NTA | The Insightful Immigration Blog

By Cyrus Mehta and Kaitlyn Box*

On April 3, 2022 the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle issued a memorandum (“the Doyle memo”) which empowers ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the criteria laid out in the earlier Mayorkas memo. The goal of the ICE prosecuting attorney under the new policy is to achieve justice rather than removing the noncitizen. Indeed, under the Doyle memo, the ICE attorney’s role as the government’s representative in removal proceedings is to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

For cases where removal proceedings have not yet been initiated, the Doyle memo encourages ICE attorneys to consider not filing a Notice to Appear (NTA). If an NTA has already been issued, the Doyle memo prescribes filing a motion to dismiss the case, whether or not the noncitizen consents to the dismissal. The memo also outlines some of the other tools ICE prosecutors can employ as an exercise of discretion, including stipulations to issues or relief, continuances, not pursuing appeals, joining in motions to reopen, and administrative closure, which temporarily halts removal proceedings by taking a case off a court’s docket for the time being. However, the Doyle memo states that OPLA’s strong preference is to remove nonpriority cases from the docket permanently through dismissal or similar means, so that resources can instead be devoted to priority matters.

Some of the guidance provided in the Doyle memo will provide helpful relief to individuals in removal proceedings, or individuals who have not yet been placed in proceedings, the memo also raising some ethical conundrums for practitioners of immigration law. As mentioned above, the Doyle memo authorizes ICE prosecutors to file motions to dismiss nonpriority cases, even if the noncitizen does not agree with the dismissal. If an individual in a removal proceeding has an application for relief pending before EOIR such as an application for cancellation of removal and the case is outright dismissed, the noncitizen might lose work authorization or another benefit associated with the pending application. This individual will also be deprived of the ability to pursue the application and win cancellation of removal. Dismissal will put the noncitizen back to square one as an undocumented person. It is possible that a noncitizen who has been granted cancellation of removal but is waiting in the queue for a number can also be subject to a unilateral motion to dismiss by an ICE prosecutor. Thus, it is crucial for attorneys to promptly notify clients of an outright dismissal and any associated consequences. Board of Immigration appeals case law also provides a basis for attorneys to be able to challenge outright dismissals that are deleterious to their clients. In Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998), the BIA held that once the NTA is filed an Immigration Judge must not simply cancel a charging document upon USCIS’ invocation of prosecutorial discretion, but should adjudicate the motion to dismiss on the merits, considering arguments from both sides.

Certain noncitizens have a right to be placed in removal proceedings. One whose affirmative asylum application is not granted must be referred for removal proceedings pursuant to 8 CFR 208.14(c)(1). Similarly, under 8 CFR 216.4(d)(2) and 8 CFR 216.5(f), the denial of a joint I-751 or waiver I-751 petition requires the issuance of an NTA. A dismissal of such an application would clearly be in violation of not just the applicable regulations but also the Doyle memo. Still, the IJ can dismiss a proceeding where a meritless asylum application was filed with the USCIS for the sole purpose of seeking cancellation of removal in immigration court. See Matter of Andrade, 27 I&N Dec. 557 (BIA 2019. Thus, attorneys must be vigilant to contest a motion to dismiss if the facts of the case can be distinguished from Matter of Andrade. For instance, even if the asylum application may have been filed with the intention for seeking cancellation of removal, but the asylum application had merit, this would not be a basis for an IJ dismiss the proceeding.

The Doyle memo also encourages ICE attorneys to employ other tools in exercising prosecutorial discretion, such as filing joint motions to dismiss. There is often a short time frame to respond to these motions, so advocates must be vigilant in ensuring that they inform clients and submit a timely response. Advocates should ensure that clients have an avenue for relief before joining a motion to dismiss, and should inform clients about what a dismissal would mean for their case and any negative consequences.

The Doyle memo states that OPLA attorneys may agree to administrative closure when the noncitizen does not oppose and the specific facts of the case warrant administrative closure over other means of clearing the case from the docket. In some instances, though, OPLA can unilaterally seek administrative closure regardless of the wishes of the noncitizen. Immigration attorneys should inform their clients of the impact that an administrative closure would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure is not a permanent termination of removal proceedings, so attorneys must continue to monitor administratively closed cases and seek more lasting forms of relief for their clients.

Despite its beneficial aspect, the methods for exercising prosecutorial discretion suggested in the Doyle memo could place noncitizens in uncertain situations and raise ethical dilemmas for their immigration lawyers. The attorney must be competent, diligent and must communicate with the client to ensure that the client is not worse off than in pending removal proceedings. Most important, the attorney must obtain the client’s informed consent before responding to any initiative by the ICE prosecutor under the Doyle memo or reaching an agreement with the government. The pros and cons of seeking relief under prosecutorial discretion over seeking relief under the INA must be carefully considered and discussed with the client. Because OPLA does not include language in motions that would preserve a noncitizen’s ability to work, dismissal of the case often means that a noncitizen will lose work authorization with little warning. Dismissal of a case may also leave individuals with essentially no authorization to remain in the US, giving them little choice but to work without authorization, not pay taxes, and potentially violate the law in other ways. Immigration attorneys must carefully analyze these issues and advocate for their clients when a dismissal or administrative closure may do more harm than good.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

It is October 1, 2018 and this morning, in what is an extremely unfortunate yet totally preventable situation, businesses across the U.S. were forced to temporarily terminate the employment of F-1 students who were previously employed pursuant to their cap-gap extension period.

Briefly, the cap-gap extension regulation temporarily extends the OPT (Optional Practical Training) period for F-1 students with pending H-1B petitions and requests for change of status. The cap-gap period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30^th, the end of fiscal year. The ongoing suspension of USCIS’ premium processing service, previously discussed in one of our earlier blogs, has critically impacted H-1B cap subject petitions for F-1 students in the cap-gap extension period. USCIS has found a way to basically suffocate the H-1B visa program.

USCIS extended the suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions which was originally slated to last until September 10, 2018, through to an estimated date of February, 19, 2019. USCIS’ premium processing service has always been a heavily utilized option for U.S. businesses providing them with a significantly faster adjudication timeline of a few weeks instead of the regular processing time of 6-9 months! The premium processing option also allowed businesses to ensure that their professional staff would be available to meet critical project timelines and thus allowed them to plan accordingly. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery. Under the H-1B regulations, an H-1B petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary’s services or training. Therefore, U.S. employers are unable to file an H-1B petition on behalf of a prospective employee more than six months from the intended start date but the processing of that H-1B petition may take well beyond six months. Without premium processing, many employers are left unable to hire the H-1B worker on October 1, 2018 even though the job offer was made more than six months ago and the petition is potentially approvable. In addition, premium processing was also a great tool for the F-1 student. Imagine having a petition filed on your behalf in the first week of April and for the next 6-9 months, or likely longer, being unable to make any concrete plans for your future, including not knowing whether you would be allowed to remain in the US or have to immediately pack your bags and leave.

USCIS stated that the suspension of premium processing is necessary in order to allow the agency to “[b]e responsive to petitions with time-sensitive start dates” but it is not clear why F-1 students who are in a cap-gap extension period failed to qualify as having time-sensitive start dates. U.S. employers forced to suspend the employment of these F-1 students have no recourse. USCIS has indicated that these petitioners may submit a request for expedited processing but the expedite process is grossly unreliable and it is not clear how these requests are being processed. It is by no means a viable alternative to premium processing.

As of October 1, F-1 students previously employed pursuant to a cap-gap extension are no longer authorized to work and will start accruing unlawful presence in the U.S. if they continue to work under the new unlawful presence policy applicable to students. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. This student also cannot travel during the limbo period, unless he or she is prepared to return to the US after the H-1B petition is approved on a new H-1B visa. But one should not assume that the H-1B petition will get approved in a climate where the Trump administration is routinely challenging H-1B petitions for occupations that were previously easily approved. Although the USCIS has at this time delayed its removal policy with respect to employment-based petitions that ultimately get denied, the delay will not be indefinite and these F-1 cap students will find themselves not just accruing unlawful presence, but will also find themselves facing removal proceedings if the H-1B petition and the request for change of status is denied.

Of course, if an F-1 student with a pending change of status H-1B petition has work authorization (such as a valid Employment Authorization Document (EAD)) that extends past September 30^th they may continue to work as authorized.

The American Immigration Lawyers Association (AILA) has called on USCIS to immediately lift the premium processing suspension on FY 2019 H-1B cap-subject petitions for beneficiaries who are in a cap-gap extension period, or alternatively, to publish a notice in the Federal Register extending the cap-gap work authorization period to at least 90 days beyond September 30, 2018, or until all FY 2019 H-1B cap cases can be adjudicated. To date USCIS has issued no response to this request.

In choosing to so suffocate the H-1B visa program, USCIS is restricting legal immigration and fulfilling the Trump administration’s objective under its “Buy American and Hire American” Executive Order No. 13788. But a negative chain reaction easily ensues with an immigration policy influenced by BAHA: U.S. businesses cannot remain competitive if they are unable to hire the best students graduating from US universities, including foreign students in F-1 status. U.S. universities will get hurt if they cannot attract the best students in the world who also pay full tuition fees. The U.S. loses out as a nation if it cannot compete with other countries for the best and brightest. The only way out of this downward spiral is for this administration to come to its senses and provide much needed oxygen to the H-1B program it has cruelly strangulated by restoring premium processing and adjudicating bona fide H-1B petitions more sensibly so that they get approved rather than denied.