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What is a "Notice to Appear?"

Immigrant Couple Reading Notice to Appear

In immigration matters, a Form I-862 Notice to Appear (NTA) signals the beginning of deportation or removal proceedings. The NTA, issued by U.S. Immigration and Customs Enforcement (ICE), directs the recipient to appear at a certain date, time and location for an immigration hearing. This notice describes your status as a foreign national; sets forth the factual allegations that are the basis for the notice; details the charges against you; and sets forth the immigration laws you have allegedly violated and which are the basis for those charges.

Under current immigration law, U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are authorized to issue NTAS.

While receiving a Notice to Appear is a serious matter, it is important not to panic; the NTA does not mean that deportation is certain. That said, receiving an NTA is a very serious matter, and a signal that you should retain an immigration attorney immediately, if you have not already done so.

New Guidance Regarding NTAs

In July 2018, USCIS issued updated guidance regarding issuance of Notices to Appear. The updated information was intended to bring policy in line with the stated immigration enforcement priorities of the Department of Homeland Security.

The updated guidance means that USCIS will issue NTAs in a broader range of cases. These include cases where there is evidence of criminal activity, fraud, or an applicant who has been denied an immigration benefit but remains, unlawfully, in the United States.

The justification given for this expanded action is that USCIS officers have reportedly uncovered fraudulent or criminal activity in the past but not had the needed authority to make sure that immigration laws were properly carried out. According to USCIS, the updated guidance gives USCIS officers the direction they need, and better ability to faithfully execute the immigration laws. The stated goal is to support the president's immigration priorities, keep communities safe, and protect the integrity of the country's immigration system.

However, the effect of the updated guidance may be that NTAs are issued to individuals who should not be removed from the country, and in order to prevent removal, those individuals will need experienced legal counsel.

Who is Affected?

The updated policy memorandum essentially compels USCIS to issue NTAs under the following circumstances for removable individuals:

  • When fraud or misrepresentation is substantiated, as well as when an applicant has abused a program related to receiving public benefits. Note that even if the case was denied for reasons other than fraud, an NTA will be issued.
  • Criminal cases in which an applicant was charged with or convicted of a criminal offense or has committed acts for which the applicant could be charged with a criminal offense. This is so even if the criminal behavior was not the reason for the denial or the ground on which removability was based. Cases involving serious criminal conduct may be referred to ICE.
  • When USCIS denies a Form N-400, Application for Naturalization, on the grounds of moral character because of a criminal offense.
  • When an application or petition is denied and the applicant remains unlawfully present in the United States.

In cases involving national security concerns or those in which issuance of an NTA is required by regulation or statute, USCIS policy is unchanged. Similarly, policy is unchanged for those individuals with temporary protected status (TPS), unless withdrawal or denial of TPS means the individual has no other lawful immigration status.

How Does the Updated Guidance Affect DACA?

Recipients and requestors of Deferred Action for Childhood Arrivals (DACA) may wonder how the new policy will affect them. At this time, DACA recipients and requestors are not subject to the updated guidance during the processing of an initial DACA request or request for a renewal of DACA. There was a policy memorandum issued in 2011 that will continue to apply to these cases.

What to Do if You Receive an NTA

If you are issued an NTA, do not delay in taking action. The sooner you have help dealing with and responding to the NTA, the better. You have a right to be represented by an attorney in your removal proceedings, but unlike a criminal court case, the government is not required to provide you with counsel.

It is critical that you understand everything in your NTA, especially what is expected of you. If you have an experienced immigration attorney, she or he will be very familiar with NTAs and can help you understand what your next steps should be. If you fail to appear as you are ordered to, the court may order you deported.

If you have received an NTA and are wondering what to do next, we invite you to contact our law office immediately.

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Categories: Immigration Law