Month: November 2018

Categories
Updates

New NTA Policy Fully Implemented: Non-U.S. Citizens Whose USCIS Applications are Denied May Risk Deportation

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On October 1, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced the implementation of its New Notice to Appear (NTA) policy that will have an impact on immigrants with denied applications for benefits. On November 8, 2018, an expansion of the list of applications and petitions affected by this new policy was announced by USCIS and most of them are humanitarian in nature.

WHAT IS AN NTA ?
NTA stands for Notice to Appear which refers to the charging document that is issued to foreign nationals who are deemed “removable” or deportable from the United States. When an individual receives a notice to appear, it means that he is put in removal proceedings so he should appear before an Immigration Judge. During the hearing, he is expected to defend himself from deportation by raising appropriate relief/defenses/waivers that may be available to avoid his deportation or to allow him to remain in the United States.

WHAT IS THE SIGNIFICANCE OF THIS NEW NTA POLICY TO NON-U.S. CITIZENS APPLYING FOR IMMIGRATION BENEFITS?
USCIS began issuing notices to appear on October 1, 2018 to non U.S. citizens whose applications for immigration benefits are denied. More specifically this applies to those with denied applications for adjustment of status and applications to extend or change non-immigrant status. Before October 1, 2018, those with denied applications are not affected by this new NTA policy and may not necessarily be put in removal proceedings.

In its recent press release, starting Nov. 19, 2018, USCIS may issue NTAs based on denials of the following humanitarian type of applications/petitions:

  1. I-914/I-914A, Applications for T Nonimmigrant Status, and
  2. Petitions for Forms I-918/I-918A, Petitions for U Nonimmigrant Status;
  3. I-360 Petition for Amerasian, Widow(er);
  4. I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant,
  5. Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions); and
  6. I-730 Refugee/Asylee Relative Petition, when the beneficiary is present in the US, as well as Form I-485, Application to Register Permanent Residence or Adjustment of Status, filed with these underlying form types.

Note that USCIS not ICE will issue the notice to appear when there is a denial practically compelling these individuals into a court system and making it difficult for them to depart the United States while their removal case is pending.

CAN YOU CITE EXAMPLES OF THOSE WHO MAY POTENTIALLY BE AFFECTED?
An individual in possession of a H1B visa, or a student visa holder filing for an extension of status, and the application for extension of status is denied by the USCIS is an example. Upon denial, USCIS may now put this individual in removal/deportation proceedings. Another example is a spouse of a U.S. citizen filing for adjustment of status; if denied for any reason, the spouse applicant for adjustment of status may be put in removal proceedings. Also, beginning November 19, 2018, those whose U, T or VAWA (Violence Against Women’s Act) self petitions are denied may be issued NTAs.

WHAT CAN INDIVIDUALS WHO INTEND TO FILE FOR APPLICATIONS FOR IMMIGRATION BENEFITS DO TO AVOID RECEIVING NTAs?
This new NTA policy has harsh effects on applicants. The best step to take is to make sure that whatever application is filed, all eligibility requirements are met and all possible issues which may be grounds for denials are addressed in the application. I also understand that many file applications on their own but these days, it will be best to exercise due diligence by consulting with trusted legal professionals before filing an immigration application. In the worse case scenario that an NTA is received, do not depart immediately. If you depart after receiving an NTA without justifiable reason, an order of deportation in absentia may be issued and it will have a serious consequential effect on one’s ability to return to the United States in the future.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)

Categories
Updates

Update on DACA: Has the DACA Program Ended Yet?

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On November 8, 2018, the Ninth Circuit Court of Appeals ruled that the rescission of the DACA program by the Trump Administration is arbitrary and capricious. What does this ruling mean to DACA applicants?

The Deferred Action on Childhood Arrivals, commonly referred as DACA, begun in 2012 allowing non-citizens who entered the United States as children, who have clean criminal records, and who meet certain eligibility requirements – to apply for two-year renewable periods of deferred action. Deferred action is a revocable decision by the government not to deport an otherwise removable person from the country. Those granted deferred action are issued an employment authorization document for limited periods of time.

Josh is a Filipino DACA recipient. He entered the United States when he was only 9 years old as a visitor visa holder. His parents are still without legal status but Josh was able to get DACA protection in 2016. He is now gainfully employed in a financial institution and has been a good citizen. When he was about to renew his DACA employment authorization, Joshua was told that he only has a small window to benefit from the DACA program as a result of the Trump Administration’s announcement in September 2017, that the DACA program is to be terminated in phases.

Lawsuits were filed in Northern District of California after the Trump announcement of the DACA rescission in September 2017; in January 2018, the District Court ruled that the DACA rescission was unlawful. Hence, a resulting nationwide preliminary injunction was issued to hold off Trump’s plan to phase out the DACA program.

The Trump administration continued to argue for the validity of the DACA termination arguing its case with the Court of Appeals. The primary bases of the government in stating that the DACA program is illegal was that DACA was “effectuated without proper statutory authority and is unconstitutional.” Without waiting for a decision from the Court Appeals the government filed in November 5, 2018 a petition for writ of certiorari before the U.S. Supreme Court arguing on the legality of the DACA rescission.

On November 8, 2018, three days after filing the petition before the Supreme Court, the Ninth Court of Appeals ruled that the DACA rescission was unlawful, arbitrary and capricious. It also affirms the District Court’s issuance of a preliminary injunction and thus holding off to the termination of the DACA program.

As a result of the affirmation of the preliminary injunction, the U.S. Citizenship and Immigration Services (USCIS) will continue to receive and adjudicate renewal of DACA applications with the following exceptions:

  1. That new applications from applicants who have never before received deferred action need not be processed;
  2. That the advance parole feature need not be continued for the time being for anyone; and
  3. That DHS may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.

Hence, in the case of Josh above, and based on recent developments on DACA, he can still be permitted to renew his DACA protection and seek renewal of his employment authorization document.

The fate of the DACA program is now with the U.S. Supreme Court. With the current structure of the court and the recent appointment of Justice Brett Kavanaugh, several of us immigration advocates are quite apprehensive about the future of the DACA program. Meanwhile, considering that it has not ended, DACA recipients must continue to avail of its benefit.

In concluding the panel’s recent decision, Justice Wardlaw of the Ninth Circuit Court of Appeals emphasized how important it is for the government to be “democratically accountable” to the public in the exercise of its discretion in the enforcement of immigration law. It stated in part, “whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.”

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com, or through facebook.com/tancincolaw.)