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)

G. Evaluating Issues of Criminality, Public Safety, and
National Security, Continued
Signific.a nt Misdemeanor:
For DACA only, a signi fi cant misdemeanor is a misdemeanor as defined by federal
law (specifically, one for which the maximum term of imprisonment authorized is
one year or less but greater than five days) !Uld that meets the following criteria:
1. Regardless of the sentence imposed, is an offense of domestic violence;
sexual abuse or exploitation; burglary; unlawful possession or use of a
firearm; drug disoibution or uafficking; or, driving under the influence; or.
2. If not an offense listed above, is one for which the individual was sentenced
to time in custody of more than 90 days.

Misdemeanors

The sentence must involve time to be served in custody, and therefore does not
include a suspended sentence. The time to be served in custody does not include
any time served beyond the sentence for the criminal offense based on a state or
local law enforcement ag~ncy honoring a detainer issued by U.S. Immigration and
Customs Enforcement (ICE). Notwithstanding whether the offense is categorized as
n significant or non-s.ignificant misdemeanor, the decision whether to defer action
in a particular case is an individualized, discretionary one that is made talcing into
account the totality o'f the circumstances. Therefore, the absence or presence of a
criminal history, is not necessarily dctenninative, but is a faccor (0 be considered in
the unreviewable ex~ise of discretion. OHS retains che discretion to determine
that an individual docs not warrant deferred action on che basis of a single criminal
offense for which th~ individual was sentenced to rime in custody of 90 days or
less.
Non-Significant Misdemeanor:
For DACA only, a non-significanc misdemeanor is any misdemeanor as defined by
federal Jaw (specifically, one for wiiich !he maximum term of imprisonment
authorized is one year or less but greater than five days) and that meets the
fo llowing criteria:
I . Is not an offense of domestic violence; sexual abuse or exploitation;
burglary; un!~wful possession or use of a firearm; .drug distribution or
uafficking; or, driving under the influence; and
2. Is one for wliich the individual was sentenced to time in custody of90 days
or less.
The time in custody ~oes not include any time served beyond the sentence for the
criminal offense baseid on a state or local law enforcement agency honoring a
detainer isrued by IC.E. Notwithstanding whether the offense is categorized as a
significant or non-significant misdemeanor, the decision whether to defeT' action in
a particular case is an' individualized, discretionary one that is made taking into
account the totality of the circumstances. Therefore, the absence of the criminal
history outlined above, or its presence, is noc necessarily decenninative, but is a
faccor to be conside~ in the unreviewahie exercise ofdiscretion.
Continued on ne:ct page
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75

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App. 0351

G. Evaluating Issues of <;:riminality, Public Safety, and
National Security, Continued
Misdemeanors
(continued)

Multiple Misdemeanors:

Absent exceptional ci n:umstanccs, a person is not eligible for consideration of
DACA if he/she has !>ecn convicted of three or more non-significant misdei:neanors
thnt did not occur on .the same day and did not arise out of the same act, omission,
or scheme of misconduct.
A minor traffic offense, such as driving without a license, will not be considered a
misdemeanor for u ses of this rocess.
State Law
Immigration
Offenses

Foreign
Convictions

Immigration-related hffenses characterized as felonies or misdemeanors by
state immigration laws will not be treated as disqualifying felonies or
misdemeanors for the purpose of considering a request for consideration of
deferred action pursuant to this process.

When evaluating a r!=CJuest for consideration of deferred action for childhood
arrival, a foreign conviction, standing alone,. will generally not be treated as a
disqualifying fclony·or misdemeanor. Such convictions, however, may be
considered when addressing whether the person poses a threat to public safety
and whether, under the particular circumstances, the exercise ofprosecutorial
discretion is warranted. Cases involving foreign convictions should be elevated
for supervisory rcvi~w.

.·

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-

76

.

App. 0352

\

Court Dispositions
Requesting
Certified Court
Dispositions

Using RFE DACA 151 call up from Appendix D, request a certified court
disposition for each arrest shown on the RAP sheet, with the exception of
immigration violatio~s (see Arrests & Convictions section). ·n1e RFE should
clearly list each arrest by date, arresting office, charge, and name used when
arrested so that the DACA requestor will know that USCIS is requesting
dispositions for specific arrests that have become known to USCIS. It.is not
necessary for the officer to issue an RfE if he/she is able to readily obtain the
dispositions on line.·

Free Online
Court
Dispositions

There are many on line sites that can be searched and the disposition printed
for a file copy. These sites are open to the public; therefore, USCIS can gain
the final disposition without doing an RFE or ITD if all the charges in
question are found, or if enough evidence can be gathered to deny without the
remaining charges.
The AAO has upheld prior decisions made using these court dispositions,
even though these dispositions are not "certified" by the court, since the
information is made·:available to the public.

Reading Court
Dispositions

Convictions

Court dispositions take as many different forms as there are courts in the
United States. There is no way to give specific instructions on how to read
such dispositions. L!sually the state criminal statutes cite is used to indicate
which charge the applicant was actually convicted of. Adjudicators s.hould
consul1 with their su'pervisor if they have any questions abou1 how to read a
court disposition. ·
·
Pursuant to INA § 101 (a)(48)(A), a conviction is a formal judgment of guilt
en1ered by a court or, if adjudication of guilt has been withheld, where:
1) a judge or jury has found the alien guilty or the alien has entered a plea
of guilty or nolo contendcre or has admined sufficient facts to warrant
·
a finding of gui lt; and
2) the judge has ordered some form of pun ishment, penalty, or re:Straint
on the alicn·s liberty to be imposed.
Nolo contendere means the individual is unwilling to contend. This subjecis
the individual to some form of punishment, penalty, or rcsrraint as if he/she
was found guilty.

i

An adjudication ofjuvenile delinquency is not a conviction.
Conrinued on next page

.

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App. 0353

Court Dispositions, Cont.nued
i
formal
Adjudication or
Guilt Withheld

Court orders in criminal proceedings sometimes include, as part of the
disposition, tenns such as: Continued without a finding (CWOF);
adjudication withheld; deferred adjudication, etc. Diffcrcntjurisdictions use
different tenninology.
Where there is no formal adjudication· of guilt, officer$ must determine
whether.
1. A judge or jury bas found the alien guilty or the alien has entered a

pica of guilty or nolo contendere or has admitted sufficient facts to
warrant a ~nding of guilt; AND
2. the judge bas ordered some fonn of punishment, penalty, or
restraint or the alien's liberty, such as jail, a fine, parole, probation,
community service, etc.
The officer must dissect the law, the statute, court orocr, and conviction, and
put all the pieces together to detennine whether these requirements for a
conviction are met i~ the absence of a fonnal adjudication of gui It.

Imposition or
Costs as

Punishment

Imposition of costs (such as fines, court costs, etc.) in a criminal case
constitutes a fonn of punishment, and therefore satisfies the second prong of
the conviction definition.
Continued on next page

78

App. 0354

Court Dispositions, Continued
Deferred
Prosecution

Deferred prosecution or pretrial diversion programs that do not require the
defendant 10 plead guilty or nolo contendcre or require the court to make any
finding of gui lt do not constitute a conviction for immigration purposes.

Dismissals,
Dropped, Set
Aside

In many cases, the charges may be dropped or set aside in exchange for the
DACA requestor agreeing to attend various self-bCJp courses and programs,
or if the person who filed the complaint against himfber fails to appear.or
·
chooses to drop the case.
These are not consid~red convictions for immigration purposes.

Nolle Prosequi

A decision of''nolle prosequi" is a Latin legal term for "declined to
prosecute".
This is not considered a conviction for immigration purposes.

Convictions on
Appeal

A conviction is effective for immigration purposes, including DACA, while it
is on direct appeal. See Plane v. Holder, 652 F.3d 991 (9th Cir. 2011 ),
rehearing en bane d~icd, 2012 WL 1994862 (2012). If the conviction is
ultimately reversed ¢n appeal, the DACA requestor is free to file a new
request for DACA i( otherwise eligible.
t

E:xpuogcd or
Vacated
Convictions

STET

Expunged convicliops will not be treated as disqualifying folonies or
misdemeanors for tli.c purpose of considering a request for considerntion of
deferred action pursuan.t to this process. The request for deferred actio!l will
be assessed on a case-by-case basis to determine whether the person poses a
threat to public safeiy and whether, under the particular circumstances, the
exercise of prosccutorial discretion is warranted. Cases involving expunged
convictions should be elevated for supervisory review.
The entry of"STET" in a criminal case simply means th~t the state (Maryland
and West Virginia} wi ll NOT proceed against an accused on that indictment
at that time. As long as the STET order is still in place and the individual is
in compliance, the s:rET is nor a conviction for immigration purposes.
NOTE: Carefully review the file for J&Cs, orders, etc., to determine ifa
subsequent decision :on the offense has been made.
'

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·- -- -- -- -· · -- -

App. 0355

Handling Procedures
General

The evaluation of criminal issues with respect to a DACA request is done
after BCU vetting of the TECS check and the FD 258 fingerprint results from
the FBI. If the up-front TECS check reveals a hit, the DACA request goes to
BCUrrriage. If the bit relates, BCU triage routes the DACA request to the
BCU. BCU documents the TECS hit and the resolution in the ROI Q. While
the DACA request is undergoing the up-front TECS check, the DACA
·
requestor is placed in the scheduling queue for an ASC appoinuncnt to have
bis/her biometrics captured. If the FD 258 fingcrprint results return an
!DENT, the BCU reviews the results to detenuine whether they are germane
to the DACA request and the exercise ofprosecutorial discretion. The officer
may issue an RFE at' any point along the way, if necessary tO establish
whether the issues of criminality relate L a misdemeanor, a significant
o
misdemeanor, a felon y, or whether the criminal issues pose a public safety
threat. When a DACA request is denied, the denial shall be issued using the
standard denial template, which provides a list of checkboxes. The standard
denial template is found at Appendix F. Select the box or boxes that apply.
For guidance on when to seek supervisory review of a denial involving issues
of criminality, sec Chapter 9, Section D.

Categorization

If the BCU determines that the case presents issues of criminality, processing
of the DACA request must be categorized as either EPS or non-EPS, l\S
defined in the Novc.'l)'lber 7, 2011 NTA memorandum.

Noo-EPS
Cases

A DACA request pdsing issues of criminality that are based·on !DENT nonEPS, as per the NT A policy memqrandum, is handled by the BCU DACA
Team as follows:
• The BCU DACA Team will adjudicate Form I-8210~ taking into
account all i:ssues of criminality.
• If the case i~ approvable, the·BCU DACA Team will approve Jhc 1821D for DACA and adjudicate the 1-765 for employment
authorization.
• If an approyat'is not warranted, a denial for Form 1-82 1D and Form 1765 will be issued, pending supervisory review.
'
• After the d~isions have been rendered on Fonns 1-821 D and !· 765,
the A-file shall be routed to the NRC.
Continued Of! next page

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82

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:

App. 0356

Handling Procedures, Continued
EPS Cases

A DACA request presenting issues of criminality that are deemed to be EPS,
as per the NTA policy memorandum, is handled by the BCU DACA Team.
The BCU DACA Team shall refer the case to ICE prior to adjudicating the
case, even if USCIS, can deny the DACA request on its merits. The BCU
DACA Team will refer the DACA request to ICE using the RTI process.
The BCU DACA Team will suspend adjudication of the DACA request for
60 days, or until ICE provides notification of its action on the case,
whichever is earlier.
• ICE Takes No Action or Does Not Respond: If ICE does not accept
the referral request or otherwise provide any notification of its action
within 60 days of the RTI:
• The BCU DACA Team will adjudicate Fonn 1-82ID, taking
into account all issues of criminality, and in particular, the
issues presen ting an EPS concern.
• lfthe:disposition oftbe criminal charges against the DACA
requestor is pending, the BCU DACA Team will deny. the
DAC~ request on public safety grounds, because the
unde~lying issues of criminality are deemed to pose an EPS
concern, pursuant to the November 7, 201 I NTA
memorandum. The BCU DACA Team will also deny Fonn 1765, requesting employment authorization.
• If the·disposition of the cTiminal charges against the DACA
requci>tor are final, the BCU DACA Team will deny Form 1821 D based on the issues of criminality and the conviction.
The BCU DACA Team will also deny Form 1-765, requesting
employment authorization.
• Upon denial, the BCU DACA Team shall refer the DACA
requ~t to ERO, in accordance with the agreed upon method,
and update FDNS-DS.
·

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83

App. 0357

Handling Procedures, Continued
EPS Cases
(continued)

• ICE Accepts the Referral: lflCE accepts the case, the BCU DACA
Team will follow the standard protocols outlined in the November 7,
2011 NTA me'morandum.
Note: Requests involving issues of criminality that normally would not meet
the guidelines for c-Onsideration of deferred action will be denied, unless the
requestor is claiming that consideration is warranted due to exceptional
circumstances and fully documents such claim. Removal shall not be
deferred under DACA pursuant to this very limited exception without
concurrence from HQSCOPS. In these instances the case shall come to
HQSCOPS from th~ Service Center Director, through the appropriate chain
of command.

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84

App. 0358

H. Adjudicating Form 1-ai1 D, Part 3, Criminal, National
Security, and Public Safety Information
Introduction

When adjudicating Part 3 of Fonn 1-821 D, it is necessary to ensure that clear
information and evidence are present to make a final determination. Refer to
Chapter 6 for Background and Security Cheeks and Chapter 8, Section H, for
evaluating and handling criminality, public safety, and national security
issues.

Questions 1 and If the reguestor answers "No":
2: Arrested
..
.fl':'."~
<
fo r, charged
with, or
There is no
convicted of a
derogatory
felony or
information in the Amisdemeanor,
Filc(s), IDENT,
or sigoificanl
misdemeanor in TECS, EARM, etc.,
There is derogatory
The derogatory information
the United

.

States {includes
drug offenses
and driving
under the
innucncc or
drugs or
alcohol)

OR

arrested for,
charged with, or
convicted of a
crime in any
country other
than the United

States

information in the AFile(s), IDENT,
TECS, EARM, etc.:
There is derogatory
information in the AFilc(s), IDENT, l
TECS, EARM, etc.,
There is derogator):
information in the AFilc(s), IDENT,
TECS, EARM, etc.,

clearly shows that the
requestor does not meet the
DACA guidelines,
The derogatory information
is unclear,

.., ....,;;:;
Case stays in
regular workflow.
Continue 10
adjudicate.
Case is handled by
lheBCU DACA
Team.

'

There arc clear charges or
clear derogatory information,
but no clear judgment or
conviction,

If the reguestor answel"li "Yes":

There is clear derogatory
information provided by the
uestor and/or in our records,
No derogatory iofom1ation can be
found in our records or it is unclear,
and the requestor <lid not provide
any additional information or
documentation, '

Case is handled by the BCU DACA
Team.
"

Continued on next page

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App. 0359

H. Adjudicating Form 1-821 D, Part 3, Criminal, National
Security, and Public Safety Information, Continued
Qucstions3 and

5: Security and
Related Issues Engaging in
Terrorist .
Activities; or
Engaging in
Ordering,
lo citing,
Assisting, or
Otherwi5e
Participating in
Genotide,

'

If the reguestor ans.wers "No":

.. is ...,
There no

'

,

I

derogatory
infonnation in the
A-File(s), IDENT, .
TECS, EARM, etc.,
There is derogatory
infonnation in the •
A-File(s), !DENT, ·
TECS, EARM, etc.,

Human
Trafficking,
and Other
Violent Crimes
Involving the
persccu ti on of
Others

.
Case stays in regular

or<

There is derogatory.
information in the '
A-Filc(s), IDENT, ;
TECS, EARM, etc.!

'~;o;w.·;.,111;;.

in~.

'

work flow. Continue to
adjudicate.

The derogatory
infonnation clearly
shows that the
requestor did or may
have engaged in
terrorist activities or
human rights
violations,
The derogatory
information is
unclear,

'

Put the case through the
CARRP process per standard
protocols.
NOTE: For cases involving
Tcrrorism-Rclalal lnadmis.sibility
Grounds (TRIG), refer 10 the
November 2, 2011 memorandum
cnti~cd, Rcvi!ed Guiduncc on the
Adiudimi2n of !:;ases Involving
Ii:mu~m·B~l••2I ra2dmiuiJlili1:11
!:i!l1!!ncl• (IRIG} an!! Fuah~
f!mcndrncat 12 the H Poli~x for
old
Such C'
.MC.S The ocher IWO TIUG
rclau:d memoranda an:. fcbrul!.f)' 13,
2009.mcmoruidum entitled Revised
Q~i!!;in~ 20 !l!!l 6!1iudig1j2n Qf
c~ involvingTcrrori sm-Bela~!I
lnsdmjisi~ilitx !:ill!!!nd• imd

f!mendmenr 10 rhc H Policv for
old
and the March 26, 2008
memorandum entitled, Withhglding
ruJjudjcorion !Od R~cw 2( ecior
[5ni11i Qf~"J•i!l Cn1~g 2f!:;~s;:i

·'
:·

~

l!!volvlng As!QS:i!li2!J wjth

Q!

fmvi1imi !l( Ma l~) Suooon l2
~~in TcllQd~l llim'.!n iuti~. 2r

.

OthqGroum.

;

If the reguestor answers "Yes":
"JO:

.

-

·~

I

There is clear derogatory
information provided by the
requestor and/or in our records,
No derogatory information can be
found in our records or it is unclear
and the requcstor did not provide
;
information,

. ..-

I

.

~

. ~,.

Put the case through the CARRP
process ~er standard protocols.

Continued on nat poge
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I

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-

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~

App. 0360

H. Adjudicating Form 1-8210, Part 3, Criminal, National
Security, and Public Safety Information, Continued
Question 4:

If the requestor answers "No":

Current and

Past Gang
Membership

f}• •

There is no
derogatory
information in the
A-File(s), !DENT, :
TECS,EARM,
etc.,
There is
derogatory
information in the
A-File(s), !DENT,
TECS, EARM,
etc.,
There is
derogatory
information in the
A-File(s), !DENT, J
TECS, EARM,
.
etc.,

Case stays in regular
workflow. Conti"nue to
adjudicate.

The derogatory information
clearly shows that the
requcstor is or may be a
gang member,

Case is handled by the
BCU DACA Team.

The derogatory information
is unclear,

If the reguestor answers "Yes":

There is clear derogatory
information provided by the
r uestor and/or in our records,
No derogatory information can be
found in our records or it is unclear
and the requester did not provide
information,
·

rOA cwncu.i. UMi

-

Case is handled by the BCU DACA
Team.

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87

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App. 0361

I. Fraud Review and Fraud Referrals
I mmlgration
Fraud

In the nonnal course.of adjudication, officers should be aware of fraud
indicators. Fraud related concerns that arise during the course of background
and security checks should be addressed according to the March 2011 Fraud
Detection SOP and the 2008 ICE/USCIS Investigation of Immigration
Benefit Fraud MoA;
Fraud encompasses any material representation or omission, accompanied by
an intent to deceive. Establishing the elements of fraud is at the core of the
work perfonned during a fraud investigation. In the immigration context,
fraud is a willful misrepresentation ofa material fact. An omission ofa
material fact can also constitute a willful misrepresentation, rising to the l!!vel
of fraud. When reviewing an immigration request, a finding of fraud is
generally supported by the presence of the following three elements.
• There must have been a misrepresentation or concealment of a fact;
• The misrepresentation or concealment must have been willful; and
• The fact mus.t be material. See Kungys v. U.S .. 485 U.S. 759 (1988)
which indicates that a fact is considered material if it had a tendency
to influence the decision for the application or petition or shut off a
relevant line of inquiry.

A finding of fraud is also supported when the immigration filing contains
fraudulent documcn~ that are gennane.
.
.
The Fraud Detection and National Security (FONS) Directorate
·
administratively investigates allegations of immigration benefit fraud and
produces a Statemen·t of Findings (SOF) that adjudicators use to render their
decisions. Most fraJ d investigations are conducted under the authority of
§ 212(a)(6)(C)(i) of the Act. In the DACA context, the SOF will document
all fraud findings and underlying issues impacting the favorable exercise of
prosecutorial discretion .
~

Continued on next page

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88

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.

App. 0362

I. Fraud Review and Fraµd Referrals, Continued
Immigration
Fraud

(continued)

Individuals requesting DACA are not subject to the 212 inadmissibility
grounds, because they are neither applying for a visa nor seeking admission to
the United States. They are, instead, seeking the administrative exercise of
prosecutorial discretion. Nevertheless, the presence of confirmed or
suspected fraud issues are gennaae in deciding whether the DACA requestor
merits the exercise of prosccutorial discretion. As a result, when an
individual is found to have committed fraud in connection with a DACA
request, the DACA request is denied not because the individual is
inadmissible due to fraud, but rather, because the fraud negates the exc.-rcise of
prosecutorial discretion to defer removal. Denials based on con finn ed fraud
findings will be supported by a properly documented SOF generated by
CFDO. FDNS-DS inust be updated to show that the DACA request was
actually den ied for confirmed fraud. The officer must provide information on
the final outcome of.a DACA request (e.g., approved, denied, NTA) to the
BCU/CFDO so they may update FDNS-DS, accordingly.
When adjudicating ~orms 1
-8210 and I-765 for DACA, officers will
complete a fraud referral sheet when there are articulable elements of fraud
found within the fili~g. Wheo articulable fraud indicators exist, the officer
should refer the filing with a fraud referral ·sheet prior to taking any
adjudication action even if there are other issues which negate the exercise of
prosccutorial discret!on to defer removal.
Continued on nex~ page

89

App. 0363

r. Fraud Review and Fraud Referrals, Continued
Immigration
Fraud
(continued)

If che CFDO is unable to resolve 1he articulated fraud after exhausting.all
reasonable efforts and resources, the CFDO may refer the cases 10 appropriate
field office for interview, ifan interview mav resolve outstanding concerns.
The findings of the administrative or criminal investigation wil I be recorded
in FONS-OS and reported io an SOF and placed in the A-file to eoablc
officers to make accura1e and informed decisions on the DACA requests.
The CFDO will adhere lo the Fraud Detection Standard Operating Procedures
for referring fraud cases filed under the DACA program to ICE.
DACA cases denied.'due to a confinned finding of fmud shall be updated in
C3 as "Denial Notice with a Finding ofFraud Ordered" fECJ for tracking
purposes. In additicir, DACA cases denied due to a con finned fi nding of
fraud shall be ref~d for NTA issuance in accordance wi th the NT A
memorandum dated'November 7, 2011. The appropriatcNTA charge will be
derermincd on a case-by-case basis in consultaiion with local coµnsel.

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App. 0364

I. Fraud Review and Fraud Referrals, Continued
System Updates For reporting purposes, DACA file movement into and out of Ilic CFDO will
for DACA File require the following updates in C3:
·
Movement Into
and Out of
CFDO

I

• "Sent to the Fraud Detection Unit (FDU) for Analysis" [FF!] when
sending a DACA request to the CFDO; and
• "Rerum from Fraud Detection Unit (FDU) with Results" [HCC!]
when receiving a DACA request from CFDO for final processing.
'
'

Jj

,I

91

App. 0365

Chapter 9: Decisions
A. Requests for Evidence
Request for
For DACA requ~ts . when requesting additional evidence, an RFE will be
Evidence (R.FE) used. A NOID will rarely be used. Appendix D ha~ a list of DACA RFE call
ups to be used when processing a DACA request.
Follow the steps below to process an RFE.

App. 0366

B. Notice of Intent to Deny
Notke of
intent to

Follow the seeps below to process a NOID:-

Deny (NOID)

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App. 0367

C. Approvals

Approvals:

CLAIMS
Verifica tion

Follow tbe steps below to verify information in C3 prior to processing an
approval.

9

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App. 0368

C. Approvals, Continued ;

Approv11l
Processing for
Jnidal 1-82 ID

Follow the steps below to process an approval for a DACA request.

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95

App. 0369

D. Denials - Supervisory Review
Denials

When the denial involves one of the grounds listed below, obtain supervisory
review before issuing the denial when the requestor:
• Has a conviction for any crime committed before reaching age 18, and
was tried as an adult; or
• Has been convicted ofa "significant misdemeanor;" or
• Has no criminal convictions and outwardly appears to meet the
guidelines in the Secretary's June 15. 2012 memorandum; however,
based on other derogatory information obtained through routine
systems and background/security checks, there arc credible reasons to
believe that the rcqucstor poses a threat to national security or public
safety. If the requcstor poses a threat to national security, the officer
shou ld refer the proposed denial for supervisory review after the case
has been processed through the CARRP process; or
• Has one or more departures which he/she claims were "brief, casual.
and innocent',' and therefore are not disruptive of the continuous
residence requirement; or
• Has not met the educational guideline.
If the convictions and/or arrests occurred before the requestor filed the fonn
1-821D and the requestor did not disclose this derogatory information, include
the withholding of the material fact(s) as one o(the reasons fo r not exercising
prosecutorial discret)on in the case.
In novel, complex, qr sensitive cases, supervisors will refer the case to
HQSCOPS, through .the normal chain of command.
Before routing the A-file to a supervisor, the officer should place a
supervisory hold on the case in C3. After the supervisor concurs with the
issuance of a denial , the officer shall check the appropriate box on the denial
template and proces~ the cases in the system for denial. See Appendix F for
the DACA Denial Template. If the supervisor determines that the case.should
be approved, process for approval and document the file as appropriate.
Continued on nat page

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-

96

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.

App. 0370