Tag Archive for: Notice to Appear

Cyrus Mehta

Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy

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U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is 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.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.

 

 

 

 

 

 

David Isaacson

Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not “Lawfully Present”

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In a November 2017 article, the Washington Post described “How Trump is building a border wall that no one can see”: how the Trump Administration was, “in a systematic and less visible way . . . following a blueprint to reduce the number of foreigners living in the United States — those who are undocumented and those here legally — and overhaul the U.S. immigration system for generations to come.”  A month later, the New York Times published a similar article on Trump Administration efforts to reduce legal immigration using existing executive authorities.  The latest guidance from U.S. Citizenship and Immigration Services (USCIS) regarding when USCIS will issue a Notice to Appear (NTA) is another step in that direction, and an even more problematic one than it might appear to be at first glance.

USCIS recently announced in a Policy Memorandum, PM-602-0050.1, that it is changing the way it decides whether to issue an NTA placing someone into removal proceedings in immigration court.  In all cases other than those involving Deferred Action for Childhood Arrivals (DACA), which is the subject of separate NTA guidance, this new memorandum supersedes the previous USCIS NTA guidance that had been in effect since 2011.

The new NTA guidance in PM-602-0050.1 is said to be intended to implement the Trump Administration’s enforcement priorities as set out in the January 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.”  It lists a number of scenarios in which an NTA will generally be issued absent high-level approval to do otherwise, but perhaps the most significant is one buried at the bottom of page 7 of the memorandum, after discussion of various scenarios relating to fraud or criminal cases.  The memorandum states there that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”  This encompasses a wide variety of scenarios.

The new guidance’s apparent conversion of USCIS into an immigration-enforcement entity, contrary to the agency’s originally-intended mission as a benefits-granting entity distinct from the enforcement activities of other Department of Homeland Security components, has drawn criticism from the American Immigration Council and the American Immigration Lawyers’ Association, among others.  The criticism has understandably been from a broad, overarching perspective, and the new NTA policy is indeed deeply problematic from that perspective.  Some of the practical implications of the new policy, however, are also worth exploring in more detail.

By indicating that an NTA will be issued when, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present,” the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision.  That is, if an applicant for extension of nonimmigrant stay, change of nonimmigrant status, or adjustment of status was protected from the accrual of unlawful presence by the pendency of their application, but became unlawfully present the day that the denial was issued and mailed, it would seem that an NTA will follow.

Given the substantial processing times for many applications for change of status or extension of stay, this criterion could capture a great many nonimmigrants who in good faith applied to change to a different status, or extend their stay, well before their initial period of authorized stay expired.  According to the USCIS webpage regarding processing times, for example, an I-539 application for extension of stay or change of status which is processed at the USCIS Vermont Service Center is estimated to take between 9 months and 11.5 months.  So even someone who applies 9 months before the expiration of their initially authorized stay likely will not receive a decision before that period expires, and will thus be unlawfully present upon the issuance of an unfavorable decision on their application and subject to an NTA under the new USCIS policy.  Indeed, if a tourist or business visitor admitted for 6 months wishes to apply for an extension of stay or change of status, it would be mathematically impossible to do so far enough in advance to avoid this consequence in the event of a denial, because the projected processing time is longer than their entire initial period of admission!

Petitions and applications for extension of stay or change of status could also be denied for reasons which the nonimmigrant in question may not have anticipated.  As my partner Cyrus Mehta has pointed out, the new NTA guidance could apply, for example, to an H-1B skilled worker affected by new stricter USCIS policies regarding H-1B approvals, if the denial of an application for extension of stay comes after the expiration of the worker’s prior status.  It could also apply to an F-1 student who is the innocent victim of a mistake by a Designated School Official (DSO), or a B tourist or business visitor whom a USCIS officer decides has not given a sufficiently compelling explanation of why they want to remain for an extended but still temporary period of time.

Even one who has applied in good faith for a change of status or extension of stay, expecting it to be granted, may therefore under the new policy be placed in removal proceedings. Subjecting well-meaning temporary workers, students, tourists and other nonimmigrants to immigration court proceedings, and even potential detention, just because USCIS disagrees with the merits of their application for extension of stay or change or adjustment of status, is indicative of a malicious attitude towards noncitizens that we have also seen in other contexts from this Administration.

Because of what is likely to happen next in many such cases, this new policy is not merely malicious, but counterproductive as well, even when evaluated according to the goals that the Administration is presumably trying to accomplish (unless the Administration is more interested in harassing noncitizens, and generally deterring them from coming to the United States, than in encouraging timely departure following the denial of particular applications).  Initial hearings in removal proceedings often take several months to schedule even with the current backlog at the immigration courts, which will presumably get worse, not better, under the new NTA policy.  So our hypothetical denied applicant for change of status or extension of stay, who may have been planning to depart from the United States shortly after receiving the denial, will now be instructed to await an immigration court hearing in several months.  If he or she chooses to leave the United States in the meantime, and is unable to return for the removal hearing, this could result in a five-year bar to returning to the United States, pursuant to section 212(a)(6)(B) of the INA, which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”  An order of removal issued at such a hearing could also potentially lead to inadmissibility for ten years under section 212(a)(9)(A) of the INA, although the text of the statute (which refers to seeking admission “within 10 years of the date of such alien’s departure or removal”) suggests that this second bar ought not to apply where the person has already left at the time of the removal order (and unlike section 212(a)(6)(B) inadmissibility, 212(a)(9)(A) inadmissibility can at least be overcome by a grant of permission to reapply for admission under section 212(a)(9)(A)(iii) of the INA).  Thus, the statute provides a strong incentive for our hypothetical denied applicant, having been placed in removal proceedings, not to leave the United States before his or her hearing.

As long as the immigration court proceedings take place within one year of the denial of a timely-filed application for change of status or extension of stay by one who has not worked without authorization, our hypothetical denied applicant is likely to be better off staying in the United States to attend his or her hearing, so as to avoid the above-discussed types of inadmissibility, and then seeking voluntary departure under section 240B of the INA.  (The three-year bar for those unlawfully present for more than 180 days but less than one year, under section 212(a)(9)(B)(i)(I) of the INA, only applies by its terms to those who departed “prior to the commencement of proceedings under  . . . section 240” and so does not apply to someone placed in removal proceedings, though the ten-year bar for one year of unlawful presence under section 212(a)(9)(B)(i)(II) would apply.)  Thus, in this instance, the virtual wall will operate to keep in the United States for a substantial additional period of time someone who may have been perfectly willing to leave on their own shortly after the denial of their application for change of status or extension of stay, had they not been placed in removal proceedings.

In the presence of ever more outrageous immigration policies from the Trump Administration, such as the separation of children from their parents and the recent news that the Administration will likely fail to meet a court-ordered deadline to reunify separated children under 5 with their parents, there is a risk that more subtle anti-immigration measures may be overlooked.  As with other Trump Administration malfeasance, however, it is important not to succumb to such “outrage fatigue”.  The fact that the Administration has done even worse things does not mitigate the callous and counterproductive nature of a decision to place many well-meaning nonimmigrants in removal proceedings, and effectively prevent them from leaving the United States in a timely fashion after denial of an application even if they wish to do so.