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)

Chapter 14: DACA Termination
Removal
Deferred Under
DACAio

Error

If it comes to the attention of an officer that removal was deferred under
DACA in error, the officer should reopen the case on Service motion and
issue a Notice of Intent to Terminate, unless there are criminal, national
security, or public safety concerns (sec below). The individual should be
allowed 33 days to file a brief or statement contesting the grounds cited in the
Notice of Intent to Tenninate. The Notice of Intent to Terminate should
include a statement that if deferred action for childhood arrivals is terminated,
any associated employment authorization granted during the period of
deferred action will ~e terminated for cause.
If the adverse grounds are not overcome, or no response is received to the
Notice oflment to T"erminate, the officer should prepare a Termination Notice
and seek supervisory review of the draft Termination Notice, prior to
issuance. The Termination Notice should indicate that the individual's
employment authorization is tenninated for cause as of the date of the notice.

Fraud

If it comes to the attention of an officer that an individual committed fraud in
seeking deferral of removal under DACA, the officer should reopen the case
on Service motion ~d issue a Notice oflntent to Terminate. The individual
sho" ld be allowed 33 days to file a brief or statement contesting the grounds
u
cited in the Notice of Intent to Terminate. The Notice of Intent to Terminate
should include a staiement that if deferred action for childhood arrivals is
terminated, any asso_ciated employment authorization granted during the
period of deferred action will be terminated for cause.
If the adverse grounds are not overcome, or no response is received to the
Notice of Intent to Term inate, the officer should prepare a Termination.Notice
and seek supervisory review of the draft Termination Notice prior to issuance.
The Termination Notice should indicate that the individual's employment
authorization is temiinated for cause as of the date of the notice.
The decision to issue a Notice of Intent to Terminate based on fraud should be
supported by a fully .documented SOF and any other relevant
documents/informarion. The terminated DACA case must also be
appropriately record~ in FONS-OS.
Continued on next page

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122

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---~

App. 0396

DACA Termination, Contjnued
If disqualifying crir~in!J-1 offenses or public safety concerns, which arc
deemed to be EPS, arise after removal has been deferred under DACA, the
officer should forw~d the case to the BCU DACA Team who, in him, will
refer the case to ICE and foliow the handling procedures outlined in the
November 7, 20 1l NTA memorandum for EPS cases. If ICE accepts the
case, the issuance oftbc NTA will result in the termination of DACA. Upon
the filing of the NTA with EOIR, the individual's employment authorization
tenninates automatically.

Criminal,
National
Security, or
Public Safety
Issues

If ICE does not accept the case or if the disqualifying criminal offense is
non-EPS.per the November 7, 2011 NTA memorandum, the BCU DACA
Team should reopen the case on Service motion and issue a Notice of Intent
to Terminate. The individual should be allowed 33 days to file a brief or
statement contesting the grounds cited in the Notice of Intent to
Tenninatc. The Notice of Intent.to Tenninate should include a statement that
if deferred action fcir childhood arrivdls is terminated, any associated
employment authorization granted during the period of deferred action will
be terminated for cause.
'

If the adverse grou~ds are not overcome, or no response is received to the

Notice of latent to Terminate, the officer should prepare a Termination
Notice and seek supervisory review of the draft Termination Notice. prior to
issuance. The Temiination Notice should indicate that the individual's
employment authorization is tenninated fo r cause as of U1e <late of the
notice. Consequenily, the Class of Admission (COA) code in CIS should be
changed to DAT cp·eferred Accion Tenninatedf for·employment verification
purposes. Addition~ally, the BCV DACA Team should forward the
individual's name to ERO.
If national security concerns arise after removal h.as been deferred under
DACA, the case should go through the CARRP process, per established
CARRP protocols. :·
·
Continued on next page

'

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,

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App. 0397

'

DACA Termination, Continued
System
Updaus

The following new HACs must be used as appropriate when updating a
Notice of Intent to Terminate DACA and a DACA Termination Notice in
CJ:
• Intent to Terminate DACA Notice Ordered
• Intent to Terminate DACA Notice Sent
• DACA Tennination Notice Ordered
• DACA Termination Notice Sent
After terminating DACA, the Class of Admission (COA) code in CIS should
be changed to DAT (Deferred Action Tenninuted) for employment
verification purposes.
See Appendix I for Notice of Intent to Terminate and Termination Notice.

( Ollt Of"flCIAl UR. OHLY ffOIJOl - U.W EHICR:.DIDITeotsmVt CLESI

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124

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App. 0398

Chapter 15: Processing Form 1-131, Application
for Travel Document for Individuals With
Approved Form 1-821 D, Consideration of
Deferred Action for Childhood Arrivals (DACA)

Introduction

Parole is·the authorization to allow an otherwise inadmissible person to
physically proceed into the United States under certain safeguards and
controls. Parole is nae an admission. The legal authority for parole is found in
§ 212(d)(5)(A) of the Act. Under this statutory authority, DHS may, as a
matter of discretion, parole an individual into the United States under
prescribed conditions. Parole is granted on a case-by-case basis for urgent
humanitarian rea~ons or significant public benefit. Advance parole is
generally granted prior to the individual's departure from the United States.
Fonn l-512L evidencing such a grant is generally the document accepted by a
transportation company to allow individuals travelling without a visa to return
to the United States.

Prescribed

In accordance with the discretionary authority provided in § 212(d)(S)°<A) of
· the Act, grants of ad_vance parole to DACA recipients may be made bC\Sed on
Advance Parole the need to travel abroad for educational, employment, or humanitariCl!l
purposes. These categories are to be construed broadly, but must be
supported with evid~nce demonstrating th en~ to travel.

Conditions for

Advance Parole
Requested for
Educalioual
Pu.rposcs

For educational purposes the applicant must show that the tn1vel will be
undertaken for edu~tional pursuits.
•
•
•

Examples include semester abroad programs or travel necessary to
conduct academic research .
Travel duri~g ·an academic Y unrelated to academics (e.g., a ·
.ear
vacation) is insufficient to qualify as an educational purpose.
Evidence to di:rnonstrate this purpose includes, but is not limited to:
• A lener from the educational institution, or from an employee
of the institution acting in bisfbcr official capacity, describing
the purpose of the travel, or
• A do~ument showing enrollment in a specific program or class
coupled with documentary evidence showing that the applicant
will lienefit from, or is required to travel for the specific
pro~m or class

..
.
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!

125

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App. 0399

~.

Processing Form 1-131, Application for Travel Document for
Individuals With Approved Form 1-8210, Continued
Advance
Parole
Requested for

Employment

For employment purposes the applicant must show that the travel relates to
fullillingjob requirements.
• These purposes will also include the pursuit of a position in the United
States with a foreign employer.
• Examples include an overseas assignment, an interview, a conference,
training, or a meeting with overseas clients.
• Evidence to demonstrate employment purposes includes, but is not
limitedto: ·
• A letter from the applicant's employer describing the need fo r
travel;:or
.
.
• A docWxient showing a specific employment need, such as a
conference program, that also shows the applicant's
·
participation.

Advance
Pa- ole
r
Requ ested for
Humanitarian
Purposes

Humanitarian purposes involve travel for emergent, compelling, or
sympathetic circum~tances .
.
• Examples in~lude medical reasons, to visit an ailing family member,
to anend funeral services for a family membCr, or for any other urgent
familial purppse.
• Travel for va~ation is insufficient.
• Evidence for medical travel should include an explanation from
a medical professional why travel outside of the United States is
necessary to resolve the medical issue.

Expedites

As a general matter of course, expedite requests will not be granted, because
USClS will make evf!ry effort to process the advance parole requ e~t quickly;
however, in a dire emergency, and if properly documented, if an individual
were to appear at a local office and the local office were to deem th en~ for
an expedite to be cor_npelling such that an expedite would be warranted, the
local office has the option of processing the advance parole or working
through established .POCs at the Service Centei: under normal protocols.
Continued on nat page

.

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••

App. 0400

Appendix A
Se1:rel11ry

U.S. Department of Homeland Security
•••

•

Washington. DC .20528
.
.

:

June 15, 2012

MEMORANDUM FOR:

.

Hollleland
Security_

. David V. Aguilar
Acting Commissioner, U.S. Customs and Border Protection
Alejandro Mayorkas
Director, U.S. Citizenship and Immigration Services

· JOhn Morton
Director, U.S. Immigration ·and Customs Enforcement

.:sOBJECT!
·•.
..
,\.

·.·~·---···-.-

:;:;;::[~~~~~~~,~~.~~

By this memorandum,. I am setting forth how, in the exercise of our prosecutorial discretion, the

Department of Homeland Security (OHS) should enforce the Nation's immigration laws against
certain young people who \vere brought to this country as children and ~OW only this C-Ountry as
home. As a general matter, th~ individuals lacked the intent to violate the law ~nd our ongoing
review of pending removal cases is already offering administrative clos:ure to many of them. However,
additional measures are necessary to ensure that our enforcement ~esources are not expended on these
low priority cases but are instead appropriately focused on people who meet our enforcement
priorities.
The following criteria should \le satisfied before an individual is considered for an exercise of
prosecutorial discretion pursuant to this memorandum: .

•

came to the United States under the age of sixteen;
.:
has continuously ~sided in the United States for a least five years preceding the date of this
memorandum and is present in the United States on the date of this memorandum;
is currently in schooJ; has graduated from high school, has obtained a general education
development certificate," or is an honorably discharged veteran of the Coast Guard or Anned
Forces of the United States;
.
has not tieen convicted of a felony offense, a significant misdemeanor offense, multipJe
misdemeanor offenses, or otherwise· poses a threat to national security or public safety; and
is not above the age of thirty.

App. 0401

Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not
designed to be blindly enforced without consideration given to the individual circumstances of
each case. Nor are they designed to remove productive young people· to countries where they
may not have lived or ev~n speak the language. Indeed, many of these young people have
already contribute~ to our country in significant ways. Prosecutorial discretion, which is used in
so many other areas, is especially justified _here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered
whether or not an individual is already in removal proceedings or subject to a final order of
removal. No individual should receive deferred action under this memorandum unless they first
pass a background check and requests for relief pursuant to this memorandum are to be decided
on a case by case basis. OHS cannot provide any assurance that relie~ will be granted in all
cases.

1. With respect to individuals who are encountered by U~S. Immigration and Customs
Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and
Immigration Services (USCIS):
•

•

With respect to individuals who meet the above criteria, ICE ~nd CBP should
immediately exercis~ their discretion, on an individual basis, in order to prevent low
priority individuals from being placed into removal proceedings or removed from the
United States.
:
USCIS is· instructed to implement this memorandum consistent with its existing guidance
regarding the issuance of notices to appear.

2. With respect to individuais who are in removal proceedings but not yet subject to a final order
of removal, and who meet the above criteria:
.

'~

• ICE should exercise ·:prosecutorial discretion, on an individua,l basis. for individuals· whq

•

•
•

meet the above criteria by deferring action for a period of two years, subject to renewal,.
in order to prevent low priority individuals from being removed from the United States:
ICE is instructed to qse its Office of the Public Advocate to.permit individuals who
believe they meet tht! above criteria to identify themselves thr'.ough a clear and efficient
process.
.
ICE is directed to begii;i implementing this process within 60 days of the date of this
memorandum.
.
ICE is also instructed to immediately begin the process of deferring· action against
individuals who me~t the above criteria whose cases have already been identified through
the ongoing review of pending cases before the Executive Office for Immigration
Review.

3. With respect to the individuals who are ~t currently in removal proceedings and meet the
above criteria_, and pass a ba_ckground check:
• · USCIS should establish a clear and efficient process for exercising prosecutorial
discretion, on an ind,lvidual basis, by deferring action against; individuals who meet the

App. 0402

•
•

above criteria ru:id are at least 15 years old, for a period of two years, subject to renewal,
in order to prev~nt low priority individuals from being placed into removal proceedings
or removed from the 'United States.
·
The USCIS process shall also be available to individuals subject to a final order of
removal regardless ~f their age.
USCIS is directed to·begin implementing this process within 60 .days of the date of this
memorandum.
·

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept
applicatfons to determine whether these individuals qualify for work authoriz.ation during this
period of deferred action.
This memorandum confers no substantive right, immigration status or pathway to citizenship.
Only the ~ongress, acting through its legislative authority, can confer these rights. It rei:nains for
the executive branch, however, to set forth policy for the exercise of discretion within the
.
framework. of the existing law. I have done so here.

-

::

App. 0403

I

Appendix B

.
:,
.

,~~~iii~rHomi!imd;~
U.S. Citizenship and Immigration Services
Office of die Director (MS 2000)
. Washington, DC 20529-2000
T'T·:s; ·a·1.!~;b,.~hi··, ~ . . ·
·•·

:/aoo·'Jmmi~.:,:.f&n.~
·.~~. ~i~ . ··:-:~
:~·;,~·----~~~·-.'

.i',

!

..

.

-

PM-602-0050

November 7, 2011

Policy Memorandum
SUBJECT: Revised Guidance for the Referral of Cases and Issuance of Notices to Appear
{NTAs) in Cases Involving Inadmissible and Removable Aliens
Purpose

:

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 Jusµce 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.
Scope

This PM applies to and is binding on all USCIS employe~ unless othetwise specifically
provided in this PM.
·
Authority
Immigration and Nationality Act (INA) sections 10l(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)(S), 236.14(c), and-239; Adjudicator's Field Manual Chapter 10.1 l(a) .
.•

Background

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 ofNTAs 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 foi NTA· issuance, in order to effectively hEindle cases that involve
public safety threats, criminals, and aliens engaged .in fraud.
Delegation by the Secretary of t~e Department of Homeland Security to the [Jureau of Citizenship and Immigration
Services, Delegation Number 0150.l; Paragraph 2(N). However, international District Directors and officers are not
authorized to issue NTAs.
1

App. 0404

PM-602-0050: Revised Guidance for the Referral of Cases and Issuance of NT As in Cases
Involving Inadmissible and "flemovable Al_iens
Page 2
'
Policy
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.
•I

II. NTA Issuance Reauired.by Statute or Regulation

USCIS will issue an NTA in the following circumstances: 4
A. Termination of Conditional Pennanent Resident Status and Denials of Form I-751,
Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5) 5
B. Denials of Form 1-8~_9, Petition oy Entrepreneur to Remove Gonclitions (8 CFR 216.6)
C. Termination of refugee status by the District Director (8 CFR' 207.9)
D. Denials of NACARA 202 and HR.IFA adjustments
1. NACARA 202 adjustment denials (8 CFR 245.13(m));
2. HRIFA adjustment denials (8 CFR 245. I 5(r)(2)(i)).
E. Asylum 6, NACARA 203, and Credible Fear cases:
I. Asylum referrals (8 CFR 208.14(c)(I ));
2. Termination of asylum or termination of withholding of removal or deportation
(8 CFR 208.24(e)); 8
'
·
3. Positive credible fear findings (8 CFR 208.30(f));
.
4. 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 appl¥ io, or change, NTA or notification procedures for Temporary
·.Protected Status cases.. Further, Fonn 1-360, Petition for Amerasian, Widow( er), or Special
Immigrant, processed tm;der the Violence Aga~t Women Act (VA WA), should continue to
..
.
..
..

--------------------------------~,
2

I

National Security Cases include'.cases involving Terrorist Related· Grounds ofln~dmissibility (TRIG) plll'Suant to
sections 212(a)(3)(B) and 212(a)(~)(F) of the INA.
'
.
3
See, e.g., Policy for Vetting qndAdjud;cating Cases with National Security Concerns (April 11, 2008).
4
Ifany Form 1-751or1-829 cases are also Egregious Public Safety cases, they will be referred to ICE in accordance
with Section IV.A.l .ofthis PM. :
·
s See the October 9, 2009 intema1::memo, Adjudication ofForm 1-751, Petition to Remove Conditions on Residence
Where the CPR Has a Final Order ofRemoval, Is in Removal Proceedings, or Has Filed an Unexcused Untimely
Petition or Multiple Petitions. See also the April 3, 2009 memo, /-75 I Filed Prior to Tennination ofMarriage.
6
USCIS may issue an NTA when;an asylum applicant withdraws his or her asylu~ application.
7
This memo does not apply to the Asylum Division's issuance of FOnn 1-863, Notice of Referral to Immigration
Judge, to certain stowaways, cre~embers, 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 termim~ted.
9
See the September 12, 2003 inte~ memo, Service Center Issuance ofNotice to Appear {Form 1-862).

·~
r

App. 0405

PM-602-0050: Revised Gui~ance for the Referral of Cases and Issuance of NTAs in Cases
Involving Inadmissible and ~emovable Aliens
Page 3
1
be processed under ~xist.iog protocols. If the VAWA agplicant's.Form 1-485 is denied, this
memorandum. is applica~le in terms of NTA issuance. 1
•
Ill. Fraud Cases with a Statebtent of Findings Substantiating Fraud
I

.

To protect the integrity ~f the immigration system and address fraud, USCIS will issue NJAs
when a Statement of Fin?ings (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 determ.ination. 12 NTAs will be issued even ifthe petition and/or
application is denied for'·a ground other than fraud, such as lack of prosecution or
abandonment, is termimi]ed based on a withdrawal by the petitiorier/applicant,.or where an
approval is revoked, so long as an SOF substantiating fraud is in the record.
The NTA should includ~ th~ 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 dete~e the appropriate charge(s) is recommended .

.
\

IV. Cases to be Referred to iCE for a Decision on NTA Issuance
I

A. Criminal Cases: G~l aliens are a top imniigration enforeement priority for the
government. The foUowing guidance recognizes the prioritization and requires USCIS to
refer criminals to ICE for action or issue an NTA in accordance with this PM.
I. Egregious Public Safety (EPS) Cases

f
USCIS will r~fer all EPS cases, including cases with pending N-400s, to ICE
prior to adju~icating the case even if USCIS
deny·th·e petition and/or
application oi;i its merits. An E:PS case is defined by -µsc1s and ICE as a case
· where infom\ation indicates the alien is under investigation for, has been arrested
for (without disposition), or has been convicted of, any ~f the following:
a. Murder, rape, or sexual abuse of a minor as defined in
sectidh 10l(a)(43){A) of the INA.
b. Ulicit tfafficking in firearms or desbuctive devices as defined in
sectio.n IOI(a)(43)(C) of the INA.
.·
c. Offens~s relating to explosive materials or fireanns as defmed in
secti~n IOl(a)(43)(E) of the INA.
·

can

~
When making determinations, ~ployees must·keep in mind USCJS's obligations under 8 USC.§ 1367, which
prohibits the release of any inforniation, outside ofDHS, 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
10

~~~

;

.

.

11

Alternatively, ICE wiJI detennihe whether to ismie the NTA if a criminal investigation is conducted, fraud is
found, and the investigation resul~s in criminal prosecution.
12
This includes, but is not limited1to, aliens that were granted asylum status by USCIS, adjusted to Lawful
Pennanent Resident status, presertted fraud indicators, were subject to the Post Adjustment Eligibility Review
(PAER) pr~ in an Asylum O~ce, and met the PAER criteri.a for NT A issuanc~. ·
~

.

~

·'
I

App. 0406

,.

~

. ~

·~
.

~

PM-602-0050: Revised Guidance for the Referral of Cases and Issuance ofNTAs in Cases
Involving Inadmissible and Removable.Aliens.
i
Page4
t
d. Crime~ of violence for which the term of imprisonment imposed, or where
the ~alty for a pending case, is at least one year as defined in
sectioh IOl(a)(43)(F) o(the INA.
. _.:
.
e. An offense relating to the demand for, or receiP.t .of, ransom as defined in
.
sectiop 101(a)(43)(H) of the JNA.
·
f. An off~nse relating to child pornography as defined in
section IOl(a)(43)(1) of the INA.
.
g. An off~se relating to peonage, slavery, involuntary servitude, and
. traffiqking in persons as defined in section 10l(a)(43)(K)(iii) of the INA.
· h. An off~nse relating to alien smuggling as described in
·
section IOI(a)(43)(N) of the INA
i. Human;:Rights Violators, known.or suspected street ·gang members, or
Inteq)pl hits.
.
.
j. Re-enti:y after an order of exdusion, deportatio11: or removal subsequent to
· convi~tion for a felony where a Form 1-212, Application for Permission to.
Reapply for Admission· into the U.S. after Deportation or Removal, has
not ~en approved.
·
~

.

.

.

All EPS cases must be referred to ICE using the procedures outlined below. The
case will be ~ferred 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 NT in these cases if ICE deelines to issue ah NTA. If'some other basis
unrelated to ttie EPS coneem becomes apparent durm:g the course of adjudication,
an NTA mayi,be issued in accordatjce with this. memo:
.

A

Referral Prodess

rms referral process is utilized in order to give ICE the opportunity to determine

the appropri~te course of action before USCIS adjudicates the case. A decision to
issue an NTA. may directly affect the proce8sing of the pending ·petition and/or
application. Upon issuing the Referral to Immigration and Customs Enforcement
(RTI), USCI$ will suspend.adjudication for 60 days, or until ICE provides
notification ~[its action on the case, whichever is eariier.
;

In response t~ the RTI -

I. ICE n:iay issue an NTA. ICE's issuance of an .NTA allpws USCIS to
proc.~ with adjudication (unless jurisdiction _transfers t~ EO:nl or the
pen~g application is an N-400), talcing into ~ccount the. basis· for the
NTA~ .
•.·
l

2. ·If ICE does not issue an NTA or otherwise pr~vide notification of its
action on the case within 60 days of the RTI, .USCIS may resume its
adju~cation of the case, talcing into account the referral grounds.

App. 0407

. PM-602-0050: Revised GuiJance for the Referral of Cases ~d Issua9.ce of NTAs in Ca8es
Involving Inadmissible and ~emovable Aliens
Page 5
£

·

!
1'

.

a.! If the case is approvable, USCIS will consult with ICE prior to
;, adjudication.
·
.j

b.;; 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.

.

.

I

•·.

·~

EPS cases referred to ICE prior to adjudication should be called up and reviewed
no later than 60 days after referral. Nonnally, the case should be adjudicated by
USCIS. However, USCIS retains discretion to place the case on hold for more
than 60 days jfICE requests additional time to conduct an investigation. 13
.

'

.

Office-Specific Processes
~

I

I. cased;to be adjudicated by Semce Centers and the Nati~nal Benefits
Cente}. Adjudication will be suspended and tll.e case will immediately be
sent to the appropriate Service Center Background Check Unit (BCU).
The BCU will r~fer the case to the ICE Benefit Fraud Unit (BFU) via an
RTI. hard copy of the RTI will be placed i.ti:the A-file and/or receipt
file. The BCU will retain the file unless ICE requests it or the 60 days

:A

exp~.

~

2. Cases; to be adjudicated by Field Offices. The· Immigration Services
Offic~r (ISO) will suspend adjudication and ~e case will immediately be
refe1*f to the local IC;E Special Agent in Charge (SAC) via an RTI. A
hard ~opy of the RTI will be placed in the A-file arid/or receipt file. A
copy of the RTI must also be sent to the ICE ~FU. USCIS will retain the
file u~ess ICE requests the file for their rev1ew. ·
·
;

An RTI shouJd inc~ude 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.
~

,I

·'

2. Non-Egregious Public Safety Criininai Cases
~

.

.

If.it appears ih~t 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
to ICE. this section applies to N-400 cases if N-400 has been denied on
good moral character (GMC) grounds based on the· criminal offense. 14 ICE will
decide if, an~ 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.

case

the

~:

.

,

~------~---~-------~--

13 Pursuant to 8 CFR 274a.13(d),'USCIS must complete proce5sing of an Employ~ent Authorization Document
(EAD) within 90 days or issue an;lnterim EAD card valid up to 240 days. Officer5..should be mindful of this
regulatory timeframe when ~s }vith a pending Form I-765, Application for Employment Authorization, are
referred to ICE.
:·
·
;
14
See Section V of this memo ad~essin~ N-400. c~..

App. 0408

r, .
.
.,

i·

.j

.;

PM-602-0050: Revised Guidance for the Referral of Cases and Issuance ofNTAs in Cases
Involving Inadmissible and Removable Aliens
,
Page 6
~-

·

·

-~

If some other::basis· unrelated to. the criminal offense ~omes apparent upon
return of the 9ase 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 NTJ\, based on the totality of circumstances and its priorities. ICE will
.determine th~ appropriate grounds for removal if an NTA is issued. ·
•·

Once adjuditjltion is complete, USCIS will send an RTI to ICE. USCIS will
·concurrently transmit acopy of the RTI to ICE Headquarters (HQ) Enforcement
and Removal·:Operations (ERO) Criminal Alien Division for statistical momtoring
pwposes. If !here is any confusion or uncertainty about classifying a case as
egregious ve1'us non-egregious, the USCIS ISO should refer the matter an EPS
case using th~ process described above.

as

I

.

~

The accompaµying A-file will be referred to ICE wiili. the RTI, if the file is in the
possession o~ the referring USC IS office or center. If. the file is not at the
referring USCIS office or center, the RTI should include any relevant attachments
that USCIS fuls, such ~ a copy of the RAP sheet and a copy of the petition and/or
application. ~ere 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 J.lTI on a completed case solely to obtain disposition records. Instead
ICE will decitle whether, and how, it will obtain such. records as part of its.
decision to issue an NTA.
"
·
:·
·

~
O~ce-Soeci~c Processes

1. Cases '~djudicated by Seryice Centers and the l':J'ational Benefits Center.
Once ·~djudication 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 B~U. The BCU will refer the case, along ~ith ·the A-file and/or receipt
file,_t~ the appropriate ERO Field Office Dire~tor (FOD) via an RTI.
·;

~

2. Cases:~djudicated by Field Offices. Once adjudication is completed, if the
alien ~s removable ~n a criminal. charge, regardless of the reason for the
denial, USCIS will prepare an RTI ~d refer t~e case, along with the
A-file: and/or receipt file, to the local ERO FOO .
. I

.

}

.

B. National Security Ei{try Exit Regis~tion System (NSEERS) :Violator Cases
:

,•

.

USCIS 'Viii refer all eases iii which an application is denied b~ed on an.,NSEERS
violation to ICE for P.ossible NTA issuance.
·

rI

.

,,

'

l
•I
~

1.
r

¥

App. 0409

i·
t.
'l

i

·,;

PM-602-0050: Revised Guiclance for the Referral of Cases
Involving Inadmissible and Removable Aliens
Page?

and Issuance ofNTAs in Cases

V.. cases Involving Fonn N~400. Application for Naturalization

'I

,.

The following guidance ·~pplies to the issuance ofNTAs in cases"in which applicants for
naturalization are remov~ble~ 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 Ill (Fraud Cases with a Statement of Findings Substantiating Fraud).
However, the below gui~ance dC?es not apply to EPS cases .. EPS cases must be referred in
accordance with Section::w.A.1 (Egregious Public Safety Cases) of this memo.
Additionally, the b~low 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).
~

A. The first situation o~urs when the applicant may be eligible to naturalize but is also
deportable under secpon 237 of th~ INA. Examples include ~pplicants convicted of
aggravated felonies prior to November 29, 1990, or applicants convicted of deportable
offenses after obtaini)lg Lawful Permanent Resident (LPR) status that do not fall within
the GMC period. T~e ISO should:
.
1. Make a writt~n recommendation on the issuance ~fan NTA through a review of
the totality· o( the circumstan~ to include factors such as: severity of crime, time
since crime committed, other Criminal conduc~ reforniation, immlgration history
including mejhod of entry, length of presence in the ~.S., and prior immigration
violations, ~~ contributions to society to include the pursuit of education and
15
military serv~fe.
..
.

I

.

.

.

2. Once the ISO has made a recommendation on whether or not to issue an NTA, the
case should 1Jb forwarded to the N-400 NTA Review f'anel (Review Panel), along
with the Written recommendation. A Review Panel.niust be formed in each Field
Office and ui~lude 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 detennmation on NTA issuanc~. If consensus cannot be reached by the
Review Panei, the case will be.elevated to the District Director, througJi the
district rep~entative, for a final decision.
·~
·

an

3. If the Revi~ Panel decides to issue NTA, place the N-400 on hbld until
removal proc~edings have concluded. One~ proceedmgs ~ve concluded, or if the
Review Panel declines to issue an NTA, adjudicate the .case appropriately.

.

·

.

.

15
Additional factors to be taken ~hder consideration can be found i.n the June 17, 2011 ICE memo, Exercising
Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Reipoval ofAliens.
~·
I

·;.

,·

.j

!

'

~·

App. 0410

PM-602-0050: Revised Guidance for the Referral of Cases and Issuance of NTAs in Cases
·
Involving Inadmissible and Removabl~ Aliens
Page 8
.
!'.
B. The second situation.;occrirs· when it is determined that the applicant. was inadmissible at
the time of adjustme~t or admission to the United States, th~ deportable under section
237 of the INA and qot eligible for naturalization under section 318 of the INA. 16 The
ISO should:
:
1. Make a writt~n recommendation on the issuance of mi. NTA through a review of
the totality o~ the circumstances to include factors such as: willfulness of actions,

fraud facfors,~length ofLPR status, criminal history, a'.nd officer error at time of
adjustment. ~'
~
'.

2. Once the ISq has made a recommendation on the issuance of the NTA, the case
should be fo(warded to the Review Panel (see SectionV.A.2), along with the
W!itten recoriµnendation. The Review Panel will ·make the final determination on
NTA issuanc~. If consensus cannot be reached by the Review Panel, the case wilJ
be elevated to the District Di.rector, through the district representative, for a final
i:
..
·,..
·
·
dec1s10n.

3. If the Revie~ Panel decides to issue an NTA, place the N-400 on hold until
removal proc~dings have concluded. Once removal proceedings have
concluded, a~judicate the case appropriately. If the ~eview Panel d~lines to
issue an NT~, deny the case under section 318 of the INA.
.

;

r

VI. Other Cases
A. An alie~ may r~ubst NTA issuance tO rene\Y an appli~tio~ .r~r ad~ustment or in certain
cases with a derue<J N-400. The request must be made m wntmg. 1
.

B. An asylum applic~t issued an NTA may request NTA iss~ce for family members not
included on the asylum app~cation as dependeqts for fantjl¥ lµlification purposes. The
request must b~ made in writing. 18
.
.
.·
.
.
.
:1

VIl. Exceptions

.

:~
I

L

Exceptions to ·the guidMce in this PM require concurrence from Regional or Center
Directors, who will co-!lSult withJICE ~efore_issuing an NTA.

In the Third Circuit only (P~lvania, 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 aJien
cannot be placed in removal procC?C<fings 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.
16

.
\

!.

App. 0411

.·

PM-602-0050: Revised Guidance for the Referral of Cases and Issua~ce ofNTAs in Cases
Involving Inadmissible and ~emovable Aliens
:·
Page9
VIII. Coordination with ICEt

According to the June ·ioI I ICE ·memo regarding the exercise ofprosecutorial discretion ·
consistent with prioriti~s, 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.
.
.
Implementation

Each field office must form~ N-400 NTA Review Panel and create a process to complete RTis
and refer EPS and non-EPS ~tjminal cases to ICE. A written list enumerating ~e members of
the Review Panel and a doc~ent outlining the process of referral must be sent to the appropriate
district office within 30 dSy~ of the is~uance of this memorandum.
i;.

Use
5
This PM is intended solely for.the guidance ofUSCIS personnel in the perfonnance of their
official duties. It is not inteP.ded to, does not, and may not be relied upon to create any right or
benefit, substantive or proce;dural, enforceable at law' or by any individual or other party in
removal proceediilgs, in litigation with the United States, or in any other form or manner.
I

•

~

Contact Information

Questions or suggestions regarding.this PM should be addressed thr<$ugh appropriate channels to
the Field Operations .Directo)'ate, Service Center Operations Directorate, or the Refugee,
Asylum, and lntemation~ ~erations Directorate.

:\

. l:
"

~

19
Exercising Prosecutorial Discr~tion Consistent with the Civil Immigration Enforcement Priorities ofthe Age~cy
for the Apprehension, Detention, and Removal ofAliens, signed June 17, 2011.

I

1
,

·~

App. 0412

Appendix C
Overview ·of the Background Check Process
'!

App. 0413

U. S& Citizenship

and Immigration
Services
-

·-·

... .

Deferred Action
for
c ·hildhood Arrivals

SCOPS-HQ, August 2012

App. 0414

Objectives and Key Elements
At the end of this workshop, officers will understand deferred action
and how to apply the Secretary's discretionary authority in the specific
context of DACA. Officers will:
. •Understand what DACA is;
raLJ nderstand the basic authority for deferred action in general;
·• Understand the Secretary's specific guidelines for DACA;
•Learn to evaluate and weigh the evidence submitted for DACA consideration;
111

Learn how to resolve potential inconsistencies;

. ..

•Know when to consult with their supervisor;· and
•Know when to refer cases to CFDO for additional research .

~

- . - ~ U.S. Citizenship
, J.nd In1n1igrat1on
l

•

-....

Se:rv lees
~

.

2
FOUO - Law Enforcement Sensitive

App. 0415

..

...

Key Reso.urces
Officers will have a number of key resources at their disposaL These
include:
• The Secretary's memorandum;
The national DACA SOP; and
• The AFM.
11

Officers should work through their supervisory chain of command to elevate
complex issues.
HQ will also be a resource for vetting complex issues.

3

U.S. Citizenship
l •
•
i:H1G

.l n Y1i1 u::ira t 1011

Se.rvin·s

~

FOUO - Law Enforcement Sensitive

App. 0416

~

Cl)

·-

2:
Q)

>
0
<(
()
'

<3::
0

-

•

Q)

>

:;;
.(i)

c:
Ql

en

....
c:
Q)

E
Ql

0

i....

.g
c:

w
~

m

...J
I

0
:::>
0
u.

App. 0417

Module Objectives
The objective of this section is to provide a basic
understanding of:
•
•
•
•
•

The authority for exercising prosecutorial discretion;
The authori_y and intent behind DACA;
t
DACA terms;
How DACA will be implemented; and
Challenges .

·-~

•

~ U.S. Cit"i1enship
i and In11r:ligrat]on
Scrv ict:s

5
FOUO - Law Enforcement Sensitive

App. 0418

Authority for Deferred Action
·Under INA 1'03, the Secretary has the authority to administer the immigration
laws .
.• Includes the authority for the Secretary to exercise her disc~etion in deciding
.when- and ·how to remove individuals from the United States.

There· are no specific deferred action provisions in the statute or the
regulations.
111

Deferred action is not a benefit and does not confer any status.

• Deferred action does not lead to any status.
'·.·. .

• Deferred action simply means that action to remove someone is deferred and
· ·that the decision to pursue removal may be·revisited at some point in the future.

.

.. \
•

~erv1ces

-~. ~·

6

tJ.S. Citizenship
~ ~~11d !n1n1igration
.

FOUO - Law Enforcement Sensitive

App. 0419

Authority and Intent for DACA
DACA is Deferred Action for Childhood Arrivals
•

.

•

'

•

~

.

•

-

•

.

•

. •.

•

i

On June 15, 2012, the Secretary issued a memo to CBP, USC.IS, and
ICE, describing the guidelines for exercising prosecutorial discretion in
cases involving certain young people who arrived in the United States
as children.
The intent behind the Secretary's ~emorandum is to prioritize
resources on high priority removal cases.
-

•

• ••• ::J: .

•

•• •• · •.

...

,,,,,,.. •

- .. ,., • •

••

·•

-·-

... --·

There is a basic recognition that individual~ brought to the United
States as young children lacked the intent to violate the law.

U.S. Citi7.enshjp
and .In1n1iRrat.ion
Services

7·

~-

FOUO - Law Enforcement Sensitive

App. 0420

.· · · -

· · ... 1

...

.

----- -- -----

DACA Terms
Since deferred action is not a benefit, different terms are used
for DACA.
Instead of:
11

Application, use request.

• Applicant, use regue· tor (or DACA reguestor).
s
·• Approve or grant, ·use. defer removal, defer action under
DACA ; ·etc.
• Must, should, or shall, use is to be.

U.S. Citizenship
and Irnniigr~tl ion
Services

8
FOUO - Law Enforcement Sensitive

App. 0421

DACA Implementation
Deferred action requests under standard protocols (i.e. , non-DACA)
do not require a form or -fee.
For DACA, USCIS:
· • Is conducting ex. ensive stakeholder outreach;
t
• Has created a DACA video, a DACA website, and has published a
series of FAQs; and
_11

Created a new Form 1-821 D, Consideration of
Childhood Arrivals .

-·
\
·
•

Action for

9

lJ.S. C i ti1.cnship
) and hnn1igration
Scrvic~s

Deferr~d

FOUO - Law Enforcement Sensitive

App. 0422

DACA Implementation (Continued)
Form 1-821 D allows USCIS to:
• Collect the information and documents needed to determine
whether the Secretary's DACA guidelines have been met;
• Track the intake and workflow of DACA requests;

.

• Perform background and security checks on DACA requests;
• · Request additional .information when needed;
• Enter the adjudicative actions in the system;
• Track the status of the DACA request and respond to cus. omer
t
.
..
1nqu1nes;
11

Track statistics; and

•. Position the Agency for potential renewal in 2 years .

-----

10

~ ~rn d lrnn1igratio11

(
•

'TTS , r·· · ' s 11p
,_,... .._.1nzen ·1.

·-

Services
.

FOUO - Law Enforcement Sensitive

App. 0423

DACA Implementation (Continued)
The Secretary's memorandum allows DACA requestqrs to obtain
.w ork authorization based on economic necessity.
•

Existing regulations are at 8 CFR 274a.12(c)(14)- based on a grant of
deferr~d action.

•

The (c)(33) code will . be used to distinguish DACA-related EADs.

DACA requestors are required to concurr~ntly file Form 1
-765,
Applicati· n for Employment Authorization, with the new l-765WS,
o
e
·together with th· ir Form 1-821 D. This allows USCIS to:
• Streamline the process by adjudicating the EAD request concurrently with
the DACA request; and
• Collect .biometrics-.at Application Support Centers (ASCs).

The Lockbox wi.11 reject Form
with Form 1-765.

e

{
~

U.S. Cit'if.cnsldp
~ a.nd In1n1igr<L ion
t
Se:r vices

1~821

D if it is not filed concurrently

11
FOUO - Law Enforcement Sensitive

App. 0424

DACA Challenges
• Since deferred ·action is not a benefit, ·it does not fit squarely
within the regulations.
.

. • This makes DACA requests different from benefit
are accustomed to adjudicating.
·

applica~ions

.

that officers

• Although the regulations are useful resources, the guiding
principles derive from the overarching discretionary authority to
defer someone's removal and the ·Secretary's DACA guidelines.

12
FOUO - Law

Enforc~ment

Sensitive

App. 0425