Pursuant to the Freedom of Information Act (“FOIA”), Milbank LLP and Asian Americans Advancing Justice-Los Angeles (“AAAJ-LA”) are seeking details about the underlying legal basis for U.S. Citizenship and Immigration Services’ (“USCIS”) new “Notice to Appear” (“NTA”) policy and the implementation and enforcement of that policy. On June 28, 2018, the Department of Homeland Security/USCIS announced the new NTA policy, providing revised guidance on when an individual may be ordered to appear in immigration court to defend against being deported. The NTA policy marked a significant change in immigration enforcement.
The NTA is the first step in initiating deportation proceedings, and by making it easier to issue an NTA, the new NTA policy has deterred otherwise eligible undocumented immigrants from applying for immigration benefits existing under current laws and regulations. The new NTA policy undermines USCIS’s traditional role as an immigration benefit provider and transforms the agency into an enforcement agency similar to other Department of Homeland Security agencies like Immigration and Customs Enforcement (“ICE”).
On February 18, 2019, Milbank filed the FOIA complaint as co-counsel to AAAJ-LA following USCIS’s failure to comply with its statutory obligation to timely respond to AAAJ-LA’s December 21, 2018 FOIA request that was filed with the various Executive Branch departments and agencies.
“Right now, there is a lot we don’t know about the new NTA policy, such as how it will impact pending applications and how prosecutorial discretion will be exercised,” said David Cohen, Litigation Partner in the Washington DC office of Milbank LLP. “This complaint is the first step we must pursue to ensure transparency, especially as it relates to our country’s legal and ethical commitments to support those seeking humanitarian-based immigration relief.”
Under the revised guidance, USCIS is authorized to issue a NTA to any undocumented immigrant whose application for humanitarian relief is denied, regardless of the applicant’s family ties, years of residency or lack of criminal history.
“In some cases, these individuals are victims of human trafficking or domestic violence; they’re often young immigrants who have been deserted by their parents,” said Linda Dakin-Grimm, senior consulting partner at Milbank LLP and a pro bono immigration advocate. “In the short time the new NTA policy has been in effect, it has made already difficult situations extremely challenging to navigate from a legal perspective.”
According to the Department of Homeland Security, more than one million humanitarian visa applications were filed with USCIS in 2017.
“The new NTA policy has created a chilling effect on immigrant communities,” said John Trang, staff attorney at Asian Americans Advancing Justice-LA. “We have already witnessed community members decline to apply for immigration benefits for fear of being placed in removal proceedings. This undermines the purpose of these life-saving humanitarian visas.”
This effort with Asian Americans Advancing Justice-LA is part of Milbank’s long-standing commitment to advocacy through pro bono casework.
