State of Texas et al v. United States of America et al

Filing 64

REPLY in Support of 5 Opposed MOTION for Preliminary Injunction, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9.a, # 10 Exhibit Ex. 9.b, # 11 Exhibit Ex. 10.a, # 12 Exhibit Ex. 10.b, # 13 Exhibit Ex. 10.c, # 14 Exhibit Ex. 10.d, # 15 Exhibit Ex. 10.e, # 16 Exhibit Ex. 10.f, # 17 Exhibit Ex. 10.g, # 18 Exhibit Ex. 10.h, # 19 Exhibit Ex. 10.i, # 20 Exhibit Ex. 10.j, # 21 Exhibit Ex. 10.k, # 22 Exhibit Ex. 10.l, # 23 Exhibit Ex. 10.m, # 24 Exhibit Ex. 10.n, # 25 Exhibit Ex. 10.0, # 26 Exhibit Ex. 10.p, # 27 Exhibit Ex. 10.q, # 28 Exhibit Ex. 10.r, # 29 Exhibit Ex. 10.s, # 30 Exhibit Ex. 11, # 31 Exhibit Ex. 12, # 32 Exhibit Ex. 13, # 33 Exhibit Ex. 14, # 34 Exhibit Ex. 15, # 35 Exhibit Ex. 16, # 36 Exhibit Ex. 17, # 37 Exhibit Ex. 18, # 38 Exhibit Ex. 19, # 39 Exhibit Ex. 20, # 40 Exhibit Ex. 21, # 41 Exhibit Ex. 22, # 42 Exhibit Ex. 23, # 43 Exhibit Ex. 24, # 44 Exhibit Ex. 25, # 45 Exhibit Ex. 26, # 46 Exhibit Ex. 27, # 47 Exhibit Ex. 28, # 48 Exhibit Ex. 29, # 49 Exhibit Ex. 30, # 50 Exhibit Ex. 31, # 51 Exhibit Ex. 32, # 52 Exhibit Ex. 33, # 53 Exhibit Ex. 34, # 54 Exhibit Ex. 35)(Oldham, Andrew)

C. Determining if Guidelines are Met, Continued
Public or Private
CoUegcor
Univenity, or
Community
College

Currently in School
Public or Private College or University, or Community College
Evidence of enrollment in a public or private college or university or a
community college may include, but is not limited to, copies of:
• Accepted for Enrollment: Evidence of acceptance for enrollment
may include, but is not limited to:
o An acceptance package or other related material on school
letterhead from the school's authorired representative, if the
rcq~ cstor was accepted for enrollment, but the classes have
not;yct commenced. Such acceptance package or other related
material is to include the name and address of the school, the
rcquestor's grade level or class year, and the date or term
when the classes are scheduled to commence, and is to be
accompanied by evidence that the student has registered for
cl~s. In addition, the acceptance package or other refated
maierial is to be accompanied by evidence tliat the student has
re~stercd for classes, or otha- evidence showing the srudcnt
has accepted the offer and has commincd to start classes on a
certain date;
.
o A current individualized education program (IEP), as required
under the Individuals with Disabilities Education Act, for a
student with a disability, would also be acceptable evidence of
enrbllment;
o A cbpy of the student's 'current tuition bill;
o The.student's current class schcaule containing the list of
courses, and the day and time of each class; or
o Any other relevant evidence.
• Already Attending Classes: For DACA requestors already enrolled
and attending classes, evidence may include, but is not limited to,
current scb(>ol registration cards, current transcripts, report cards, and
progress rei}orts. The submitted document(s) are to show the name of
the stud en ti tl1e name of the school, the time period or semester
covered by:the document, and the current grade level or clas.s..year. A
current IEP'showing the student's progress to date would also be
acceptable evidence that the DACA requestor has been accepted for
enrollment Jrnd is attending classes.

Continued on ne.ct page
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App. 0332

·.

C. Determining if Guidelines are Met, Continued
Currently in School
GED

General

Education
Development

If a DACA requester claims that he/she is enrolled in a course of study to
pass a GED exam or other equivalent State-authorized exam, the DACA
request is to include a letter or other documentation from an authorized
representati ve of the program, that includes information such as:
• The rcquestor's name and date of enrollment; .
• The duration of the program and expected completion date;
• Whether tbe course of study is for a GED exam or other equivalent
State-authorized exam;
• The program's source of public funding (Federal, State, county, or
municipal),, if any; and
• The program's authorized representative's contact information.

(GED)

If the GED/Equivalency program is not publicly funded in whole or in part,
documentation fro!]l tbe program sh9uld is also to provide information about
the program's demonstrated effectiveness. Such information could include,
but is not limited to, information relating to:
• The duration of the program's existence;
• The prqgram 's track record in assisting students in obtaining a
GED, o'r a recognized equivalent certificate;
• Receip(;or awards or special achievement or recognition that
indicate' the program's overall quality; and/or
• Any 0th.er information indicating the program's overall ql;lality.

Continued on nw page

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App. 0333

C. Determining if Guideli:nes are Met, Continued
Educational or
Career Training

Currently in School
Educational or Ca reer Training Program Oncluding Vocational
·
Training)
The documentary evidence submined in support of the "currently in school"
guideline based on enrollment in an educational or career training program
(including vocational training) may include, but is not limited to:

Program

(Iocluding
Vooitional
Training)

•

Accepted for Enrollment: An acceptance letter on school letterhead
from the school registrar/authorized school representative, if the
requestor was accepted for enrollment, but the classes have not yet
commenced. Such acceptance letter is to include the name and
address of the program, a brief description of the program, the
duration of the program, and state the date the classes are scheduled
to commence, and is to be accompanied by evidence that the student
has register¢ for the program. Ev ide~ce of the rcquestor's
acceptance for enrollment may also include a copy of his/her current
year registration (intake form/enrollment form), or any other relevant
documentation. The DACA request is also to be supported by
evidence of the school or program's public funding or its
demonstrated effectiveness, as described below.

•

Already Attending Classes:
o Current 'attendance records, transcripts, report cards, test reports,
progress reports showing the name of the school, the name of the
request~r, the time period or semester covered by the doc':lmcnt,
and, if relevant, the current educational or grade level; ·:
o A letter from the school registrar/authorized school representative,
with contact information, providing information related to the
program's public funding or its demonstrated excellence:
Continued on next page

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58

App. 0334
...

C. Determining if Guidel~nes are Met, Continued
•

Public Funding: If the educational or career training program
is publicly funded in whole, or in part, the above-referenced
letter from the school registrar/authorized school
representative is to provide basic details about the funding,
such as the source(s) of the funding; or
• Demonstrated Effectiveness: If the educational or career
training program is not publicly funded in whole, or in pan,
the school registrar/authorized school representative is to
provide information about the program's demonstrated
effectiveness, with supporting documentation, if available.
Such information could include, but is not limited to:
information relating to:
)> The duration of the program's existence;
)> The program's track record in placing students in
employment, job training, or post-secondary education;
Receipt of awards or special achievement or recognition
!,hat indicate the program's overall quality; and/or
l> . Any other information indicating the program' s overall
quality.

Educational or
Career Training
Program

(Including
Vocational
Training)

(conrinuoo)

Lituacy
Training

Currently in School
The documentary evidence submitted in suppon of the "currently in school"
guideline based on 'enrollment in a literacy program is to include, but is not
limited to:
• A letter from the literacy program administrator or authorized
representati.ye providing information such as:
o The requestor's name;
o The date of the requestor's enrollment;
o The duration of the literacy program and the expected completion
date;
o The program administrator or authorized representative 's ·contact
in formation;
o lnforma.tion about the literacy program's non-profit status, if
applicalile, and evidence of such status:
• Evi~ence of the literacy program's non-profit status is to
include a copy of a valid letter from the Internal Revenue
Service confirming exemption from taxation under section
501(c)(3) of the Internal Revenue Service Code of 1986, as
amc'ndecl, or equivalent section of prior.code; or
• If the literacy prognun is not administered by a non-profit
organization, information related to the literacy program's source of
public funding.Q.[ its demonstrated effectiveness:

!:

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App. 0335

C. Determining if Guidelines are Met, Continued
Literacy
Training

(continued)

o Public Funding: If the literacy program is publicly funded in
whole, or in part, the letter from the literacy program administrator
or authorized representative is to provide basic details about the
funding; such as the source(s) of the fund ing. ; or
.
o Demonstrated Effectiveness: If the literacy program is not
publicly. funded in whole or in part, or not administered by a non·
profit entity, the literacy program administrntor or authorized
representative is to provide information about the program's
demonstrated effectiveness. Such information could include, but
is not limited to:
• Thc.'duration of the program's existence;
• The program 's trnck record in placing students in employment.
job .imining, or post-secondary education;
Receipt of awards or special achievement or recognition that
indicate the program 's overall quality; and/or
• Any other information indicating the program's overall
quality.
It should be noted that many literacy programs may not track statistics on
placement rates fol.lowing completion of the program . Therefore, the lack of
such data, standing alone, docs not diminish the literacy program's record.
Evaluate all of the in formation and evidence provided in its totality for
credibility and suf~ciency.
·
I

A claim of enrollment in a literacy class run by a for~profit entity that does
not receive any public funding is not necessarily an indicator of fraud;
however, a vast number of literacy programs are offered for free or at a
minimal cost. Therefore, if the literacy program is a for-profit enticy and
does not receive
public fu nds, refer the case to CFDO for further research
·
and evaluation.

any

Conrinued on next page

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App. 0336

I

C. Oetennining if Guidelines are Met, Continued
English as a
Second Language
(ESL)

Currentlv in School
English as a Second Language (ESL)
Tue documentary evidence submitted in support of the "currently in school''
t
guideline based on 'enrollment in an ESL class is to include, but is no_ limited
to:
• A letter fro~1 the ESL program administrator or authorized
representative providing information such as:
o The requestor's name;
o · The date of the requestor's enrollment;
o The duration of the ESL program and the expected completion
date;
.
o The program administrator or authorized reprcscntutivc's contact
information;
o Information/documentation related to the ESL program's public
funding'. or its demonstrated effectiveness:
·
• Public Funding: If the ESL program is publicly funded in
whole, or in part, the letter from the ESL program
1
adm inistrator or authorized representative is also 10 provide
specific details about the funding, such as the source(s) of the
fun~ing; o~

•

Demonstrated Effectiveness: If the ESL program is not
publicly fund ed in whole or in part, the ESL program
adm'.inistrator or authorized representative is to provide
information about the program's demonstrated effectiveness.
Sucii information could include, but is not limited to:
• J'hc duration of the program's existence;
);>- The program's track record in placing students in postsecondary education, job training, or crriployment; Receipt
of awards or special achievement or recognition tJ1at
'indicate the program's overall quality;.and/or
~ Any other information indicating tJie program·s overall
quality.

It should be nored

that many ESL programs may not track sraristics on
placement rates following completion of tJie program. Therefore, tJie lack of
such data, standing'alone, docs not diminish the school's record. Evaluate all
of tJie information and evidence provided in its totality for credibility and
'
:
sufficiency.
· Continued on nat poge

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61

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App. 0337

C. Determining if Guidelines are Met, Continued
School Breaks
and Medical

Leave

Graduated

f rom
School

At the time of filing, it is possible that school may not be in session due to a
holiday or a semester (or quarter or trimester) break. A break may occur
during a course, for example spring break, or it may occur between semesters,
for example summer break. If a DACA request is filed between semesters, the
requester is consid~red to be currently in school if he/she is enrolled for the
next semester and submits evidence of such enrollment. Note that a requestor
on temporary medical leave from school is considered to be currently' in
school. Evidence of the medical leave and the expected rerum date to school
are to be provided.·
A DACA requcstor can also meet the educational guideline if he/she has
graduated from school. To meet the ''graduated from school" component of
the educational guideline, the DACA requestor may show that be/she has
graduated or recei v~ a certificate of completion from a public or private
secondary or high ~chool, or obtained a GED certificate. Evidence of
graduarion may include copies of:
• Adiploma;
• Transcripts showing t.11c date of graduation; or
• A GED Certificate, certificate of completion, certificate of
attendance, or alternate award from a public or private high school
or secondary school.
o Documentation sufficient to demonstrate that the DACA
req~estor obtained a GEO includes, but is not limited to,
evidence the he/she passed a GEO exam, or other comparable
Stat~-authorized exam, and, as a result, he/she received the
rec~gnizcd equivalent of a regular high school diploma under
State
l

!!IB

.

A claim of homeschooling is not 1
iecessarily an indicator of fraud; however,
because homeschool programs and their requiretpents vary widely from state
to state, refer the case to CFDO for further research and evaluation.

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l ~~i. rOl <Tftew..Ust~Y. l ~•WtJ~hlltf'llffl»••rP
tm1tldc,._. ini.hFt~cf~ltdt$U.& C. t 2l).tt.~ .. \>bl~~-~dii.lo~
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od~ ~~ior.~ cr
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App. 0338

C. Determining if ~uidelines are Met, Continued
Military Service

The Secretary's memorandum states that, in lieu of being currently in school,
or having graduated from school (including a GED), the rcquestor may be an
honorably discharged veteran of the U.S. Coast Guard or U.S. Anne<l Forces.
This may include r~servisLs wbo were honorably discharged.
Examples of accep~able evidence include, but is not limited to the following:
• Form DD-214, Certificate of Release or Discharge from Active Duty;
• NGB Form 22, National Guard Report of Separation and Record of
Service; '
'
• Military personnel records;
• Military health records; or
• Any other relevant document.

honorable discharge and docs not otherwise meet the educational guidelines,
issue RFE DACA \ 07 call up from Appendix D.
The Form DD-214 and NGO Form 22 both contain a section, "Character of
Service" listing the.type of discharge a service member obtained. The main
types of dischargeS include the following:
·
. {I) HonoraQle:
(2) Generar(Under Honorable Conditions);
(3) Under Other Tilan Honorable Conditions;
(4) Bad Co~duct;
(5) Dishonorable; or
(6) Unchar~cterized .
For purposes of DACA, if Character of Service is Honorable or.General
(Undc.T Honorable Conditions) the requestor has satisfied the militarY service
guideline.
Currently serving in the U.S. Coast Guard or U.S. Armed Forces docs not
qualify.
··

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App. 0339

0 . Economic Necessity ,
Reviewing

Economic
Necessity

An EAD based on a grant of deferred action requires a showing of economic
necessity. To facilitate this economic necessity review, a separate worksheet
was created, Form I-765WS. To streamline adjudication of the DACA request
and the 1-765, officers will review the I-765WS during the adjudication of
Form 1-82 1D. During file set-up. the l-765WS will be put in ROr order
immediately behi nd the Form 1-821 D.

If Form l-765WS is completely blank or is missing, issue an RFE on the 1765 (not the Form 1-8210) using DACA 180 call up from Appendix D, but
only ifthe reguestor does not include evidence that a fee exemption was
~ The fee ex~mption will be indicated in CJ as "Fee Waiver Granted."
If an officer issues an RFE on the 1-765, he/she should proceed with
adjudication of the 1-821 D. When the response to the 1-765 RFE is received
and the 1-765 is approved, the expiration date of the EAD should not exceed
the end date of the deferred removal under DACA.

If the requestor doeS·not respond to the 1-765 RFE, the 1
-765 should be denied
for abandonment; however, the Form 1
-8210 can be approved for DACA if
the guidelines have been met. When denying the Form 1
765 for abandonment,
an officer should use the standard abandonment denial used at his/her center.
If/when Form I-765WS has been completed, review the information provided
regarding current income, assets, and expenses to determine whether
economic necessity has been established. The requestor may, but need not,
include supporting documents with Fom1 1-765 \VS.
There is a general presumption that DACA rcquestors will need to work given
their undocumented circumstances and the fact that they are not generally
anticipated to have independent means. Absent evidence of sufficient
independent financi~I resources, the Form 1-765WS is sufficient to establish
economic need, witliout any furtlier economic analysis.

.

.

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App. 0340

;.
'

E. Removal Proceedings·
Removal
Proceedings

Individuals in removal proceedings may fi le a DACA request, even if they are
under age 15, as long as they were not born after June 15, 1 9~ I. As cxplai11ed
more fully below, removal proceedings commence with the filing of Fonn :J862, Notice to Appear, with the Immigration Coun and tenninate in one of
several ways. See 8 C.F.R. §245.l(c)(8)
If a DACA rcqucsto~ bas been or is currently in dcponatiou, exclusion, or
removal proceedings, he/she may have anmher A-file, wh ich should l111vc
been discovered by the officer during the inHial review of the 1-82 1D an<l/or
Record of Arrest and Prosecution (RAP) ~heel (ifnny). PltaSc sec the "A·
File" section.
There arc several ways to detennioe if the DACA rcquestur.
• Was or is in proceedings;
• Whal the outcome of the proceeding was; and
• lfbe/sbe was'prcviously removed.

(b) (7)(E)

I

65

App. 0341

E. Removal Proceedings, Continue~
Removal
Proceedings

(continued)

Effttu or

Deportation or
Removal
Proceedings

Determining
Whether an
Individual is in
Removal
Proceedings

The existence of deportntion, exclusion, or removal proceedings may have an
effe~t on the exercise ofprosecutorial discreiion for DACA. If the DACA
rcquestor is in proceedings, the A-file is likely with the ICE office. Before:a
DACA request may be adjudicated by the Center, the Center should make
every attempt to obtain all A-File(s).

Deportation, exdusi!Jo, and removal proceedings begin with the filing ofth1e
charging document with the Immigration Court. Currently, the charging
document used is Fonn 1-862, Notice to Appear. Over the years, proceedinigs
commenced in 01hcr ways;including:
L With the issuance of Fom1 1-221, Order to Sbow Cause and Notic.e
of Hea'.riag; prior to June 20, 1991;
2. With the filing of Fonn 1-221 , Order to Show Cause and Notice oJf
Hearing, issued on or after June 20, 1991 , with the immigration
coun;
.
3. With lhe issuance of Form l-122, Notice lo Applicant for Admissi1on
Detained for Hearing Before Immigration Judge, prior to April I,
1997; and
4. With the issuance and service of f'.onn 1-860, Notice and Order of
Expedited Removal.
It is possible for an individual to have voluntary deparrure and be in removal
proceedings. Sec Voluntary Departure section below for more information.
Continued on ne:rt page

App. 0342

E. Removal Proceedings, Continued
Determining
Removal
Proceedings

have been
Terminated

Deportation, exclusion, or removal proceedings tenninate when one of the
fo llowing occurs:
I. The individual leaves the United States under an outstanding order
of deportation, exclusion, or removal;
2. The indiviilual is found not to be inadmissible or deponable from
the United States;
3. The indivioual leaves the United States before the expiration of
bis/her voluntary departure, which was granted in connection with
an alternate order of deportation or removal;
4. The charging document is canceled (Form 1-1 22, 1-221 , 1-860, or 1862);
5. The immigration judge or the Board of Immigration Appeals
terminates the proc<..'Cdings; or
6. A Federal court grants a petition for review or an action for habeas
corpus.
See 8 C.F.R. §245. 1(c)(8)

Voluntary
Departure

An individual with voluntary departure may or may not be in removal
proceedings. Voluntary dcpanure may be issued before the commencement of
proceedings, during ·proceedings, or at the conclusion of proceeding$. When
voluntary departure is issued during or at the conclusion of proceedings, it is
normally issued as· an alternate order of voluntary departure/removal or
deportation. An alternate order of voluntary departure converts.automatically to
an order of removaVdeportarion when the individual does not leave the United
States voluntarily by _he specified date.
t

Adminlstrativtly

Administratively cl<>Sed proceedings means that proceedings have commenced,
but lhe parties subsc\Guently agreed to remove the matter from the immigration
court's docket. Administratively closed docs not mean terminated, and..thus the
individual remains in proceedings. Either pany may file a motion to place the
case on the court's aetivc docket al any time.

Oosed

Continued on nat page

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67

.....

.,
;
I

App. 0343

E. Removal Proceedings: Continued
,
Use the chart below to assist in detenn.ining if a DACA requester is in removal proceedings:
R

--

...

•

·:"

'·
If the requestor submits a copy of the voluntary
dcpanure and/or EARM indicates that volunlary .
dcpanurc was graDlcd bef2rc the commencement of
proceedings and there is no indication in~ or in
other systems that the individual was placed in
proceedings,

""-'

· ~·

..

The individual is not in
removaI proceedings,

The requester must be at
least age 15 attbc time of
filing. If th.:rc is evidence
that the individual was
not at least age 15 on the
date of Ii ling, issue a

The individual is in
removal procccdi ngs.
but bas a final removal
order,

The requester may be
under or over age 15 at
the time of filing.

NOID.

lf the requester submits a copy of the voluntary
departure and EARM indicates that an alternate order
of voluntlll)' departure/removal or deponation was
issued nnd the individual did not depart by the
soccificd date,
If tbe rcquestor submits n copy of the voluntary
departW"C and EARM indicates that an alternate order
of voluntary dcparturo'removal or deporlation was
issued and the voluntary depanurc date has. rot yet
expired,
If the requester submits a document showing that
n:rnoval proceedings have been administratively
closed or EARM shows the administrative closure.
lf the individual submits a document showing a final
removal order that has not been ~ecutcd,
'•

"

The individual is in
rcmo".al proceedings.

The individual is in

removal proceedings.
The individual is in
removal proceedings,
but bas a final removal
order.

Note: The guideline that tbc individual is under age 31 on June I?. 20 1 applies to all DACA rcques1or.; regardless
2
of whether they arc in deportation, cxclusioa,.or n:moval proceedings. If the individual was age 31 or older on June
15, 2012,issucaNOID.
;
1

Individuals
With Final
Removal
Orders (FRO)

An individual with an unexecuted final removal order is still in removal
proceedings. See 8 9.F.R. § 245. l(c)(8). Although the final removal order
may have been issu~ before, on, or after June 15, 201 2; tl1e volume of
individuals that could be considered for DACA with a post-June I 5th· final
removal order should be small, because ICE began applying the DACA
guidelines upon publicatio n of the Secretary's memorandum. Final removal

orders issued after J~n e 15, 2012 should be reviewed carefu lly to examine the
underlying grounds for removal.
l

If the requester is the subject of an FRO, then determine the requcslor's age
on June 15, 2012. q.eview, the ans~er provided to quesiion 119 in Part I of
Form 1 1D and review the requestor's binh certificate or other acceptable
-82
secondary evidence.submitted to show the date of birth. If the evidence
submitted does 001 show that the requester satisfies the upper age limit, issue
RFE DACA 140 call up from Appendix D. .
Continued 011 ne.xr page
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....

~

............. 'l"IH.._..................

68

,..,~._ ~

.

App. 0344

'

E. Removal ProceedingJ; Continued
Subject to the
Reinstatement
of a Prior
Removal Order

When an individual reenters the United States illegally after having been
removed or after leaving voluntarily under an order of removal, the individual
is subject to reinstatement of the prior removal ord1.:r from its original date.
See INA§ 241 (a)(5).
I

An individual who is subject to reinstatement of tbeir prior removal order
under the provisions of § 24 1 (a)(5) of the Act may file a DACA request;
however, the removal and the illegal reentry must have occurred before June
15, 2007. This is because a DACA requestor must have resided continuously
in the United States for at least five years before June 15, 2012, the date of
Secretary's memorandum. Additionally, a removal is not deemed to be a
brief, casual, and innocent departure and, therefore, it interrupts the period of
continuous residence.
Und~rlying

Removal
Ground
Adversely
Impacts
Prosccutorial
Discretion

If the DACA request or indicates in Question #3.a. in Pan I ofForm 1 1D
-82
that he/she has been 'in removal proceedings, and/or routine systems, ·
background, and fingerprint checks indicate that the requestor is in removal
proceedings, proceed as follows:
• Review the Jncierlying removal charges; and
• Review the derogatory infonnation obtained through routine checks.
Do not rely solely ori the grounds listed in the charging document andi.or
EARM, as not all is5ues may have necessarily been captured, or new issues
may have arisen since the charging document was issued. It is necessary to
review all derogatory information in its totality and then make an informed
assessment regarding the appropriate exercise of prosecutorial discretion for
DACA.
'

Underlying
Removal
Ground Does
Not Adversely
Impact
ProS«utorial
Discretion

If a DACA requestor has been placed in proceedings on a ground that does
not adversely impac! the exercise of prosecutorial discretion, review the
results of all routine·, systems, background, and fingerprint checks. If those
routine checks did npt reveal any additional derogatory infonnation that
impacts the excrciserof prosecutorial discretion, the case may proceed for
adjudication.
I

•

Do not rely solely on the grounds listed in the charging document and/or
EARM, as not all issues may have necessarily been captured; or new issues
may have arisen sin~·e the charging doc.ument was issued. It is necess.ary to
review all derogator}' information in its totality and then make an infonned
assessment regarding the appropriate exercise of prosecutorial discretion for
DACA.
'
.
Continued on next page
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App. 0345

E. Removal Proceedings_i, Continued
Removal
During
Continuous
Residence
Period

A departure from the United States pursuant to an order of deportation,
exclusion, or removal that occurred during the required continuous residence
period is not "brief, 'casual, and innocent." Therefore any absence caused by
such a departure meaningfully interrupts such continuous residence. This
also includes a departure made "vohmtarily," for example, the individual
leaves the United St<:ttes on his/her own vol ition while under an order of
deportation , exclusicin, or removal.

Tn these instances, issue a NOID.

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~pl'a~ ----

70

App. 0346

F. Fingerprints and RAP Sheets
Fing~rint
R~qulremeoll

Fingerpnnts (ten print) are required for every DACA requestor 14 years of
age and older 10 determine if1hcy have a criminal history. Submissions of
prior fingerprint results will not be accepted.

FBI

I

Fingerprint

f

1 •

11

I

• 1

(b) (7)(E)

Response

,

fh\17\lf \

I

A definitive response from the FBl regarding fingerprint clearances is
required before any DACA request for an individual 14 years of age and older
may be approved.
Fingerprint resull~ for the requcsror obtained as a result of a previous filing
with USCIS within the last 15 months are not valid for DACA purposes.
Each DACA requester must obtain a new fingerprint ehetk upon the filing of
a DACA request. Officers should utiliz.e FD-258 to verify lbnt the fingerprint
check wns completed for the DACA request.

Performing ao
Fill Query

The fingerprint el~nce should be complete before the case is sent for
adjudication. If there is no fingerprint result printout in the file, officers 1111ust
perform a query off.Bl Fingerprint Tracking in CLAIMS Mainframe and a1
lso
cbeck SNAP to see if the requester has been scheduled for an appointment at
an ASC.

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-

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....
.......
........
1>•~

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_

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71

1'""'~ 11F

App. 0347

I

F. Fingerprints and RAP Sheets, Continued
Introduction

There arc four possible results ofa fingerprint query:

(b) (7)(E)

This section instructs officers on how to proceed based on the fingerprin~
results.

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App. 0348
J

F. Fingerprints and RAP Sheets, Continued

fM! ...
,

Although biometrics' will not be cloned from other filin
a criminal history
lhe file, requcsc u
•
roug e

;·

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App. 0349

G. Evaluating Issues of Criminality, Public Safety, and
National Security
i
Criminal
Ineligibilities

The Secretary's memorandum provides as one of the guidelines that should be
met before an individual is considered for DACA that the individual not have
been convicted of a felony offense, a significant misdemeanor offense, three or
more non-significant misdcmeanor offenses, or otherwise pose a threat to
national security or public safety. If the evidence establishes that an individual
has a conviction for one of the above or may be a national security or public
safety threat, USCIS will deny the request for deferred action, unless
exceptional circumstances are found. The rcquestor must specifically ask to be
evaluated under this exception and must fully document the exceptional
circumstwiccs.
The decision whether to defer action in a particular case is individualized and
discretionary, taking into account the nature and severity of the underlying
criminal, national security, or public safety concerns. By their very nature,
felonies, significant misdemeanors, a history of other misdemeanors, and
activities compromising national security and public safety are particularly
serious and carry considerable weight in the totality of the circumstances
analysis. As a result,.it would take a truly exceptional circumstance to
overcome the underlying criminal, national security, and public safety grounds
that would otherwis~ result in not considering an individual for DACA, which
would be rare. Def\!fring removal under-OACA shall not be considered under
this very limited exception without concurrence from HQSCOPS. In these
instances the case shall come to HQSCOPS from the Service Ccriter Director,
through the appropriate chain of command .
0

Felony

..
A felony is a federal; state, or local criminal offense punishable by
imprjsonment for a tenn exceeding one year.
Conrinued on next page

~

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74

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......... ~~.n.lpu ~...,.,t-.

,,

App. 0350