proceedings, the USCIS traditionally has had less of a role in enforcement of removal, and is known as the agency that grants benefits instead of taking them away.

For example, if you want to obtain your Green Card ("adjutsment of status"), naturalization as a US Citizen, petition for your spouse or parents, and a host of other services, USCIS is the agency that takes care of these types of applications and petitions. But it is true that if any officer notices any issue that may lead them to refer an immigrant for removal proceedings, such as the fact that the immigrant has a criminal history, or has entered the U.S. without any lawful status, they can do so.

In the wake of the earlier policy memo issued under the Obama administration that sought to give some guidance on how to prosecute certain immigrants versus others once they already are in removal proceedings, for example allowing ICE attorneys to agree to jointly terminate removal proceedings in the case of certain immigrant who can demonstrate a host of criteria, this policy memo provides guidance to USCIS officers on how to issue the NTA in the first place. probably, the goal of this new memo is to try to avoid putting immigants in removal proceedings only to have their cases terminated later on in line, and as such, trying to eliminate unnecessary expenses in money and time by restricting the number of NTA that are issued in the first place, basically cutting off the flow at the source. It is noteworthy to repeat, as I mentioned in an earlier blog, that under the Obama administration, a record number of deportations have been completed, about 400,000, which is unprecedented in the history of this country.

The policy memo of November 7 states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and reentry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are termed "non egregious public safety" cases, that is cases that do not fall under the above-noted criteria. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.

I read the memo a couple of times and I am still a bit confused. I am not sure that USCIS officers will be any less confused. It seems to me that it will take even longer for a case to be adjudicated and create even more work on an already overloaded USCIS and ICE. I could imagine officers referring files back and forth to each branch, USCIS, ICE, CBP, each claiming the other had the responsibility of making a decision on the NTA, that it is not their jurisdiction, or not their discretion or whatever, with files piling on top of files until there is no end in sight. A bureaucratic nightmare. The end result will be that in any case it will take much much longer for any NTA to be issued, causing people's legal status to remain in uncertainty that much longer.

The November 7 memo can be found here.