Federal Policy Change Part of Coordinated Effort to ‘Limit Immigration’

Immigrant communities "should definitely be concerned" about a new guidance at U.S. Citizenship and Immigration Services, one policy analyst told Rewire.News.

[Photo: Immigrants prepare to become U.S. citizens at a naturalization service in Newark, New Jersey.]
This new guidance, first announced June 28, rolled out on Monday. John Moore/Getty Images

U.S. Citizenship and Immigration Services (USCIS) began implementing a new guidance this week for funneling immigrants into deportation proceedings, a policy the federal agency’s director said is intended to carry out President Trump’s executive order on immigration.

In a policy memorandum, the agency explained that under the new guidance USCIS will give “adequate notice” to individuals denied the immigration benefits for which they are applying, such as a green card, and upon denial, if the individual is no longer authorized to remain in the United States, or never had authorization, USCIS will issue a Notice to Appear (NTA). The NTA will instruct them to appear before an immigration judge, an indication that removal proceedings are underway.

Sarah Pierce, a former immigration attorney and a current policy analyst for the U.S. Immigration Policy Program at the Migration Policy Institute (MPI), told Rewire.News that immigrant communities “should definitely be concerned” and that USCIS’ new policy will likely hit already vulnerable, undocumented immigrants the hardest.

For example, undocumented immigrants seeking to adjust their immigration status through their U.S. citizen spouse or child must apply for a green card outside of the United States, but when they leave, it triggers either a three- or ten-year bar from the country, depending on how long they had lived in the United States without authorization. In these instances, the person seeking to adjust their status can apply for what’s called a Provisional Unlawful Presence Waiver, which would essentially waive the requirement that bars them from the United States as they adjust their status. Pierce said “thousands and thousands” of people apply for this waiver each year, and under USCIS’ new policy, if the waiver request is denied, USCIS will now issue NTAs, the first step in the deportation process.

This new guidance, first announced June 28, rolled out on Monday. Pierce said it’s hard to know how many immigrants this will affect until it begins to take shape on the ground. The Migration Policy Institute told Politico Magazine that the new policy could result in as many as 260,000 notices annually.

“What I can say as a former immigration attorney is that I would not apply for any immigration benefit right now for a client unless I was absolutely sure they would get it,” Pierce said.

USCIS has had the authority to issue NTAs since 2003 when the Department of Homeland Security (DHS) first formed. But under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is deemed removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States, according to USCIS.

At an MPI conference Monday, USCIS director L. Francis Cissna said the agency issued 91,000 notices to appear in fiscal year 2017 and over 58,000 in the first two quarters of fiscal year 2018.

“Through the new NTA policy memo, USCIS is carrying out the president’s executive order on enhancing public safety in the interior of the United States,” Cissna said Monday. “If you don’t have a lawful status, you should be NTA’d.”

Pierce said that before USCIS’s new policy, the agency’s largest chunk of NTAs were issued to asylum seekers, which is a very different context for receiving a notice to appear before a judge.

“When an asylum seeker passes their credible fear interview, they receive an NTA and are put into long-term removal proceedings. So in the context of asylum seekers, an NTA is a victory. It means you’re an affirmative asylum applicant,” Pierce said. “For everyone else, an NTA is not something you want to get.”

This latest policy change follows on the heels of a July announcement from USCIS updating policy guidance for adjudicators. The guidance, which took effect on September 11, gives USCIS adjudicators full discretion “to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.” It applies to all applications, petitions, and requests, with the exception of Deferred Action for Childhood Arrivals requests as the program is being litigated.

Cissna, who has overseen USCIS since October 2017, is a Trump appointee. His priorities, which he outlined Monday at MPI’s annual immigration conference, suggest the agency is moving away from its “services” approach of previous administrations.

“My three main priorities for USCIS focus on homeland security, faithfully administering our nation’s immigration laws, and moving the agency into an electronic world,” Cissna said.

Federal immigration agencies housed within DHS generally focus on immigration enforcement, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection. USCIS has typically been thought of as the “services arm” of the immigration system, but under Cissna, the agency appears to be veering further into immigration enforcement.

As Rewire.News first reported in January, USCIS worked with the Justice Department and ICE as part of Operation Janus, a nearly decade-old counter-terrorism measure disbanded by President Obama in 2016. Under the Trump administration, it became an immigration enforcement operation that denaturalizes immigrants who allegedly “sought to circumvent criminal record and other background checks in the naturalization process.” So far, the operation has targeted South Asian men who have been in the United States for decades, some of whom may have been escaping persecution in their countries of origin.

Advocates have called Operation Janus a “McCarthy-like witch hunt” and media outlets reported that USCIS had created a “denaturalization task force” after the agency announced in June a Los Angeles office specifically focused on investigating naturalized citizens suspected of lying on their immigration applications.

At Monday’s conference, Cissna addressed Operation Janus, and pushed back against media reports that his agency has a denaturalization task force.

“There is no denaturalization task force. This is a group of officers and lawyers who are looking at the cases that were identified by ICE of people who illegally entered the country, got deported, and then illegally entered again under a fake identity and then years later lied to get citizenship,” Cissna said. “It is appropriate and correct that those people be denaturalized …. We are not opening up naturalization boxes and finding people’s files and looking for missing commas or missing semicolons. This is the population we’re going after; that’s it.”

Since January 2017, USCIS officials have identified more than 2,500 cases that require review for potential denaturalization. As of August 31, Cissna said, more than 110 cases have been referred to the DOJ for denaturalization. Six naturalized citizens have received denaturalization orders since the operation first relaunched.

According to advocates, USCIS is also increasingly reflecting the Trump administration’s anti-immigration rhetoric. In February, Cissna infamously removed “nation of immigrants” from the agency’s mission statement in order to better reflect his guiding principles for the agency, “including a focus on protecting American workers and guarding America,” the Hill reported

“Who does the agency serve?” Cissna asked at an August event in Washington, D.C. “I think there’s been a misunderstanding of that over the years …. People kind of naturally fall into the belief that the individuals that we serve are the people that we interact with every day when we take applications or petitions. I don’t think that we serve them …. We serve the American people.” 

Pierce said that Americans are seeing a “real paradigm shift,” both within USCIS and the immigration system at large. In anticipation of MPI’s conference, the analyst broke down every policy change to the immigration system under the Trump administration. It turned out to be an eight-page bulleted list, which her organization is hoping to publish on its site in the coming weeks. Pierce said her initial list likely didn’t include every change that’s occurred.

These changes, she said, have a chilling effect on immigrant communities. With USCIS’ new policy, immigrant communities may now be unwilling to adjust their status because they run the risk of being deported upon denial. USCIS’ new policy also enables officers to deny an application without a request for evidence, robbing immigrants of the ability to prove they qualify for a benefit.

“The changes we’re seeing aren’t random; it’s been a huge overhaul that was thoughtful and well-coordinated among all of the [federal immigration] agencies,” Pierce said. “We are currently watching a well-coordinated effort across the United States government to limit immigration.”