Posts Tagged ‘misrepresentation’

USCIS to Begin Implementing New Policy Memorandum on Notices to Appear on October 1st

Friday, September 28th, 2018 by W. Scott Railton

USCIS will begin to implement a new policy memorandum for issuing Notices to Appear on October 1st.  The memorandum outlines criteria for issuing Notices to Appear, which is the document for initiating immigration court proceedings. The agency will issue Notices to Appear after certain denials of many of the application types presented. These will include Adjustments of Status, Naturalization, and Temporary Protected Status applications, to name a few.  The importance of seeking counsel before filing applications is all the more heightened by this memo, particularly if there is any issue at all to consider.

The memo says that USCIS will issue Notices to Appear in many cases. The focus will be on a number of different serious criminal matters where persons are “under investigation for, has been arrested for (without disposition), or has been convicted.  The offenses include serious offenses like murder, rape, sexual abuse of a minor, and firearms offenses. The list also includes “human rights violators, known or suspected street gang members, or Interpol hits.”

Additionally, persons who make misrepresentations or “abused any program related to the receipt of public benefits” may be noted to appear.

Naturalization applicants who are denied on good moral character grounds, based on an underlying offense, “provided they are removable,” will be noted to appear.

The agency policy memo includes many other bases, many of which sound reasonable, but the language of the memo leaves much open for interpretation and negative discretionary actions by the agency.  Notably, the current immigration court case backlog is over 700,000 cases, and this will just add to that backlog.  Unless these measures are adequately funded, they threaten all normal immigration processing timelines, which are even now considerably delayed.

Here’s the agency’s press release:

U.S. Citizenship and Immigration Services (USCIS) will begin implementing the June 28 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) on Oct. 1, 2018. USCIS will take an incremental approach to implement this memo.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Starting Oct. 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.

USCIS is holding a public teleconference on Thursday, Sept. 27 from 2 – 3 p.m. Eastern to provide an overview of the PM and respond to pre-submitted questions. The teleconference will conclude with a question and answer session, as time permits. Additional information is available on the Upcoming National Engagements page.

USCIS will provide updates and information on the implementation of this PM on the new Notice to Appear Policy Memorandum page.

 

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Posted in General, Scott Railton |

Canada’s Cannabis Act and U.S. Inadmissibility

Friday, September 21st, 2018 by W. Scott Railton

Canada’s Cannabis Act, otherwise called Bill C-45, legalizes cannabis nationally on October 17th. The starting point for all U.S. border issues is the U.S. Immigration and Nationality Act. With that in mind, I’ve put together a list below of the key provisions of the INA concerning marijuana and inadmissibility.

I. Criminality Related Grounds

A. Personal:

a.) A past conviction related to cannabis [INA § 212(a)(2)(A)(II)];
b.) Admitting to committing a violation of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];
c.) Admitting to committing acts which constitute the essential elements of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];

Note: Cannabis on person/in car: this is a Customs violation, likely warranting a fine and further questions. Not typically referred for prosecution, though a violation of the Controlled Substance Act. Waiver usually required thereafter. Also, note, cannabis may also be involved in crimes involving moral turpitude, a separate basis of inadmissibility.

B. Illicit Trafficking (“Reason to Believe”: no conviction required)

d.) Where the U.S. Government knows or has “reason to believe” (no conviction required) is an illicit trafficker, or who is or has been a knowing aider, abettor, assister, conspirator or colluder with others who are in illicit trafficking [INA § 212(a)(2)(C)(i)];

e.) A spouse, son or daughter of an illicit trafficker, who has received financial or other benefit from the illicit trafficking in the past five years, and knew or reasonably should have known that the financial or other benefit was a product of such illicit activity. [INA § 212(a)(2)(C)(ii)];

II. Health related grounds (“Drug abuser/Drug Addict”; “Physical/Mental Disorder”)

f.) A determination that a noncitizen is a drug abuser or drug addict, in accordance with regulations prescribed by Health and Human Services [INA § 212(a)(1)(A)(iv)];

g.) A determination that a noncitizen has a physical or mental disorder and behavior/ history of behavior posing threat to property, safety or welfare of others [INA § 212(a)(1)(A)(iii)(I and II)]

• Panel physician – have to pay government certified physician for exam
• CDC Technical Instructions requires 1 year of remission

III. National Security- (Unlawful purpose)

h.) Seeking entry principally or incidentally for an unlawful activity [INA § 212(a)(3)(ii)];

IV. Misrepresentation/Fraud

i.) Fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit [INA § 212(a)(6)(C)].

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Posted in General, Scott Railton |