Mar 22, 2012

CNN: New Jersey church 'safe haven' for Indonesian immigrant
By Mary Snow
March 20, 2012 bed, space heater and a place to put his clothes are all Saul Timisela have in a room he calls home. But his new refuge inside New Jersey’s Reformed Church of Highland Park is the only thing that stands between him and deportation.

"I feel safe," says Timisela, who moved into a Sunday school classroom on March 1, when he defied an order to return to his native Indonesia. His wife has since joined him. "All the members are so welcoming,” adds Timisela, who says he’s prepared to stay in the church until his case is solved.

When and if that happens is a question mark. In the eyes of Immigration and Customs Enforcement, Timisela is an "immigration fugitive" who was "ordered removed" from the U.S. in 2006 but failed to leave. He says he was unaware of that 2006 order. He’s now inside a church, and it’s unlikely that immigration officials would raid it."As a matter of policy," ICE spokesman Harold Ort says, ICE "does not conduct enforcement actions at sensitive locations, including places of worship, without prior approval from ICE headquarters or unless the action involves a national security matter, imminent risk of violence or physical harm, pursuit of a dangerous felon or the imminent destruction of evidence in an ongoing criminal case."

As Timisela waits it out, he relies on Pastor Seth Kaper-Dale, who opened the church as a sanctuary. Kaper-Dale has personally taken up Timisela’s cause along with roughly 80 other Indonesians in his community facing deportation. He sees his church on the front lines of the battle over immigration reform."We have seen, in recent years, states taking immigration matters into their own hands due to the federal failures to make sense of immigration policy," Kaper-Dale says. "I think our church actions are like those state actions."Kaper-Dale questions the Obama administration’s immigration policy in light of a memo issued last June directing the use of "prosecutorial discretion." It seeks to prioritize immigration enforcement, "to target criminal aliens and those who put public safely at risk, as well as those who threaten border security or the integrity of the immigration system," according to a statement from ICE’s office in Newark, New Jersey.Kaper-Dale says his community doesn’t fit that bill.Many Indonesians in his community, including Timisela, came to the U.S. on a tourist visa in the late 1990s. They left the predominantly Muslim country because, at that time, Christians were being persecuted. After arriving in the U.S., they had a year to apply for asylum, but many say they weren’t aware of that. Their visas expired, and they lived here illegally.And they came forward after the September 11 terrorist attacks because of a program called the National Security Entry-Exit Registration System, or NSEERS, which was discontinued last year.Under it, foreign visitors, mostly from predominantly Muslim countries, were told to register with the government. Because Indonesia was on the list, the men came forward. Some, like Timisela, believed they were on a path to legalization.That didn't happen. Instead, they put themselves on the radar of immigration enforcement.

Kaper-Dale says he got involved after raids were carried out and deportation orders followed. Eventually, he and ICE worked out an agreement to allow undocumented Indonesians with no criminal record to live and work in the U.S. if they checked in regularly."To say now that they are a deportation priority, " Kaper-Dale says, "is for ICE to betray the Indonesian community and their American citizen advocates.”But that's not the way ICE sees it. Immigration officials say it was made clear that the agreement wasn't an "amnesty-type program" and that it was done to give people a final chance to reopen their immigration cases. They say ICE has extended stays and continues to do that in some cases, with factors like strong family and community ties taken into consideration.

Kaper-Dale says he's thankful that nearly half of the roughly 80 people facing deportation have been given stays of "somewhere between five and 12 months." But he says he’s not satisfied, adding that "there is nobody in our group who should be a deport priority for the U.S. government."But immigration officials say they consider immigration fugitives an enforcement priority. And they put Saul Timisela in that category.On a recent night at the church where he now lives, Timisela met with Kaper-Dale and about a dozen other Indonesians. More than half of them had electronic ankle monitors strapped to their left leg.Kaper-Dale reviewed their status and went over checklists, one of which had a reminder to write to lawmakers. Kaper-Dale has been fighting to get a law passed in Congress that would give the Indonesians a second chance to apply for citizenship if certain requirements are met. But there's little appetite on Capitol Hill to take it on. Since that meeting, Kaper-Dale says, one of the men has been deported.With deadlines approaching for other members of his community to leave the country, Kaper-Dale says "we will keep sanctuary as a real possibility" if warranted.In the meantime, Timisela holds on to his faith. "I just keep praying," he says. "I just keep praying."

Mar 20, 2012

We Applaud the Department of Homeland Security (DHS) Office of Inspector General’s (OIG) recommendation to fully terminate controversial National Security Entry Exit Registration System (NSEERS)

By Aadika Singh and Shoba Sivaprasad Wadhia

The NSEERS program, which begun as a response to the terrorist attacks of September 11th, required certain non-immigrants to register at ports of entry and local immigration offices. Registrants were fingerprinted, photographed, and often subjected to lengthy questioning. The most controversial component of NSEERS which required males from mainly Muslim-majority countries to register, was a clear example of racial profiling, and was found both by the 9/11 Commission and DHS itself, to be ineffective and inconvenient.

In its report entitled “Information Sharing on Foreign Nationals: Border Security,”, the OIG determined that the NSEERS database is unreliable, that the program remains excessively onerous for registrants who continue to be subjected to lengthy questioning and multiple data checks, and that it makes for an inefficient use of government resources and detracts DHS agents from conducting more targeted homeland security efforts. DHS has estimated that the program, at its height, cost American taxpayers more than $10 million annually.

Until April 2011, the NSEERS program required non-immigrants from predominantly Arab and Muslim countries to register under the NSEERS program each time they arrived in or departed from the United States, or had to obtain a waiver of these requirements. In April 2011, DHS took an important step by publishing a Notice in the Federal Register delisting the countries whose nationals were required to register under the NSEERS program. Unfortunately, the April Notice did not address the many individuals and families who continue to be impacted by the NSEERS program because they did not register when the Federal Register told them to do so, or because an immigration violation was discovered following their compliance with the NSEERS program. Ten years later, the reach of NSEERS touches men who are married to United States citizen spouses or the fathers of United States citizen children among others.

The OIG has notably concluded that there is “no longer a value in the NSEERS program” and noted concerns that the program remains in existence, providing “The NSEERS program for special registration of certain categories of aliens from predominantly Arab and Muslim countries, and the database that supports this program, is obsolete and should be terminated. … Leaving the regulatory structure of the NSEERS program in place provides no discernable public benefit. Deficiencies we identified in the NSEERS program were not related to the composition of the list of subject nationalities, but rather to the insufficient value of the NSEERS data.”

DHS sent an important message to communities and stakeholders in April 2011 when it conceded that NSEERS was an ill-conceived program and removed the countries whose nationals and citizens were stung by the program. However, since the inception of NSEERS, our position has been that the program should remove the penalties for individuals affected by the NSEERS program in the absence of egregious adverse factors, and remove the regulatory framework in its entirety.

For additional resources, please see:
Race Matters Blog on NSEERS

NSEERS: The Consequences of America’s Efforts to Secure Its Borders, American Anti-Discrimination Committee and Pennsylvania State University Dickinson School of Law Center for Immigrants’ Rights, March 31, 2009.

Center for Immigrants’ Rights

Rights Working Group

Mar 16, 2012

November 7, 2011 PM-602-0050
Policy Memorandum
SUBJECT: Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens

This Policy Memorandum (PM) establishes new USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of the resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. This PM supersedes Policy Memorandum No. 110, Disposition of Cases Involving Removable Aliens, dated July 11, 2006.

This PM applies to and is binding on all USCIS employees unless otherwise specifically provided in this PM.

Immigration and Nationality Act (INA) sections 101(a)(43), 103(a), 239, 240 and 318; Title 8, Code of Federal Regulations (8 CFR) parts/sections 2.1, 103, 204, 207.9, 208, 216.3(a), 216.6(a)(5), 236.14(c), and 239; Adjudicator’s Field Manual Chapter 10.11(a).

U.S. Citizenship and Immigration Services (USCIS) has authority, under the immigration laws, see, e.g., INA §§ 103(a), 239; 8 CFR §§ 2.1, 239.1, to issue Form I-862, Notice to Appear, to initiate removal proceedings.1 U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) also have authority to issue NTAs. Accordingly, USCIS must ensure that its issuance of NTAs fits within and supports the Government’s overall removal priorities, while also ensuring that its NTA policies promote national security and the integrity of the nation’s immigration system. To those ends, this PM identifies the circumstances under which USCIS will issue an NTA, or will refer the case to ICE for NTA issuance, in order to effectively handle cases that involve public safety threats, criminals, and aliens engaged in fraud.
1 Delegation by the Secretary of the Department of Homeland Security to the Bureau of Citizenship and Immigration Services, Delegation Number 0150.1; Paragraph 2(N). However, international District Directors and officers are not authorized to issue NTAs.

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I. National Security Cases
This PM does not affect the handling of cases involving national security concerns.2 Guidance from the Fraud Detection and National Security Directorate (FDNS)3 will continue to govern the definition of these cases and the procedures for resolution and NTA issuance.
II. NTA Issuance Required by Statute or Regulation
USCIS will issue an NTA in the following circumstances:4
Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5)5
Denials of Form I-829, Petition by Entrepreneur to Remove Conditions (8 CFR 216.6)
Termination of refugee status by the District Director (8 CFR 207.9)
Denials of NACARA 202 and HRIFA adjustments
NACARA 202 adjustment denials (8 CFR 245.13(m));
HRIFA adjustment denials (8 CFR 245.15(r)(2)(i)).
Asylum6, NACARA 203, and Credible Fear cases:7
Asylum referrals (8 CFR 208.14(c)(1));
Termination of asylum or termination of withholding of removal or deportation (8 CFR 208.24(e));8
Positive credible fear findings (8 CFR 208.30(f));
NACARA 203 cases where suspension of deportation or cancellation of removal is not granted, and the applicant does not have asylum status, or lawful immigrant or non-immigrant status (8 CFR 240.70(d)).

This PM does not apply to, or change, NTA or notification procedures for Temporary Protected Status cases.9 Further, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, processed under the Violence Against Women Act (VAWA), should continue to
2 National Security Cases include cases involving Terrorist Related Grounds of Inadmissibility (TRIG) pursuant to sections 212(a)(3)(B) and 212(a)(3)(F) of the INA.
3 See, e.g., Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008).

4 If any Form I-751 or I-829 cases are also Egregious Public Safety cases, they will be referred to ICE in accordance with Section IV.A.1 of this PM.

5 See the October 9, 2009 internal memo, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions. See also the April 3, 2009 memo, I-751 Filed Prior to Termination of Marriage.

6 USCIS may issue an NTA when an asylum applicant withdraws his or her asylum application.

7 This memo does not apply to the Asylum Division’s issuance of Form I-863, Notice of Referral to Immigration Judge, to certain stowaways, crewmembers, and VWP individuals who are requesting asylum or withholding of removal; reasonable fear screenings and negative credible fear screenings.
8 See also section 208(c)(3) of the INA describing removal when asylum is terminated.
9 See the September 12, 2003 internal memo, Service Center Issuance of Notice to Appear (Form I-862).

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be processed under existing protocols. If the VAWA applicant’s Form I-485 is denied, this memorandum is applicable in terms of NTA issuance.10
III. Fraud Cases with a Statement of Findings Substantiating Fraud
To protect the integrity of the immigration system and address fraud, USCIS will issue NTAs when a Statement of Findings (SOF) substantiating fraud is part of the record.11 An NTA will be issued upon final adjudicative action on the petition and/or application or other appropriate eligibility determination.12 NTAs will be issued even if the petition and/or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as an SOF substantiating fraud is in the record.
The NTA should include the charge of fraud or misrepresentation, if possible. The appropriate charge(s) will be determined on a case-by-case basis. Consultation with local USCIS counsel to determine the appropriate charge(s) is recommended.

IV. Cases to be Referred to ICE for a Decision on NTA Issuance
Criminal Cases: Criminal aliens are a top immigration enforcement priority for the government. The following guidance recognizes the prioritization and requires USCIS to refer criminals to ICE for action or issue an NTA in accordance with this PM.
Egregious Public Safety (EPS) Cases
USCIS will refer all EPS cases, including cases with pending N-400s, to ICE prior to adjudicating the case even if USCIS can deny the petition and/or application on its merits. An EPS case is defined by USCIS and ICE as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following:
a. Murder, rape, or sexual abuse of a minor as defined in section 101(a)(43)(A) of the INA.
b. Illicit trafficking in firearms or destructive devices as defined in section 101(a)(43)(C) of the INA.
c. Offenses relating to explosive materials or firearms as defined in section 101(a)(43)(E) of the INA.
10 When making determinations, employees must keep in mind USCIS’s obligations under 8 USC § 1367, which prohibits the release of any information, outside of DHS, relating to aliens who are seeking or have been approved for immigration benefit(s) under the provisions for battered spouses, children, and parents in the Violence Against Women Act.
11 Alternatively, ICE will determine whether to issue the NTA if a criminal investigation is conducted, fraud is found, and the investigation results in criminal prosecution.
12 This includes, but is not limited to, aliens that were granted asylum status by USCIS, adjusted to Lawful Permanent Resident status, presented fraud indicators, were subject to the Post Adjustment Eligibility Review (PAER) process in an Asylum Office, and met the PAER criteria for NTA issuance.

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d. Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year as defined in section 101(a)(43)(F) of the INA.
e. An offense relating to the demand for, or receipt of, ransom as defined in section 101(a)(43)(H) of the INA.
f. An offense relating to child pornography as defined in section 101(a)(43)(I) of the INA.
g. An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons as defined in section 101(a)(43)(K)(iii) of the INA.
h. An offense relating to alien smuggling as described in section 101(a)(43)(N) of the INA
i. Human Rights Violators, known or suspected street gang members, or Interpol hits.
j. Re-entry after an order of exclusion, deportation or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal, has not been approved.
All EPS cases must be referred to ICE using the procedures outlined below. The case will be referred as soon as it is identified. ICE will have an opportunity to decide if, when, and how to issue an NTA and/or detain the alien. USCIS will not issue an NTA in these cases if ICE declines to issue an NTA. If some other basis unrelated to the EPS concern becomes apparent during the course of adjudication, an NTA may be issued in accordance with this memo.
Referral Process
This referral process is utilized in order to give ICE the opportunity to determine the appropriate course of action before USCIS adjudicates the case. A decision to issue an NTA may directly affect the processing of the pending petition and/or application. Upon issuing the Referral to Immigration and Customs Enforcement (RTI), USCIS will suspend adjudication for 60 days, or until ICE provides notification of its action on the case, whichever is earlier.
In response to the RTI –
ICE may issue an NTA. ICE’s issuance of an NTA allows USCIS to proceed with adjudication (unless jurisdiction transfers to EOIR or the pending application is an N-400), taking into account the basis for the NTA.
If ICE does not issue an NTA or otherwise provide notification of its action on the case within 60 days of the RTI, USCIS may resume its adjudication of the case, taking into account the referral grounds.

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If the case is approvable, USCIS will consult with ICE prior to adjudication.
Once adjudicated, regardless of the decision, USCIS will notify ICE of the result by sending a copy of the original RTI to ICE with a cover memorandum advising of the outcome of the case.
EPS cases referred to ICE prior to adjudication should be called up and reviewed no later than 60 days after referral. Normally, the case should be adjudicated by USCIS. However, USCIS retains discretion to place the case on hold for more than 60 days if ICE requests additional time to conduct an investigation.13
Office-Specific Processes
Cases to be adjudicated by Service Centers and the National Benefits Center. Adjudication will be suspended and the case will immediately be sent to the appropriate Service Center Background Check Unit (BCU). The BCU will refer the case to the ICE Benefit Fraud Unit (BFU) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. The BCU will retain the file unless ICE requests it or the 60 days expire.
Cases to be adjudicated by Field Offices. The Immigration Services Officer (ISO) will suspend adjudication and the case will immediately be referred to the local ICE Special Agent in Charge (SAC) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. A copy of the RTI must also be sent to the ICE BFU. USCIS will retain the file unless ICE requests the file for their review.
An RTI should include any relevant attachments that USCIS has at the time, such as a copy of the RAP sheet and a copy of the petition and/or application.
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.14 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.
13 Pursuant to 8 CFR 274a.13(d), USCIS must complete processing of an Employment Authorization Document (EAD) within 90 days or issue an interim EAD card valid up to 240 days. Officers should be mindful of this regulatory timeframe when cases with a pending Form I-765, Application for Employment Authorization, are referred to ICE.
14 See Section V of this memo addressing N-400 cases.

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If some other basis unrelated to the criminal offense becomes apparent upon return of the case to USCIS, an NTA may be issued in accordance with this memo.
Referral Process
The referral process is used to allow ICE to make a determination whether to issue an NTA, based on the totality of circumstances and its priorities. ICE will determine the appropriate grounds for removal if an NTA is issued.
Once adjudication is complete, USCIS will send an RTI to ICE. USCIS will concurrently transmit a copy of the RTI to ICE Headquarters (HQ) Enforcement and Removal Operations (ERO) Criminal Alien Division for statistical monitoring purposes. If there is any confusion or uncertainty about classifying a case as egregious versus non-egregious, the USCIS ISO should refer the matter as an EPS case using the process described above.
The accompanying A-file will be referred to ICE with the RTI, if the file is in the possession of the referring USCIS office or center. If the file is not at the referring USCIS office or center, the RTI should include any relevant attachments that USCIS has, such as a copy of the RAP sheet and a copy of the petition and/or application. Where USCIS obtained certified conviction records through normal processing of the case, USCIS will include the records with the RTI, but it will not hold the RTI on a completed case solely to obtain disposition records. Instead ICE will decide whether, and how, it will obtain such records as part of its decision to issue an NTA.
Office-Specific Processes
1. Cases adjudicated by Service Centers and the National Benefits Center. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, the file will be referred to the BCU. The BCU will refer the case, along with the A-file and/or receipt file, to the appropriate ERO Field Office Director (FOD) via an RTI.
2. Cases adjudicated by Field Offices. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, USCIS will prepare an RTI and refer the case, along with the A-file and/or receipt file, to the local ERO FOD.
National Security Entry Exit Registration System (NSEERS) Violator Cases
USCIS will refer all cases in which an application is denied based on an NSEERS violation to ICE for possible NTA issuance.

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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).
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:
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.15
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.
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.
15 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.

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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:
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.
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.
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.
VI. Other Cases
A. An alien may request NTA issuance to renew an application for adjustment or in certain cases with a denied N-400. The request must be made in writing.17
B. An asylum applicant issued an NTA may request NTA issuance for family members not included on the asylum application as dependents for family unification purposes. The request must be made in writing.18
VII. Exceptions
Exceptions to the guidance in this PM require concurrence from Regional or Center Directors, who will consult with ICE before issuing an NTA.
16 In the Third Circuit only (Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands), based on the holding in Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009), if the alien has been an LPR for at least five years, the alien cannot be placed in removal proceedings for fraud or willful misrepresentation of a material fact at time of adjustment, if USCIS could have learned of the fraud or misrepresentation through reasonable diligence before the five year rescission period expired. Please consult with USCIS counsel if there are questions regarding the applicability of this precedent.
17 USCIS retains discretion to deny a request. USCIS should consider ICE actions and determinations when making an NTA issuance decision under this section.
18 USCIS retains discretion to deny a request.
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PM-602-0050: Revised Guidance for the Referral of Cases and Issuance of NTAs in Cases

Involving Inadmissible and Removable Aliens
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Coordination with ICE
According to the June 2011 ICE memo regarding the exercise of prosecutorial discretion consistent with priorities,19 USCIS will receive notice before an ICE attorney exercises prosecutorial discretion and dismisses, suspends, or closes a case. The local N-400 NTA Review Panel will work with ICE to come to a resolution if USCIS does not agree with ICE’s use of prosecutorial discretion in a particular case. If concurrence cannot be reached, the case should be elevated to the USCIS Office of Chief Counsel in headquarters.

Each field office must form an N-400 NTA Review Panel and create a process to complete RTIs and refer EPS and non-EPS criminal cases to ICE. A written list enumerating the members of the Review Panel and a document outlining the process of referral must be sent to the appropriate district office within 30 days of the issuance of this memorandum.

This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

Contact Information: Questions or suggestions regarding this PM should be addressed through appropriate channels to the Field Operations Directorate, Service Center Operations Directorate, or the Refugee, Asylum, and International Operations Directorate.
19 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, signed June 17, 2011. AILA InfoNet Doc. No. 11110830. (Posted 11/8/11)
AILA Calls USCIS Guidance a Positive Step
Cite as "AILA InfoNet Doc. No. 11110809 (posted Nov. 8, 2011)"
FOR IMMEDIATE RELEASE:Tuesday, November 8, 2011CONTACTS:Jenny Werwa / Amanda Walkins202-507-7628

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) commends U. S. Citizenship and Immigrations Services (USCIS) for today’s field guidance that moves the agency back in the direction of the original intent behind its formation--it is the service arm of Department of Homeland Security (DHS), charged with fairly adjudicating immigration petitions and applications.

“This guidance lets officers focus solely on the job at hand, referring most enforcement actions to Immigration and Customs Enforcement (ICE), the agency formed for that purpose,” said AILA President Eleanor Pelta. “The memo still outlines situations in which USCIS officers should institute removal proceedings. However, it realigns the agency’s goals to better reflect its original and intended purpose.”

“AILA also is encouraged by the structures that USCIS is putting into place with respect to naturalization cases,” continued Pelta. “Citizenship is precious, and the steps outlined in the guidance should help to avoid some of the miscarriages of justice that we sometimes see when long-time legal residents seek citizenship only to find themselves instead thrown out of the country over a technicality.”

AILA congratulates USCIS on this act of reasoned government, but is dismayed by the guidance’s perpetuation of the National Security Entry-Exit Registration System (NSEERS) program. “DHS eliminated the ongoing application of this program some time ago, but has never corrected the injustices created by its complex and confusing rules. Rather than saying that it will refer for possible removal people who are not registered under this largely-abandoned program, USCIS should simply cease to apply these rules,” concluded Pelta.

###The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
November 15, 2011
Hon. Margo Schlanger Hon. Kelly Ryan
Officer, Office for Civil Rights and Civil Liberties Acting Deputy Assistant Secretary for Policy
U.S. Department of Homeland Security U.S. Department of Homeland Security
Washington, DC 20528 Washington, DC 20528


Dear Officer Schlanger and Deputy Ryan:

The undersigned organizations are writing to request a meeting with you and your delegates to discuss the steps your agency has taken to address the residual populations affected by the National Security Entry-Exit System (NSEERS) program since our meeting on June 2, 2011. At that meeting, we highlighted the importance of implementing a specific policy to remove the residual penalties and procedures associated with NSEERS, and asked for the removal of the regulatory framework of NSEERS altogether.

We are particularly concerned by a recent Policy Memorandum (PM) from the United States Citizenship and Immigration Services (USCIS), "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens" (PM-602-0050 (November 7, 2011)), and the direction therein to "refer all cases in which an application is denied based on an NSEERS violation to ICE for possible NTA issuance." Rather than taking steps to eliminate penalties associated with alleged NSEERS noncompliance, and to conserve enforcement resources in a manner consistent with the new policies, the PM suggests that USCIS will continue to deny benefits cases based on alleged NSEERS noncompliance, and moreover, will defer to, and in turn permit, ICE to issue NTAs in NSEERS cases. We are troubled by the inclusion of this language in the PM and believe it and any process that continues the NSEERS program and sanctions for noncompliance should be eliminated. Attached is the correspondence associated with the June 2 meeting. Also attached is a press release from the American Immigration Lawyers Association expressing its concern about the PM's language on NSEERS.

Thank you for your attention. We look forward to discussing this issue further with your offices. If you have any questions, please contact Shoba Sivaprasad Wadhia at
American-Arab Anti-Discrimination Committee

American Immigration Lawyers Association
National Immigration Forum
Rights Working Group
South Asian Americans Leading Together
Shoba Sivaprasad Wadhia, Pennsylvania State Law’s Center for Immigrants’ Rights*
*affiliation listed for informational purposes only
cc: Stephen H. Legomsky, Chief Counsel, United States Citizenship and Immigration Services, U.S. Department of Homeland Security

Mar 6, 2012


Indonesian deportation response is sanctuary

Press Conference at 11am on the church steps. The church that has been working tirelessly to support Indonesian Refugees who came to this country on tourist visas during a time of incredible violence against ethnic Chinese Christians made the decision, today, to offer SANCTUARY to one of the members of the central NJ Indonesian Christian community.

Saul Timisela is slated to be deported at 7am this morning. He was officially told of his deportation yesterday. Saul has reported to the church, rather than to ICE. Today we will cry out to God, and cry out to the President, asking that he stop deporting Indonesian Christian Refugees who are not criminals nor egregious immigration offenders (the stated priority populations for ICE removals).

On January 12th Saul tried to file an I-246, stay of removal, that highlighted various humanitarian factors that are part of the June 17th Prosecutorial Discretion Memo. Saul met many of the criteria stated as important in that memo. An officer encouraged him to strengthen the I-246 with more medial evidence about his liver disease, heart disease and hypertension—which may stem from his work of clearing debri from Ground Zero starting in September 2001. She asked him to come back on Feb. 15th

Saul collected the requested medical information prior to his next report date (Feb 15th) and his I-246, with the $155 processing fee, was received.

It was told to Saul at the January report date that ICE had set a departure for March 1, but the fact that the officer simultaneously requested better documents for making a decision suggested to Saul and to the church that the March 1 date would only happen if he didn’t get more solid information for his I-246 submission. Also, a recent update from ICE Headquarters about the various cases we’d inquired about did NOT include Saul as someone slated for deportation.

Yesterday, February 29th, Saul went to ICE for his next report, and they told him he was being deported the next day. They didn’t tell him if his new I-246 had been considered or denied. They didn’t seem to take seriously any of the medical evidence that he’d gotten for them in response to their request made in January.

Saul and his wife moved to this country in 1998 and 2000, respectively. The stories of persecution they endured in Indonesia are horrific. Saul reported for NSEERS in 2003 and his life, like the lives of all Indonesians, has been an immigration nightmare since that time. Saul’s wife, after seeing all asylum cases of her friends denied because of the time bar for filing, wisely did not open a case. She is waiting for HR 3590, the Indonesian Refugee Family Protection Act, a bill that has bi-partisan support.

The Reformed Church of Highland Park will offer Sanctuary to Saul and do our best to offer him the kind of steadfast love that we claim is at the heart of God.

NJ Church Provides Sanctuary for Indonesian Immigrant Facing Deportation

Source: By Luiza Oleszczuk , Christian Post Reporter
March 3, 2012

A Christian undocumented immigrant from Indonesia facing deportation has been provided protection from a New Jersey church as his application for asylum remains in limbo and he fears persecution from Muslim extremists in his native homeland.
Saul Timisela, 44, escaped religious persecution at home 14 years ago and was living in the shadow of the law in the Garden State alongside a few dozen of his Christian countrymen in a similar situation, while the church's pastor, the Rev. Seth Kaper-Dale, has been fighting for the government to give the Indonesians a chance to re-apply for their asylum applications on the grounds that they are refugees.
Timisela was supposed to report to U.S. Immigration and Customs Enforcement (ICE) in Newark on Wednesday with documentation that, as he was reportedly told, was needed for furthering his Application for a Stay of Deportation or Removal, only to find out that he was to be deported the next day, Kaper-Dale told The Christian Post. Timisela's wife is currently living in hiding, as she never even filed for asylum, the pastor said.
"We just thought that was cruel and unusual and so we offered him sanctuary," Kaper-Dale told The Christian Post Friday.
Instead of showing up at the airport Thursday morning, the immigrant turned up at the Reformed Church of Highland Park in Highland Park, N.J., where he is currently staying under the care of the church community and its leader, who has been fighting tirelessly since 2009 to save the Indonesians from deportation. The undocumented group revealed themselves to the government after 2001, when the National Security Entry-Exit Registration System (NSEERS) initiative called for illegal immigrants from specific countries to register, following 9/11 terrorst attacks.
"We are humbly and respectfully disagreeing with the government," Kaper-Dale said. "We are not trying to be flamboyant in any way. We are people who love government, who trust in laws; who believe that God uses law to bring order to society. We are not anarchists or anything like that. We just really feel that sometimes it's the role of the church to remind the government of a higher law."

Mar 2, 2012

Broken Promises: How Obama’s Immigration Failures Have Put a New Jersey Community on Edge


Saul Timisela was supposed to report for deportation at seven o’clock Thursday morning, but he didn’t show up. Instead, he went to the Reformed Church of Highland Park, New Jersey, where, as of this writing, he is still seeking sanctuary. An immigrant who arrived in the U.S. from Indonesia in 1998 after fleeing religious violence, Timisela suffers from hypertension, heart disease, and liver disease. He does not have a criminal record, say advocates speaking on his behalf. In short, he does not appear to be the type of immigrant that Immigration and Customs Enforcement (ICE) claims to prioritize. But he is just one of many such immigrants who currently fear that their lives may be upended at any moment.
Last summer, when the Obama administration issued a memo encouraging immigration officials to abstain from deporting long-term, non-criminal undocumented immigrants, the Indonesian community to which Timisela belongs felt a sense of relief. Many had fled persecution in their home country, including Timisela. (His brother-in-law, a pastor, had been found decapitated in his burnt-out church.) Timisela and his wife, settling in New Jersey, lived in uncertainty for more than a decade. Last summer, they thought they could finally legitimize the lives that they had built in their adopted home.
But in the past few weeks, the Newark ICE office has sent letters to several members of this community, telling them to report to ICE offices with a plane ticket in hand. Eight men, none of whom has a criminal record, have been outfitted with electronic-monitoring ankle bracelets. This is usually a prelude to arrest and deportation—as it was in the case of Timisela, who is one of the eight. For some, these recent developments have led to panic. Families with children or spouses who are U.S. citizens are making plans for possible separation. Activists, who had cautiously celebrated earlier arrangements with authorities, feel spurned. It’s been about nine months since the Obama administration’s proclaimed shift in policy, and many are still waiting for an actual change. As Timisela’s predicament shows, they don’t have unlimited time.

HOW DID THIS happen? In the late 1990s, Indonesia was wracked by religious violence that emerged from two concurrent crises—the economic meltdown of 1997 and the fall of the dictator Suharto, who stepped down in 1998. A Human Rights Watch (HRW) report from 1999 referred to a “virtual war between Christians and Muslims” that displaced 30,000 people in one province; an HRW official testified to “Christian and Muslim neighbors hacking each other with machetes.” Hundreds of Indonesian Christians who fled the violence settled near Edison, New Jersey, their numbers swelling to about 800 by 2002. Many had a plausible case for asylum, but they were not organized or ready to seek out lawyers and complete paperwork. When the deadlines to file for asylum passed, few knew that they had missed their best chance to stay in the United States.
At first, it didn’t seem like there was much to worry about. Members of the community found jobs, married, and had kids. An apartment complex where the landlord didn’t require credit checks became became a hub for the immigrants. Soon, many were living in “mixed households”—some family members had legal status or citizenship, and others did not.
But after September 11, 2001, a new federal program, the National Security Entry-Exit Registration System (NSEERS), required the registration of non-citizens from certain (mostly majority-Muslim) countries. Community leaders—worried about the consequences of noncompliance—encouraged the Indonesians to register. “If you didn’t report,” says Reverend Seth Kaper-Dale, whose congregation includes many of the Indonesian immigrants, “it seemed like you were a terrorist fugitive.” Many took the advice of Kaper-Dale and other leaders and came forward.
But the local ICE office did not respond as the community hoped. Melinda Basaran, a New Jersey immigration lawyer who has worked with the Indonesians, says that “a good portion” of the community was deported as a result of complying with NSEERS. One alleged example occurred in May 2006, when ICE—acting, most believe, on the information the Indonesians had volunteered when registering with NSEERS—raided the apartment complex where many of the Indonesians had settled. They arrested 37 people, all of whom were eventually deported. At least 20, according to Kaper-Dale, were fathers. “Persons who did not comply with NSEERS are in a better situation today,” Basaran argues. “There’s no consequences held against them for not complying.” (NSEERS was dissolved in 2011.)
Still, despite the community’s experience with NSEERS, Kaper-Dale thought that coming forward might prevent more raids. In 2009 and early 2010, about 70 Indonesians—including Timisela and the seven others who are now wearing ankle bracelets—surrendered themselves to ICE and were subsequently allowed to attain orders of supervision (which allowed them to receive work permits), provided that they tried to obtain legal status. The deal led to a fragile sense of relief, and it seemed a harbinger of a more humane immigration policy under the Obama administration. These hopes were apparently confirmed in 2011, when ICE issued its memo discouraging enforcement actions against long-established, non-criminal immigrants. “When the June prosecutorial discretion memo came out,” Kaper-Dale says, “I thought we were in the clear.” But today, the Indonesians’ arrangement appears to be collapsing.
Officials at ICE were unable to provide a clear answer as to why the deal from 2009 seemed to be unraveling. One government official suggested to me that the local field office, which is now under different leadership than when the deal was struck, simply reversed its stance. “In the face of all this pressure,” the official said, “they’ve sort of dug in their heels.” Another official from the Newark office suggested that enforcement was accelerating because it had become apparent that the immigrants involved had exhausted all available avenues of acquiring legal status.
Whatever the explanation, ICE’s newfound zeal clearly contradicts the spirit of the administration’s memo from last summer. Many in the community hope to find relief in a bill sponsored by Democratic Representative Carolyn Maloney to allow those immigrants who arrived during the peak of the violence to re-file their asylum claims. The bill has gained momentum recently, obtaining a Republican co-sponsor in New Jersey Representative Chris Smith.
The ICE Newark Office has stated that “ICE is unable to suspend the removal or issue an indefinite order of supervision to any one class of aliens.” But this misses the point. As individuals, most of these immigrants appear to qualify for relief. And despite a directive from above, local ICE authorities do not appear prepared to grant them that dignity.
Nathan Pippenger is a reporter-researcher at The New Republic.
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