Wednesday, November 9, 2011

The USCIS Amnesty Memorandum

The ugly and impotent stepchild of immigration enforcement, U.S. Citizenship and Immigration Services (USCIS) has finally got skin in the Obama Regime Administrative Amnesty game, as predicted. And given its ugly and impotent nature, USCIS has decided in the administration of its portion of the amnesty, to defer to U.S. Immigration and Customs Enforcement (ICE) the authority to make decisions for USCIS on who to amnesty.






In typical USCIS fashion, nothing in the memorandum is clear, other than deferring to ICE decisions about the removeability of certain groups of illegal aliens, mostly those with various levels of criminal convictions. What is of import is that a certain group of criminal aliens apparently will be qualifying for amnesty:








2. Non-Egregious Public Safety Criminal Cases




If it appears that the alien is inadmissible or removable for a criminal offense not included on the EPS list, USCIS will complete the adjudication and then refer the case to ICE. This section applies to N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the criminal offense. ICE will decide if, and how, it will institute removal proceedings and whether or not it will detain the alien. USCIS will not issue an NTA if ICE declines to issue an NTA.


USCIS is also administering the amnesty by creating a committee to review cases of deportable aliens encountered by USCIS.








V. Cases Involving Form N-400, Application for Naturalization




The following guidance applies to the issuance of NTAs in cases in which applicants for naturalization are removable. There are two primary situations in which NTAs may be issued in connection with a filed Form N-400. If the N-400 case involves fraud (documented in the SOF) the procedures found in this section must be followed, rather than the procedures found in Section III (Fraud Cases with a Statement of Findings Substantiating Fraud). However, the below guidance does not apply to EPS cases. EPS cases must be referred in accordance with Section IV.




A.1 (Egregious Public Safety Cases) of this memo. Additionally, the below guidance does not apply to non-EPS criminal cases when the N-400 can be denied on GMC grounds based on the criminal act. These cases must be denied and referred in accordance with Section IV.




A.2 (Non-Egregious Public Safety Criminal Cases).




A.The first situation occurs when the applicant may be eligible to naturalize but is also deportable under section 237 of the INA. Examples include applicants convicted of aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining Lawful Permanent Resident (LPR) status that do not fall within the GMC period. The ISO should:




1.Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., and prior immigration violations, and contributions to society to include the pursuit of education and military service.




2.Once the ISO has made a recommendation on whether or not to issue an NTA, the case should be forwarded to the N-400 NTA Review Panel (Review Panel), along with the written recommendation. A Review Panel must be formed in each Field Office and include a local Supervisory Immigration Services Officer (SISO), a local USCIS Office of Chief Counsel attorney, and a district representative. An attorney from ICE’s local Office of Chief Counsel will be invited to participate and will have an advisory role on the panel. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.




3.If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once proceedings have concluded, or if the Review Panel declines to issue an NTA, adjudicate the case appropriately. Additional factors to be taken under consideration can be found in the June 17, 2011 ICE memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.



B.The second situation occurs when it is determined that the applicant was inadmissible at the time of adjustment or admission to the United States, thus deportable under section 237 of the INA and not eligible for naturalization under section 318 of the INA.16 The ISO should:




1.Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: willfulness of actions, fraud factors, length of LPR status, criminal history, and officer error at time of adjustment.




2.Once the ISO has made a recommendation on the issuance of the NTA, the case should be forwarded to the Review Panel (see Section V.A.2), along with the written recommendation. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.




3.If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once removal proceedings have concluded, adjudicate the case appropriately. If the Review Panel declines to issue an NTA, deny the case under section 318 of the INA.


Of course, no committee or decision making process is necessary when USCIS encounters a deportable alien. It is obliged to place that alien in removal proceedings. But the purpose of the local committees is to avoid that requirement. And it is abundantly clear that the committees will be stacked with those who have internalized the unstated policy that the purpose is amnesty. Instead of removing aliens after denying a benefit, they will be allowed to remain, free to comit other crimes, like Santana Gaona, a minor criminal alien released by ICE only to commit murder. Basically USCIS will follow ICE's lead on the administrative amnesty, like the ugly stepchild it is, or more accurately, ICE's little bitch.

No comments: