Case 2:17-cv-00218-RSM-JPD Document 30 Filed 02/14/17 Page 1 of 4

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

8 DANIEL RAMIREZ MEDINA,

NO. C17-218-RSM-JPD

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Petitioner,

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v.

11 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
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Respondents. 13

ORDER DIRECTING SERVICE, SETTING STATUS CONFERENCE, AND SETTING BRIEFING SCHEDULE

14 Petitioner, who is proceeding through counsel, has filed a 28 U.S.C. § 2241
15 immigration habeas petition against the U.S. Department of Homeland Security (“DHS”); John
16 Kelly, the Secretary of DHS; and Nathalie Asher, the Director of the Seattle Field Office of
17 U.S. Immigration and Customs Enforcement (“ICE”). Having reviewed the petition, the Court
18 finds and ORDERS:
19 (1) Proper respondent
20 Generally, the proper respondent in a habeas action is the warden of the facility where
21 the petitioner is detained. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); Garcia-
22 Consuegra v. Asher, No. C14-1366-RAJ, Dkt. 16 (W.D. Wash. Dec. 2, 2014). To ensure the
23 merits of this case can be resolved as expeditiously as possible, the Court adds the Warden of
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Case 2:17-cv-00218-RSM-JPD Document 30 Filed 02/14/17 Page 2 of 4

1 the Northwest Detention Center as a respondent in this action. The Clerk shall update the

2 docket accordingly.

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(2) Service

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If not previously accomplished, electronic posting of this Order and petitioner’s § 2241

5 habeas petition shall effect service upon the United States Attorney of the petition and all

6 supporting documents. Service upon the United States Attorney is deemed to be service upon

7 DHS, the Secretary of DHS, the ICE Seattle Field Office Director, and the Warden of the

8 Northwest Detention Center.

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(3) Status conference

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The Court will hold a status conference at 10:00 a.m. on Friday, February 17, 2017,

11 in Courtroom 12A at the U.S. District Courthouse in Seattle, Washington. By 5:00 p.m. on

12 Wednesday, February 15, 2017, the parties shall call Courtroom Deputy Agalelei Elkington

13 at (206) 370-8421 and advise her who will appear at the hearing.

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The status conference will focus on petitioner’s detention status. In addition, the Court

15 will consider requests by the parties to amend the schedule for briefing the merits of

16 petitioner’s habeas petition, set forth in paragraph (4) below.

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In preparation for the status conference, respondents shall file a brief by 9:00 a.m. on

18 Thursday, February 16, 2017, that addresses the following:

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a. Is petitioner still detained? What is the basis for his detention, given that

20 he has been granted deferred action under the Deferred Action for Childhood Arrivals

21 program?

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b. Has petitioner been placed in removal proceedings? What was the result

23 of ICE’s initial custody determination? Has petitioner requested a bond hearing before an

24 Immigration Judge? When is any bond hearing scheduled to occur?

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Case 2:17-cv-00218-RSM-JPD Document 30 Filed 02/14/17 Page 3 of 4

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c. Does the Court have the authority to order an Immigration Judge and the

2 Board of Immigration Appeals to consider any challenge to petitioner’s detention status on an

3 expedited basis?

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d. If petitioner is still detained and removal proceedings have not been

5 initiated against him, what is the basis for ICE’s authority to detain him? What limitations are

6 there, if any, on the Court’s ability to hold a detention hearing for petitioner before the merits

7 of his habeas petition have been decided?

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By 5:00 p.m. on Thursday, February 16, 2017, petitioner may file a response to

9 respondents’ brief.

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(4) Merits of petitioner’s habeas petition

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By Monday, March 6, 2017, respondents shall show cause why a writ of habeas

12 corpus should not be granted by filing a return as provided in 28 U.S.C. § 2243. As a part of

13 such return, respondents shall submit a memorandum of authorities in support of their position,

14 and should state whether an evidentiary hearing is necessary.

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By Monday, March 20, 2017, petitioner shall file a response brief. Respondents shall

16 not file a reply brief unless directed by the Court.

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The Clerk shall note petitioner’s habeas petition as ready for the Court’s consideration

18 on Monday, March 20, 2017.

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(5) If petitioner’s custody status changes at any point during this litigation,

20 respondents shall file a status update with the Court as soon as possible and no later than

21 five days after the change.

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(6) The Clerk is directed to send copies of this Order to petitioner and to the

2 Honorable Ricardo S. Martinez.

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DATED this 14th day of February, 2017.

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JAMES P. DONOHUE

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Chief United States Magistrate Judge

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

8 DANIEL RAMIREZ MEDINA,

NO. C17-218-RSM-JPD

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v.

Petitioner,

ORDER SETTING BRIEFING SCHEDULE

11 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
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Respondents. 13

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This is an immigration habeas action under 28 U.S.C. § 2241. At the status conference

15 held on February 17, 2017, the Court set forth several deadlines for the parties. This Order

16 memorializes the Court’s oral ruling and adds additional details. Accordingly, the Court finds

17 and ORDERS:

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(1) The briefing schedule previously set in the Court’s February 14, 2017 Order

19 Setting Status Conference, Dkt. 30, is STRICKEN.

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(2) Mr. Ramirez’s motion for immediate release from the ongoing removal

21 proceedings is DENIED. The Court lacks jurisdiction to so rule in the first instance, but must

22 defer the initial inquiry to an Immigration Judge. See 8 U.S.C. § 1226(a); Leonardo v.

23 Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). If Mr. Ramirez would like an expedited bond

24 hearing before an Immigration Judge under 8 U.S.C. § 1226(a), he must request one as soon as

ORDER - 1

1 possible and no later than Tuesday, February 21, 2017 at noon. See 8 C.F.R. § 236.1(d)(1).

2 If requested, respondents shall arrange for Mr. Ramirez to have a bond hearing before an

3 Immigration Judge by Friday, February 24, 2017.

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(3) Administrative exhaustion of bond determinations is prudential rather than

5 jurisdictional, and therefore it may be waived. See, e.g., Singh v. Holder, 638 F.3d 1196, 1203

6 n.3 (9th Cir. 2011); Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). Following the

7 Immigration Judge’s bond determination, the aggrieved party may ask the Court to waive the

8 general requirement that a bond determination be appealed to the Board of Immigration

9 Appeals and consider appropriate objections to the bond determination.

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(4) Mr. Ramirez’s amended habeas petition is due by Tuesday, February 21, 2017

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(5) By 5:00 p.m. on Tuesday, February 21, 2017, the parties shall inform

13 Courtroom Deputy Agalelei Elkington, at (206) 370-8421 whether they agree to consent to the

14 merits of this case being determined by the undersigned Magistrate Judge. If the parties do not

15 agree to consent, they should not inform the Court of their respective positions and this case

16 will be reassigned to the Honorable Ricardo S. Martinez.

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(6) The Government’s motion to dismiss on jurisdictional grounds is due by

18 Friday, February 24, 2017 at 5:00 p.m. The brief shall not exceed 25 pages.

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(7) Mr. Ramirez’s response is due by Friday, March 3, 2017 at 5:00 p.m. The

20 brief shall not exceed 25 pages.

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(8) The Government’s reply brief is due by Tuesday, March 7, 2017 at noon. The

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(9) Oral argument on the Government’s motion to dismiss based on jurisdiction

2 will be held on Wednesday, March 8, 2017, at 10:00 a.m. in Courtroom 12A at the U.S.

3 District Courthouse, 700 Stewart Street in Seattle, Washington.

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(10) The parties’ briefs should address, at a minimum, the following questions:

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a. Does 8 U.S.C. § 1252(g) limit the Court’s jurisdiction over any of Mr.

6 Ramirez’s claims? Address the impact of § 1252(g) on each of Mr. Ramirez’s claims.

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b. Do 8 U.S.C. §§ 1252(a)(5) and (b)(9) limit the Court’s jurisdiction over

8 any of Mr. Ramirez’s claims? Address the impact of §§ 1252(a)(5) and (b)(9) on each of Mr.

9 Ramirez’s claims.

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c. When considering jurisdictional challenges under §§ 1252(a)(5) and

11 (b)(9), a key question is whether the claims are independent of challenges to removal orders or

12 whether they are inextricably linked. See Martinez v. Napolitano, 704 F.3d 620, 622-23 (9th

13 Cir. 2012); Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011). This distinction “will turn

14 on the substance of the relief that a plaintiff is seeking.” Martinez, 704 F.3d at 623. Discuss

15 §§ 1252(a)(5) and (b)(9) with respect to each type of relief Mr. Ramirez is seeking.

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d. At what point, if any, in removal proceedings, including in a petition for

17 review in the Ninth Circuit, would Mr. Ramirez be able to raise the constitutional claims raised

18 in this lawsuit?

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(11) After considering the threshold jurisdictional motion to dismiss, the Court will

20 set a hearing schedule for the merits of the habeas petition.

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(12) The unopposed motion for leave to file amicus curiae brief by United We

22 Dream, Dkt. 38, is GRANTED.

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(13) The Clerk is directed to send copies of this Order to counsel for both parties and

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DATED this 17th day of February, 2017.

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JAMES P. DONOHUE

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Chief United States Magistrate Judge

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 Case 3:17-cv-05110 Document 1 Filed 02/13/17 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

Daniel Ramirez Medina,
Petitioner,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN KELLY, Secretary of Homeland Security; NATHALIE ASHER, Director of the Seattle Field Office of U.S. Immigration and Customs Enforcement,
Respondents.

Case No: ________________ Date: February 13, 2017

PETITION FOR WRIT OF HABEAS CORPUS

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Case 3:17-cv-05110 Document 1 Filed 02/13/17 Page 2 of 20
INTRODUCTION Petitioner Daniel Ramirez Medina (“Mr. Ramirez”) is a law-abiding young father who has twice been granted deferred action and an employment authorization card under the Deferred Action for Childhood Arrivals (“DACA”) program established by the U.S. Department of Homeland Security (“DHS”). Because he satisfied the specific and rigorous criteria set out by DHS under the DACA program (and indeed satisfied them again when his DACA status was renewed), he is authorized by DHS to live and work in the United States. But despite complying with all of the requirements of the DACA program, Mr. Ramirez was taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) – part of DHS – on Friday, February 10, 2017, and is being presently detained without justification. Mr. Ramirez’s detention breaks the promise made to him under the well-established framework of the DACA program, violates his reasonable expectations based on the DACA program, and violates his rights under the Fourth and Fifth Amendments to the United States Constitution. The federal government established the DACA program with great fanfare in 2012. Under the framework of this program, individuals who meet certain specific criteria and pass a background check receive deferred action for a two-year period, subject to renewal. Recipients of deferred action under DACA are authorized by DHS to be present in the United States and are eligible to receive employment authorization, in the form of a work authorization card reflecting their DACA status. In order to apply for DACA, individuals must provide the government with highly sensitive information, pay a fee, and submit to a background check. The program was met with skepticism by the immigrant community, which was understandably reticent to provide data to the federal government that, if used in a manner contrary to the stated purpose of the DACA
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program, could lead to their removal. To combat this fear, DHS assured DACA applicants that information provided as part of the DACA application process would not be used for immigration enforcement purposes.
As a result, hundreds of thousands of individuals applied for, and were granted, deferred action pursuant to DACA. And to Petitioner’s knowledge, the federal government has, until now, lived up to their promise. He is aware of no DACA beneficiary being subject to removal proceedings unless they had violated the criteria for receiving DACA by committing a crime. Indeed, DHS even maintains a toll-free “Law Enforcement Support Center hotline” open 24 hours a day and seven days a week, that it says DACA holders should call if they are arrested and “believe that, in light of this policy, they should not have been apprehended or placed into removal proceedings.” (https://my.uscis.gov/helpcenter/search?q=ICE&tag=tag_search.) In the past, DACA holders calling this number for this reason have been promptly released and not subject to removal. (Mr. Ramirez’s counsel called this hotline and was told that they could not help.)
In establishing and continuously operating the DACA program under a well-defined framework and highly specific criteria, the federal government created a reasonable expectation among DACA recipients that they will be able to live and work in the United States for a specified period without being subject to arrest and deportation based on their immigration status. This reasonable expectation creates constitutionally-protected liberty and property interests for DACA recipients in the benefits they enjoy under DACA: being able to live and work in the United States without fear of deportation, so long as they satisfy DACA’s requirements. See, e.g., Perry v. Sindermann, 408 U.S. 593, 601–03 (1972) (reliance on informal policies and practices may establish a legitimate claim of entitlement to a
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constitutionally-protected interest); see also Texas v. United States, 809 F.3d 134, 174 (2015),

affirmed by an equally divided court, 136 S. Ct. 2271 (2016) (explaining that “DACA

involve[s] issuing benefits” to certain applicants). And these benefits are entitled to

constitutional protections no matter how they may characterized by DHS. See, e.g., Newman v.

Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (“[T]he identification of property

interests under constitutional law turns on the substance of the interest recognized, not the name

given that interest by the state or other independent source.”) (internal quotations omitted).

Accordingly, the federal government may not arbitrarily or capriciously deprive DACA

recipients of these benefits, as they have here with Mr. Ramirez.

Despite DHS having twice determined that Mr. Ramirez presents no threat to national

security or public safety, he was taken into custody and is being unlawfully detained by ICE.

Mr. Ramirez’s unprecedented and unjustified detention violates the United States Constitution

and the promise made to him that he could live and work in this country without being subject

to arrest and deportation solely as a result of his immigration status. The agents who arrested

and questioned Mr. Ramirez were aware that he was a DACA recipient, yet they informed him

that he would be arrested, detained, and deported anyway, because he was not “born in this

country.”

Mr. Ramirez respectfully petitions this Honorable Court for a writ of habeas corpus to

remedy his unlawful detention by Respondents.

JURISDICTION AND VENUE

1.

Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243,

and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court also has

remedial authority under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

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2.

Venue properly lies within the Western District of Washington because a

substantial part of the events or omissions giving rise to this action occurred in the District.

28 U.S.C. § 1391(b).

3.

No petition for habeas corpus has previously been filed in any court and no

removal proceedings are underway.

PARTIES

4.

Mr. Ramirez is the twenty-three year old father of a United States citizen. Mr.

Ramirez has twice been granted deferred action under the DACA program. He was brought to

the United States from Mexico in or around 2001, when he was approximately 7 years old.

Under the DACA program, DHS has twice determined that Mr. Ramirez poses no threat to

national security or public safety.1 Mr. Ramirez has been in the custody of ICE in Tacoma,

Washington since Friday, February 10, 2017.

5.

DHS is a cabinet department of the United States federal government with

responsibility for, among other things, administering and enforcing the nation’s immigration

laws. ICE is an American federal law enforcement agency that is part of DHS. According to its

website, “ICE’s primary mission is to promote homeland security and public safety through the

criminal and civil enforcement of federal laws governing border control, customs, trade and

immigration.”

6.

Respondent John Kelly is the Secretary of DHS. He is sued in his official

capacity.

7.

Respondent Nathalie Asher is the Director of the Seattle Field Office of ICE,

1 See U.S. Dep’t of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 12, 2015), available at https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf.
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which has immediate custody of Petitioner. She is sued in her official capacity

STATEMENT OF FACTS

Deferred Action for Childhood Arrivals

8.

On June 15, 2012, the Secretary of Homeland Security (the “Secretary”) issued

a memorandum concerning “Deferred Action for Childhood Arrivals.” Under the DACA

framework, certain individuals who were brought to the United States as children and meet

specific criteria identified in the order, may request deferred action for a period of two years,

subject to renewal. In exchange, DACA applicants are required to provide the government with

highly sensitive and personal information, submit to a background check, and pay a fee which is

considerable for many of them.

9.

Deferred action is a well-established form of prosecutorial discretion under

which the government defers removal action against an individual for a certain period of

time. The Secretary explained that the DACA policy covers “certain young people who were

brought to this country as children and know only this country as home” and that the

immigration laws are not “designed to remove productive young people to countries where they

may not have lived or even speak the language.”

10. The Secretary established criteria that “should be satisfied before an individual

is considered for an exercise of prosecutorial discretion.” They include that the individual:

x came to the United States under the age of sixteen;

x has continuously resided 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;

x is currently in school, has graduated from high school, has obtained a general

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education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; x has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and x is not above the age of thirty. 11. In addition, the Secretary’s memorandum provided that “[n]o individual should receive deferred action . . . unless they first pass a background check.” 12. The official website of U.S. Citizenship and Immigration Services (“USCIS”) describes the effect of DACA as follows: “Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.”2 13. Recipients of deferred action under DACA are eligible for work authorization, as reflected on the “work authorization” cards issued to them. As USCIS has explained, “[u]nder existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate
2 U.S. Citizenship and Immigration Services, Deferred Action for Childhood Arrivals, Frequently Asked Questions, https://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions (last visited Feb. 12, 2017).
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‘an economic necessity for employment.’” Petitioner Daniel Ramirez
14. Mr. Ramirez has twice demonstrated that he meets all of the requirements necessary to secure deferred action under the DACA program and twice been granted DACA status pursuant to that program. He has never been convicted of a crime, and he does not pose any threat to national security or public safety – a fact that DHS has twice confirmed by granting and renewing his DACA status.
15. Mr. Ramirez recently moved from California to Washington in order to obtain more lucrative employment so that he could help support his three-year old son, a United States citizen, and save money to continue his schooling. Mr. Ramirez previously attended school in California, while also working long hours to help support his family.
16. Mr. Ramirez first requested deferred action under the DACA program in or around 2014. At that time, DHS determined that he met all of the requirements for DACA and granted him a DACA card confirming his status as a DACA recipient.
17. Mr. Ramirez has remained in his DACA status since the date it was issued. His most recent renewal occurred on May 5, 2016. A photocopy of this renewal approval form from DHS is attached to this petition as Exhibit A. This renewal clearly states, “Unless terminated, this decision to defer removal action will remain in effect for 2 years from the date of this notice.” Upon information and belief, this renewal has not been terminated and the 2year time period has not yet expired. As such, Mr. Ramirez is here in the United States living and working lawfully.
18. Thus, as is expressly required by the DACA framework, DHS has twice determined, after performing background checks, that Mr. Ramirez does not pose any threat to
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national security or public safety. Nothing has changed with respect to this determination. 19. Nevertheless, Mr. Ramirez was taken into custody by several ICE agents at or
around 9:00 a.m. PST on Friday, February 10, 2017. Mr. Ramirez was asleep at his father’s home in Seattle, Washington when the agents arrived and arrested Mr. Ramirez’s father. The agents had an arrest warrant for Mr. Ramirez’s father.
20. Following his arrest, Mr. Ramirez’s father granted the ICE officers permission to enter his home so that he could inform his two sons about his arrest. When the ICE agents entered the home, they asked Mr. Ramirez, “Are you legally here?” Mr. Ramirez replied, “Yes, I have a work permit.” On the recommendation of his brother (a DACA recipient who was also then present), Mr. Ramirez declined to answer additional questions at that time.
21. The ICE agents then took Mr. Ramirez to a processing center in Seattle, Washington. When he again informed them about his work permit, one of the ICE agents stated: “It doesn’t matter, because you weren’t born in this country.” At this point, the ICE agents had Mr. Ramirez’s wallet, which contained his work permit, which clearly identified him as a DACA recipient with a “C-33” code, which reflects a work authorization issued pursuant to DACA. Despite this fact, Mr. Ramirez was questioned further, fingerprinted, booked, and taken to a detention center in Tacoma, Washington.
22. At the time of filing, Mr. Ramirez has been in custody for at least 70 hours. 23. Mr. Ramirez was not afforded notice of, or a hearing on, his arrest and detention, and there was no probable cause for his arrest. He has not committed any crime. 24. Mr. Ramirez has not received a judicial determination of probable cause after his detention.
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CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS 25. Mr. Ramirez repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 26. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty and property interests protected under the Due Process Clause of the Fifth Amendment. One of the first inquiries in any case of violation of procedural due process is whether the plaintiff has a protected property or liberty interest and, if so, the extent or scope of that interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). 27. Here, a legitimate claim of a protected property interest exists by virtue of the promise made by the United States government to Mr. Ramirez, and those similarly situated, to adhere to the strict framework set out by the DACA program and by virtue of granting him deferred action and work authorization. And, to the best of Mr. Ramirez’s knowledge, the federal government has kept that promise until now. Where, as here, an existing framework established by the government and individual’s reasonable expectations based on that framework give those individuals benefits that they would not otherwise have, a property right to those benefits exists. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (A legitimate claim of entitlement is created “and [its] dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”).
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28. While DACA is premised on the exercise of prosecutorial discretion, that discretion is necessarily limited and constrained by the rules and criteria that DACA is based on and by the decision to twice grant Mr. Ramirez deferred action and work authorization. These constraints on discretion further support Mr. Ramirez’s claim of a protected property interest here. See Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, 1190–91 (9th Cir. 2015) citing Griffeth v. Detrich, 603 F.2d 118, 121 (9th Cir. 1979) (Holding that plaintiffs have a protected property right in public benefits when, as here, a statute authorizes those benefits and the “implementing regulations” “greatly restrict the discretion” of the people who administer those benefits).
29. Indeed, “Deferred action . . . is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act—and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens.” See, e.g., Texas, 809 F.3d at 166.
30. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Courts employ the Eldridge test when an alien’s due process liberty interests are at stake. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160–61 (9th Cir. 2004). The test considers three factors: (1) the private interest affected by the official action, (2) the risk of erroneous deprivation of that interest through the procedures used, and (3) the government’s
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interest. Id. at 1061. It requires courts to balance the affected interests to see “whether the administrative procedures provided here are constitutionally sufficient.” Id.
31. DHS policy provides that ICE officers who encounter individuals eligible for DACA “should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed in removal proceedings or removed from the United States.” See U.S. Dep’t of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 12, 2015) (emphasis added). Consistent with this directive, Mr. Ramirez—who unquestionably meets all of the criteria for DACA—should not have been arrested or detained, and he should not be placed in removal proceedings.
32. Respondents, having knowledge that Mr. Ramirez met the criteria for DACA and was granted deferred action under the program, violated Mr. Ramirez’s procedural due process rights by arresting and detaining him. And indeed, not only was Mr. Ramirez denied adequate due process prior to his arrest and detention, but the mechanisms DHS put in place to remedy after-the-fact the occasional errors that ICE agents or state or local police may make also failed him. UCSIS has provided explicit instructions for DACA beneficiaries who have been apprehended or placed into removal proceedings improperly, including a Law Enforcement Support Center hotline that is staffed 24 hours a day, 7 days a week. When Mr. Ramirez’s counsel called the hotline, he was provided no assistance in remedying the mistake that had been made by the arresting ICE agents.
33. Mr. Ramirez’s interest affected by Respondents’ actions is profound—his physical liberty. Mr. Ramirez was arrested and is being unlawfully detained, despite the fact that he committed no crime, and is neither a flight risk nor a danger to the public safety nor
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national security. See Matter of Patel, 15 I. & N. Dec. 666, 666 (B.I.A. 1976) (“An alien generally is and should not be detained or required to post bond except on a finding that he is a threat to the national security, or that he is a poor bail risk.”). Therefore, at best, the government’s interest in his continued detention is minimal.
34. Under the Eldridge test, Mr. Ramirez’s expansive liberty interest far outweighs the government’s minor interest in his continued detention. He has twice met the specific criteria for the DACA program outlined by DHS, been found to be no risk to the public safety or national security, and has been granted deferred action under that framework. And Mr. Ramirez received no due process before his arrest and detention, as he was denied both notice and a hearing.
35. For all of the foregoing reasons, Mr. Ramirez’s detention is in violation of the procedural due process rights guaranteed by the Fifth Amendment.
COUNT TWO FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS 36. Petitioner repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 37. Mr. Ramirez’s continued detention violates his right to substantive due process through a deprivation of the core liberty interest in freedom from detention and bodily restraint. 38. Aliens who are physically present in the United States are guaranteed the protections of the Due Process Clause of the Fifth Amendment. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There are literally millions of aliens
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within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.”).
39. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Any deprivation of this fundamental liberty interest must be accompanied not only by adequate procedural protections, but also by a “sufficiently strong special justification” to outweigh the significant deprivation of liberty. Id.; see also Phan v. Reno, 56 F.Supp.2d 1149, 1154 (W.D. Wash. 1999) (“Above and beyond the procedural guarantee explicit in the Due Process Clause itself, federal courts have long recognized a limited ‘substantive’ component that ‘forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”) (citing Reno v. Flores, 507 U.S. 292, 301–02 (1993)).
40. Mr. Ramirez applied for and was granted deferred action under the DACA program, and has been living and working in the United States under that framework. He is neither a flight risk, nor a risk to public safety or national security. Accordingly, Respondents cannot show any justification—let alone a sufficiently strong special justification—for depriving Mr. Ramirez of his constitutional right to due process.
41. Mr. Ramirez relied on DHS’s promise that, so long as he continued to meet the criteria established by DACA, any immigration action against him would be deferred. As such, his detention is an “indefensible sort of entrapment by the [government]—convicting a citizen
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for exercising a privilege which the [government] had clearly told him was available to him”— and deprives Mr. Ramirez of his constitutional right to due process. Raley v. State of Ohio, 360 U.S. 423, 425–26 (1959) (finding a violation of the Due Process Clause when individuals were convicted for asserting a privilege on which “they had a right to rely” as the State had informed them of that privilege).
42. For all of the foregoing reasons, Mr. Ramirez’s detention is in violation of his substantive due process rights.
COUNT THREE FOURTH AMENDMENT – UNLAWFUL SEIZURE 43. Mr. Ramirez repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 44. The Fourth Amendment requires that all arrests entail a neutral judicial determination of probable cause, either before the arrest (in the form of a warrant) or promptly afterward (in the form of a prompt judicial probable cause determination). See Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Absent a bona fide emergency or other extraordinary circumstance, failure to receive a judicial probable cause determination within 48 hours of detention violates the Fourth Amendment as a matter of law. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). The 48 hours includes weekends. 45. As set forth above, Respondents did not provide a judicial probable cause determination at any time for Mr. Ramirez. Respondents’ failure to provide Mr. Ramirez with a prompt, judicial probable cause determination resulted in his continued and prolonged imprisonment in violation of his Fourth Amendment right to be free from unreasonable seizures.
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PRAYER FOR RELIEF WHEREFORE, Mr. Ramirez prays that this Court grant the following relief: (1) Issue a Writ of Habeas Corpus requiring Respondents to release Mr. Ramirez forthwith; (2) Issue an injunction ordering Respondents not to arrest or detain Mr. Ramirez on the basis of the conduct described herein; (3) Award Mr. Ramirez reasonable costs and attorney’s fees; and (4) Grant any other and further relief that this Court may deem fit and proper.

DATED: February 13, 2017 Seattle, Washington

Respectfully submitted, /s/ Elizabeth a i

PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice pending
mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431), pro hac vice pending jlondon@publiccounsel.org KATHRYN A. EIDMAN (CA SBN 268053), pro hac vice pending keidmann@publiccounsel.org ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice pending aprice@publiccounsel.org ELIZABETH HADAWAY (CA SBN 308800), pro hac vice pending ehadaway@publiccounsel.org 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089
GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice pending tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice pending kmarquart@gibsondunn.com JESSE S. GABRIEL (CA SBN 263137), pro hac vice pending jgabriel@gibsondunn.com
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333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
ETHAN D. DETTMER (CA SBN 196046), pro hac vice pending edettmer@gibsondunn.com 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306
ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice pending echemerinsky@law.uci.edu University of California, Irvine School of Law *Affiliation for identification purposes only 401 East Peltason Drive Educ 1095 Irvine, California 92697 Telephone: (949) 824-7722
LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice pending larry@tribelaw.com Harvard Law School *Affiliation for identification purposes only 1575 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: (617) 495-1767
ELIZABETH HAWKINS (SBN 43187) ehawkins@hawkinsimmigration.com Hawkins Law Group 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133 Telephone: (206) 728-4220 Facsimile: (206) 973-5326
BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice pending lcortes@barreralegal.com JOHN C. BARRERA (SBN 47658), pro hac vice pending jbarrera@barreralegal.com JOSE GARCIA (SBN 46518), pro hac vice pending jgarcia@barreralegal.com
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Case 3:17-cv-05110 Document 1 Filed 02/13/17 Page 18 of 20 19309 68th Avenue South, Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 NORTHWEST IMMIGRANTS RIGHTS PROJECT MATT ADAMS (SBN 28287) matt@nwirp.org 615 Second Ave., Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Daniel Ramirez Medina, Petitioner,
v. U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN KELLY, Secretary of Homeland Security; NATHALIE ASHER, Director of the Seattle Field Office of U.S. Immigration and Customs Enforcement; and LOWELL CLARK, Warden of the Northwest Detention Center,
Respondents.

CASE NO. 2:17-CV-00218-RSM-JPD AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief Case No. 2:17-cv-00218-RSM-JPD

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Attorneys for Petitioner PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice
mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431), pro hac vice
jlondon@publiccounsel.org KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice
keidmann@publiccounsel.org ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice
aprice@publiccounsel.org ELIZABETH HADAWAY (CA SBN 308800), pro hac vice ehadaway@publiccounsel.org 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089
GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice
tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice
kmarquart@gibsondunn.com JESSE S. GABRIEL (CA SBN 263137), pro hac vice
jgabriel@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
ETHAN D. DETTMER (CA SBN 196046), pro hac vice edettmer@gibsondunn.com
555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306
ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice echemerinsky@law.uci.edu
University of California, Irvine School of Law *Affiliation for identification purposes only 401 East Peltason Drive Educ 1095 Irvine, California 92697 Telephone: (949) 824-7722

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LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice larry@tribelaw.com Harvard Law School *Affiliation for identification purposes only 1575 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: (617) 495-1767 ELIZABETH HAWKINS (SBN 43187) ehawkins@hawkinsimmigration.com Hawkins Law Group 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133 Telephone: (206) 728-4220 Facsimile: (206) 973-5326 BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice lcortes@barreralegal.com JOHN C. BARRERA (SBN 47658), pro hac vice jbarrera@barreralegal.com JOSE GARCIA (SBN 46518), pro hac vice jgarcia@barreralegal.com 19309 68th Avenue South, Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 NORTHWEST IMMIGRANTS RIGHTS PROJECT MATT ADAMS (SBN 28287) matt@nwirp.org 615 Second Ave., Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611

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INTRODUCTION Petitioner Daniel Ramirez Medina (“Mr. Ramirez”) was arrested in violation of his constitutional rights, and is still being unconstitutionally detained. Our country promised him, through the Deferred Action for Childhood Arrivals (“DACA”) program, that if he gave the government sensitive personal information and fingerprints, subjected himself to a thorough background check, and was found not to be a threat to public safety or national security, then he would be considered lawfully present in the country, and not subject to unconstitutional detention while he played by the rules. Mr. Ramirez did all of that not once, but twice, most recently less than a year ago. But instead of honoring this promise, the Respondents arrested Mr. Ramirez, have been holding him against his will, and have slandered him in the media—without evidence—as a “selfadmitted gang member.” Mr. Ramirez asks this Court to order him immediately released from government custody, and respectfully requests declaratory and injunctive relief ordering that all current and future DACA beneficiaries be free from similarly unwarranted and unconstitutional arrest and detention. The federal government established the DACA program with great fanfare in 2012. Under DACA, individuals brought to the United States as children who meet certain specific criteria, and who are found by the Department of Homeland Security (“DHS”) to pose no threat to public safety or national security, are granted deferred action for a two-year period, subject to renewal. These young people are commonly referred to as “Dreamers” in recognition that they have played by the rules, cooperated with the government, and are working hard to be part of the American dream. As the federal government has explained, Dreamers are “considered by DHS to be lawfully present during the period deferred action is in effect,” and are eligible to receive employment authorization and other important benefits.1

1 Ex. A, Frequently Asked Questions, U.S. Citizenship & Immigration Servs.: Consideration of Deferred Action for Childhood Arrivals Process, https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (last reviewed/updated Feb. 8, 2017) (hereinafter “USCIS DACA FAQs”), at 2 (Question 1).

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In order to apply for DACA, eligible young people are required to provide DHS with highly sensitive personal information, pay a substantial fee, and submit to a rigorous background check. Initially, the DACA program was met with skepticism in the immigrant community, as many Dreamers were understandably reticent to disclose information that could help facilitate their removal from the country they have long called home. To combat this fear, DHS repeatedly promised Dreamers that information provided as part of the DACA application process would “not later be used for immigration enforcement purposes.”2 As a result, hundreds of thousands of individuals applied for, and were granted, deferred action under DACA. Until now, the federal government has honored this promise.
Mr. Ramirez is a Dreamer. He is a law-abiding young father who has twice been granted deferred action and employment authorization under DACA. On multiple occasions—including as recently as May 2016—DHS determined that Mr. Ramirez is not a threat to national security or public safety. Mr. Ramirez has not been convicted of any crime, nor has he ever been a gang member or engaged in any gang activity. In short, as the government has twice concluded, he has done everything required under the specific terms of the DACA program.
Because of the government’s promises in establishing and administering DACA, Mr. Ramirez—like hundreds of thousands of other Dreamers—has always expected that he would not be subject to arrest and detention based on his immigration status. Indeed, the government itself has recognized that there are 750,000 Dreamers who have “relied on the U.S. government’s representations” about DACA.3 As a result of these reasonable expectations, Mr. Ramirez and his fellow Dreamers have constitutionally-protected liberty and property interests in the benefits they enjoy under DACA, which include, among other things, being able to live and work in the United States without fear of arbitrary arrest and detention. DACA has also provided Dreamers access to a host of other benefits (including, in some states, driver’s licenses and in-state tuition at public

2 Ex. B, Letter from Sec’y Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016), available at https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response%20to%20 Chu%2012.30.16.pdf.
3 Id. at 1 (“We believe these representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.”).

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universities), and enabled them to open bank accounts, obtain credit cards, buy homes and cars, and conduct other aspects of daily life that are otherwise often unavailable for undocumented immigrants.
Nevertheless, on February 10, 2017, agents from U.S. Immigration and Customs Enforcement (“ICE”) detained and arrested Mr. Ramirez without a warrant and without probable cause. They handcuffed him, forcibly removed him from his father’s residence, and transported him to an ICE detention facility where they questioned him extensively. And they have held him in detention ever since. These agents had no lawful basis for their actions at the time they arrested Mr. Ramirez, nor does the government have any basis for its continued detention of Mr. Ramirez, who has been unjustly and unconstitutionally locked up for more than 10 days (at the time of the filing of this Amended Petition). Respondents assumed, and repeatedly stated in the media, that Mr. Ramirez is a gang member, even though their only basis for this slander is the fact that Mr. Ramirez is a man of Mexican heritage who has a visible tattoo on his forearm. Mr. Ramirez’s arrest and detention breaks the promise our country made to him and other Dreamers, contravenes his reasonable expectations of being exempt from such treatment, and violates his rights under the Fourth and Fifth Amendments to the United States Constitution.
Indeed, when DHS notified Mr. Ramirez in May 2016 that it had approved his DACA renewal request, it promised him that his DACA status would not be revoked, and that he would not be detained, unless he engaged in “[s]ubsequent criminal activity.”4 But Respondents here do not claim that Mr. Ramirez has engaged in any sort of “criminal activity”—whether before or after his DACA renewal was approved.
At the time of his arrest and detention, Respondents knew (and had official proof of the fact) that Mr. Ramirez had employment authorization, and thus that he was considered lawfully in the country and should have been released. But Respondents accorded no weight to Mr. Ramirez’s status as a Dreamer, and ignored his reasonable expectations that the government would live up to its promises to him. Indeed, despite knowing that he was authorized under DACA to live and work in the United States, and without any evidence, ICE agents assumed that Mr. Ramirez was a gang

4 Ex. C, I-797 Notice of Action, Approval of I-821D Consideration of Deferred Action for Childhood Arrivals (May 5, 2016) (hereinafter “DACA Approval Notice”).

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member based on his race and his visible tattoo, and tried to coerce him into admitting that he was a

gang member. It appears that these official forms were altered in an attempt to justify their arbitrary,

capricious, and unlawful behavior. And once Mr. Ramirez filed a petition for habeas corpus in this

Court, the government doubled-down, mounting a sustained national campaign to publicly vilify him

as an “admitted gang member,” despite having no evidence to support its false allegations.

As a direct and foreseeable consequence of the government’s arbitrary arrest and detention of

Mr. Ramirez, and racially-motivated false accusations of gang membership, Dreamers and their loved

ones across the nation have been thrust into a state of panic and fear, and have begun questioning the

integrity of the promises made to them under the DACA program. As the Consul of Mexico in

Seattle explained, “[Mr. Ramirez’s] detention, which occurred during an operation aimed at a

different person, has created unnecessary alarm and concern among the Mexican community in the

U.S. Particularly, among those who, like Mr. Ramirez, are recipients of a DACA work permit and

thus substantially contribute to the economy and the development of the communities they live in.”5

Mr. Ramirez’s immediate release, and the issuance of the relief he seeks, will quell these fears so

much as is possible, and help reassure Dreamers and their families that the United States is a country

that lives up to the promises it makes.

Mr. Ramirez respectfully petitions this Honorable Court for a writ of habeas corpus to remedy

his own unlawful detention, and seeks declaratory and injunctive relief on his civil complaint to

prevent further constitutional violations.

JURISDICTION AND VENUE

1.

Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and

the Habeas Corpus Suspension Clause of the U.S. Constitution (U.S. Const. art. I, § 9, cl. 2). This

Court also has remedial authority under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

2.

Venue properly lies within the Western District of Washington because a

substantial part of the events or omissions giving rise to this action occurred in the District.

28 U.S.C. § 1391(b)(2).

5 Dkt. #36-1 (Letter from Mexican Consul Roberto Dondisch to the Honorable James P. Donohue (Feb. 16, 2017)), at 1.

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3.

This is an amended version of the Petition for Writ of Habeas Corpus that was filed

in this action on February 13, 2017. No other petition for habeas corpus has been filed in any court,

nor has any answer been filed by Respondents.

4.

No proceeding has been held in this matter, or in any related matter, in Immigration

Court. Nor has there been any proceeding or substantive occurrences with respect to removal,

which is a matter that is not the subject of this petition.

PARTIES

5.

Mr. Ramirez is the twenty-three year old father of a United States citizen. He was

brought to the United States from Mexico in or around 2003, when he was approximately 10 years

old. Mr. Ramirez has twice been granted deferred action under the DACA program. Under the

DACA framework, DHS has determined on multiple separate occasions—most recently less than a

year ago—that Mr. Ramirez poses no threat to national security or public safety. Mr. Ramirez has

been in ICE’s custody in Tacoma, Washington since February 10, 2017.

6.

DHS is a cabinet department of the United States federal government with

responsibility for, among other things, administering and enforcing the nation’s immigration laws.

ICE is a law enforcement agency that is part of DHS. According to its website, “ICE’s primary

mission is to promote homeland security and public safety through the criminal and civil

enforcement of federal laws governing border control, customs, trade, and immigration.”6

7.

Respondent John Kelly is the Secretary of DHS. He is sued in his official capacity.

8.

Respondent Nathalie Asher is the Director of the Seattle Field Office of ICE, which

has immediate custody of Petitioner. She is sued in her official capacity

9.

Respondent Lowell Clark is the warden of the Northwest Detention Center. He is

sued in his official capacity.

6 ICE Initiative to Increase Community Engagement, U.S. Immigration & Customs Enforcement: News Releases (Mar. 10, 2016), https://www.ice.gov/news/releases/ice-initiative-increasecommunity-engagement.

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STATEMENT OF FACTS Deferred Action for Childhood Arrivals
10. On June 15, 2012, the Secretary of Homeland Security (the “Secretary”) issued a memorandum concerning “Deferred Action for Childhood Arrivals.”7 Under the DACA framework, individuals who were brought to the United States as children and meet specific criteria may request deferred action for a period of two years, subject to renewal. In exchange, DACA applicants are required to provide the government with highly sensitive personal information, submit to a rigorous background check, and pay a considerable fee.
11. Deferred action is a well-established form of prosecutorial discretion under which the government defers removal action against an individual for a specified period, subject to renewal. The Secretary explained that DACA covers “certain young people who were brought to this country as children and know only this country as home” and that the immigration laws are not “designed to remove productive young people to countries where they may not have lived or even speak the language.”8
12. The Secretary established criteria that “should be satisfied before an individual is considered for an exercise of prosecutorial discretion.”9 They include that the individual:
 came to the United States under the age of sixteen;  has continuously resided in the United States for at 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 school, has graduated from high school, has obtained a general education
development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

7 Ex. D, Memorandum from Sec’y Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf (hereinafter “DHS Memo”), at 1.
8 Id. at 1–2. 9 Id. at 1.

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 has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
 is not above the age of thirty.10 13. In addition, the Secretary’s memorandum provided that “[n]o individual should receive deferred action . . . unless they first pass a background check.”11 14. The official website of U.S. Citizenship and Immigration Services (“USCIS”) describes the effect of DACA as follows: “Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.”12 15. Recipients of deferred action under DACA are eligible for work authorization, as reflected on the “work authorization” cards issued to them. As USCIS has explained, “[u]nder existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate ‘an economic necessity for employment.’”13 16. In order to receive deferred action under DACA, participants must undergo biometric and biographic background checks. When conducting these background checks, DHS reviews the applicant’s biometric and biographic information “against a variety of databases

10 Id. 11 Id. at 2. 12 Ex. A, at 1 (USCIS DACA FAQs, Question 1). 13 Id.
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maintained by DHS and other federal government agencies.”14 If any information revealed during the review of a DACA application “indicates that [the applicant’s] presence in the United States threatens public safety or national security,” the applicant will not be eligible absent “exceptional circumstances.”15
17. Indicators that an individual poses a national security threat include “gang membership.”16 Accordingly, “[a]ll DACA requests presenting information that the requestor is or may be a member of a criminal street gang are referred to the Background Check Unit (BCU).”17 If gang membership is confirmed, the DACA application is denied absent a determination by USCIS that an exception should be made given the totality of the circumstances.18
18. In 2015, USCIS conducted an additional screening of all approved DACA beneficiaries—including Mr. Ramirez, who was a DACA holder at the time—“to identify records that contained information indicating known or suspected gang association.”19
19. On February 17, 2017, the current Secretary issued a memorandum that “immediately rescinded” all “conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal” but specifically exempted the June 15, 2012 DACA memorandum from being rescinded. Mr. Ramirez Had Been Granted Deferred Action Under DACA at the Time of His Arrest
20. In late 2013, Mr. Ramirez first applied for deferred action pursuant to DACA. His application was granted in 2014.
21. In 2016, Mr. Ramirez successfully reapplied for DACA, and was once again subject to the rigorous vetting required under the DACA framework. The approval notice provided

14 Id. at 7 (USCIS DACA FAQs, Question 23). 15 Id. at 23 (USCIS DACA FAQs, Question 65). 16 Id. 17 Ex. E, Letter from USCIS Director León Rodríguez to Senate Judiciary Committee Chairman
Charles E. Grassley (Apr. 17, 2015) (hereinafter “USCIS Letter”), at 1. 18 Id. at 2; Ex. A, at 8 (USCIS DACA FAQs, Question 26). 19 Ex. E, at 4 ¶ 2 (USCIS Letter).

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confirming that Mr. Ramirez had again been granted deferred action pursuant to DACA clearly states that it is valid from May 5, 2016 to May 4, 2018, and that “[u]nless terminated, this decision to defer removal action will remain in effect for 2 years from the date of this notice.”20 Mr. Ramirez has therefore twice demonstrated that he meets all of the requirements necessary to secure deferred action under the DACA program.
22. The approval notice further provides that Mr. Ramirez’s deferred action could be terminated based on “[s]ubsequent criminal activity.”21
23. During both the initial DACA application process and the DACA renewal process, Mr. Ramirez attested that he had no criminal record or gang affiliation, and the U.S. government researched and validated these statements. USCIS also conducted an additional screening of all approved DACA beneficiaries—including Mr. Ramirez—in 2015. DHS has therefore confirmed on three separate occasions that Mr. Ramirez does not pose a threat to national security or public safety.
24. Mr. Ramirez recently moved from California to Washington in order to obtain more lucrative employment so that he can better support his three-year old son, a United States citizen. He also hoped to save money so that he could continue his education. Mr. Ramirez’s Unconstitutional Arrest and Detention
25. On Friday, February 10, 2017, at approximately 9:00 a.m., a team of multiple ICE agents arrested Mr. Ramirez’s father near Tacoma, Washington, outside the apartment shared by Mr. Ramirez’s father, Mr. Ramirez’s brother, and Mr. Ramirez. The ICE agents subsequently entered the apartment; neither Mr. Ramirez nor his brother are aware of any consent to permit the ICE agents to enter or search the premises.
26. Upon seeing Mr. Ramirez in the apartment, an ICE agent began to question him. Mr. Ramirez provided the agents with his name and birthdate, and told them that he was born in Mexico. As already noted, Mr. Ramirez has a visible tattoo on his forearm. At this point, one of the agents placed Mr. Ramirez in handcuffs.

20 Ex. C (DACA Approval Notice). 21 Id.
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27. Mr. Ramirez told the ICE agents repeatedly that he had a legal work permit, but despite the fact that this meant that Mr. Ramirez was considered lawfully present in the United States, the ICE agents refused to release him. Mr. Ramirez’s father also repeatedly informed the ICE agents that Mr. Ramirez had a legal work permit, and questioned why he was being detained. The ICE agents did not ask any questions at the apartment regarding whether Mr. Ramirez was involved with a gang, nor did they ask him about his tattoo.
28. The ICE agents did not have an arrest warrant for Mr. Ramirez, nor did they have any reason to believe that he had committed a crime. On the contrary, the ICE agents knew that Mr. Ramirez had a work permit and was therefore lawfully living and working in the United States. Despite these facts, Mr. Ramirez was handcuffed and taken by force to an ICE processing center in Seattle, Washington.
29. At the processing center, ICE agents took Mr. Ramirez’s wallet, which contained his work permit. This permit included a “C-33” designation, which clearly identified Mr. Ramirez as a DACA recipient with work authorization pursuant to DACA.
30. ICE also fingerprinted Mr. Ramirez and used this information to access his records, which revealed that Mr. Ramirez has no criminal history, has been granted DACA twice, and has a valid Employment Authorization Document through May 4, 2018.
31. Thus, even assuming without basis they had somehow not understood earlier that Mr. Ramirez was considered lawfully present in the United States, there could now be no question whatsoever of this fact. But instead of releasing Mr. Ramirez, ICE agents began to aggressively and coercively interrogate him. Mr. Ramirez again stated that he had a valid work permit, but the ICE agent interrogating him responded that the work permit did not matter because he was not from the United States. Instead, the ICE agents erroneously assumed that Mr. Ramirez was a gang member, and questioned him aggressively in an effort to get him to admit that he was a gang member. Mr. Ramirez was asked repeatedly—at least five times—whether he was in a gang, and each time he denied any gang affiliation. ICE agents repeatedly pressed him as to whether he had ever known anyone who was a gang member. Mr. Ramirez told the agents that although that he knew students

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who had attended middle school and high school with him who were in gangs, he was not gang affiliated and never had been.
32. ICE agents also aggressively interrogated Mr. Ramirez about his tattoo, based on the assumption that a man of Mexican heritage with a tattoo must be a gang member. As already noted, Mr. Ramirez has one tattoo visible on his forearm, which he obtained when he was 18 years old— before the time he first applied for DACA status. The tattoo consists of the words “La Paz – BCS” and a nautical star. “La Paz” is Mr. Ramirez’s birthplace, and “BCS” stands for Baja California Sur, the region in which La Paz is located. Mr. Ramirez decided to include the city of his birth because he had seen others do the same, and ultimately selected the nautical star (rather than a whale’s tail, which he had also considered) because he liked the way it looked. Nautical stars are popular symbols on tattoos. Mr. Ramirez repeatedly told the ICE agents that the tattoo is not a gang tattoo, but they refused to believe him because of their assumption that a man of Mexican heritage with a tattoo must be a gang member.
33. Another ICE agent stated that if Mr. Ramirez was from Fresno, he was “definitely a gang member” because everyone in Fresno is a member of the “bulldogs” gang. He said that Mr. Ramirez’s tattoo was a “bulldogs” tattoo. Again, the ICE agent’s statement demonstrated that he was assuming that Mr. Ramirez must be a gang member based on the fact of his ethnic heritage and the fact that he had a tattoo. Mr. Ramirez again explained that his tattoo is not a gang tattoo, and that he has never been affiliated with any gang, but the ICE agents refused to listen to him or change their pre-conceived, racially-motivated, and erroneous beliefs.
34. Mr. Ramirez was then transferred to Northwest Detention Center, where he has remained in custody for nearly two weeks as of the time of this Amended Petition. Prior to his transfer to the detention center, ICE agents again assumed, based on Mr. Ramirez’s race and the fact that he has a visible tattoo, and asked Mr. Ramirez if there were any gangs with which he would like to avoid being placed for his safety. Mr. Ramirez stated that he had no gang affiliation and would not have problems being placed anywhere. The ICE agents continued to ask Mr. Ramirez which gangs he would like to avoid in detention. Mr. Ramirez ultimately indicated that if he had to be

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placed with any group, he would prefer “the Paisas.” Mr. Ramirez understands the colloquial use of “Paisas” to mean Mexicans, and was attempting to communicate that if he had to choose with whom he would be placed in detention, he would like to be placed with other Mexicans. Mr. Ramirez, who has no criminal history and has never previously been in custody, has no connection or affiliation whatsoever to the Paizas gang.
35. The Northwest Detention Center is a privately owned detention facility located on a contaminated “Superfund” site.22 According to the Environmental Protection Agency, industrial pollutants have been found in the soil and water near the Northwest Detention Center, and environmental remediation efforts at the site remain ongoing.23
36. On information and belief, detainees at the Northwest Detention Center are forced to spend as many as 23 hours a day inside, and for some detainees, the one hour they are able to spend outside is underneath a tarp, surrounded by walls. The Government’s Actions Following Mr. Ramirez’s Filing of a Habeas Petition
37. On February 13, 2017, Mr. Ramirez filed a Petition for Writ of Habeas Corpus (“Initial Petition) challenging his arbitrary and capricious arrest and detention, which violated his rights under the Fourth and Fifth Amendments to the United States Constitution. See Dkt. #1.
38. At the time he filed his Initial Petition, Mr. Ramirez had been in custody for at least 70 hours. Id. at 9 ¶ 22. As of filing of this Amended Petition for Writ of Habeas Corpus, Mr. Ramirez has been in custody for at least 240 hours.
39. Mr. Ramirez was not afforded notice of, or a hearing regarding, his arrest and detention, and there was no probable cause for his arrest. No judicial officer has determined that there was probable cause for his arrest—as indeed there was not—and he has not been accused of committing any crime.

22 U.S. Envtl. Prot. Agency, Fourth Five-Year Review Report for Commencement Bay Nearshore/Tideflats Superfund Site, Pierce Cty., Wash., at vi (Dec. 1, 2014), available at https://www3.epa.gov/region10/pdf/sites/cb-nt/4th_fyr_cbnt_2014.pdf.
23 Id. at vi-vii.

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40. Respondents assert that they issued a Notice to Appear (“NTA”) on February 10, 2017, which was filed with the Immigration Court on February 14, 2017. Dkt. #32 at 5. Respondents further assert that Mr. Ramirez’s status as a DACA beneficiary terminated automatically on the day ICE issued his NTA. Id. at 2–3.
41. Rather than release Mr. Ramirez from detention as they should, Respondents have concocted a constantly-shifting story about the circumstances surrounding his arrest and detention. After Mr. Ramirez sought relief from this Court on February 13, 2017, Respondents doubled-down on the false assertion that Mr. Ramirez is a gang member, and began a sustained campaign to publicly vilify him as such, despite knowing that there existed no reliable evidence to support such a characterization, and that their only basis for this assertion is the fact that he is of Mexican heritage and has a visible tattoo, which is simply not a “gang tattoo.” Respondents attempted to coerce Mr. Ramirez to admit that he was a gang member. Spokespersons for ICE and DHS have issued statements alleging that Mr. Ramirez admitted to gang membership at the time of his arrest, and told the media that the government possessed “corroborating evidence” that Mr. Ramirez is a gang member. In addition, on information and belief, federal officials have reached out privately to leak to members of the media false information in furtherance of this campaign.
42. On February 14, 2017, ICE spokesperson Rose Richeson stated that “ICE officers took Mr. Ramirez into custody based on his admitted gang affiliation and risk to public safety.”24 This contradicts the Form I-213 prepared by ICE officials, which notes that ICE agents did not discuss Mr. Ramirez’s purported gang affiliation with him until after he was transported to the ICE holding facility in Tukwila, Washington.25
43. On February 15, 2017, ICE officials were pressed by the news media for additional evidence demonstrating that Mr. Ramirez was a gang member. In response, ICE officials informed

24 Dkt. #35-11, Ex. B (Sue Horton et al., Mexican ‘DREAMer’ Nabbed in Immigrant Crackdown, Reuters U.S. Top News (Feb. 14, 2017)), at 1 (emphasis added).
25 Dkt. #32-3, Ex. C (I-213 Record of Deportable/Inadmissible Alien (Feb. 10, 2017)), at 3.

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the media that they had “additional evidence including photos and social media content that illustrate his gang affiliation.”26
44. On February 15, 2017, an unnamed ICE official informed members of the national news media that there was corroborating evidence to support their allegations of gang membership.27 No such corroborating evidence has been produced to Mr. Ramirez or his counsel, despite requests for it; and no such corroborating evidence has been filed with this Court.
45. On February 15, 2017, DHS issued a statement labeling Mr. Ramirez as “a gang member.”28
46. This shifting story suggests a post-hoc effort to justify Respondents’ improper conduct and unjustifiable treatment of Mr. Ramirez.
47. What is noticeably absent from Respondents’ narrative, however, is any evidence that any of the government’s allegations against Mr. Ramirez are true. Unlike Mr. Ramirez, Respondents have access to many—perhaps all—law enforcement and public safety databases that could provide them with the evidence that is woefully missing here. Yet Respondents do not allege that Mr. Ramirez’s name or supposed gang “affiliation” has been located in any of those databases. Indeed, according to its own guidelines, Respondents searched those databases at least three times before to see whether Mr. Ramirez had any gang membership or affiliation, and have repeatedly found instead that he was no threat to the public safety or national security. Furthermore, Respondents place great weight on Mr. Ramirez’s alleged “gang tattoo,” yet they do not point to any evidence that this type of tattoo is associated with gang membership. Again, such information is

26 Dkt. #35-11, Ex. C (First 100 Days: Chaffetz: We Want Inspector General to Investigate Leaks; Attorney for Arrested ‘Dreamer’ Speaks Out, FoxNews.com (Feb. 15, 2017), http://www.foxnews.com/transcript/2017/02/15/chaffetz-want-inspector-general-toinvestigateleaks-attorney-for-arrested/), at 9.
27 Dkt. #35-11, Ex. D (‘DREAMer’ Protected under Obama Detained in Seattle Area, CBSnews.com (Feb. 15, 2017), http://www.cbsnews.com/news/daniel-ramirez-medina-dreamerprotected-under-obamadetained-in-seattle/), at 2.
28 Dkt. #35-11, Ex. E (DHS Statement on Arrest of Alien Gang Member in Washington (Feb. 15, 2017), https://www.dhs.gov/news/2017/02/15/dhs-statement-arrest-admitted-alien-gangmemberwashington), at 1–2.

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readily available to Respondents and is noticeably absent because, in fact, Mr. Ramirez’s tattoo is not a gang tattoo.
48. Respondents should have, and would have, known that because Mr. Ramirez had DACA status, he had already been subject to a background check for gang membership or affiliation. And after they ran his name and fingerprints through their databases at the time he was processed into detention, they knew that he had been subject to three background checks for gang membership or affiliation, and found not to have had any such membership or affiliation. They should have, in the ordinary course, released him immediately upon discovering this fact and that he was, therefore, considered lawfully present in the United States. They nevertheless pressured him to admit to gang membership, and labeled him a gang member in the public, based on nothing other than the fact that he is of Mexican heritage and has a tattoo.
49. Much more troubling is Respondents’ apparent attempt to cover up evidence that would disprove their groundless and racially-motivated assumption of gang affiliation. Notably, on February, 10, 2017, Mr. Ramirez appealed his classification assignment at the detention center, which he had received based on his purported gang affiliation. In his appeal he wrote, “I came in and the officers said I have gang affiliation with gangs so I wear an orange uniform. I do not have a criminal history and I’m not affiliated with any gangs.” However, the photocopy of the document given to him days following his submission of the appeal shows an apparent erasure of part of this statement making it appear that Mr. Ramirez had admitted to gang membership. As “revised” the statement now begins, “I have gang affiliation with gangs so I wear an orange uniform.” The portion stating “I came in and the officers said . . .” is still visible, although barely so.
CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS 50. Mr. Ramirez repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.

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51. Aliens who are physically present in the United States are guaranteed the protections of the Due Process Clause of the Fifth Amendment. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”).
52. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). One of the first inquiries in any case involving a violation of procedural due process “is whether the plaintiffs have a protected property or liberty interest and, if so, the extent or scope of that interest.” Nozzi v. Hous. Auth. of L.A., 806 F.3d 1178, 1190–91 (9th Cir. 2015) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569–70 (1972)).
53. Respondents have deprived Mr. Ramirez of liberty interests protected by the Due Process Clause of the Fifth Amendment. Indeed, “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690.
54. Respondents have also deprived Mr. Ramirez of protected property interests. The property interests protected by the Due Process Clause “extend beyond tangible property and include anything to which a plaintiff has a ‘legitimate claim of entitlement.’” Nozzi, 806 F.3d at 1191 (citing Roth, 408 U.S. at 576–77). “A legitimate claim of entitlement is created [by] . . . ‘rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.’” Id. Therefore, an individual has a protected property interest where they have a reasonable expectation of entitlement to that interest.
55. Here, Mr. Ramirez possesses a protected property interest in his DACA status and the numerous benefits provided to him under the DACA program. These benefits include, among other things, the ability to live and work in the United States for a specified period without being subject to arrest or detention based on his immigration status. This protected property interest exists because of the government’s decision to grant Mr. Ramirez these benefits, and by virtue of its

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promise to Mr. Ramirez (and to hundreds of thousands of similarly situated young people) to adhere to the strict framework of the DACA program. In establishing and continuously operating DACA under a well-defined framework and highly specific criteria, the federal government created a reasonable expectation among DACA recipients—including Mr. Ramirez—that they are entitled to the benefits provided under that program.
56. While DACA is premised on the exercise of prosecutorial discretion, that discretion is necessarily limited and constrained by the published rules and criteria on which DACA is based and operated, and by the government’s decision to twice grant Mr. Ramirez deferred action and work authorization. These constraints on discretion further support Mr. Ramirez’s claim of a protected property interest. See Nozzi, 806 F.3d at 1191 (finding a protected property right in government benefits where government regulations “greatly restrict the discretion” of those who administer the benefits).
57. Indeed, “[d]eferred action . . . is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act— and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens.” Texas v. United States, 809 F.3d 134, 166 (5th Cir. 2015) (footnotes omitted), aff’d by an equally divided court, 136 S. Ct. 2271 (2016).
58. Respondents’ conduct in depriving Mr. Ramirez of his protected liberty and property interests will be evaluated under the three-part Eldridge test. “[I]n Mathews v. Eldridge, the Supreme Court set forth a three-part inquiry to determine whether the procedures provided to protect a liberty or property interest are constitutionally sufficient. First, courts must look at the nature of the interest that will be affected by the official action, and in particular, to the degree of potential deprivation that may be created. Second, courts must consider the fairness and reliability of the existing procedures and the probable value, if any, of additional procedural safeguards. Finally, courts must assess the public interest, which includes the administrative burden and other

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societal costs that would be associated with additional or substitute procedures.” Nozzi, 806 F.3d at 1192–93 (internal quotations and citations omitted). This test requires courts to balance the affected interests to see whether the procedures provided are constitutionally sufficient.
59. Here, the procedures that the government provided to Mr. Ramirez fail the Eldridge test. There is no question that Mr. Ramirez’s private interests are extremely significant (and include, among other things, his physical liberty, his right to be free from arrest and deportation, and his ability to earn a living to help support himself and his family), the procedures provided were inadequate, and the government’s interest in in detaining Mr. Ramirez is non-existent.
60. DHS policy provides that ICE officers who encounter individuals eligible for DACA “should immediately exercise 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.”29 Consistent with this directive, Mr. Ramirez—who unquestionably meets all of the criteria for DACA—should not have been arrested or detained, nor should he have been placed in removal proceedings. Despite their knowledge that Mr. Ramirez met the criteria for DACA and was granted deferred action under the program, Respondents violated Mr. Ramirez’s procedural due process rights by arresting and detaining him.
61. Moreover, not only was Mr. Ramirez denied adequate due process prior to his arrest and detention, but the DHS procedures put in place to remedy errors by law enforcement officials also failed him. For example, UCSIS provides explicit instructions for DACA beneficiaries who are improperly apprehended or placed into removal proceedings, which include calling a Law Enforcement Support Center hotline that operates 24 hours a day, 7 days a week. When Mr. Ramirez’s counsel called the hotline immediately after Mr. Ramirez was detained, he was provided no assistance in remedying the mistake that had been made by the ICE agents who arrested Mr. Ramirez. And Mr. Ramirez received no due process before his arrest and detention, as he was denied both notice and a hearing.

29 See Ex. D (DHS Memo), at 2 (emphasis added).
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62. Under the Eldridge test, Mr. Ramirez’s expansive liberty interests far outweigh the government’s non-existent interest in his continued detention. He has twice met the specific criteria for the DACA program and twice been granted deferred action under that framework, and DHS itself has determined on multiple occasions that he poses no risk to public safety or national security.
63. For all of the foregoing reasons, Mr. Ramirez’s detention is in violation of his procedural due process rights guaranteed by the Fifth Amendment.
COUNT TWO FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS 64. Mr. Ramirez repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 65. Mr. Ramirez’s continued detention violates his right to substantive due process protected by the Fifth Amendment. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Any deprivation of this fundamental liberty interest must be accompanied not only by adequate procedural protections, but also by a “sufficiently strong special justification” to outweigh the significant deprivation of liberty. Id.; see also Phan v. Reno, 56 F. Supp. 2d 1149, 1154 (W.D. Wash. 1999) (“Above and beyond the procedural guarantee explicit in the Due Process Clause itself, federal courts have long recognized a limited substantive component that forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’” (internal citations and quotations omitted)). 66. Here, there is no reason that Mr. Ramirez should be detained. He is neither a flight risk, nor a risk to public safety or national security, and has twice passed the rigorous vetting conducted by DHS, as well as the additional screening for gang affiliation in 2015. Accordingly, Respondents cannot show any valid justification—let alone a “sufficiently strong special justification”—for depriving Mr. Ramirez of his fundamental rights.

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67. Respondents’ unconstitutional bait-and-switch further violates Mr. Ramirez’s substantive (and procedural) due process rights. As the Supreme Court has long recognized, the Due Process Clause forbids the government from punishing people for engaging in conduct that the government itself has encouraged. See, e.g., Cox v. State of La., 379 U.S. 559, 571 (1965) (holding that the government could not punish protestors for demonstrating in a location where state officials had said the protest was allowed); Raley v. State of Ohio, 360 U.S. 423, 438 (1959) (holding that witnesses could not be punished for refusing to answer self-incriminating questions from a State legislative commission when the commission itself had told the witnesses they could decline to answer such questions as doing so would amount to “the most indefensible sort of entrapment by the State”).
68. Here, the federal government vigorously promoted the DACA program and promised Mr. Ramirez—and hundreds of thousands of young people just like him—that if they met the DACA criteria, provided sensitive personal information to the government, and passed a background check they would be able to live and work in the United States for a specified period without being subject to arrest or detention based on their immigration status. The federal government also encouraged Mr. Ramirez to voluntarily disclose highly sensitive personal information by promising that such information would not be used for immigration enforcement purposes. By arresting Mr. Ramirez, and then using the information he disclosed against him, the government has broken both of those promises. For the government to now “say . . . ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.” Moda Health Plan, Inc. v. United States, --- Fed. Cl. ---, No. 16-649C, 2017 WL 527588, at *26 (Fed. Cl. Feb. 9, 2017) (citing Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970)).
69. For all of the foregoing reasons, Mr. Ramirez’s continued detention is in violation of his substantive due process rights.

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COUNT THREE FOURTH AMENDMENT – UNLAWFUL SEIZURE 70. Mr. Ramirez repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 71. Aliens are entitled to Fourth Amendment protection from unlawful seizures. See Orhorhaghe v. INS, 38 F.3d 488, 497–501 (9th Cir. 1994); Benitez-Mendez v. INS, 760 F.2d 907, 909 (9th Cir. 1983). 72. The Fourth Amendment requires that all arrests entail a neutral judicial determination of probable cause, either before the arrest (in the form of a warrant) or promptly afterward (in the form of a prompt judicial probable cause determination). See Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Absent a bona fide emergency or other extraordinary circumstance, failure to receive a judicial probable cause determination within 48 hours of detention (which includes weekends) violates the Fourth Amendment as a matter of law. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). 73. To support a warrantless arrest and detention for a civil immigration violation, the arresting officer must be aware of sufficient facts to support a reasonable belief that the alien is in the United States illegally. Benitez-Mendez, 760 F.2d at 909. Absent such facts, a warrantless arrest violates the Fourth Amendment. Orhorhaghe, 38 F.3d at 497–501. Here, Respondents arrested and are detaining Mr. Ramirez despite their knowledge that he was granted deferred action under DACA and is therefore authorized to live and work in the United States according to DHS’s own promise to Mr. Ramirez and other DACA holders like him. By arresting and detaining Mr. Ramirez under these circumstances, Respondents are violating his Fourth Amendment rights. 74. Respondents also violated Mr. Ramirez’s Fourth Amendment rights by failing to provide him with a prompt judicial probable cause determination, which has resulted in his continued detention.

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COUNT FOUR FIFTH AMENDMENT – EQUAL PROTECTION 75. Mr. Ramirez repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 76. The Fifth Amendment protects individuals against actions of the federal government that deny the equal protection of the laws. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013) (“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”); Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (applying Equal Protection Clause to the federal government). 77. The Fifth Amendment forbids federal officials from acting with a discriminatory intent or purpose. “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67 (1977). 78. Here, Respondents arrested Mr. Ramirez in substantial part because of unconstitutional racial and national origin discrimination and invidious stereotypes about men of Mexican heritage who have tattoos. Respondents’ discriminatory intent is further evidenced by their decision to question Mr. Ramirez about his place of birth, their decision to depart from established procedures and arrest and detain Mr. Ramirez without a warrant and in spite of his DACA status, and in their statement to him that his DACA status did not matter because he was not from the United States. 79. Respondents arrested Mr. Ramirez without a warrant after he said that he was born in Mexico, even though Mr. Ramirez told Respondents that he had a work permit. The arrest itself is a departure from “the normal practice and procedure” of Respondents, in that they did not have a valid arrest warrant. In the ordinary course and according to Respondents’ regular procedures, Mr. Ramirez should never have been arrested or detained because he has DACA status and a work permit and was thus expressly authorized by DHS to live and work in the United States. Respondents arrested Mr. Ramirez without a warrant and have continued to detain him to this day

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despite being aware of these facts. Again, this is a major departure from their “normal practice and procedure.” Mr. Ramirez should never have been arrested in the first place. Respondents did not do so, however, instead concluding that Mr. Ramirez was a gang member based on his Mexican heritage, the fact that he was born in Mexico, and the tattoo visible on his forearm, which they have insisted and continue to insist—contrary to all evidence—is a “gang tattoo.” This shows that the agents who arrested and detained Mr. Ramirez did so because he was of Mexican heritage and had a visible tattoo, thus indicating to them, and based on false and invidious stereotypes, that he is a member of a gang. Respondents’ consideration of these factors amounts to unconstitutional racial and national origin discrimination in violation of the Equal Protection Clause.
80. The decision at the processing center to continue to detain Mr. Ramirez was also motivated by unconstitutional racial and national origin discrimination. Mr. Ramirez should not have been detained because he has been granted deferred action under DACA, and DHS has repeatedly confirmed that he is not a threat to public safety. Respondents told Mr. Ramirez that he was being detained despite his DACA status because he is not from the United States.
81. Despite knowing that Mr. Ramirez had twice been granted deferred action under DACA, Respondents concluded that Mr. Ramirez was nevertheless “gang affiliated” based on his Mexican heritage and his tattoo. Indeed, one of the ICE agents insisted that he was “definitely a gang member” because everyone in Fresno is a member of the “bulldogs” gang. He said that Mr. Ramirez’s tattoo was a “bulldogs” tattoo. Furthermore, one of the ICE agents told Mr. Ramirez that it did not matter that he had a work permit because he was not from the United States, emphasizing that they were not following the ordinary procedures—that is, releasing DACA holders who are considered lawfully present—because of his national origin. ICE’s assumption and insistence that Mr. Ramirez is a gang member because he is of Mexican heritage, has a visible tattoo, and had lived in the Fresno area, demonstrates racial and national origin discrimination in violation of the Equal Protection Clause.
82. Finally, the fact that Respondents have continued to insist, in multiple statements to the media and in spite of all of the evidence to the contrary, that Mr. Ramirez is a gang member

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demonstrates racial and national origin discrimination in violation of Mr. Ramirez’s right to Equal Protection. Respondents make this serious accusation, and broadcast it to the world, despite the fact that their only evidence in support of this accusation is that he is of Mexican heritage and has a tattoo. This shows that Respondents’ beliefs about Mr. Ramirez are based solely on false and invidious racial and national origin stereotyping.
PRAYER FOR RELIEF WHEREFORE, Mr. Ramirez prays that this Court grant the following relief: (1) Issue a Writ of Habeas Corpus requiring Respondents to immediately release Mr. Ramirez; (2) Issue a declaratory judgment pursuant to 28 U.S.C. § 2201(a) that: (a) Mr. Ramirez, and other Dreamers, have constitutionally-protected interests in their status conferred under DACA; (b) arbitrary arrest and detention violates Mr. Ramirez’s, and other Dreamers’, due process rights; and (c) Respondents lack the authority to arrest or detain Mr. Ramirez or other Dreamers on the basis of their immigration status, or the conduct described herein; (3) Enjoin Respondents from arresting or detaining Mr. Ramirez on the basis of the conduct described herein; (4) Award Mr. Ramirez reasonable costs and attorney’s fees; and (5) Grant any other and further relief that this Court may deem fit and proper.
DATED: February 21, 2017 Seattle, Washington
Respectfully submitted, /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice

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/s/ Marc D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Erwin Chemerinsky ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice University of California, Irvine School of Law *Affiliation for identification purposes only /s/ Laurence H. Tribe LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice Harvard Law School *Affiliation for identification purposes only /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice Attorneys for Petitioner

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The Hon. James P. Donohue

Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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Daniel Ramirez Medina,

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Petitioner,

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v.

15 U.S. DEPARTMENT OF HOMELAND

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SECURITY; JOHN KELLY, Secretary of Homeland Security; NATHALIE ASHER,

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Director of the Seattle Field Office of U.S. Immigration and Customs Enforcement,

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Respondents.

CASE NO. 2:17-CV-00218-RSM-JPD PETITIONER’S RESPONSE BRIEF RE: COURT’S FEBRUARY 14, 2017, ORDER DIRECTING SERVICE, SETTING STATUS CONFERENCE, AND SETTING BRIEFING SCHEDULE

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Attorneys for Petitioner PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice
mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431), pro hac vice jlondon@publiccounsel.org KATHRYN A. EIDMAN (CA SBN 268053), pro hac vice keidmann@publiccounsel.org ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice aprice@publiccounsel.org ELIZABETH HADAWAY (CA SBN 308800), pro hac vice
ehadaway@publiccounsel.org 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089

GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice
tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice
kmarquart@gibsondunn.com JESSE S. GABRIEL (CA SBN 263137), pro hac vice
jgabriel@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
ETHAN D. DETTMER (CA SBN 196046), pro hac vice edettmer@gibsondunn.com 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306

ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice echemerinsky@law.uci.edu
University of California, Irvine School of Law *Affiliation for identification purposes only 401 East Peltason Drive Educ 1095 Irvine, California 92697 Telephone: (949) 824-7722

LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice larry@tribelaw.com Harvard Law School *Affiliation for identification purposes only 1575 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: (617) 495-1767

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ELIZABETH HAWKINS (SBN 43187) ehawkins@hawkinsimmigration.com Hawkins Law Group 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133 Telephone: (206) 728-4220 Facsimile: (206) 973-5326 BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice lcortes@barreralegal.com JOHN C. BARRERA (SBN 47658), pro hac vice jbarrera@barreralegal.com JOSE GARCIA (SBN 46518), pro hac vice jgarcia@barreralegal.com 19309 68th Avenue South, Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 NORTHWEST IMMIGRANTS RIGHTS PROJECT MATT ADAMS (SBN 28287) matt@nwirp.org 615 Second Ave., Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611
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1 I. INTRODUCTION

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In establishing the Deferred Action for Childhood Arrivals, or “DACA”, program our country

3 made a promise to Daniel Ramirez and to hundreds of thousands of other young people that if they

4 gave their personal information and fingerprints to the government and passed a background check,

5 they could study and work here without fear of arrest or deportation. The government’s position in

6 this case is, apparently, that that promise is not worth anything to Mr. Ramirez. And that broken

7 promise is already creating fear and panic among other DACA beneficiaries and their loved ones.

8 Perhaps even worse, to defend this arbitrary, cruel and unconstitutional action, the government has

9 concocted a shifting, untrue, and demeaning story about Mr. Ramirez, who – contrary to the

10 government’s story – is a hard working young father who has already been found twice by the

11 Department of Homeland Security in this case to be no threat to public safety or the national security.

12 Mr. Ramirez respectfully requests that the Court make the government honor its promise, and order

13 Mr. Ramirez released from detention.

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Mr. Ramirez is a hardworking young man who was born in Mexico and brought here by his

15 parents at a very young age. He has a young son of his own, who is a United States citizen. He

16 works hard to support his son and dreams of continuing his education and getting a better job,

17 perhaps as an auto mechanic. In 2014, he successfully applied for and received benefits under

18 DACA, so that he could live and work in this country lawfully. He successfully renewed that status

19 in 2016. He is what America has taken to calling a “DREAMer.” He has no criminal record.

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On Friday, February 10, he was arrested and thrown into an ICE detention facility (where he

21 still sits today). This was done despite his status as a DACA beneficiary. It is for this reason that Mr.

22 Ramirez filed this habeas petition. It cannot be that Mr. Ramirez and others like him, who adhere to

23 the framework and rules set forth for them by the government to live and work here lawfully, must

24 still live in fear that any day they could be arbitrarily and capriciously arrested and detained. Such

25 actions violate Mr. Ramirez’s constitutionally protected Fourth and Fifth Amendment rights.

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The Respondents, in an effort to cover up their actions, have engaged in the following. First,

27 in an effort to distract from the constitutional issues at stake here, they apparently initiated removal

28 proceedings despite his status as DACA beneficiary. Second, they have launched a public campaign

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to smear Mr. Ramirez’s reputation with a constantly shifting story of gang membership and criminal
history. While the narrative has shifted multiple times in the last 48 hours alone, one thing has
remained consistent: their claims are all unsubstantiated and untrue. Even by the government’s own
account, the agents did not believe Mr. Ramirez was a gang member at the time they arrested him.
There was no basis to arrest Mr. Ramirez or rescind his DACA status and work authorization, and
there is no basis to hold him in continued detention.
As a DREAMer, Mr. Ramirez has constitutional rights that deserve to be protected. The
government made the mistake of arbitrarily and capriciously arresting and detaining a DREAMer. As
such, they will have to litigate that mistake in the appropriate court of law.
II. STATEMENT OF FACTS
A. The Dreamers
On June 15, 2012, the Secretary of Homeland Security (the “Secretary”) issued a
memorandum concerning “Deferred Action for Childhood Arrivals.” Under the DACA framework,
individuals brought to the United States as children and who meet specific criteria, may request
deferred action for a period of two years, subject to renewal. The Secretary explained that the DACA
policy covers “certain young people who were brought to this country as children and know only this
country as home.”
Since its inception, the DACA framework has been recognized as a highly successful program
benefiting both its recipients and American society at large. In the words of the Department of
Homeland Security: [T]housands of Dreamers have been able to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—all on the books. We continue to benefit as a country from the contributions of those young people who have come forward and want nothing more than to contribute to our country and our shared future.
Over 750,000 undocumented young people have received DACA authorization since 2012.

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1. The DACA Framework

In enacting DACA, the government was careful to put in place a very precise framework

under which the program was to operate. Specifically, the Secretary established criteria that “should

be satisfied before an individual is considered for an exercise of prosecutorial discretion.” They

include that the individual:

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came to the United States under the age of sixteen;

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has continuously resided 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;

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is currently in school, has graduated from high school, has obtained a general

education development certificate, or is an honorably discharged veteran of the Coast Guard

or Armed Forces of the United States;

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has not been convicted of a felony offense, a significant misdemeanor offense,

multiple misdemeanor offenses, or otherwise poses a threat to national security or public

safety; and

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is not above the age of thirty.

In addition, the Secretary’s memorandum provided that “[n]o individual should receive

deferred action . . . unless they first pass a background check.” The official website of U.S.

Citizenship and Immigration Services (“USCIS”) states in part: “An individual who has received

deferred action is authorized by DHS to be present in the United States, and is therefore considered

by DHS to be lawfully present during the period deferred action is in effect.” Recipients of deferred

action under DACA are eligible for work authorization, as reflected on the “work authorization”

cards issued to them.

B. On The Day Of The Arrest Mr. Ramirez Had Valid DACA Status

Mr. Ramirez first applied for deferred action pursuant to DACA in late 2013, which was

granted in 2014. (Ramirez ¶¶ 3, 6.) On May 5, 2016, Mr. Ramirez successfully renewed his DACA

status, thereby undergoing all the same vetting as was previously undertaken. (Petition Ex. A;

Ramirez ¶ 9). The notice approving his DACA renewal clearly states that the renewed DACA is

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valid from May 5, 2016 to May 4, 2018, and “Unless terminated, this decision to defer removal action will remain in effect for 2 years from the date of this notice.” (Id.) Mr. Ramirez has thus twice demonstrated that he meets all of the requirements necessary to secure deferred action under the DACA program. DHS has twice confirmed that he has never been convicted of a crime, and he does not pose any threat to national security or public safety.
In order to receive DACA status, participants must undergo biometric and biographic background checks. (USCIS, “Frequently Asked Questions,” Q. 22, available at https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions) (hereinafter “FAQs”). When conducting these background checks, DHS reviews the applicant’s biometric and biographic information “against a variety of databases maintained by DHS and other federal government agencies.” (Id., Q. 23). If any information revealed during the review of a DACA application “indicates that [the applicant’s] presence in the United States threatens public safety or national security,” the applicant will not be eligible absent “exceptional circumstances.” (Id., Q. 65.) Indicators that an individual poses a national security threat include “gang membership,” id, and “[a]ll DACA requests presenting information that the reporter is or may be a member of a criminal street gang are referred to the Background Check Unit (BCU).” (April 17, 2015 Letter to Charles E. Grassley, Chairman of the Committee on the Judiciary, from Leon Rodriguez, Director of USCIS, available at https://www.grassley.senate.gov/sites/default/files/judiciary/upload/2015-0417%20USCIS%20to%20CEG%20(DACA%20for%20Gang%20Member).pdf) (hereinafter “USCIS Letter”). If gang membership is confirmed, the DACA application is denied absent a determination by USCIS Headquarters that an exception should be made given the totality of the circumstances. (Id.; FAQs, Q. 26).1
Mr. Ramirez recently moved from California to Washington in order to obtain more lucrative employment so that he could help support his three-year old son, a United States citizen. (Ramirez ¶ 10; Declaration of Josue L., ¶ 5; Declaration of Luz. L., ¶ 11; Declaration of Nancy L., ¶ 7.).

1In 2015, U.S. Citizenship and Immigration Services conducted an additional screening of all approved DACA cases “to identify records that contained information indicating known or suspected gang association.” USCIS Letter, at p 2

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C. Mr. Ramirez’s Improper Arrest and Detention

On Friday, February 10, 2017, at approximately 9:00 a.m., a team of multiple ICE agents

arrested Mr. Ramirez’s father in Tacoma, Washington, outside the apartment shared by Mr.

Ramirez’s father, Mr. Ramirez’s brother, and Mr. Ramirez. (Ramirez ¶ 12.) The ICE agents

subsequently entered the apartment without authorization; Mr. Ramirez’s father did not consent to the

agent’s entry or search of the premises. (Josue ¶ 8.)

Upon seeing Mr. Ramirez in the home, an ICE agent immediately began to question Mr.

Ramirez about his name and birthplace. (Ramirez ¶ 13.) Mr. Ramirez provided the agents with his

name and told them he was born in Mexico. (Id.) At this point, the agent placed Mr. Ramirez in

handcuffs. (Id.) Mr. Ramirez stated multiple times to the ICE agents that he had a legal work permit,

but despite this knowledge, the agents refused to release him. (Id.) The ICE agents did not ask any

questions or regarding any alleged gang involvement or about Mr. Ramirez’s tattoo. (Id.)

The ICE agents knew that Mr. Ramirez had a work permit and is therefore lawfully living

and working in the United States. (Id.) The ICE agents did not have an arrest warrant for Mr.

Ramirez, nor did they have any reasonable suspicion that he had committed any crime. Indeed, the I-

831 attached to the government’s brief makes clear, even on their account, that the agents arrested

him solely because he was in the country illegally and had been arrested for speeding – neither of

which would justify detaining or starting removal proceedings for a DACA recipient. Despite all

these facts, the ICE agents took Mr. Ramirez with them to a processing center in Seattle, Washington.

(Id.) At the processing center, ICE took Mr. Ramirez’s wallet, which contained his work permit,

which clearly identified him as a DACA recipient with a “C-33” code, which reflects a work

authorization issued pursuant to DACA. (Id. ¶ 14.) ICE also fingerprinted Mr. Ramirez, which

confirmed that had no criminal history, was granted DACA, and had a valid Employment

Authorization Document through May 5, 2018. (DOJ Ex. 32-3; Ramirez ¶ 14).

ICE interrogated Mr. Ramirez for several hours. (Ramirez ¶ 14-16.) Mr. Ramirez again

stated that he had a valid work permit, but the ICE agent interrogating him responded that the work

permit did not matter because he was not from the United States. (Id. ¶ 14.) He was asked five to

seven times whether he was in a gang, and he denied it each time. (Id. ¶ 16.) The agent repeatedly

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pressed him as to whether he had ever known anyone who was a gang member. (Id.) Mr. Ramirez told the agent although that he knew students who had attended middle school and high school with him who were in gangs, he was not gang affiliated and never had been. (Id.; Nancy ¶ 8.)
Another ICE agent then began interrogating Mr. Ramirez about his tattoo. (Ramirez ¶¶ 1719.) Mr. Ramirez has one tattoo on his arm, which he got when he was 18. (Id.) The tattoo says “La Paz – BCS” and has a nautical star. (Id.) Mr. Ramirez repeatedly told the ICE agents that the tattoo is not a gang tattoo. (Id. ¶ 19.) “La Paz” is Mr. Ramirez’s birthplace, and “BCS” stands for Baja California Sur, the city in which La Paz is located. (Id.) He saw the nautical star in the tattoo shop and chose it because he “liked the way the star looked.” (Id.) Another ICE agent said that if Mr. Ramirez was from Fresno, he was “definitely a gang member” because everyone in Fresno is a member of the “bulldogs” gang.” (Id.) He said that Mr. Ramirez’s tattoo was a “bulldogs” tattoo from the Fresno area. (Id.) Mr. Ramirez repeated that the tattoo was not a gang tattoo and that he was not affiliated with any gang. (Id.)2
Mr. Ramirez was then transferred to Northwest Detention Center (id.), where he has now remained in custody for nearly one week. III. THE DETENTION OF MR. RAMIREZ IS UNCONSTITUTIONAL. THE PURPOSE,
FRAMEWORK, AND OPERATION OF DACA CREATE A REASONABLE EXPECTATION THAT A DACA BENEFICIARY CANNOT BE ARBITRARILY AND CAPRICIOUSLY ARRESTED AND DETAINED. This court ordered the Respondents to answer the following questions: “Is the petitioner still detained? What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?” Today, the Respondents failed to provide any compelling (or believable) response to that critical threshold question. At the time of arrest and detention, Mr. Ramirez was authorized to live and work in the United States, pursuant to his DACA status. And yet, because he was at the wrong place at the wrong time, he had all his benefits summarily cancelled, he got arrested, and he got thrown in

2 There is ample further evidence that Mr. Ramirez is not a gang member. See Declaration of Martin Flores; Declaration of Edwina Barvosa.

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detention. Essentially, Mr. Ramirez is asserting questions about what it means to be a DREAMer –

whether he and others can safely rely on the implicit promises made to them by the United States

government.

The Respondents assert that the issuance of the NTA by a single immigration officer

immediately terminated Mr. Ramirez’s DACA deferred action without notice. The Notice of Action

dated February 17, 2017, states that the employment authorization terminated automatically as of the

date the NTA was issued as well. The Due Process Clause does not permit this result.

Here there is no question that the benefits provided under DACA are property interests

protected by the Constitution. Perry v. Sindermann, 408 U.S. 593, 601 (1972) (“A person’s interest

in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit

understandings that support his claim of entitlement to the benefit and that he may invoke at a

hearing.”). Moreover, the protections and work authorization that Mr. Ramirez has received under

the DACA program have “become essential in the pursuit of [his] livelihood.” Bell v. Burson, 402

U.S. 535, 539 (1971).

Termination of DACA and the work authorization “involves state action that adjudicates

important rights,” Goldberg v. Kelly, 397 U.S. 254, 262 (1970), and “[t]his constitutional challenge

cannot be answered by the argument that [the] benefits are a ‘privilege’ and not a ‘right,’” Id.

(citation omitted) (holding that termination of welfare benefits requires pre-deprivation notice and

“opportunity to be heard”). That is the case here.

Mr. Ramirez had a reasonable expectation that the benefits conferred to him under DACA

would be protected. And, in fact, he did rely on the government’s promises implied in the strict

framework of DACA. When filling out his initial DACA application on October 16, 2013, Mr.

Ramirez wrote: “I would appreciate my work authorization request to be granted so that I can work

without fear of being deported.” To expect the government to honor its promise and follow its own

rules should not have been too much for Mr. Ramirez to expect. Cf. Accardi v. Shaughnessy, 347

U.S. 260, 266-67 (1954).

The due process violations here are even more insidious, as they involve the government

essentially attempting a bait-and-switch with respect to Mr. Ramirez’s DACA benefits. The

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government affirmatively encouraged Mr. Ramirez to come forward and identify himself, to submit to rigorous screening, and to register as a DREAMer. Now, without any notice or due process, they are taking back their promise. As the Supreme Court has long recognized, the Due Process Clause forbids the government from punishing people for engaging in conduct that the government itself has encouraged. See, e.g., Cox v. State of La., 379 U.S. 559, 571 (1965) (holding that the government could not punish protestors for demonstrating in a location where state officials had said the protest was allowed). For the government now “‘to say to [Mr. Ramirez], ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.’” Moda Health Plan, Inc. v. United States, No. 16-649C, 2017 WL 527588, at *26 (Fed. Cl. Feb. 9, 2017) (quoting Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970)). In establishing and continuously operating the DACA program under a well-defined framework and highly specific criteria, the federal government created a reasonable expectation that DACA recipients will be able to live and work in the United States for a specified period without being subject to arrest. IV. The Petition Does Not Relate To A Bond Hearing Or A Removal Petition, Instead It
Raises The Precise Issues Habeas Corpus Relief Was Designed To Address. This is a classic case in which habeas corpus relief is required in order to protect the rights of a detained individual. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody.”); Boumediene v. Bush, 553 U.S. 723, 765 (2008) (finding that “the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers”).3 The only issue presented in this habeas petition is whether Mr. Ramirez’s current detention (and previous arrest leading to that detention) is unconstitutional, given his status as a DACA beneficiary. On Friday, February 10, Mr. Ramirez was arrested (without a warrant or probable cause), and he has now been in detention for one week. This is exactly the situation that habeas corpus relief was

3 Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court also has remedial authority under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

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designed to address. This petition alleges specific constitutional violations, including procedural and substantive due process violations and Fourth Amendment violations.
The Respondents now apparently claim that this is, in fact, an arrest and detention relating to a removal proceeding. That is not the case. The situation surrounding the arrest and detention clearly demonstrate that this was not a thoughtful, intentional action on the part of ICE. The ICE agents did not have an arrest warrant for Mr. Ramirez when they arrived at the home of his father. They clearly did not know whether he was a United States citizen or not, as they asked him upon arrival: “Were you born here in the United States?” This removal proceeding they have initiated is a clear distraction and is wholly irrelevant to the habeas petition currently facing this court. See Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006) (“By its terms, the jurisdiction-stripping provision does not apply to federal habeas corpus petitions that do not involve final orders of removal. Here, as we have noted, there is no final order of removal.”)
As stated above, the question before this court on this habeas petition is whether, given this complex and precise framework, a reasonable expectation was created that a DACA beneficiary (such as Mr. Ramirez) could not be arbitrarily and capriciously arrested and detained. That is a question squarely within the jurisdiction and expertise of this court, and one that cannot be adjudicated by an Immigration Judge.
V. Respondents, Aware That Mr. Ramirez’s Constitutional Rights Have Been Violated, Have Concocted A Narrative To Attempt To Prevent Mr. Ramirez From Vindicating His Constitutional Rights. DHS, aware that Mr. Ramirez’s constitutional rights have been violated, has concocted a
constantly shifting narrative to attempt to prevent him from having his rights vindicated by this court. The government’s shifting narrative about the circumstances of its arrest and detention of Mr. Ramirez is highly-troubling, and suggests a post-hoc effort to justify its improper conduct. By way of example:

 On February 14, 2017, ICE spokesperson Rose Richeson stated that “ICE officers took Mr. Ramirez into custody based on his admitted gang affiliation and risk to public safety.”

Declaration of Jesse Gabriel (“Gabriel Decl.”), Exs. A, B (emphasis added). This contradicts

Respondents’ Brief, as well as Form I-213 attached thereto as Exhibit C, both of which note

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that ICE agents did not discuss Mr. Ramirez’s purported gang affiliation until after he was transported to the ICE holding facility in Tukwila, Washington. Br. at 2; Ex. C at 3.  On February 15, 2017, ICE officials were pressed by the news media for additional evidence demonstrating that Mr. Ramirez was a gang member. In response, ICE officials informed the media that they had “additional evidence including photos and social media content that illustrate his gang affiliation.” Gabriel Decl., Ex. C. Tellingly, Respondents’ Brief makes no mention of any such evidence.  On February 15, 2017, an unnamed ICE official informed members of the national news media that there was “corroborating evidence” to support their allegations of gang membership. Gabriel Decl., Ex. D. But Respondents have not provided any corroborating evidence to support these unfounded allegations.  On February 15, 2017, DHS issued a statement labelling Mr. Ramirez as “a gang member.” Gabriel Decl., Ex. E. Respondents’ Brief, however, backs away from that conclusion, and instead meekly asserts that Mr. Ramirez purportedly “hangs out with” gang members. Br. at 2. What is missing, however, is any evidence that these claims (any of them) are true. Unlike Mr. Ramirez, the Respondents find themselves in the lucky position of having access to a wide range of databases that could potentially offer them the proof that is woefully missing here. For example, law enforcement maintains comprehensive databases of gang members, or individuals affiliated with gang members. The Respondents do not allege that Mr. Ramirez has been found in any of those databases. Furthermore, both in the press and in their brief, Respondents seem to put a lot of stock in the alleged “gang tattoo.” Mr. Ramirez unequivocally denies that it is a gang tattoo. However, they do not point to any evidence that the tattoo on Mr. Ramirez is one commonly associated with gang membership. Again, this is information readily available to the Respondents. Counsel for Mr. Ramirez have requested any additional corroborating evidence available to the Respondents on these issues but have received none. See Declaration of Ethan Dettmer, ¶ 8. Much more troubling still is the government’s apparent attempt to cover up evidence that would, in fact, disprove their gang affiliation allegations. On February, 10, 2017, Mr. Ramirez appealed his classification assignment at the detention center, which had been assigned based on his purported gang affiliation. In his appeal he wrote, “I came in and the officers said I have gang affiliation with gangs so I wear an orange uniform. I do not have a criminal history and I’m not affiliated with any gangs.” The truly disturbing fact, however, is that it is clear from the document

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that someone attempted to erase the following part of his statement: “I came in and the officers said.” See Ramirez Decl., Ex. A (Classification Appeal).
To be perfectly clear: Mr. Ramirez Wrote: “I came in and the officers said I have gang affiliation with gangs so I wear an orange uniform. I do not have a criminal history and I’m not affiliated with any gangs.” “Edited” Version: “I have gang affiliation with gangs so I wear an orange uniform. I do not have a criminal history and I’m not affiliated with any gangs.” Instead, Respondents appear to have based his arrest, detention and purported DACA revocation on the answers that Mr. Ramirez gave to a series of questions. Again, as discussed above, even this story has shifted over time. And, certainly, Mr. Ramirez’s account of events differs dramatically from the account given in Respondents’ brief. Of particular note is the Respondents’ claim that when asked if he had ever been arrested, Mr. Ramirez answered “yes.” Respondents Brief, at 2. According to Mr. Ramirez, that conversation never took place. And it does seem especially puzzling given that, according to their own exhibit, he has no criminal record. The exhibit does reflect one speeding violation on Mr. Ramirez’s record. Nonetheless, it is certainly not sufficient to justify what happened here. DHS twice determined that he poses no threat to national security or public safety. And the published guidelines for the DACA program specifically say that a minor traffic violation does not count towards the three non-serious misdemeanors that would disqualify someone from receiving deferred action. The guidelines say “[a] minor traffic offense will not be considered a misdemeanor for purposes of DACA.”4 It strains credibility that, after all that, his lawful status under DACA would be revoked (even in part) because of an old speeding violation. Respondents’ claims regarding gang affiliation (though it is worth noting not even the Respondents have asserted that he was ever a gang member), are also implausible. Mr. Ramirez was twice vetted twice by DHS and was found to pose no threat to public safety or national security. Gang membership is one of the factors explicitly listed by DHS as determinative in successfully passing the background check to obtain DACA status. “If the background check or other information

4 See https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca#guidelines

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uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion … Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.”5
It is beyond troubling that a young man who voluntarily subjected himself to this type of rigorous screening (not once but twice), in order to make a better life for himself and his family, would find himself in the position of having the DHS determinations thrown aside because several ICE agents took it upon themselves to arrest and detain him for absolutely no reason at all. The attempt to manufacture such a story lacks credibility, especially given the vetting Mr. Ramirez went through (as recently as May 2016).
The questions raised by the government’s actions in this case are extensive and Mr. Ramirez deserves the opportunity to, if necessary, litigate those claims in federal court. And, again, these are not the types of questions that can be resolved in immigration court as they all center around and relate to Mr. Ramirez’s status as a DACA beneficiary, which an immigration judge is not able to adjudicate.6 VI. EXHAUSTION IS NOT NECESSARY BECAUSE THE IMMIGRATION COURT
LACKS THE CAPACITY TO ADJUDICATE ANY OF THESE QUESTIONS GOING TO THE CONSTITUTIONALITY OF THE DETENTION FOR A DACA BENEFICIARY.

5 Questions re: Consideration of Deferred Action for Childhood Arrivals Process (updated Oct. 27, 2015) at Q65 https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-askedquestions (last visited February 16, 2017).

6 If the Respondents want to engage in such tactics, Mr. Ramirez is entitled to a full and fair opportunity to litigate his claims. This would include the opportunity to take discovery in a case proceeding in federal court: What investigations did DHS have going on with respect to Mr. Ramirez at the time of his arrest? What documents did they have linking him to gang activity? What gang members in particular is he believed to be associated with? What type of criminal activity is he suspected of involvement in? When did the gang affiliation start? Did it start before his DACA application? If so, what, if any findings did DHS make regarding his gang membership during his background check? If the gang affiliation has started since his most recent DACA application (May 2016), what evidence do they have of such a change in circumstance? Have they ever applied for an arrest warrant for Mr. Ramirez? Were the ICE agents who arrested Mr. Ramirez’s father under instruction to also arrest Mr. Ramirez? If so, by whom? If not, at what point did they decide to make the arrest? Why did they only arrest Mr. Ramirez and not his brother?

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Exhaustion is a red herring. Exhaustion is appropriate where an administrative body should be afforded the first opportunity to adjudicate an issue. There is no administrative body that could decide any of these claims. This is not a case where Mr. Ramirez is challenging a bond hearing result or a removal order (as Respondents try to suggest), those are things that might properly belong in front of an administrative body.
Instead, Mr. Ramirez is asserting violations of his Fourth and Fifth Amendment Rights. It is well-established that where constitutional claims are being asserted in the context of a habeas petition, exhaustion is not required. Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir 2006) (holding that because the Board of Immigration Appeals couldn’t have exercised jurisdiction over the constitutional claims, exhaustion is not required.); Garcia Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (“retroactivity challenges to immigration laws implicate due process don’t need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims.”)
As discussed above, Ramirez’s constitutional claims turn on his status as a DACA beneficiary. Determinations pertaining to deferred action under DACA are not subject to review by an Immigration Judge. Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982) (deferred action status is a matter of the District Director's prosecutorial discretion and, therefore, neither the immigration judge nor the Board may grant such status or review a decision of the District Director to deny it).
Exhaustion is not appropriate here and the habeas petition should proceed in this court.7
Respectfully submitted, /s/ Theodore J. Boutrous, Jr.

7 Even if exhaustion were an option here, on habeas review pursuant to § 2241, exhaustion is merely prudential rather than jurisdictional. See Arango Marquez v. I.N.S., 346 F.3d 892, 897 (9th Cir. 2003). As such, courts can exercise their discretion to waive the exhaustion requirement and reach the issue. Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). Here, all the factors would weigh in favor of excusing exhaustion. Additionally, the strong public interest in preserving and protecting the DACA framework strongly favors adjudication of these issues by this court.

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PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice pending
mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431), pro hac vice pending jlondon@publiccounsel.org KATHRYN A. EIDMAN (CA SBN 268053), pro hac vice pending keidmann@publiccounsel.org ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice pending aprice@publiccounsel.org ELIZABETH HADAWAY (CA SBN 308800), pro hac vice pending
ehadaway@publiccounsel.org 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089
GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice pending
tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice pending
kmarquart@gibsondunn.com JESSE S. GABRIEL (CA SBN 263137), pro hac vice pending
jgabriel@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520
ETHAN D. DETTMER (CA SBN 196046), pro hac vice pending edettmer@gibsondunn.com
555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306

ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice pending echemerinsky@law.uci.edu University of California, Irvine School of Law *Affiliation for identification purposes only 401 East Peltason Drive Educ 1095 Irvine, California 92697 Telephone: (949) 824-7722

LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice pending larry@tribelaw.com Harvard Law School *Affiliation for identification purposes only 1575 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: (617) 495-1767

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ELIZABETH HAWKINS (SBN 43187) ehawkins@hawkinsimmigration.com Hawkins Law Group 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133 Telephone: (206) 728-4220 Facsimile: (206) 973-5326 BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice pending lcortes@barreralegal.com JOHN C. BARRERA (SBN 47658), pro hac vice pending jbarrera@barreralegal.com JOSE GARCIA (SBN 46518), pro hac vice pending jgarcia@barreralegal.com 19309 68th Avenue South, Suite R102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 NORTHWEST IMMIGRANTS RIGHTS PROJECT MATT ADAMS (SBN 28287) matt@nwirp.org 615 Second Ave., Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611
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CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2017, I electronically filed the foregoing document with the

Clerk of the Court using CM/ECF. I also certify that the foregoing document should automatically be

served this day on all counsel of record via transmission of Notices of Electronic Filing generated by

CM/ECF.

/s/ Theodore J. Boutrous, Jr.

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 DANIEL RAMIREZ MEDINA,

9
Petitioner, 10

11

v.

Case No. C17-218-RSM-JPD
ORDER DENYING REQUEST FOR IMMEDIATE HEARING ON CONDITIONAL RELEASE

12 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
13 Respondents.
14

15

This matter comes before the Court upon the filing of petitioner’s February 24, 2017

16 Request for Immediate Hearing on Conditional Release. Dkt. 49. Petitioner’s request, Dkt. 49,

17 is DENIED.

18

As explained in the Court’s February 23, 2017 Minute Order, petitioner has already

19 been granted an extremely expedited briefing schedule to address his federal habeas claims.

20 Petitioner’s federal habeas petition was filed only two weeks ago, on Monday, February 13,

21 2017. Dkt. 1. That same week, on Friday, February 17, 2017, the Court conducted an in-

22 person status conference and considered petitioner’s motion for immediate release from

23 ongoing removal proceedings. Dkt. 40. The Court denied petitioner’s motion for immediate

24 release in order to defer the initial inquiry to an Immigration Judge while advising petitioner

25 that this initial determination would not necessarily “set the pattern” for the future, but that the

26

ORDER - 1

1 Court needed to first determine whether it has jurisdiction over petitioner’s claims. Dkt. 39 at

2 1.

3

The Court finds no basis to disturb the accelerated briefing schedule already set in this

4 case to determine whether this Court has jurisdiction over petitioner’s habeas claims. The

5 Court will consider petitioner’s arguments regarding immediate release from detention at the

6 oral argument scheduled on March 8, 2017, when the Court has the benefit of the briefing by

7 all the parties on the issue of jurisdiction.

8

The Clerk is directed to send a copy of this Order to counsel for the parties and to the

9 Honorable Ricardo S. Martinez.

10

DATED this 27th day of February, 2017.

11 12

A

13

JAMES P. DONOHUE

Chief United States Magistrate Judge

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ORDER - 2

 
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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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DANIEL RAMIREZ MEDINA, 9

Case No. C17-218-RSM-JPD

10

Petitioner,

MINUTE ORDER

11

v.

12 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
13

14

Respondents.

15

16

The following minute order is made at the direction of the Court, the Honorable

17 James P. Donohue, United States Magistrate Judge:

18

Petitioner’s response to the Government’s motion to dismiss, which is due Friday,

19 March 3, 2017, at 5:00 p.m., shall include a discussion of the following:

20

(1) In the amended habeas petition and complaint for declaratory and injunctive

21 relief, petitioner alleges violations of the Fifth Amendment’s procedural and substantive due

22 process clauses, the Fourth Amendment’s prohibition against unlawful seizure, and the Fifth

23 Amendment’s equal protection clause. Dkt. 41 at 22-41. As relief, he primarily seeks

24 immediate release, declaratory judgment, and an injunction prohibiting the Government from

25 re-arresting or detaining him on the basis of the conduct described in the petition. Dkt. 41 at

26 27.

MINUTE ORDER - 1

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However, the amended petition does not assert which form(s) of relief are appropriate

2 for which alleged constitutional violations. In responding to the Government’s motion to

3 dismiss, petitioner should cite any habeas cases that grant the particular relief requested for the

4 constitutional violations petitioner alleges. For example, petitioner should cite any habeas

5 cases that grant release based on a Fourth Amendment violation related to arrest.

6

(2) What authorities support the proposition that a habeas case seeking release as

7 one form of relief can proceed on a parallel track with removal proceedings, as opposed to

8 being deemed inextricably intertwined with the removal proceedings?

9

(3) The Government’s motion to dismiss relies heavily on J.E.F.M. v. Lynch, 837

10 F.3d 1026 (9th Cir. 2016), in arguing that 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9) preclude this

11 Court’s jurisdiction over petitioner’s claims. Petitioner’s brief regarding jurisdiction, Dkt. 46,

12 discussed J.E.F.M. only briefly and primarily in a footnote. Petitioner’s response should

13 provide a more thorough discussion of J.E.F.M.

14

(4) The Clerk is directed to send a copy of this minute order to counsel for the

15 parties and to the Honorable Ricardo S. Martinez.

16

DATED this 28th day of February, 2017.

17

William M. McCool

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Clerk of the Court

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s/ Tim Farrell

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Deputy Clerk

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MINUTE ORDER - 2

 
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5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7 DANIEL RAMIREZ MEDINA,
8 Petitioner,

CASE NO. C17-218 RSM

9 v.
10 U.S. DEPARTMENT OF HOMELAND
11 SECURITY, et al.,

ORDER ADOPTING IN PART JUDGE DONOHUE’S R&R AND DENYING PETITIONER’S MOTION FOR CONDITIONAL RELEASE

12

Respondents.

13 THIS MATTER comes before the Court on Petitioner’s Objections to the portion of the
14 Report and Recommendation (“R&R”) of the Honorable James P. Donohue, United States
15 Magistrate Judge, in which Judge Donohue has recommended the denial of Petitioner’s release
16 from immigration detention. Dkts. #64 at 34-44 and #66. Having reviewed such Objections, the
17 government’s response thereto, and the remaining record, the Court now ADOPTS that portion
18 of Judge Donohue’s R&R for the reasons set forth by Judge Donohue and for the additional
19 reasons discussed herein.
20 Just as Petitioner argued before Judge Donohue that his case is extraordinary and
21 involves special circumstances warranting relief, so too does he raise such arguments before this
22 Court in his Objections. Dkt. #66. He submits that Judge Donohue’s conclusion that he is not
23 entitled to conditional release is clearly erroneous. Dkt. #66 at 12. This Court disagrees.
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ORDER - 1

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As an initial matter, the Court notes that Petitioner must take some responsibility for the

2 position he finds himself as of this date. Indeed, he has placed himself in the tenuous position of

3 arguing that his arrest and detention have violated his constitutional rights, while also asserting

4 that he is not challenging the revocation of his DACA status or “anything that has to do with the

5 removal proceedings themselves.” Dkt. #62 at 52:4-7. That position ultimately leads this Court

6 to agree with Judge Donohue that Petitioner is not entitled to release at this stage of the

7 proceedings.

8

Petitioner is now being held in immigration detention after U.S. Department of Homeland

9 Security issued a Notice to Appear (“NTA”) in removal proceedings and a Notice of Custody

10 Determination that he is to be held without bond. Dkt. #32, Exs. 1 and 4. By Petitioner’s own

11 admission, he is not challenging “anything that has to do with the removal proceedings

12 themselves.” Thus, the Court agrees with the government, that even if the Court were to find this

13 case presents extraordinary circumstance and/or that Petitioner is highly likely to succeed on the

14 merits, he is not entitled to release. See Dkt. #68 at 2-4. DHS has the statutory discretion to

15 detain aliens during the pendency of their removal proceedings. See 8 U.S.C. § 1226(a).

16 Further, as this Court has previously recognized, the remedy for an unlawful arrest in violation of

17 the Fourth Amendment is suppression of evidence. See INS v. Lopez-Mendoza, 468 U.S. 1032,

18 1040-41 (1984); United States v. Garcia-Beltran, 443 F.3d 1126, 1131-32 (9th Cir. 2006); see

19 also Martinez-Medina v. Holder, 673 F.3d 1029, 1033-34 (9th Cir. 2010) (noting that

20 exclusionary rule applies in civil removal proceedings only when the Fourth Amendment

21 violation is egregious). Indeed, the government recognizes that “an unlawful arrest can have

22 important consequences.” Dkt. #68 at 4. Similarly, the United States Supreme Court has

23 explained:

24

ORDER - 2

1

Irregularities on the part of the Government official prior to, or in

connection with, the arrest would not necessarily invalidate later

2

proceedings in all respects conformable to law. “A writ of habeas corpus

is not like an action to recover damages for an unlawful arrest or

3

commitment, but its object is to ascertain whether the prisoner can

lawfully be detained in custody; and if sufficient ground for his detention

4

by the government is shown, he is not to be discharged for defects in the

original arrest or commitment.”

5 United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158, 44 S. Ct. 54, 57 (1923) (citations

6 omitted). Likewise, the Supreme Court has noted that “[t]he ‘body’ or identity of a defendant or

7 respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful

8 arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” INS v.

9 Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S. Ct. 3479, 3483-84 (1984).

10 This Court acknowledges the unusual circumstances of this case and that many questions

11 remain regarding the appropriateness of the government’s conduct. However, while the Court is

12 sympathetic to the situation in which the Plaintiff finds himself, it can only conclude that he is

13 not entitled to immediate release under the posture of this case. Accordingly, should petitioner

14 desire release from his current detention, his avenue for seeking such release should occur in the

15 context of his removal proceedings, which by his own admission, are not being challenged here.

16 For all of these reasons, the Court ADOPTS that portion of Judge Donohue’s R&R

17 pertaining to Petitioner’s motion for conditional release (Dkt. #45) and DENIES the motion.

18 Should Petitioner desire a bond redetermination hearing, the Court once again directs the

19 government to schedule such a hearing no later than one week from the date of Petitioner’s

20 request.

21 The Court shall review Judge Donohue’s R&R with respect to Defendants’ Motion to

22 Dismiss pursuant to the schedule previously set for any Objections on that portion of the R&R.

23 ///

24

ORDER - 3

1

2

The Clerk shall send a copy of this Order to the parties and to Judge Donohue.

3

4

DATED this 24rd day of March 2017.

5 6

A

RICARDO S. MARTINEZ

7

CHIEF UNITED STATES DISTRICT JUDGE

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ORDER - 4

 
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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10

11

CASE NO. 2:17-CV-00218-RSM-JPD

12 Daniel Ramirez Medina,

13

Plaintiff,

14

v.

U.S. DEPARTMENT OF HOMELAND 15 SECURITY; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; U.S. 16 CITIZENSHIP AND IMMIGRATION
SERVICES; MATTHEW E. HICKS, 17 [UNKNOWN FIRST NAME] PETER,
[UNKNOWN FIRST NAME] HERNANDEZ, 18 and KATHLYN LAWRENCE, U.S.
Immigration and Customs Enforcement 19 Officers (in their individual capacities); and
JOHN DOES 1-10 (in their individual 20 capacities),

21

Defendants.

SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

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Gibson, Dunn & Crutcher LLP

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1 Attorneys for Plaintiff
PUBLIC COUNSEL 2 MARK D. ROSENBAUM (CA SBN 59940), pro hac vice
mrosenbaum@publiccounsel.org 3 JUDY LONDON (CA SBN 149431), pro hac vice
jlondon@publiccounsel.org 4 KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice
keidmann@publiccounsel.org 5 ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice
aprice@publiccounsel.org 6 ELIZABETH HADAWAY (CA SBN 308800), pro hac vice
ehadaway@publiccounsel.org 7 610 South Ardmore Avenue
Los Angeles, CA 90005 8 Telephone: (213) 385-2977
Facsimile: (213) 385-9089 9

10 GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice
11 tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice
12 kmarquart@gibsondunn.com JESSE S. GABRIEL (CA SBN 263137), pro hac vice
13 jgabriel@gibsondunn.com 333 South Grand Avenue
14 Los Angeles, CA 90071-3197 Telephone: (213) 229-7000
15 Facsimile: (213) 229-7520
16 ETHAN D. DETTMER (CA SBN 196046), pro hac vice 17 edettmer@gibsondunn.com
555 Mission Street 18 San Francisco, CA 94105
Telephone: (415) 393-8200 19 Facsimile: (415) 393-8306
20 ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice
21 echemerinsky@law.uci.edu LEAH M. LITMAN (DC SBN 1016310), pro hac vice
22 llitman@law.uci.edu University of California, Irvine School of Law
23 *Affiliation for identification purposes only 401 East Peltason Drive
24 Educ 1095 Irvine, CA 92697
25 Telephone: (949) 824-7722
26

27

28

Second Amended Complaint

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1 LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice larry@tribelaw.com
2 Harvard Law School *Affiliation for identification purposes only
3 1575 Massachusetts Avenue Cambridge, MA 02138
4 Telephone: (617) 495-1767
5 ELIZABETH HAWKINS (SBN 43187)
6 ehawkins@hawkinsimmigration.com Hawkins Law Group
7 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133
8 Telephone: (206) 728-4220 Facsimile: (206) 973-5326
9
10 BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice
11 lcortes@barreralegal.com JOHN C. BARRERA (SBN 47658), pro hac vice
12 jbarrera@barreralegal.com JOSE GARCIA (SBN 46518), pro hac vice
13 jgarcia@barreralegal.com 19309 68th Avenue South, Suite R102
14 Kent, WA 98032 Telephone: (253) 872-4730
15 Facsimile: (253) 237-1591
16 NORTHWEST IMMIGRANT RIGHTS PROJECT
17 MATT ADAMS (SBN 28287) matt@nwirp.org
18 615 Second Ave., Suite 400 Seattle, WA 98104
19 Telephone: (206) 957-8611
20
21
22
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24
25
26
27
28

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1

INTRODUCTION

2

Plaintiff Daniel Ramirez Medina (“Mr. Ramirez”) was arrested by U.S. Immigration and

3 Customs Enforcement (“ICE”) without a warrant or probable cause, and was detained for more than

4 six weeks without justification, in clear violation of his constitutional rights. Mr. Ramirez was

5 targeted by Defendants despite their knowledge that he is a “Dreamer” who has twice been granted

6 deferred action and work authorization under the Deferred Action for Childhood Arrivals (“DACA”)

7 program. Mr. Ramirez now seeks relief from this Court to remedy his unconstitutional arrest and

8 detention, restore his arbitrarily terminated DACA status, and confirm that the benefits he was

9 provided under DACA are protected by the Due Process Clause.

10

The federal government established the DACA program with great fanfare in 2012. Under

11 DACA, individuals brought to the United States as children who meet certain criteria, and who are

12 found by the Department of Homeland Security (“DHS”) to pose no threat to public safety or national

13 security, are granted deferred action for a two-year period, subject to renewal. These young people

14 are commonly referred to as “Dreamers” in recognition that they have played by the rules, cooperated

15 with the government, and are working hard to be part of the American Dream. As the government

16 has explained, Dreamers are “considered by DHS to be lawfully present during the period deferred

17 action is in effect,” and are eligible to receive employment authorization and other important

18 benefits.1 Indeed, on March 29, 2017, the Secretary of Homeland Security reaffirmed that “DACA

19 status is a commitment . . . by the government towards the DACA person, or the so-called Dreamer.”2

20

As a result of the government’s representations and promises, hundreds of thousands of

21 Dreamers have applied for, and been granted, deferred action under DACA. To apply for DACA,

22

23 1 Ex. A, at 2 (Frequently Asked Questions, U.S. Citizenship & Immigration Servs.: Consideration

of Deferred Action for Childhood Arrivals Process,

24

https://www.uscis.gov/humanitarianhttps://www.uscis.gov/humanitarian/consideration-deferred-

action-childhood-arrivals-process/frequently-asked-questions (hereinafter “USCIS DACA

25

FAQs”); see also Texas v. United States, 809 F.3d 134, 166 (5th Cir. 2015) aff’d by an equally

divided court, 136 S. Ct. 2271 (2016) (“Deferred action . . . is much more than nonenforcement:

26

It . . . affirmatively confer[s] ‘lawful presence’ and associated benefits . . . .”); Ariz. Dream Act

Coal. v. Brewer, 81 F. Supp. 3d 795, 811 (D. Ariz. 2015).

27 2 Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration,

28

Politico (Mar. 29, 2017), http://politi.co/2mR3gSN.

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1 eligible young people are required to provide DHS with highly sensitive personal information, pay a

2 substantial fee, and submit to a rigorous background check. Mr. Ramirez did all of that not once, but

3 twice, most recently less than a year ago when he successfully renewed his DACA status. In so

4 doing, Mr. Ramirez—like nearly 750,000 other Dreamers—“relied on the U.S. government’s

5 representations” that it would honor its commitments under the DACA program.3 As a result of their

6 reasonable expectations, Mr. Ramirez and his fellow Dreamers have constitutionally protected liberty

7 and property interests in the benefits granted under DACA, which include, among other things, the

8 ability to live and work in the United States without fear of arbitrary arrest or detention.

9

Notwithstanding these promises, Defendants arrested and detained Mr. Ramirez without a

10 warrant or probable cause. They handcuffed him, forcibly removed him from a private residence,

11 and transported him to an ICE detention facility where he was coercively interrogated. They

12 summarily revoked his DACA status and work authorization without notice, justification, or due

13 process, and detained him with dangerous criminals for more than six weeks. Once Mr. Ramirez

14 filed a petition for habeas corpus in this Court, these agents doubled-down, mounting a sustained

15 campaign to publicly vilify him as a “gang member,” despite having no credible evidence to support

16 that allegation. Indeed, as the government later admitted to an Immigration Judge, there is

17 insufficient evidence to even argue that Mr. Ramirez is a danger to the community.

18

There was no lawful basis for any of Defendants’ actions against Mr. Ramirez. At the time of

19 his arrest and detention, Defendants knew (and had unmistakable proof of the fact) that Mr. Ramirez

20 had been granted deferred action under DACA, and was therefore considered lawfully present in the

21 United States. And despite knowing that he had passed multiple DHS background checks and had no

22 criminal history, the ICE agents asserted that Mr. Ramirez was a gang member based on his race and

23 national origin and a single tattoo, which Mr. Ramirez and multiple experts have confirmed has

24 nothing to do with gangs. The government has since abandoned that allegation, and has conceded

25 that it continued to detain Mr. Ramirez despite knowing that he presented no threat to public safety.

26

Mr. Ramirez respectfully requests that this Court: (1) reinstate his DACA status and work

27 authorization; (2) award him damages for the injuries he has sustained as a result of Defendants’

28 3 Ex. B, at 1 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016)).

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1 unlawful conduct; and (3) issue declaratory relief confirming that the benefits provided under the

2 DACA program are liberty and property interests protected by the Due Process Clause.

3

JURISDICTION AND VENUE

4

1.

Jurisdiction is conferred on this Court by 28 U.S.C. § 1331. This Court also has

5 remedial authority under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and the

6 Administrative Procedure Act, 5 U.S.C. §§ 701–706.

7

2.

All claims against employees and agents of the United States in their individual

8 capacities are brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

9 Narcotics, 403 U.S. 388 (1971).

10

3.

Venue properly lies within the Western District of Washington because a

11 substantial part of the events or omissions giving rise to this action occurred in the District.

12 28 U.S.C. § 1391(e)(1).

13

4.

This is an amended version of the Amended Petition for Habeas Corpus and

14 Complaint for Declaratory and Injunctive Relief that was filed in this action on February 21, 2017.4

15

PARTIES

16

5.

Mr. Ramirez is the twenty-four year old father of a United States citizen. He was

17 brought to the United States from Mexico in or around 2003, when he was approximately 10 years

18 old. Mr. Ramirez was twice granted deferred action and work authorization under the DACA

19 program. He recently moved from California to Washington in order to obtain more lucrative

20 employment so that he can better support his son. After being arrested without a warrant or

21 probable cause, Mr. Ramirez was detained in the Northwest Detention Center for more than six

22 weeks. His DACA status and work authorization were arbitrarily and capriciously terminated

23 without notice or an opportunity to be heard.

24

6.

The Department of Homeland Security (“DHS”) is a cabinet department of the

25 United States federal government with responsibility for, among other things, administering and

26 enforcing the nation’s immigration laws.

27

28

4 See Dkt. #41. Because he has been released from detention, Mr. Ramirez is no longer bringing a petition for writ of habeas corpus.

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1

7.

U.S. Immigration and Customs Enforcement (“ICE”) is a law enforcement agency

2 that is part of DHS. According to its website, “ICE’s primary mission is to promote homeland

3 security and public safety through the criminal and civil enforcement of federal laws governing

4 border control, customs, trade, and immigration.”5

5

8.

U.S. Citizenship and Immigration Services (“USCIS”) is a federal agency that is

6 part of DHS. According to its website, USCIS “is the government agency that oversees lawful

7 immigration to the United States.”6 USCIS administers the DACA program, including by

8 processing applications and issuing notices of termination.

9

9.

On information and belief, at all times relevant to this Complaint, Defendant

10 Matthew E. Hicks was an ICE Deportation Officer. Defendant Hicks participated in the arrest of

11 Mr. Ramirez on February 10, 2017, and was personally responsible for his subsequent detention.

12 Defendant Hicks is sued in his individual capacity.

13

10. On information and belief, at all times relevant to this Complaint, Defendant Peter

14 (first name unknown) was an ICE Deportation Officer. Defendant Peter participated in the arrest

15 and detention of Mr. Ramirez on February 10, 2017, and was personally responsible for his

16 subsequent detention. Defendant Peter is sued in his individual capacity.

17

11. On information and belief, at all times relevant to this Complaint, Defendant

18 Hernandez (first name unknown) was an ICE Deportation Officer. Defendant Hernandez

19 participated in the arrest and detention of Mr. Ramirez on February 10, 2017, and was personally

20 responsible for his subsequent detention. Defendant Hernandez is sued in his individual capacity.

21

12. On information and belief, at all times relevant to this Complaint, Defendant

22 Kathlyn Lawrence was an ICE Supervisory Detention and Deportation Officer. Defendant

23 Lawrence supervised the processing of Mr. Ramirez at the ICE holding facility in Tukwila,

24 Washington, on February 10, 2017, and was personally responsible for his subsequent detention.

25 Defendant Lawrence is sued in her individual capacity.

26

5 See, e.g., ICE Initiative to Increase Community Engagement, U.S. Immigration & Customs

27

Enforcement: News Releases (Mar. 10, 2016), https://www.ice.gov/news/releases/ice-initiative-

increase-community-engagement.

28 6 United States Citizenship & Immigration Servs., About Us, https://www.uscis.gov/aboutus.

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1

13. At all times mentioned in this Complaint, unless otherwise alleged, Defendants

2 Hicks, Peter, Hernandez, and Lawrence were federal agents or employees acting under the color of

3 federal law.

4

14. Mr. Ramirez is currently unaware of the true identities and capacities of the

5 remaining Defendants, Does 1-10, inclusive, and therefore sues those Defendants by fictitious

6 names. Mr. Ramirez is informed and believes, and on that basis alleges, that each of the fictitiously

7 named Defendants is personally responsible and liable for the acts and/or damages alleged in this

8 Complaint, and that among these Defendants are federal agents and employees who acted under the

9 color of federal law. Mr. Ramirez will seek leave to amend this Complaint to allege the true

10 identities and capacities of these fictitiously named Defendants once they have been ascertained.

11

STATEMENT OF FACTS

12 Establishment of the DACA Program

13

15. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a

14 memorandum establishing the DACA program (the “2012 DACA Memorandum”).7 Under the

15 DACA framework, individuals who were brought to the United States as young children and meet

16 certain specific criteria may request deferred action for a period of two years, subject to renewal. In

17 exchange, DACA applicants are required to provide the government with highly sensitive personal

18 information, submit to a rigorous background check, and pay a considerable fee.

19

16. Deferred action is a well-established form of prosecutorial discretion under which

20 the government defers removal action against an individual for a specified period, subject to

21 renewal. The 2012 DACA Memorandum explained that DACA covers “certain young people who

22 were brought to this country as children and know only this country as home” and that the

23 immigration laws are not “designed to remove productive young people to countries where they may

24 not have lived or even speak the language.”8

25

26 7 Ex. C, at 1 (Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion

with Respect to Individuals Who Came to the United States as Children (June 15, 2012))

27

(hereinafter “2012 DACA Memorandum”).

28 8 Id. at 1–2.

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1

17. The 2012 DACA Memorandum established criteria that “should be satisfied before

2 an individual is considered for an exercise of prosecutorial discretion.”9 They are that the applicant:

3

x came to the United States under the age of sixteen;

4

x has continuously resided in the United States for at least five years preceding the date of the

5

memorandum and is present in the United States on the date of the memorandum;

6

x is currently in school, has graduated from high school, has obtained a general education

7

development certificate, or is an honorably discharged veteran of the Coast Guard or Armed

8

Forces of the United States;

9

x has not been convicted of a felony offense, a significant misdemeanor offense, multiple

10

misdemeanor offenses, or otherwise poses a threat to national security or public safety; and

11

x is not above the age of thirty.10

12

18. In addition, the 2012 DACA Memorandum provided that “[n]o individual should

13 receive deferred action . . . unless they first pass a background check.”11

14

19. USCIS describes DACA as follows: “Deferred action is a discretionary

15 determination to defer a removal action of an individual as an act of prosecutorial discretion. For

16 purposes of future inadmissibility based upon unlawful presence, an individual whose case has been

17 deferred is not considered to be unlawfully present during the period in which deferred action is in

18 effect. An individual who has received deferred action is authorized by DHS to be present in the

19 United States, and is therefore considered by DHS to be lawfully present during the period deferred

20 action is in effect. However, deferred action does not confer lawful status upon an individual, nor

21 does it excuse any previous or subsequent periods of unlawful presence.”12

22

20. Like other forms of deferred action, DACA serves the government’s interests by

23 allowing the government to prioritize its resources and exercise discretion for its own convenience.

24 As the government has recognized, our nation “continue[s] to benefit . . . from the contributions of

25 9 Id. at 1.
26 10 Id.
27 11 Id. at 2.
28 12 Ex. A, at 1 (USCIS DACA FAQs, Question 1).

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1 those young people who have come forward and want nothing more than to contribute to our

2 country and our shared future.”13

3

21. On February 20, 2017, Secretary of Homeland Security John D. Kelly issued a

4 memorandum that “immediately rescinded” all “conflicting directives, memoranda, or field

5 guidance regarding the enforcement of our immigration laws and priorities for removal,” but

6 specifically exempted the 2012 DACA Memorandum.14

7 The DACA Application Process

8

22. In order to apply for DACA, applicants must submit extensive documentation

9 establishing that they meet the abovementioned criteria.15 Applicants must also submit a Form I-765

10 Application for Employment Authorization, and pay hundreds of dollars in fees.16

11

23. DACA applicants must also undergo biometric and biographic background checks.

12 When conducting these checks, DHS reviews the applicant’s biometric and biographic information

13 “against a variety of databases maintained by DHS and other federal government agencies.”17 If any

14 information “indicates that [the applicant’s] presence in the United States threatens public safety or

15 national security,” the applicant will be ineligible for DACA absent “exceptional circumstances.”18

16

24. Indicators that an individual poses a national security threat include “gang

17 membership.”19 Accordingly, “[a]ll DACA requests presenting information that the requestor is or

18 may be a member of a criminal street gang are referred to the Background Check Unit (BCU).”20 If

19

20

13 Ex. B, at 2 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016)).

21 14 Ex. D, at 2 (Memorandum from Secretary John Kelly, Enforcement of the Immigration Laws to

22

Serve the National Interest (Feb. 20, 2017)).

15 Ex. A, at 9–15 (USCIS DACA FAQs, Questions 28–41).

23 16 Id. at 3 (USCIS DACA FAQs, Question 7); see also USCIS, I-821D, Consideration of Deferred

24

Action for Childhood Arrivals, https://www.uscis.gov/i-821d (explaining that the filing fee for a DACA application is currently set at $495 and cannot be waived).

25 17 Id. at 7 (USCIS DACA FAQs, Question 23).

26 18 Id. at 23 (USCIS DACA FAQs, Question 65).

19 Id.

27 20 Ex. E, at 1 (Letter from USCIS Director León Rodríguez to Senate Judiciary Committee

28

Chairman Charles E. Grassley (Apr. 17, 2015)) (hereinafter “USCIS Letter”).

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1 gang membership is confirmed, the DACA application is denied absent a determination by USCIS

2 that an exception should be made given the totality of the circumstances.21

3

25. In 2015, USCIS conducted an additional screening of all individuals granted

4 deferred action under DACA—including Mr. Ramirez—“to identify records that contained

5 information indicating known or suspected gang association.”22

6

26. Once DACA has been granted, internal USCIS “Standard Operating Procedures”

7 dictate that, absent an “Egregious Public Safety” issue, DACA status should not be revoked until the

8 government has provided a “Notice of Intent to Terminate” which “thoroughly explain[s]” the

9 grounds for the termination.”23 DHS policy further provides that the recipients of such notice should

10 be afforded 33 days to “file a brief or statement contesting the grounds cited in the Notice of Intent

11 to Terminate” prior to termination of DACA status.24

12 Benefits Provided Under the DACA Program

13

27. DACA confers numerous benefits on those who apply for and are granted DACA

14 status. Notably, DACA recipients are granted the right not to be arrested or detained based solely on

15 their immigration status during the time period their deferred action is in effect.25

16

28. DACA recipients are also eligible for work authorization. As USCIS has explained,

17 “an individual whose case has been deferred is eligible to receive employment authorization for the

18 period of deferred action . . . .’”26

19

20

21 21 Id. at 2.

22 22 Id. at 4 ¶ 2.

23 Ex. F, at 132, Appendix I (DHS National Standard Operating Procedures (SOP): Deferred Action

23

for Childhood Arrivals (DACA) (Apr. 4, 2013)) (hereinafter “DACA SOP”).

24 24 Id. at 132, Appendix I.

25 See Ex. A, at 5 (USCIS DACA FAQs, Question 9) (“[I]f an individual meets the guidelines for

25

DACA, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying

individuals from being apprehended.”); Ex. C, at 2 (2012 DACA Memorandum); see also Ariz.

26

Dream Act Coal. v. Brewer, 757 F.3d 1053, 1058–59 (9th Cir. 2014) (“DHS considers DACA

recipients not to be unlawfully present in the United States because their deferred action is a

27

period of stay authorized by the Attorney General.”).

28 26 Ex. A, at 1 (USCIS DACA FAQs, Question 1).

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1

29. DACA recipients are eligible to receive certain public benefits. These include

2 Social Security, retirement, and disability benefits, and, in certain states, benefits such as driver’s

3 licenses or unemployment insurance.27 In Washington, DACA holders are also eligible for certain

4 state financial aid programs and state-funded food assistance.28

5

30. DACA serves as a gateway to numerous other benefits, and enables recipients to

6 open bank accounts, obtain credit cards, start businesses, purchase homes and cars, and conduct other

7 aspects of daily life that are otherwise often unavailable for undocumented immigrants.29

8

31. DACA has enabled hundreds of thousands of Dreamers to “to enroll in colleges and

9 universities, complete their education, start businesses that help improve our economy, and give

10 back to our communities as teachers, medical professionals, engineers, and entrepreneurs—all on

11 the books.”30

12

32. DACA also confers other immigration benefits and the ability to travel. For

13 example, DACA recipients do not accrue time under Section 212(a)(9)(B)(i) of the INA,31 and may

14 briefly depart the U.S. and legally return under certain circumstances.32

15 The Government’s Promise to Dreamers

16

33. When the DACA program was first launched, many Dreamers were reluctant to

17 voluntarily disclose information that could help facilitate their removal from the United States. To

18 combat this fear, DHS repeatedly promised applicants that information they provided as part of the

19 DACA application process would “not later be used for immigration enforcement purposes.”33

20

34. The government has reiterated this commitment in its correspondence with

21 Dreamers. Moreover, the approval notice granting deferred action under DACA lists only “fraud or

22 27 See 8 U.S.C. §§ 1611(b)(2)–(3), 1621(d); Texas, 809 F.3d at 148; Ariz. Dream Act Coal.,

23

81 F. Supp. 3d at 811.

28 See Wash. Rev. Code § 28B.92.010; Wash. Admin. Code §§ 388-400-0050, 388-424-0001,

24

388-424-0030.

25 29 See Dkt. #38-1, at 2 (Amicus Curiae Brief of United We Dream). 30 Ex. B, at 2 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016)).
26 31 8 U.S.C. § 1182(a)(9)(B)(i).

27 32 See Ex. A, at 19 (USCIS DACA FAQs, Question 57).

28 33 Ex. B, at 1 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016)).

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1 misrepresentation” in the application process or “[s]ubsequent criminal activity” as grounds for

2 revoking DACA.34

3

35. The government’s commitment to the DACA program is further codified in its

4 publication entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood

5 Arrivals (DACA)” (the “DACA SOP”).35 This document effectively limits the exercise of agency

6 discretion concerning DACA applications with “nearly 150 pages of specific instructions for

7 granting or denying deferred action.” Texas, 809 F.3d at 173 (citation omitted) (citing the DACA

8 SOP as evidence that DACA is not truly a discretionary program).

9

36. Numerous public officials from both political parties have reinforced this promise,

10 and have recognized that Dreamers have relied on the government to keep its word. For example, in

11 December 2016, then-Secretary of Homeland Security Jeh Charles Johnson acknowledged that there

12 are 750,000 Dreamers who have “relied on the U.S. government’s representations” about DACA,

13 and asserted that “representations made by the U.S. government, upon which DACA applicants

14 most assuredly relied, must continue to be honored.”36

15

37. In January 2017, Speaker of the House Paul Ryan stated that the government must

16 ensure that “the rug doesn’t get pulled out from under” Dreamers, who have “organize[d] [their]

17 li[ves] around” the DACA program.37

18

38. In February 2017, Congressman Raúl Grijalva described DACA as a

19 “commitment,” and called for “the federal government to honor its word to protect” Dreamers.38

20

39. On March 29, 2017, Secretary Kelly reaffirmed that “DACA status” is a

21 “commitment . . . by the government towards the DACA person, or the so-called Dreamer.”39

22 34 Ex. G (DACA Approval Notice).
23 35 Ex. F (DACA SOP).

24 36 Ex. B, at 1 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu (Dec. 30, 2016)).

25

37 Transcript of CNN Town Hall with Speaker Paul Ryan, CNN (Jan. 12, 2017), http://cnn.it/2oyJXJJ.

26 38 Congressional Progressive Caucus Leaders Respond to ICE Arrest of DACA Recipient (Feb. 16,

2017), https://cpc-grijalva.house.gov/press-releases/congressional-progressive-caucus-leaders-

27

respond-to-ice-arrest-of-daca-recipient.

28 39 Hesson & Kim, supra note 2.

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1

40. On April 21, 2017, President Trump confirmed that his Administration’s policy is

2 not to deport Dreamers, and suggested that “[D]reamers should rest easy.”40

3 Mr. Ramirez was Twice Granted Deferred Action Under DACA

4

41. In late 2013, Mr. Ramirez first applied for deferred action and work authorization

5 pursuant to DACA. As part of this process, Mr. Ramirez provided the government with his birth

6 certificate, school records, and information about where he lived, and was required to attend a

7 biometrics appointment so that USCIS could take his fingerprints and photographs. Mr. Ramirez

8 was nervous about providing this information, but trusted that the government would keep its word.

9 Mr. Ramirez was granted deferred action and work authorization in 2014.

10

42. In 2016, Mr. Ramirez reapplied for DACA, and once again was granted deferred

11 action and work authorization after being subject to rigorous vetting. As part of this process, the

12 government sent Mr. Ramirez an approval notice (the “2016 DACA Approval Notice”) informing

13 him that his request for deferred action had been granted. The 2016 DACA Approval Notice

14 provides that “[u]nless terminated, this decision to defer removal action will remain in effect for 2

15 years” and is valid to May 4, 2018.41 The 2016 DACA Approval Notice informed Mr. Ramirez that

16 his deferred action could be terminated if he engaged in “[s]ubsequent criminal activity.”42

17

43. DHS has therefore confirmed on three separate occasions that Mr. Ramirez does not

18 pose a threat to national security or public safety—first in 2014 when he applied for DACA, then

19 again in 2015 when USCIS conducted an additional screening of all DACA beneficiaries, and

20 finally in 2016 when he reapplied for DACA.

21 Mr. Ramirez’s Unconstitutional Arrest and Subsequent Interrogation

22

44. On February 10, 2017, at approximately 9:00 a.m., a team of ICE agents, which

23 included Defendants Hicks, Peter, and Hernandez, arrested Mr. Ramirez’s father outside of the

24 apartment where Mr. Ramirez, his father, and his brother were then living. The ICE agents

25

26 40 Excerpts from AP interview with President Donald Trump, The Associated Press (Apr. 21, 2017),

27

http://www.mcclatchydc.com/news/politics-government/national-politics/article146093899.html.

41 Ex. G (DACA Approval Notice).

28 42 Id.

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1 subsequently entered the apartment; neither Mr. Ramirez nor his brother are aware of any consent to

2 permit the ICE agents to enter or search the premises.

3

45. Upon seeing Mr. Ramirez in the apartment, the ICE agents began to question him.

4 Mr. Ramirez provided the agents with his name and birthdate, and told them that he was born in

5 Mexico. At this point, one of the agents placed Mr. Ramirez in handcuffs.

6

46. Mr. Ramirez told the ICE agents repeatedly that he had a legal work permit, but the

7 ICE agents refused to release him. Mr. Ramirez’s father also repeatedly informed the ICE agents

8 that Mr. Ramirez had a legal work permit, and questioned why he was being detained. The ICE

9 agents did not ask any questions at the apartment regarding whether Mr. Ramirez was involved with

10 a gang, nor did they ask him about his tattoo.

11

47. The ICE agents did not have an arrest warrant for Mr. Ramirez, nor did they have

12 any reason to believe that he had committed a crime or was not authorized to be in the United States.

13 On the contrary, the ICE agents had reason to know that Mr. Ramirez had a work permit and was

14 therefore lawfully living and working in the United States. Despite these facts, Mr. Ramirez was

15 taken into custody and transported to an ICE holding facility in Tukwila, Washington. On

16 information and belief, Defendant Lawrence supervised the processing of Mr. Ramirez at the ICE

17 holding facility.

18

48. At the holding facility, the ICE agents confiscated Mr. Ramirez’s work permit. This

19 permit was marked with a “C33” designation, which clearly identified Mr. Ramirez as a DACA

20 recipient with work authorization pursuant to DACA.43

21

49. The ICE agents also fingerprinted Mr. Ramirez and used this information to access

22 his records, which revealed that Mr. Ramirez has no criminal history, had twice been granted DACA

23 status, and possessed valid employment authorization through May 4, 2018.

24

50. Defendants refused to release Mr. Ramirez even after they confirmed his DACA

25 status. When Mr. Ramirez again protested that he had a work permit, he was told by Defendants

26

27 43 Ex. F, at 112 (DACA SOP) (“To distinguish DACA-related EADs from other deferred action

28

EADs, the (c)(33) code will be used.”).

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1 that it did not matter because he “was not from the United States.” Defendants subsequently cited

2 Mr. Ramirez’s receipt of DACA as evidence of his “illegal” status in the Form I-213.44

3

51. The ICE agents then began to interrogate Mr. Ramirez. They asked him at least five

4 times whether he was in a gang, and each time he denied any gang affiliation. The ICE agents

5 repeatedly pressed him as to whether he had ever known anyone who was a gang member.

6 Mr. Ramirez told the agents that although that he knew students who had attended middle school

7 and high school with him who were in gangs, he was not gang affiliated and never had been.

8

52. The ICE agents also interrogated Mr. Ramirez about the tattoo on his forearm. Mr.

9 Ramirez obtained this tattoo when he was 18 years old—before he first applied for DACA. The

10 tattoo consists of the words “La Paz – BCS” and a nautical star. “La Paz” is Mr. Ramirez’s

11 birthplace, and “BCS” stands for Baja California Sur, the region in which La Paz is located. Mr.

12 Ramirez decided to include the city of his birth because he had seen others do the same, and

13 ultimately selected the nautical star (rather than a whale’s tail, which he had also considered)

14 because he liked the way it looked. Nautical stars are popular symbols on tattoos.

15

53. During the interrogation, one of the ICE agents stated that if Mr. Ramirez was from

16 Fresno, he was “definitely a gang member” because everyone in Fresno is a member of the

17 “bulldogs” gang. He said that Mr. Ramirez’s tattoo was a “bulldogs” tattoo. Mr. Ramirez

18 repeatedly told the ICE agents that the tattoo is not a gang tattoo, but they refused to believe him.

19

54. Prior to his transfer to the Northwest Detention Center, the ICE agents asked

20 Mr. Ramirez if there were any gangs with which he would like to avoid being placed for his safety.

21 Mr. Ramirez again stated that he had no gang affiliation and would not have problems being placed

22 with anyone. Upon continued questioning, Mr. Ramirez ultimately indicated that if he had to be

23 placed with any group, he would prefer “the Paisas.” Mr. Ramirez understands the colloquial use of

24 “Paisas” to mean Mexicans, and was attempting to communicate that if given the option, he would

25 prefer to be placed with other Mexicans. Mr. Ramirez, who has no criminal history and has never

26 previously been in custody, has no connection or affiliation whatsoever to the Paizas gang.

27

28 44 Ex. H, at 3 (I-213 Record of Deportable/Inadmissible Alien (Feb. 10, 2017)).

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1 Mr. Ramirez’s Unconstitutional Detention

2

55. Mr. Ramirez was then transferred to Northwest Detention Center, where he

3 remained in custody for the next 47 days.

4

56. The Northwest Detention Center is a privately owned detention facility located on a

5 contaminated “Superfund” site.45 According to the Environmental Protection Agency, industrial

6 pollutants have been found in the soil and water near the Northwest Detention Center, and

7 environmental remediation efforts at the site remain ongoing.46

8

57. In April 2017, hundreds of detainees at the Northwest Detention Center went on a

9 hunger strike to protest the inhumane conditions at the facility, including poor hygiene, lack of

10 access to medical care, lack of recreational opportunities, poor quality food, and unreasonable

11 commissary prices.47

12

58. The more than six weeks that Mr. Ramirez spent at the Northwest Detention Center

13 were extremely difficult for him. He spent his twenty-fourth birthday in detention, and was unable

14 to see or speak to his young son for the duration of his detention. Mr. Ramirez had difficulty

15 sleeping, and experienced significant distress, sadness, fear, and anxiety as a result of his unjust

16 detention. Mr. Ramirez also began to experience vision problems, and was informed by the medical

17 staff at the Northwest Detention Center that this was likely due to depression.

18

59. Defendants classified Mr. Ramirez as a “medium-high” security risk, and placed

19 him in a housing unit with gang members and dangerous criminals. Mr. Ramirez requested that he

20 be reclassified because, as he again explained, he was not, and never had been, gang affiliated, but

21 this request was denied. Because of the government’s false statements to the media, many of the

22 detainees at the Northwest Detention Center believed that Mr. Ramirez was a gang member and

23 45 U.S. Envtl. Prot. Agency, Fourth Five-Year Review Report for Commencement Bay

24

Nearshore/Tideflats Superfund Site, Pierce Cty., Wash., at vi (Dec. 1, 2014), https://www3.epa.gov/region10/pdf/sites/cb-nt/4th_fyr_cbnt_2014.pdf.

25 46 Id. at vi–vii.

26

47 Mike Carter, Hundreds of immigrant detainees at Tacoma ICE facility on hunger strike, activists say, The Seattle Times (Apr. 12, 2017), http://www.seattletimes.com/seattle-news/group-

27

hundreds-of-detainees-at-tacoma-ice-facility-on-hunger-strike; Steve Miletich, ICE: Hunger strike winding down at Tacoma immigration detention center, The Seattle Times (Apr. 14, 2017),

28

http://www.seattletimes.com/seattle-news/crime/ice-hunger-strike-abates-at-detention-center.

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1 questioned him about his gang affiliation. This caused Mr. Ramirez to fear for his personal safety,

2 and he was afraid to leave his cell out of fear that he would be assaulted.

3 The Government Revokes Mr. Ramirez’s DACA Status and Work Authorization

4

60. Defendants issued a Notice to Appear (“NTA”) on February 10, 2017.48 Defendants

5 assert that Mr. Ramirez’s DACA status terminated on the day the NTA was issued.49

6

61. USCIS sent Mr. Ramirez a Notice of Action (“NOA”) dated February 17, 2017.

7 The NOA states that Mr. Ramirez’s deferred action and employment authorization terminated on the

8 date the NTA was issued, and provides that “[a]n appeal or motion to reopen/reconsider this notice

9 of action may not be filed.”50

10

62. Under DHS policy, the government must provide a “Notice of Intent to Terminate”

11 and 33 days for a response prior to terminating DACA status, unless the case involves an “Egregious

12 Public Safety” issue.51 Mr. Ramirez was never provided with a Notice of Intent to Terminate, nor

13 was he given 33 days to respond to such a notice or otherwise contest the revocation of his DACA

14 status or work permit.

15 The Government Publicly Labels Mr. Ramirez as a “Gang Member”

16

63. After Mr. Ramirez sought relief from this Court on February 13, 2017, Defendants

17 concocted a shifting story about the circumstances surrounding his arrest and detention. Defendants

18 sought to justify their unlawful actions based on the false assertion that Mr. Ramirez is a gang

19 member, and initiated a sustained campaign to publicly vilify him as such, despite knowing that

20 there existed no reliable evidence to support such a characterization.

21

64. Spokespersons for ICE and DHS issued statements alleging that Mr. Ramirez was a

22 gang member, and falsely informed the national media that the government possessed

23 “corroborating evidence” to support that allegation. Additionally, on information and belief,

24

25 48 Ex. I, at 1 (Notice to Appear).
26 49 See Dkt. #32, at 2–3 (Respondents’ Brief Regarding the Court’s February 14, 2017 Order).
27 50 Ex. J, at 1 (Notice of Action).
28 51 Ex. F, at 132, Appendix I (DACA SOP).

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1 Defendants coordinated with each other and leaked false information to members of the media in

2 furtherance of this smear campaign.

3

65. On February 14, 2017, an ICE spokesperson stated that “ICE officers took

4 Mr. Ramirez into custody based on his admitted gang affiliation and risk to public safety.”52 This

5 false allegation contradicts the Form I-213 prepared by Defendants, which notes that ICE agents did

6 not discuss Mr. Ramirez’s purported gang affiliation with him until after he was transported to the

7 ICE holding facility in Tukwila, Washington, at which point his DACA status and lack of a criminal

8 record had been confirmed.53

9

66. On February 15, 2017, ICE officials were pressed by the news media for additional

10 evidence demonstrating that Mr. Ramirez was a gang member. In response, Defendants informed

11 the media that they had “additional evidence including photos and social media content that

12 illustrate his gang affiliation.”54

13

67. On February 15, 2017, an unnamed ICE official informed members of the national

14 news media that there was corroborating evidence to support their allegations of gang membership.55

15 No such corroborating evidence has been produced or filed in any court, despite requests by

16 Mr. Ramirez and his counsel.

17

68. On February 15, 2017, DHS issued a statement labeling Mr. Ramirez as “a gang

18 member.”56

19

20 52 Ex. K, at 1 (Sue Horton et al., Mexican ‘DREAMer’ Nabbed in Immigrant Crackdown, Reuters

21

U.S. Top News (Feb. 14, 2017), http://www.reuters.com/article/us-usa-trump-immigration-arrestexclusiv-idUSKBN15T307) (emphasis added).

22 53 Ex. H, at 3 (I-213 Record of Deportable/Inadmissible Alien (Feb. 10, 2017)).

23

54 Ex. L, at 9 (First 100 Days: Chaffetz: We Want Inspector General to Investigate Leaks; Attorney for Arrested ‘Dreamer’ Speaks Out, FoxNews.com (Feb. 15, 2017),

24

http://www.foxnews.com/transcript/2017/02/15/chaffetz-want-inspector-general-to-investigateleaks-attorney-for-arrested/).

25 55 Ex. M, at 2 (‘DREAMer’ Protected under Obama Detained in Seattle Area, CBSnews.com

(Feb. 15, 2017), http://www.cbsnews.com/news/daniel-ramirez-medina-dreamer-protected-under-

26

obama-detained-in-seattle/).

27

56 Ex. N, at 1–2 (DHS Statement on Arrest of Alien Gang Member in Washington (Feb. 15, 2017), https://www.dhs.gov/news/2017/02/15/dhs-statement-arrest-admitted-alien-gang-member-

28

washington).

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1

69. Defendants have since backed away from these false and defamatory allegations.

2 For example, in their filings in this Court, Defendants have alleged merely that Mr. Ramirez “hangs

3 out” with gang members.57 And in the Immigration Court, the government has admitted that the

4 evidence does not support any conclusion that Mr. Ramirez is a threat to public safety.

5 The Government Fails to Provide Any Credible Evidence to Support its Gang Allegations

6

70. Defendants have been unable to produce any credible evidence to support their false

7 allegations that Mr. Ramirez is gang affiliated. In sharp contrast, Mr. Ramirez has submitted

8 extensive evidence demonstrating that he is not, and never has been, a gang member. In addition to

9 evidence demonstrating that he successfully passed three separate DHS background checks,

10 Mr. Ramirez has submitted numerous sworn declarations attesting to the fact that he has never had

11 any gang affiliation.58

12

71. Additionally, three independent experts have rebutted Defendants’ allegations that

13 Mr. Ramirez is gang affiliated. Martin Flores, who has served as a gang expert in more than 700

14 cases, stated that he has “never seen a gang member with a similar tattoo nor would [he] attribute

15 this tattoo to have any gang-related meaning.”59 Another gang expert, Dr. Edwina Barvosa,

16 similarly stated that there is “no apparent evidence that Mr. Ramirez Medina has ever been a gang

17 member himself.”60 And Carlos García, a Mexican researcher who has written extensively on gangs

18 in California and Central America, noted that “[a]ny argument about gang ties based on

19 [Mr. Ramirez’s] tattoo is weak at best; this tattoo does not show any gang affiliation.”61

20

72. Despite the means and ample opportunity to collect evidence to support their claims,

21 Defendants have failed to produce any credible evidence to support any of their allegations against

22 Mr. Ramirez. Unlike Mr. Ramirez, Defendants have access to numerous (and perhaps all) law

23

24 57 E.g., Dkt. #52, at 7 (Respondents’ Motion to Dismiss).

58 E.g., Ex. O, ¶¶ 19–20 (Declaration of Daniel Ramirez Medina); Ex. P, ¶ 4 (Declaration of Josue

25

L.); Ex. Q, ¶¶ 8–9 (Declaration of Luz L.); Ex. R, ¶ 8 (Declaration of Nancy L.).

26 59 Ex. S, ¶ 11 (Declaration of Martin M. Flores).

60 Ex. T, ¶ 10 (Declaration of Edwina Barvosa, PhD).

27 61 Ex. U, at 4 (Jonathan Blitzer, A case that could determine the future for Dreamers, The New

28

Yorker (Mar. 15, 2017), http://www.newyorker.com/news/news-desk/a-case-that-coulddetermine-the-future-for-dreamers).

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1 enforcement and public safety databases. Yet Defendants have never suggested that they have

2 located Mr. Ramirez’s name or supposed gang affiliation in any of those databases, and instead have

3 been forced to concede that Mr. Ramirez is not, and never has been, a threat to the public safety.

4

73. Likewise, Defendants placed great weight on Mr. Ramirez’s alleged “gang tattoo,”

5 yet have never provided any evidence (from an expert or otherwise) that this tattoo is associated

6 with gang membership. Defendants have been unable to do so because it is not a gang tattoo.

7 Defendants’ Defamatory Statements Harmed Mr. Ramirez

8

74. Defendants were aware that Mr. Ramirez was repeatedly vetted by DHS and found

9 not to be a threat to public safety or national security. Defendants also confirmed at the ICE holding

10 facility that he had no criminal history. Despite these facts, and in the absence of any credible

11 evidence otherwise, Defendants falsely slandered Mr. Ramirez as a “gang member.”

12

75. Defendants’ false allegations regarding Mr. Ramirez’s purported gang membership

13 placed Mr. Ramirez at risk while he was detained at the Northwest Detention Center. After

14 Defendants’ allegations were reported in the news, other detainees at the Northwest Detention

15 Center began questioning Mr. Ramirez about his gang membership.

16

76. Defendants’ false and unfounded gang allegations also caused Mr. Ramirez to fear

17 for his personal safety. For example, Mr. Ramirez was scared to leave his cell at the Northwest

18 Detention Center because he was concerned that other detainees might assault him based on the

19 misperception that he was in a gang—a misperception caused by Defendants’ false allegations.

20

77. Defendants’ false gang allegations have also damaged Mr. Ramirez’s reputation.

21 Before Defendants engaged in their campaign to smear his reputation, Mr. Ramirez was a respected

22 member of his community. Now, because of Defendants’ conduct, many people incorrectly believe

23 that Mr. Ramirez is gang affiliated. As a result, Mr. Ramirez has lost the respect of some prior

24 friends and acquaintances, and many members of the public have formed a negative opinion of him.

25

26

27

28

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1 Mr. Ramirez is Released from Custody After 47 Days In Detention

2

78. Pursuant to an order of this Court, Mr. Ramirez received a bond hearing in

3 Immigration Court on March 28, 2017.62 At the bond hearing, Mr. Ramirez testified about his arrest,

4 interrogation, and detention. Mr. Ramirez was released on bond on March 29, 2017.63

5

79. In a startling admission, counsel for the government conceded at the conclusion of

6 the bond hearing that Mr. Ramirez is not a danger to the community. The government’s statements

7 (and lack of evidence) at the bond hearing affirm that the government has never had any justification

8 for revoking Mr. Ramirez’s DACA status or for detaining him for more than six weeks.

9

80. After considering the evidence, the Immigration Judge concluded that Mr. Ramirez

10 is neither a flight risk nor a danger to the community and should be released on bond.64 The

11 Immigration Judge’s decision to release Mr. Ramirez underscores Defendants’ inability to support

12 their allegations of gang-affiliation.

13 Mr. Ramirez Continues to Suffer Harm as a Result of Defendants’ Unlawful Conduct

14

81. Mr. Ramirez was detained from February 10, 2017 to March 29, 2017. He will

15 never get back the six weeks that he spent in the Northwest Detention Center.

16

82. Since his release, Mr. Ramirez has reunited with his family, but has been unable to

17 fully piece his life back together. Mr. Ramirez no longer has his DACA status or work

18 authorization, and Defendants have refused to return Mr. Ramirez’s Washington State identification

19 card, which they confiscated following his arrest. Mr. Ramirez must work to provide for himself

20 and his family, but Defendants’ actions have prevented him from obtaining employment.

21

83. Mr. Ramirez also continues to experience the profound emotional and psychological

22 consequences of his detention. For more than six weeks, he was confined under conditions that

23 caused him to experience significant distress, humiliation, embarrassment, discomfort, fear, and

24 anxiety. He constantly feared that he would be attacked based on Defendant’s false claims about his

25 supposed gang affiliation.

26
27 62 See Dkt. #69, at 3. 63 Ex. V, at 1 (Notice to EOIR).
28 64 Ex. W, at 1 (Custody Order); see also 8 C.F.R. § 236.1(c)(8) (2017).

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1

84. Mr. Ramirez also continues to suffer the stigma of being associated with a gang.

2 Not only has Mr. Ramirez’s reputation been damaged as a result of Defendants’ conduct, but the

3 reputation of his family has suffered as well. Mr. Ramirez cares deeply about his family, and it has

4 been very difficult for him to see how Defendants’ actions have caused his family harm.

5

CAUSES OF ACTION

6

COUNT ONE

7

ADMINISTRATIVE PROCEDURE ACT – ARBITRARY AND CAPRICIOUS ACTION

8

85. Mr. Ramirez repeats and incorporates by reference each and every allegation

9 contained in the preceding paragraphs as if fully set forth herein.

10

86. This Count is brought against the DHS, ICE, and USCIS (collectively, the “Agency

11 Defendants”) and seeks declaratory and injunctive relief under the Administrative Procedure Act

12 (“APA”).

13

87. The APA provides that courts “shall . . . hold unlawful and set aside agency action”

14 that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

15 5 U.S.C. § 706(2)(A) (2017). Here, the Agency Defendants violated the APA because their

16 revocation of Mr. Ramirez’s DACA status and work authorization was arbitrary, capricious, an abuse

17 of discretion, and in violation of their own established procedures. The revocation of Mr. Ramirez’s

18 DACA status and work authorization constitutes final agency action and cannot be appealed.65

19

88. The abrupt and unsupported decision by the Agency Defendants to revoke

20 Mr. Ramirez’s DACA status and work authorization despite the fact that multiple prior and more

21 thorough analyses had concluded that he was eligible for DACA is the sort of inconsistency that is

22 the hallmark of arbitrary action. See, e.g., Nat’l Parks Conservation Ass’n v. E.P.A., 788 F.3d 1134,

23 1145 (9th Cir. 2015).66 Indeed, as discussed above, the Agency Defendants examined Mr. Ramirez’s

24

25 65 As discussed above, the NOA expressly provides that an “appeal or motion to reopen/reconsider

this notice of action may not be filed.” Ex. J, at 1.

26 66 See also F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). While an agency may

27

change course based upon new “factual findings that contradict those” upon which it based its prior determination, it must provide a “detailed justification,” particularly when the “prior policy

28

has engendered serious reliance interests that must be taken into account.” Id. at 515–16 (citing Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996)).

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1 background on at least three separate occasions and concluded that he was eligible for DACA. The

2 decision to summarily reverse that conclusion was arbitrary, capricious, and an abuse of discretion.

3 That the government again acknowledged that Mr. Ramirez is not a threat to public safety at his bond

4 hearing further underscores the arbitrary and capricious nature of his DACA revocation.

5

89. The Agency Defendants’ assertion that Mr. Ramirez is gang affiliated is implausible

6 and “runs counter to the evidence before the agency.” Ctr. for Biological Diversity v. Bureau of Land

7 Mgmt., 833 F.3d 1136, 1146 (9th Cir. 2016) (citation omitted). Notably, the Agency Defendants

8 based this determination in large part on the unsupported conclusion that Mr. Ramirez’s tattoo is a

9 “gang tattoo,” despite the fact that multiple independent experts have reached the opposite

10 conclusion. The Agency Defendants have provided no analysis or expert opinion to support their

11 conclusion regarding Mr. Ramirez’s tattoo, and their refusal to engage with contrary evidence

12 violates the APA.

13

90. Relatedly, the Agency Defendants acted unlawfully and in violation of the Accardi

14 doctrine because they failed to “adhere to [their] own internal operating procedures” when they

15 summarily revoked Mr. Ramirez’s DACA status and work authorization. Church of Scientology of

16 Cal. v. United States, 920 F.2d 1481, 1487 (9th Cir. 1990) (citing United States ex rel. Accardi v.

17 Shaughnessy, 347 U.S. 260, 268 (1954)).67 By way of example, DHS policy provides that—absent an

18 “Egregious Public Safety” issue—the government must provide DACA beneficiaries with a “Notice

19 of Intent to Terminate” which “thoroughly explain[s]” the grounds for the proposed termination of

20 their DACA status.68 DHS policy further directs that individuals served with such a notice are to be

21 afforded 33 days to “file a brief or statement contesting the grounds cited in the Notice of Intent to

22 Terminate” prior to termination of their DACA status.69 Here, the Agency Defendants failed to

23 follow their own internal operating procedures, and instead summarily revoked Mr. Ramirez’s

24

25 67 The Accardi requirement “extends beyond formal regulations,” including to “policy

26

statement[s],” “handbook[s],” “operating procedures,” “Order[s],” “Weekly Bulletin[s],” unpromulgated rules documenting “usual practice,” “Standards,” and “Directive[s].” Alcaraz v.

27

I.N.S., 384 F.3d 1150, 1162 (9th Cir. 2004) (citing cases).

68 Ex. F, at 132, Appendix I (DACA SOP).

28 69 Id.

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1 DACA status and work authorization without providing him any notice or an opportunity to address

2 the allegations against him.

3

91. For all of the foregoing reasons, the revocation of Mr. Ramirez’s DACA status and

4 work authorization was in violation of the APA.

5

COUNT TWO

6

ADMINISTRATIVE PROCEDURE ACT – UNCONSTITUTIONAL ACTION

7

92. Mr. Ramirez repeats and incorporates by reference each and every allegation

8 contained in the preceding paragraphs as if fully set forth herein.

9

93. This Count is brought against the Agency Defendants and seeks declaratory and

10 injunctive relief under the APA.

11

94. The APA dictates that courts “shall . . . hold unlawful and set aside agency action”

12 that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Here,

13 the Agency Defendants violated the APA because their revocation of Mr. Ramirez’s DACA status

14 and work authorization violated his rights under the Due Process Clause. The revocation of

15 Mr. Ramirez’s DACA status and work authorization constitutes final agency action and cannot be

16 appealed.70

17

95. Aliens who are physically present in the United States are guaranteed the protections

18 of the Due Process Clause. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process

19 Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here

20 is lawful, unlawful, temporary, or permanent.”).

21

96. The Constitution “imposes constraints on governmental decisions which deprive

22 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the

23 Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). A threshold

24 inquiry in any case involving a violation of procedural due process “is whether the plaintiffs have a

25 protected property or liberty interest and, if so, the extent or scope of that interest.” Nozzi v. Hous.

26 Auth. of L.A., 806 F.3d 1178, 1190–91 (9th Cir. 2015) (citing Bd. of Regents of State Colls. v. Roth,

27 408 U.S. 564, 569–70 (1972)).

28 70 See supra note 65.

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1

97. Here, the Agency Defendants deprived Mr. Ramirez of liberty interests protected by

2 the Due Process Clause. As previously discussed, DACA grants beneficiaries the right not to be

3 arrested or detained based solely on their immigration status during the time period that their deferred

4 action is in effect. Such “[f]reedom from imprisonment—from government custody, detention, or

5 other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause

6 protects.” Zadvydas, 533 U.S. at 690. The term “liberty” also encompasses the ability to work, raise

7 a family, and “form the other enduring attachments of normal life.” Morrissey v. Brewer, 408 U.S.

8 471, 482 (1972); Roth, 408 U.S. at 572. Where, as here, an individual reasonably relies on a

9 conferred status to pursue these activities, the government cannot revoke that status without adequate

10 procedural due process. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that once a benefit is

11 granted “continued possession may become essential in the pursuit of a livelihood”).

12

98. The fact that the Agency Defendants revoked Mr. Ramirez’s DACA status and work

13 authorization based on false allegations of gang affiliation also deprived him of protected liberty

14 interests in his reputation. See Paul v. Davis, 424 U.S. 693 (1976) (explaining that while reputation

15 alone may not be a protected liberty interest, “the invocation of procedural safeguards” is justified

16 when defamatory allegations accompany an altered legal status); Goss v. Lopez, 419 U.S. 565, 574

17 (1975); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (“Where a person’s good name,

18 reputation, honor, or integrity is at stake because of what the government is doing to him, notice and

19 an opportunity to be heard are essential.”).

20

99. The Agency Defendants also deprived Mr. Ramirez of property interests protected

21 by the Due Process Clause. The property interests protected by the Due Process Clause “extend

22 beyond tangible property and include anything to which a plaintiff has a ‘legitimate claim of

23 entitlement.’” Nozzi, 806 F.3d at 1191 (citing Roth, 408 U.S. at 576–77). “A legitimate claim of

24 entitlement is created [by] . . . ‘rules or understandings that secure certain benefits and that support

25 claims of entitlement to those benefits.’” Id. Therefore, an individual has a protected property

26 interest where they have a reasonable expectation of entitlement to that interest.

27

100. Here, Mr. Ramirez possessed a protected property interest in his DACA status and

28 the numerous benefits provided to him under the DACA program. As discussed above, these benefits

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1 include, among other things, the ability to legally work in the United States,71 eligibility for important

2 state and federal benefits,72 and the ability to travel internationally under certain circumstances. See

3 Texas, 809 F.3d at 166 (“Deferred action . . . is much more than nonenforcement: It would

4 affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.

5 Though revocable, that change in designation would trigger . . . eligibility for federal benefits—for

6 example, under title II and XVIII of the Social Security Act—and state benefits—for example,

7 driver’s licenses and unemployment insurance—that would not otherwise be available to illegal

8 aliens.”); Ariz. Dream Act Coal., 757 F.3d at 1058–59 (“DHS considers DACA recipients not to be

9 unlawfully present in the United States because their deferred action is a period of stay authorized by

10 the Attorney General.”).

11

101. These protected property interests exist because of the government’s decision to

12 grant Mr. Ramirez these benefits, and by virtue of its promise to Mr. Ramirez (and hundreds of

13 thousands of similarly situated young people) to adhere to the strict framework of the DACA

14 program. See Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Perry v. Sindermann, 408 U.S. 593, 601

15 (1972) (“A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are

16 such rules or mutually explicit understandings that support his claim of entitlement to the benefit and

17 that he may invoke at a hearing.”). In establishing and continuously operating DACA under a well-

18 defined framework and highly specific criteria, the government created a reasonable expectation

19 among DACA recipients—including Mr. Ramirez—that they are entitled to the benefits provided

20 under the program.73

21

102. While DACA is premised on the exercise of prosecutorial discretion, that discretion

22 is limited and constrained by the rules and criteria on which DACA is based and operated, and by the

23 government’s decision to twice grant Mr. Ramirez deferred action and work authorization. These

24 71 Revocation of DACA is therefore the sort of “complete prohibition of the right to engage in a

25

calling” that directly implicates the Due Process Clause. Conn v. Gabbert, 526 U.S. 286, 292 (1999).

26 72 Courts routinely find that revocation of public benefits triggers the Due Process Clause. See, e.g.,

Mathews, 424 U.S. at 332.

27 73 “[T]he identification of property interests under constitutional law turns on the substance of the

28

interest recognized, not the name given that interest by the state.” Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (citations omitted).

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1 constraints on discretion further support Mr. Ramirez’s claim of a protected property interest. See

2 Nozzi, 806 F.3d at 1191 (finding a protected property right in government benefits where government

3 regulations “greatly restrict the discretion” of those who administer the benefits) (citation omitted).

4

103. Defendants’ conduct in depriving Mr. Ramirez of his protected liberty and property

5 interests is evaluated under the three-part Eldridge test. “[I]n Mathews v. Eldridge, the Supreme

6 Court set forth a three-part inquiry to determine whether the procedures provided to protect a liberty

7 or property interest are constitutionally sufficient. First, courts must look at the nature of the interest

8 that will be affected by the official action, and in particular, to the degree of potential deprivation that

9 may be created. Second, courts must consider the fairness and reliability of the existing procedures

10 and the probable value, if any, of additional procedural safeguards. Finally, courts must assess the

11 public interest, which includes the administrative burden and other societal costs that would be

12 associated with additional or substitute procedures.” Nozzi, 806 F.3d at 1192–93 (internal quotations

13 and citations omitted). This test requires courts to balance the affected interests to see whether the

14 procedures provided are constitutionally sufficient.

15

104. Here, the revocation of Mr. Ramirez’s DACA status and work authorization without

16 adequate procedural protections fails the Eldridge test. First, Mr. Ramirez’s protected interests are

17 extremely significant—they include, among other things, his physical liberty, his right to be free from

18 arrest or detention based solely on his immigration status, and his ability to earn a living to help

19 support himself and his family. Second, the procedures provided were wholly inadequate. “The

20 essence of due process is the requirement . . . [of] notice . . . [and] a meaningful opportunity to

21 present [one’s] case.” Mathews, 424 U.S. at 348–49. Here, Defendants revoked Mr. Ramirez’s

22 DACA status without any advance notice.74 And third, there is no credible burden “associated with

23 additional or substitute procedures,” or public benefit from their absence. Nozzi, 806 F.3d at 1193

24 (internal quotations and citations omitted).75

25

74 The risk of “erroneous deprivation” is particularly high where, as here, an agency disregards its

26

own extensive prior due diligence in favor of a spur-of-the-moment judgment by a few

individuals based on extremely limited evidence. Under these circumstances, any “additional

27

procedural safeguards” would have had obvious “probable value.” Nozzi, 806 F.3d at 1193.

28

75 As previously noted, Defendants also violated the government’s policy of providing notice and 33 days to respond before terminating DACA status. See Ex. F, at 132, Appendix I (DACA SOP).

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1

105. For all of the foregoing reasons, the revocation of Mr. Ramirez’s DACA status and

2 work authorization violated his rights under the Due Process Clause, and was therefore in violation of

3 the APA.

4

COUNT THREE

5

BIVENS CLAIM: FOURTH AMENDMENT – UNLAWFUL SEIZURE

6

106. Mr. Ramirez repeats and incorporates by reference each and every allegation

7 contained in the preceding paragraphs as if fully set forth herein.

8

107. This Count is brought against Defendants Hicks, Peter, Hernandez, Lawrence, and

9 Does 1-5 (collectively, the “Individual Defendants”) in their individual capacities only pursuant to

10 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

11

108. Aliens are entitled to Fourth Amendment protection from unlawful seizures. See

12 Orhorhaghe v. INS, 38 F.3d 488, 497–501 (9th Cir. 1994); Benitez-Mendez v. INS, 760 F.2d 907, 909

13 (9th Cir. 1983). To support a warrantless arrest and detention for a civil immigration violation, the

14 arresting officer must be aware of sufficient facts to support a reasonable belief that the alien is in the

15 United States illegally. Benitez-Mendez, 760 F.2d at 909. Absent such facts, a warrantless arrest

16 violates the Fourth Amendment. Orhorhaghe, 38 F.3d at 497–501.

17

109. Here, the Individual Defendants arrested and detained Mr. Ramirez despite their

18 knowledge that he was granted deferred action under DACA and was therefore authorized to live and

19 work in the United States. By arresting and detaining Mr. Ramirez under these circumstances, the

20 Individual Defendants violated his rights under the Fourth Amendment.

21

110. Each of the Individual Defendants was personally involved in and proximately

22 caused the aforementioned violation of Mr. Ramirez’s constitutional rights.

23

111. As a result of Defendants’ actions, Mr. Ramirez suffered damages, including, but not

24 limited to, loss of liberty, loss of earnings and earning capacity, loss of valuable benefits, distress,

25 humiliation, embarrassment, discomfort, fear, anxiety, and other injuries.

26

27

28

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1

COUNT FOUR

2

BIVENS CLAIM: FIFTH AMENDMENT – PROCEDURAL DUE PROCESS

3

112. Mr. Ramirez repeats and incorporates by reference each and every allegation

4 contained in the preceding paragraphs as if fully set forth herein.

5

113. This Count is brought against the Individual Defendants in their individual

6 capacities only pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

7 403 U.S. 388 (1971).

8

114. Aliens who are physically present in the United States are guaranteed the protections

9 of the Due Process Clause. See Zadvydas, 533 U.S. at 693.

10

115. The Constitution “imposes constraints on governmental decisions which deprive

11 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the

12 Fifth or Fourteenth Amendment.” Mathews, 424 U.S. at 332.

13

116. Here, the Individual Defendants deprived Mr. Ramirez of liberty and property

14 interests protected by the Due Process Clause. See supra ¶¶ 97–102. This deprivation was without

15 adequate procedural protections and fails the Eldridge test. See supra ¶¶ 103–04. Accordingly, the

16 Individual Defendants violated Mr. Ramirez’s rights under the Due Process Clause.

17

117. Each of the Individual Defendants was personally involved in and proximately

18 caused the aforementioned violation of Mr. Ramirez’s constitutional rights.

19

118. As a result of Defendants’ actions, Mr. Ramirez suffered damages, including, but not

20 limited to, loss of liberty, loss of earnings and earning capacity, loss of valuable benefits, distress,

21 humiliation, embarrassment, discomfort, fear, anxiety, and other injuries.

22

COUNT FIVE

23

BIVENS CLAIM: FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS

24

119. Mr. Ramirez repeats and incorporates by reference each and every allegation

25 contained in the preceding paragraphs as if fully set forth herein.

26

120. This Count is brought against the Individual Defendants in their individual

27 capacities only pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

28 403 U.S. 388 (1971).

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1

121. “Freedom from imprisonment—from government custody, detention, or other forms

2 of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”

3 Zadvydas, 533 U.S. at 690. Any deprivation of this fundamental liberty interest must be

4 accompanied not only by adequate procedural protections, but also by a “sufficiently strong special

5 justification” to outweigh the significant deprivation of liberty. Id.; see also Phan v. Reno, 56 F.

6 Supp. 2d 1149, 1154 (W.D. Wash. 1999) (“Above and beyond the procedural guarantee explicit in

7 the Due Process Clause itself, federal courts have long recognized a limited substantive component

8 that forbids the government to infringe certain fundamental liberty interests at all, no matter what

9 process is provided, unless the infringement is narrowly tailored to serve a compelling state

10 interest.’” (internal citations and quotations omitted) (emphasis in original)).

11

122. Here, Mr. Ramirez’s detention violated his right to substantive due process

12 protected by the Fifth Amendment. There was no reason that Mr. Ramirez should have been

13 detained. He was neither a flight risk, nor a risk to public safety or national security, and twice

14 passed the rigorous vetting conducted by DHS, as well as the additional screening for gang

15 affiliation in 2015. Moreover, Defendants have explicitly conceded that Mr. Ramirez posed no risk

16 to public safety. Accordingly, Defendants cannot show any valid justification—let alone a

17 “sufficiently strong special justification”—for depriving Mr. Ramirez of his fundamental rights.

18

123. Defendants also violated Mr. Ramirez’s substantive (and procedural) due process

19 rights through their unconstitutional bait-and-switch. As the Supreme Court has recognized, the

20 Due Process Clause forbids the government from punishing people for engaging in conduct that the

21 government itself has encouraged. See, e.g., Cox v. State of La., 379 U.S. 559, 571 (1965) (holding

22 that the government could not punish protestors for demonstrating in a location where state officials

23 had said the protest was allowed); Raley v. State of Ohio, 360 U.S. 423, 438 (1959) (holding that

24 witnesses could not be punished for refusing to answer self-incriminating questions from a

25 legislative commission when the commission had told the witnesses they could decline to answer

26 such questions as to do so would amount to “the most indefensible sort of entrapment by the State”).

27

124. Here, the government vigorously promoted the DACA program and promised

28 Mr. Ramirez—and hundreds of thousands of other young people—that if they disclosed sensitive

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1 personal information and passed a background check they would be able to live and work in the

2 United States without being subject to arrest or detention based on their immigration status. The

3 government further encouraged Mr. Ramirez to voluntarily disclose highly sensitive personal

4 information by promising that such information would not be used for immigration enforcement

5 purposes. By arresting and detaining Mr. Ramirez, and then using the information he disclosed

6 against him, the government has broken both of those promises. For the government to now “say

7 . . . ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.”

8 Moda Health Plan, Inc. v. United States, 130 Fed. Cl. 436, 466 (Fed. Cl. 2017) (citing Brandt v.

9 Hickel, 427 F.2d 53, 57 (9th Cir. 1970)).

10

125. By arresting and detaining Mr. Ramirez under these circumstances, the Individual

11 Defendants violated his rights under the Fifth Amendment.

12

126. Each of the Individual Defendants was personally involved in and proximately

13 caused the aforementioned violation of Mr. Ramirez’s constitutional rights.

14

127. As a result of Defendants’ actions, Mr. Ramirez suffered damages, including, but

15 not limited to, loss of liberty, loss of earnings and earning capacity, loss of valuable benefits,

16 distress, humiliation, embarrassment, discomfort, fear, anxiety, and other injuries.

17

COUNT SIX

18

BIVENS CLAIM: FIFTH AMENDMENT – EQUAL PROTECTION

19

128. Mr. Ramirez repeats and incorporates by reference each and every allegation

20 contained in the preceding paragraphs as if fully set forth herein.

21

129. This Count is brought against the Individual Defendants in their individual

22 capacities only pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

23 403 U.S. 388 (1971).

24

130. The Fifth Amendment protects individuals against actions of the federal government

25 that deny them equal protection of the laws. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013)

26 (“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the

27 prohibition against denying to any person the equal protection of the laws.”); Bolling v. Sharpe, 347

28 U.S. 497, 500 (1954) (applying Equal Protection Clause to the federal government).

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1

131. The Fifth Amendment forbids federal officials from acting with a discriminatory

2 intent or purpose. To succeed on a claim alleging a violation of the Equal Protection Clause, a

3 plaintiff “must prove that [Defendants] ‘acted in a discriminatory manner and that the discrimination

4 was intentional.’” Wingate v. City of Seattle, 198 F. Supp. 3d 1221, 1228 (W.D. Wash. 2016)

5 (quoting Bingham v. City of Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003)). “Determining

6 whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into

7 such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v.

8 Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

9

132. Here, the Individual Defendants arrested Mr. Ramirez in substantial part because of

10 unconstitutional racial and national origin discrimination and invidious stereotypes about men of

11 Mexican heritage who have tattoos. The Individual Defendants’ discriminatory intent is evidenced

12 by, among other things, their decision to question Mr. Ramirez about his place of birth, their

13 decision to depart from established procedures and arrest and detain Mr. Ramirez without a warrant

14 and in spite of his DACA status, and their statement to Mr. Ramirez that his DACA status did not

15 matter because he was not from the United States.76

16

133. The decision at the ICE holding facility to continue to detain Mr. Ramirez was also

17 motivated by unconstitutional racial and national origin discrimination. Despite knowing that

18 Mr. Ramirez had passed numerous DHS background checks and had no criminal history,

19 Defendants alleged that Mr. Ramirez was a gang member based on his Mexican heritage and his

20 tattoo. Furthermore, one of the ICE agents told Mr. Ramirez that it did not matter that he had

21 DACA status because he was not from the United States, thereby demonstrating that Defendants

22 were intentionally discriminating against Mr. Ramirez because of his national origin. The

23 Individual Defendants’ conduct amounts to unconstitutional racial and national origin discrimination

24 in violation of the Equal Protection Clause.

25

134. Each of the Individual Defendants was personally involved in and proximately

26 caused the aforementioned violation of Mr. Ramirez’s constitutional rights.

27 76 Discriminatory remarks made during an arrest or processing are evidence of an equal protection

28

violation. See, e.g., Usher v. City of L.A., 828 F.2d 556, 562 (9th Cir. 1987); Holland v. King Cty. Adult Det., No. 12–cv–0791–JLR, 2013 WL 3354414, at *14 n.14 (W.D. Wash. July 3, 2013).

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1

135. As a result of Defendants’ actions, Mr. Ramirez suffered damages, including, but

2 not limited to, loss of liberty, loss of earnings and earning capacity, loss of valuable benefits,

3 distress, humiliation, embarrassment, discomfort, fear, anxiety, and other injuries.

4

COUNT SEVEN

5

BIVENS CLAIM: DEFAMATION

6

136. Mr. Ramirez repeats and incorporates by reference each and every allegation

7 contained in the preceding paragraphs as if fully set forth herein.

8

137. This Count is brought against Defendants Does 1-5 (the “Doe Defendants”) in their

9 individual capacities only pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

10 Narcotics, 403 U.S. 388 (1971).

11

138. To prevail on a claim for defamation under Washington law, a plaintiff must

12 establish: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Paterson v.

13 Little, Brown & Co., 502 F. Supp. 2d 1124, 1132 (W.D. Wash. 2007) (citing Mark v. Seattle Times,

14 96 Wash. 2d 473, 486 (1981)).

15

139. A claim for defamation is actionable under Bivens where a plaintiff can show that an

16 injury to his reputation was inflicted in connection with the deprivation of a federally protected right.

17 See Hart v. Parks, 450 F.3d 1059, 1070 (9th Cir. 2006) (addressing claims brought under 42 U.S.C.

18 § 1983). In other words, “a plaintiff must allege loss of a recognizable property or liberty interest in

19 conjunction with the allegation of injury to reputation.” Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th

20 Cir. 1991), aff’d en banc on other grounds, 963 F.2d 1220 (9th Cir. 1992) (same).

21

140. Here, the Doe Defendants engaged in a sustained campaign to publicly malign

22 Mr. Ramirez as a “gang member,” despite knowing that there was no reliable evidence to support

23 such a characterization. In so doing, the Doe Defendants caused irreparable harm to Mr. Ramirez’s

24 reputation in connection with the deprivation of his liberty and other constitutionally protected rights.

25

141. Defendants made a number of false statements about Mr. Ramirez, including

26 describing him as a “gang member” and as having “admitted [to] gang affiliation.” On information

27 and belief, the Doe Defendants reached out to members of the media to spread false and defamatory

28 information regarding Mr. Ramirez’s purported gang membership. And on February 15, 2017, the

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1 Doe Defendants told members of the media that they had corroborating evidence to support their

2 allegations of gang membership, “including photos and social media content that illustrate

3 [Mr. Ramirez’s] gang affiliation.” These statements were false and defamatory. Mr. Ramirez is not

4 now, and never has been, a member of any gang, he has never admitted to gang affiliation, and

5 Defendants do not have any evidence of his purported gang membership.

6

142. None of the Doe Defendants’ false and defamatory statements were privileged.

7

143. At the time they made these defamatory statements, the Doe Defendants knew that

8 they were false or failed to take the proper steps to ascertain their accuracy. By virtue of the fact that

9 Mr. Ramirez had twice been granted DACA status, the Doe Defendants knew or should have known

10 that he had already passed multiple background checks for gang membership or affiliation. And after

11 they ran his name and fingerprints through their databases at the ICE holding facility, Defendants

12 knew that he had no criminal history. The Doe Defendants acted knowingly and/or recklessly in

13 making these false and defamatory statements about Mr. Ramirez.

14

144. The Doe Defendants’ defamatory statements injured Mr. Ramirez’s character and

15 reputation and put him in danger. Before the Doe Defendants defamed Mr. Ramirez, he was a

16 respected community member; now many people incorrectly believe he is an admitted gang member

17 and have formed a negative opinion of him. Moreover, while Mr. Ramirez was detained at the

18 Northwest Detention Center, Defendants’ false statements regarding his purported gang membership

19 caused him to be placed in a dangerous housing unit with gang members and convicted criminals.

20 Mr. Ramirez feared for his safety because other detainees were aware of Defendants’ unfounded

21 allegations, and he was concerned that he would be assaulted based on the misperception that he was

22 in a gang. Mr. Ramirez continues to suffer from the emotional and psychological consequences of

23 his detention, as well as from the stigma of being wrongfully associated with a gang.

24

145. In conjunction with these false and defamatory statements, Mr. Ramirez was

25 deprived of his liberty and other important constitutionally protected rights, including his

26 constitutionally protected rights under DACA.

27

146. Each of the Doe Defendants was personally involved in and proximately caused the

28 aforementioned violation of Mr. Ramirez’s constitutional rights.

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1

147. As a result of Defendants’ actions, Mr. Ramirez suffered damages, including, but not

2 limited to, loss of liberty, loss of earnings and earning capacity, loss of valuable benefits, distress,

3 humiliation, embarrassment, discomfort, fear, anxiety, and other injuries.

4

COUNT EIGHT

5

DECLARATORY RELIEF

6

148. Mr. Ramirez repeats and incorporates by reference each and every allegation

7 contained in the preceding paragraphs as if fully set forth herein.

8

149. As explained above, Defendants’ revocation of Mr. Ramirez’s DACA status and

9 work authorization violated his rights under the Fifth Amendment. Mr. Ramirez therefore seeks a

10 declaration that: (i) he has constitutionally protected interests in his DACA status and the benefits

11 conferred thereunder; and (ii) Defendants’ revocation of these interests was unlawful and invalid.

12 See Akhtar v. Burzynski, 384 F.3d 1193, 1202 (9th Cir. 2004); Walters v. Reno, 145 F.3d 1032,

13 1036, 1042–44 (9th Cir. 1998).

14

150. For the same reasons, Mr. Ramirez is entitled to an order directing Defendants to

15 reinstate his DACA status. 5 U.S.C. § 706.

16

DEMAND FOR JURY TRIAL

17

151. Mr. Ramirez demands a jury trial on his claims.

18

PRAYER FOR RELIEF

19 WHEREFORE, Mr. Ramirez prays that this Court grant the following relief:

20 (1) Award damages according to proof;

21 (2) Issue a declaratory judgment pursuant to 28 U.S.C. § 2201(a) that: (i) Mr. Ramirez has

22

constitutionally protected interests in his DACA status and the benefits conferred thereunder;

23

and (ii) Defendants’ revocation of Mr. Ramirez’s DACA status and benefits was unlawful and in

24

violation of his constitutional rights;

25 (3) Order Defendants to reinstate Mr. Ramirez’s DACA status and work authorization;

26 (4) Award Mr. Ramirez reasonable costs and attorneys’ fees; and

27 (5) Grant any other and further relief that this Court may deem fit and proper.

28

Gibson, Dunn &

Second Amended Complaint

Counsel Listed on Pages I and II

Crutcher LLP

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1 DATED: April 25, 2017 2 Seattle, Washington

3

Respectfully submitted,

4

/s/ Theodore J. Boutrous, Jr.

5

GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice

6

ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice

7

JESSE S. GABRIEL (CA SBN 263137), pro hac vice

8

/s/ Marc D. Rosenbaum PUBLIC COUNSEL

9

MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice

10

KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice

11

ELIZABETH HADAWAY (CA SBN 308800), pro hac vice

12

/s/ Erwin Chemerinsky ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice

13

LEAH M. LITMAN (DC SBN 1016310), pro hac vice University of California, Irvine School of Law

14

*Affiliation for identification purposes only

15

/s/ Laurence H. Tribe LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice

16

Harvard Law School *Affiliation for identification purposes only

17

/s/ Luis Cortes Romero

18

BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice

19

JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice

20

Attorneys for Plaintiff

21

22

23

24

25

26

27

28

Gibson, Dunn &

Second Amended Complaint

Counsel Listed on Pages I and II

Crutcher LLP

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EXHIBIT A

Frequently Asked Questions | USCIS

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Frequently Asked Questions
FAQs updated October 27, 2015
General Information for All Requestors • What is Deferred Action for Childhood Arrivals? • DACA Process • Background Checks • After USCIS Makes a Decision
Initial Requests for DACA Renewal of DACA Travel Criminal Convictions Miscellaneous
I. General Information for All Requestors
A. What is Deferred Action for Childhood Arrivals?
Over the past several years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on national security, public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals (DACA) for a period of two years, subject to renewal for a period of two years, and may be eligible for employment authorization. You may request consideration of DACA if you:
1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching your 16th birthday; 3. Have continuously resided in the United States since June 15, 2007, up to the present time; 4. Were physically present in the United States on June 15, 2012, and at the time of making
your request for consideration of deferred action with USCIS;
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5. Had no lawful status on June 15, 2012, meaning that:
• You never had a lawful immigration status on or before June 15, 2012, or • Any lawful immigration status or parole that you obtained prior to June 15, 2012,
had expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Individuals can call U.S. Citizenship and Immigration Services (USCIS) at 1-800-375-5283 with questions or to request more information on DACA. Those with pending requests can also use a number of online self-help tools which include the ability to check case status and processing times, change your address, and send an inquiry about a case pending longer than posted processing times or non-delivery of a card or document. Q1: What is deferred action? A1: Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence. Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion. Q2: What is DACA? A2: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-bycase basis under the DACA guidelines. Q3: Is there any difference between “deferred action” and DACA under this process? A3: DACA is one form of deferred action. The relief an individual receives under DACA is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.

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Q4: If my removal is deferred under the consideration of DACA, am I eligible for employment authorization? A4: Yes. Under existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment. Q5: If my case is deferred, am I in lawful status for the period of deferral? A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status. The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time. Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S. Apart from the immigration laws, “lawful presence,” “lawful status” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities. Q6: Can I renew my period of deferred action and employment authorization under DACA? A6: Yes. You may request consideration for a renewal of your DACA. Your request for a renewal will be considered on a case-by-case basis. If USCIS renews its exercise of discretion under DACA for your case, you will receive deferred action for another two years, and if you demonstrate an economic necessity for employment, you may receive employment authorization throughout that period.
Return to top.
B. DACA Process
Q7: How do I request consideration of DACA? A7: To request consideration of DACA (either as an initial request or to request a renewal), you must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS. Please visit uscis.gov/i-821d before you begin the process to make sure you are using the most current version of the form available. This form must be completed, properly signed and accompanied by a Form I-765, Application for Employment Authorization, and a Form I-765WS, Worksheet (PDF, 235 KB), establishing your economic need for employment. If you fail to submit a completed Form I-765 (along with the accompanying filing fees for that form, please see the Form I-821D page for more information), USCIS will not consider your request for deferred action. Please read the form instructions to ensure that you answer the appropriate questions (determined by whether you are submitting an initial or renewal request) and that you submit all the required documentation to support your initial request. You must file your request for consideration of DACA at the USCIS Lockbox. You can find the mailing address and instructions at www.uscis.gov/i-821d. As of June 5, 2014, requestors must use the new version of the form. After your Form I-821D, Form I-765, and Form I-765 Worksheet

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have been received, USCIS will review them for completeness, including submission of the required fee, initial evidence and supporting documents (for initial filings).
If it is determined that the request is complete, USCIS will send you a receipt notice. USCIS will then send you an appointment notice to visit an Application Support Center (ASC) for biometric services, if an appointment is required. Please make sure you read and follow the directions in the notice. Failure to attend your biometrics appointment may delay processing of your request for consideration of deferred action, or may result in a denial of your request. You may also choose to receive an email and/or text message notifying you that your form has been accepted by completing a Form G-1145, E-Notification of Application/Petition Acceptance.
Each request for consideration of DACA will be reviewed on an individual, case-by-case basis. USCIS may request more information or evidence from you, or request that you appear at a USCIS office. USCIS will notify you of its determination in writing. Note: All individuals who believe they meet the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), may affirmatively request consideration of DACA from USCIS through this process. Individuals who are currently in immigration detention and believe they meet the guidelines may not request consideration of deferred action from USCIS but may identify themselves to their deportation officer or Jail Liaison. You may also contact the ICE Field Office Director. For more information visit ICE’s website at www.ice.gov/daca. Q8: Can I obtain a fee waiver or fee exemption for this process? A8: There are no fee waivers available for employment authorization applications connected to DACA. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of DACA without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:
• You are under 18 years of age, have an income that is less than 150 percent of the U.S. poverty level, and are in foster care or otherwise lacking any parental or other familial support; or
• You are under 18 years of age and homeless; or • You cannot care for yourself because you suffer from a serious, chronic disability and your
income is less than 150 percent of the U.S. poverty level; or, • You have, at the time of the request, accumulated $10,000 or more in debt in the past 12
months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150 percent of the U.S. poverty level.
You can find additional information on our Fee Exemption Guidance Web page. Your request must be submitted and decided before you submit a request for consideration of DACA without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence, USCIS will:
• Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.
• Accept copies of tax returns, bank statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible

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third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level. • Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $10,000. • Address factual questions through Requests for Evidence (RFEs). Q9: If individuals meet the guidelines for consideration of DACA and are encountered by U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE), will they be placed into removal proceedings? A9: DACA is intended, in part, to allow CBP and ICE to focus on priority cases. Under the direction of the Secretary of Homeland Security, if an individual meets the guidelines for DACA, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed. If individuals believe that, in light of this policy, they should not have been apprehended or placed into removal proceedings, contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week). Q10: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order? A10: This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). Q11: If I am not in removal proceedings but believe I meet the guidelines for consideration of DACA, should I seek to place myself into removal proceedings through encounters with CBP or ICE? A11: No. If you are not in removal proceedings but believe that you meet the guidelines, you should submit your DACA request to USCIS under the process outlined below. Q12: Can I request consideration of DACA from USCIS if I am in immigration detention under the custody of ICE? A12: No. If you are currently in immigration detention, you may not request consideration of DACA from USCIS. If you think you may meet the guidelines of this process, you should identify yourself to your deportation officer or Jail Liaison. You may also contact the ICE Field Office Director. For more information, visit ICE’s website at www.ice.gov/daca. Q13: If I am about to be removed by ICE and believe that I meet the guidelines for consideration of DACA, what steps should I take to seek review of my case before removal? A13: If you believe you can demonstrate that you meet the guidelines and are about to be removed, you should immediately contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week). Q14: What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer? A14: If you meet the guidelines and have been served a detainer, you should immediately contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week). Q15: If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be

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considered for deferred action under this process? A15: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA even if you have accepted an offer of administrative closure or termination under the case-by-case review process. Q16: If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process? A16: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA even if you declined an offer of administrative closure under the caseby-case review process. Q17: If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process? A17: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA even if you were not offered administrative closure following review of your case as part of the case-by-case review process. Q18: Can I request consideration of DACA under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)? A18: No. You can only request consideration of DACA under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012. Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes? A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. Q20: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes? A20: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

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This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Q21: Will USCIS verify documents or statements that I provide in support of a request for DACA? A21: USCIS has the authority to verify documents, facts, and statements that are provided in support of requests for DACA. USCIS may contact education institutions, other government agencies, employers, or other entities in order to verify information.
Return to top.
C. Background Checks
Q22: Will USCIS conduct a background check when reviewing my request for consideration of DACA? A22: Yes. You must undergo biographic and biometric background checks before USCIS will consider your DACA request. Q23: What do background checks involve? A23: Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies. Q24: What steps will USCIS and ICE take if I engage in fraud through the new process? A24: If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain DACA or work authorization through this process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States.
Return to top.
D. After USCIS Makes a Decision
Q25: Can I appeal USCIS’ determination? A25: No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of DACA. You may request a review of your I-821D denial by contacting USCIS’ National Customer Service Center at 1-800-375-5283 to have a service request created if you believe that you actually did meet all of the DACA guidelines and you believe that your request was denied because USCIS:
• Denied the request based on abandonment, when you actually responded to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) within the prescribed time;
• Mailed the RFE or NOID to the wrong address although you had changed your address online at www.uscis.gov or with a customer service representative on the phone and submitted a Form AR-11, Change of Address, before USCIS issued the RFE or NOID. ◦ To ensure the address is updated on a pending case as quickly as possible, we recommend that customers submit a change of address request at www.uscis.gov/addresschange. Please note that only an online change of address or a Form AR-11 submission will satisfy the legal requirements for notifying the agency of

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an address change. Therefore, if you called a customer service representative to change your address, please be sure you have also submitted your address change online or with a Form AR-11. • Denied the request on the grounds that you did not come to the United States prior to your 16th birthday, but the evidence submitted at the time of filing shows that you did arrive before reaching that age. • Denied the request on the grounds that you were under age 15 at the time of filing but not in removal proceedings, while the evidence submitted at the time of filing show that you indeed were in removal proceedings when the request was filed; • Denied the request on the grounds that you were 31 or older as of June 15, 2012, but the evidence submitted at the time of filing shows that you were under the age of 31 as of June 15, 2012; • Denied the request on the grounds that you had lawful status on June 15, 2012, but the evidence submitted at the time of filing shows that you indeed were in an unlawful immigration status on that date; • Denied the request on the grounds that you were not physically present in the United States on June 15, 2012, and up through the date of filing, but the evidence submitted at the time of filing shows that you were, in fact, present; • Denied the request due to your failure to appear at a USCIS Application Support Center (ASC) to have your biometrics collected, when you in fact either did appear at a USCIS ASC to have this done or requested prior to the scheduled date of your biometrics appointment to have the appointment rescheduled; or • Denied the request because you did not pay the filing fees for Form I-765, Application for Employment Authorization, when you actually did pay these fees
If you believe your request was denied due to any of these administrative errors, you may contact our National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired). Customer service officers are available Monday – Friday from 8 a.m. – 6 p.m. in each U.S. time zone.
Q26: If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings? A26: If you have submitted a request for consideration of DACA and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to ICE and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy, visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you an NTA.
Q27: Can my deferred action under the DACA process be terminated before it expires?
A27: Yes.
DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.
Return to top.

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II. Initial Requests for DACA
Q28: What guidelines must I meet to be considered for deferred action for childhood arrivals (DACA)? A28: Under the Secretary of Homeland Security’s June 15, 2012 memorandum, in order to be considered for DACA, you must submit evidence, including supporting documents, showing that you:
1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching your 16th birthday; 3. Have continuously resided in the United States since June 15, 2007, up to the present time; 4. Were physically present in the United States on June 15, 2012, and at the time of making
your request for consideration of deferred action with USCIS; 5. Had no lawful status on June 15, 2012; 6. Are currently in school, have graduated or obtained a certificate of completion from high
school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
These guidelines must be met for consideration of DACA. U.S. Citizenship and Immigration Services (USCIS) retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met. Q29: How old must I be in order to be considered for deferred action under this process? A29:
• If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of DACA, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
• If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of DACA even if you are under the age of 15 at the time of filing and meet the other guidelines.
• In all instances, you must have been under the age of 31 as of June 15, 2012, to be considered for DACA.
Q30: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process? A30: Yes, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous

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residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process. Q31: To prove my continuous residence in the United States since June 15, 2007, must I provide evidence documenting my presence for every day, or every month, of that period? A31: To meet the continuous residence guideline, you must submit documentation that shows you have been living in the United States from June 15, 2007, up until the time of your request. You should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence. It is helpful to USCIS if you can submit evidence of your residence during at least each year of the period. USCIS will review the documentation in its totality to determine whether it is more likely than not that you were continuously residing in the United States for the period since June 15, 2007. Gaps in the documentation as to certain periods may raise doubts as to your continued residence if, for example, the gaps are lengthy or the record otherwise indicates that you may have been outside the United States for a period of time that was not brief, casual or innocent. If gaps in your documentation raise questions, USCIS may issue a Request for Evidence to allow you to submit additional documentation that supports your claimed continuous residence. Affidavits may be submitted to explain a gap in the documentation demonstrating that you meet the five-year continuous residence requirement. If you submit affidavits related to the continuous residence requirement, you must submit two or more affidavits, sworn to or affirmed by people other than yourself who have direct personal knowledge of the events and circumstances during the period as to which there is a gap in the documentation. Affidavits may only be used to explain gaps in your continuous residence; they cannot be used as evidence that you meet the entire five-year continuous residence requirement. Q32: Does “currently in school” refer to the date on which the request for consideration of deferred action is filed? A32: To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. Q33: Who is considered to be “currently in school” under the guidelines? A33: To be considered “currently in school” under the guidelines, you must be enrolled in:
• a public, private, or charter elementary school, junior high or middle school, high school, secondary school, alternative program, or homeschool program that meets state requirements;
• an education, literacy, or career training program (including vocational training) that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
• an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other stateauthorized exam (e.g., HiSet or TASC) in the United States.

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Such education, literacy, career training programs (including vocational training), or education programs assisting students in obtaining a regular high school diploma or its recognized equivalent under state law, or in passing a GED exam or other state-authorized exam in the United States, include, but are not limited to, programs funded, in whole or in part, by federal, state, county or municipal grants or administered by non-profit organizations. Programs funded by other sources may qualify if they are programs of demonstrated effectiveness. In assessing whether such programs not funded in whole or in part by federal, state, county or municipal grants or administered by non-profit organizations are of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam (e.g., HiSet or TASC), or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.
Q34: How do I establish that I am currently in school? A34: Documentation sufficient for you to demonstrate that you are currently in school may include, but is not limited to:
• evidence that you are enrolled in a public, private, or charter elementary school, junior high or middle school, high school or secondary school; alternative program, or homeschool program that meets state requirements; or
• evidence that you are enrolled in an education, literacy, or career training program (including vocational training) that: ◦ has a purpose of improving literacy, mathematics, or English, or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; and ◦ is funded, in whole or in part, by federal, state, county or municipal grants or is administered by non-profit organizations, or if funded by other sources, is a program of demonstrated effectiveness; or
• evidence that you are enrolled in an education program assisting students in obtaining a high school equivalency diploma or certificate recognized under state law (such as by passing a GED exam or other such state-authorized exam [for example, HiSet or TASC]), and that the program is funded in whole or in part by federal, state, county or municipal grants or is administered by non-profit organizations or if funded by other sources, is of demonstrated effectiveness.
Such evidence of enrollment may include: acceptance letters, school registration cards, letters from a school or program, transcripts, report cards, or progress reports which may show the name of the school or program, date of enrollment, and current educational or grade level, if relevant.

Q35: What documentation may be sufficient to demonstrate that I have graduated from high school? A35: Documentation sufficient for you to demonstrate that you have graduated from high school may include, but is not limited to, a high school diploma from a public or private high

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school or secondary school, a certificate of completion, a certificate of attendance, or an alternate award from a public or private high school or secondary school, or a recognized equivalent of a high school diploma under state law, or a GED certificate or certificate from passing another such state authorized exam (e.g., HiSet or TASC) in the United States. Q36: What documentation may be sufficient to demonstrate that I have obtained a GED certificate or certificate from passing another such state authorized exam (e.g., HiSet or TASC)? A36: Documentation may include, but is not limited to, evidence that you have passed a GED exam, or other state-authorized exam (e.g., HiSet or TASC), and, as a result, have received the recognized equivalent of a regular high school diploma under state law. Q37: If I am enrolled in a literacy or career training program, can I meet the guidelines? A37: Yes, in certain circumstances. You may meet the guidelines if you are enrolled in an education, literacy, or career training program that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement. Such programs include, but are not limited to, programs funded, in whole or in part, by federal, state, county or municipal grants or administered by non-profit organizations, or if funded by other sources, are programs of demonstrated effectiveness. Q38: If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines? A38: Yes, in certain circumstances. Enrollment in an ESL program may be used to meet the guidelines if the ESL program is funded in whole or in part by federal, state, county or municipal grants, or administered by non-profit organizations, or if funded by other sources is a program of demonstrated effectiveness. You must submit direct documentary evidence that the program is funded in whole or part by federal, state, county or municipal grants, administered by a non-profit organization, or of demonstrated effectiveness. Q39: Will USCIS consider evidence other than that listed in Chart #1 to show that I have met the education guidelines? A39: No. Evidence not listed in Chart #1 will not be accepted to establish that you are currently in school, have graduated or obtained a certificate of completion from high school, or have obtained a GED or passed another state-authorized exam (e.g., HiSet or TASC). You must submit any of the documentary evidence listed in Chart #1 to show that you meet the education guidelines. Q40: Will USCIS consider evidence other than that listed in Chart #1 to show that I have met certain initial guidelines? A40: Evidence other than those documents listed in Chart #1 may be used to establish the following guidelines and factual showings if available documentary evidence is insufficient or lacking and shows that:
• You were physically present in the United States on June 15, 2012; • You came to the United States before reaching your 16th birthday; • You satisfy the continuous residence requirement, as long as you present direct evidence
of your continued residence in the United States for a portion of the required period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and

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• Any travel outside the United States during the period of required continuous presence was brief, casual, and innocent.
However, USCIS will not accept evidence other than the documents listed in Chart #1 as proof of any of the following guidelines to demonstrate that you:
• Were under the age of 31 on June 15, 2012; and • Are currently in school, have graduated or obtained a certificate of completion from high
school, have obtained a GED certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. For example, even if you do not have documentary proof of your presence in the United States on June 15, 2012, you may still be able to satisfy the guideline. You may do so by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which, under the facts presented, may give rise to an inference of your presence on June 15, 2012 as well. However, evidence other than that listed in Chart #1 will not be accepted to establish that you have graduated high school. You must submit the designated documentary evidence to satisfy that you meet this guideline. Chart #1 provides examples of documentation you may submit to demonstrate you meet the initial guidelines for consideration of deferred action under this process. Please see the instructions of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for additional details of acceptable documentation.

Chart #1 Examples of Documents to Submit to Demonstrate You Meet the Guidelines

Proof of identity

• Passport or national identity document from your country of origin
• Birth certificate with photo identification • School or military ID with photo • Any U.S. government immigration or other document
bearing your name and photo

Proof you came to U.S. before your 16th birthday

• Passport with admission stamp • Form I-94/I-95/I-94W • School records from the U.S. schools you have attended • Any Immigration and Naturalization Service or DHS
document stating your date of entry (Form I-862, Notice to Appear) • Travel records • Hospital or medical records • Rent receipts or utility bills • Employment records (pay stubs, W-2 Forms, etc.) • Official records from a religious entity confirming participation in a religious ceremony

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Chart #1 Examples of Documents to Submit to Demonstrate You Meet the Guidelines
• Copies of money order receipts for money sent in or out of the country
• Birth certificates of children born in the U.S. • Dated bank transactions • Automobile license receipts or registration • Deeds, mortgages, rental agreement contracts • Tax receipts, insurance policies

Proof of immigration status

• Form I-94/I-95/I-94W with authorized stay expiration date
• Final order of exclusion, deportation, or removal issued as of June 15, 2012
• A charging document placing you into removal proceedings

Proof of presence in U.S. on June 15, 2012 Proof you continuously resided in U.S. since June 15, 2007
Proof of your education status at the time of requesting consideration of DACA

• Rent receipts or utility bills • Employment records (pay stubs, W-2 Forms, etc.) • School records (letters, report cards, etc.) • Military records (Form DD-214 or NGB Form 22) • Official records from a religious entity confirming
participation in a religious ceremony • Copies of money order receipts for money sent in or out
of the country • Passport entries • Birth certificates of children born in the U.S. • Dated bank transactions • Automobile license receipts or registration •• DSsccehheoodoosl,ltmrheaoctortyrgdoasug(eatrsrae, nrcesuncrrtraieplntastg,lyrreeaeptmtoerentndctiancrgdosnin,tertathcce.t)sUfrnoitmedthe • TStaaxtreescsehipotws,iningstuhreancaempeo(sli)coiefsthe school(s) and periods
of school attendance and the current educational or grade level • U.S. high school diploma, certificate of completion, or other alternate award • High school equivalency diploma or certificate recognized under state law • Evidence that you passed a state-authorized exam, including the GED or other state-authorized exam (for example, HiSet or TASC) in the United States

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Chart #1 Examples of Documents to Submit to Demonstrate You Meet the Guidelines

Proof you are an honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Guard

• 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

Q41: May I file affidavits as proof that I meet the initial guidelines for consideration of DACA? A41: Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for DACA. However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking:
• Demonstrating that you meet the five year continuous residence requirement; and • Establishing that departures during the required period of continuous residence were
brief, casual and innocent.
If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence, indicating that further evidence must be submitted to demonstrate that you meet these guidelines.
USCIS will not accept affidavits as proof of satisfying the following guidelines:
• You are currently in school, have graduated or obtained a certificate of completion or other alternate award from high school, have obtained a high school equivalency diploma or certificate (such as by passing the GED exam or other state-authorized exam [for example, HiSet or TASC]), or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
• You were physically present in the United States on June 15, 2012; • You came to the United States before reaching your 16th birthday; • You were under the age of 31 on June 15, 2012; and • Your criminal history, if applicable.
If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a Request for Evidence, indicating that you have not demonstrated that you meet these guidelines and that you must do so in order to demonstrate that you meet that guideline.
Q42: Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?

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A42: Yes. If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or EOIR as of June 15, 2012, but had no lawful status, you may request consideration of DACA. Q43: I was admitted for "duration of status" or for a period of time that extended past June 14, 2012, but violated my immigration status (e.g., by engaging in unauthorized employment, failing to report to my employer, or failing to pursue a full course of study) before June 15, 2012. May I be considered for deferred action under this process? A43: No, unless the Executive Office for Immigration Review terminated your status by issuing a final order of removal against you before June 15, 2012. Q44: I was admitted for "duration of status" or for a period of time that extended past June 14, 2012 but "aged out" of my dependent nonimmigrant status as of June 15, 2012. May I be considered for deferred action under this process? A44: Yes. For purposes of satisfying the “had no lawful status on June 15, 2012," guideline alone, if you were admitted for “duration of status” or for a period of time that extended past June 14, 2012 but “aged out” of your dependent nonimmigrant status, on or before June 15, 2012, (meaning you turned 21 years old on or before June 15, 2012), you may be considered for deferred action under this process. Q45: I was admitted for “duration of status” but my status in SEVIS is listed as terminated on or before June 15, 2012. May I be considered for deferred action under this process? A45: Yes. For the purposes of satisfying the ““had no lawful status on June 15, 2012,” guideline alone, if your status as of June 15, 2012, is listed as “terminated” in SEVIS, you may be considered for deferred action under this process. Q46: I am a Canadian citizen who was inspected by CBP but was not issued an I-94 at the time of admission. May I be considered for deferred action under this process? A46: In general, a Canadian citizen who was admitted as a visitor for business or pleasure and not issued an I-94, Arrival/Departure Record, (also known as a “non-controlled” Canadian nonimmigrant) is lawfully admitted for a period of six months. For that reason, unless there is evidence, including verifiable evidence provided by the individual, that he or she was specifically advised that his or her admission would be for a different length of time, the Department of Homeland Security (DHS) will consider for DACA purposes only, that the alien was lawfully admitted for a period of six months. Therefore, if DHS is able to verify from its records that your last non-controlled entry occurred on or before Dec. 14, 2011, DHS will consider your nonimmigrant visitor status to have expired as of June 15, 2012 and you may be considered for deferred action under this process. Q47: I used my Border Crossing Card (BCC) to obtain admission to the United States and was not issued an I-94 at the time of admission. May I be considered for deferred action under this process? A47: Because the limitations on entry for a BCC holder vary based on location of admission and travel, DHS will assume that the BCC holder who was not provided an I-94 was admitted for the longest period legally possible—30 days—unless the individual can demonstrate, through verifiable evidence, that he or she was specifically advised that his or her admission would be for a different length of time. Accordingly, if DHS is able to verify from its records that your last admission was using a BCC, you were not issued an I-94 at the time of admission, and it

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occurred on or before May 14, 2012, DHS will consider your nonimmigrant visitor status to have expired as of June 15, 2012, and you may be considered for deferred action under this process. Q48: Do I accrue unlawful presence if I have a pending initial request for consideration of DACA? A48: You will continue to accrue unlawful presence while the request for consideration of DACA is pending unless you are under 18 years of age at the time of the request. If you are under 18 years of age at the time you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 while your request is pending with USCIS. If action on your case is deferred, you will not accrue unlawful presence during the period of deferred action. However, having action deferred on your case will not excuse previously accrued unlawful presence.
Return to top.
III. Renewal of DACA
Q49: When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)? A49: USCIS strongly encourages you to submit your Deferred Action for Childhood Arrivals (DACA) renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document (EAD). Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request. USCIS’ current goal is to process DACA renewal requests within 120 days. You may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry online, please visit egov.uscis.gov/e-request.
• Please Note: Factors that may affect the timely processing of your DACA renewal request include, but are not limited to: ◦ Failure to appear at an Application Support Center (ASC) for a scheduled biometrics appointment to obtain fingerprints and photographs. No-shows or rescheduling appointments will require additional processing time. ◦ Issues of national security, criminality or public safety discovered during the background check process that require further vetting. ◦ Issues of travel abroad that need additional evidence/clarification. ◦ Name/date of birth discrepancies that may require additional evidence/clarification. ◦ The renewal submission was incomplete or contained evidence that suggests a requestor may not satisfy the DACA renewal guidelines and USCIS must send a request for additional evidence or explanation
Q50: Can I file a renewal request outside the recommended filing period of 150 days to 120 days before my current DACA expires? A50: USCIS strongly encourages you to file your renewal request within the recommended 150120 day filing period to minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request. Requests received earlier than 150 days in advance will be accepted; however, this could result in an overlap between your current

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DACA and your renewal. This means your renewal period may extend for less than a full two years from the date that your current DACA period expires.. If you file after the recommended filing period (meaning less than 120 days before your current period of DACA expires), there is an increased possibility that your current period of DACA and employment authorization will expire before you receive a decision on your renewal request. If you file after your most recent DACA period expired, but within one year of its expiration, you may submit a request to renew your DACA. If you are filing beyond one year after your most recent period of DACA expired, you may still request DACA by submitting a new initial request. Q51: How will USCIS evaluate my request for renewal of DACA: A51: You may be considered for renewal of DACA if you met the guidelines for consideration of Initial DACA (see above) AND you:
• Did not depart the United States on or after Aug. 15, 2012, without advance parole; • Have continuously resided in the United States since you submitted your most recent
request for DACA that was approved up to the present time; and • Have not been convicted of a felony, a significant misdemeanor, or three or more
misdemeanors, and do not otherwise pose a threat to national security or public safety. These guidelines must be met for consideration of DACA renewal. USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met. Q52 Do I accrue unlawful presence if I am seeking renewal and my previous period of DACA expires before I receive a renewal of deferred action under DACA? Similarly, what would happen to my work authorization? A52: Yes, if your previous period of DACA expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence for any time between the periods of deferred action unless you are under 18 years of age at the time you submit your renewal request. Similarly, if your previous period of DACA expires before you receive a renewal of deferred action under DACA, you will not be authorized to work in the United States regardless of your age at time of filing until and unless you receive a new employment authorization document from USCIS. Q53. Do I need to provide additional documents when I request renewal of deferred action under DACA? A53. No, unless you have new documents pertaining to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request. USCIS, however, reserves the authority to request at its discretion additional documents, information or statements relating to a DACA renewal request determination. CAUTION: If you knowingly and willfully provide materially false information on Form I-821D, you will be committing a federal felony punishable by a fine, or imprisonment up to five years, or both, under 18 U.S.C. Section 1001. In addition, individuals may be placed into removal proceedings, face severe penalties provided by law, and be subject to criminal prosecution. Q54. If I am no longer in school, can I still request to renew my DACA? A54. Yes. Neither Form I-821D nor the instructions ask renewal requestors for information

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about continued school enrollment or graduation. The instructions for renewal requests specify that you may be considered for DACA renewal if you met the guidelines for consideration of initial DACA, including the educational guidelines and:
1. Did not depart the United States on or after August 15, 2012, without advance parole; 2. Have continuously resided in the United States, up to the present time, since you
submitted your most recent request for DACA that was approved; and 3. Have not been convicted of a felony, a significant misdemeanor or three or more
misdemeanors, and are not a threat to national security or public safety.
Q55. If I initially received DACA and was under the age of 31 on June 15, 2012, but have since become 31 or older, can I still request a DACA renewal? A55. Yes. You may request consideration for a renewal of DACA as long as you were under the age of 31 as of June 15, 2012.
IV. Travel
Q56: May I travel outside of the United States before I submit an initial Deferred Action for Childhood Arrivals (DACA) request or while my initial DACA request remains pending with the Department of Homeland Security (DHS)? A56: Any unauthorized travel outside of the United States on or after Aug. 15, 2012, will interrupt your continuous residence and you will not be considered for deferred action under this process. Any travel outside of the United States that occurred on or after June 15, 2007, but before Aug. 15, 2012, will be assessed by U.S. Citizenship and Immigration Services (USCIS) to determine whether the travel qualifies as brief, casual and innocent. (See Chart #2.) CAUTION: You should be aware that if you have been ordered deported or removed, and you then leave the United States, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences. Q57: If my case is deferred under DACA, will I be able to travel outside of the United States? A57: Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($575). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if your travel abroad will be in furtherance of:
• humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
• educational purposes, such as semester-abroad programs and academic research, or; • employment purposes such as overseas assignments, interviews, conferences or, training,
or meetings with clients overseas. Travel for vacation is not a valid basis for advance parole. You may not apply for advance parole unless and until USCIS defers action in your case under the consideration of DACA. You cannot apply for advance parole at the same time as you

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submit your request for consideration of DACA. All advance parole requests will be considered on a case-by-case basis. If USCIS has deferred action in your case under the DACA process after you have been ordered deported or removed, you may still request advance parole if you meet the guidelines for advance parole described above. CAUTION: However, for those individuals who have been ordered deported or removed, before you actually leave the United States, you should seek to reopen your case before the Executive Office for Immigration Review (EOIR) and obtain administrative closure or termination of your removal proceeding. Even after you have asked EOIR to reopen your case, you should not leave the United States until after EOIR has granted your request. If you depart after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure may result in your being considered deported or removed, with potentially serious future immigration consequences. If you have any questions about this process, you may contact U.S. Immigration and Customs Enforcement (ICE) through the local ICE Office of the Chief Counsel with jurisdiction over your case. CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA. Q58: Do brief departures from the United States interrupt the continuous residence requirement? A58: A brief, casual and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation or removal; 3. The absence was not because of an order of voluntary departure, or an administrative
grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and 4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.
Once USCIS has approved your request for DACA, you may file Form I-131, Application for Travel Document, to request advance parole to travel outside of the United States. CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA. Travel Guidelines (Chart #2)

Travel Dates

Type of Travel

Does It Affect Continuous Residence

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Travel Dates

Type of Travel

On or after June Brief, casual and No

15, 2007, but

innocent

before Aug. 15,

2012

For an extended Yes time

Because of an order of exclusion, deportation, voluntary departure, or removal

To participate in criminal activity

Does It Affect Continuous Residence

On or after Aug. Any 15, 2012, and before you have requested deferred action On or after Aug. Any 15, 2012, and after you have requested deferred action

Yes. You cannot apply for advance parole unless and until DHS has determined whether to defer action in your case and you cannot travel until you receive advance parole. In addition, if you have previously been ordered deported and removed and you depart the United States without taking additional steps to address your removal proceedings, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.

On or after Aug. Any 15, 2012 and after receiving DACA

It depends. If you travel after receiving advance parole, the travel will not interrupt your continuous residence. However, if you travel without receiving advance parole, the travel will interrupt your continuous residence.

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Travel Dates

Type of Travel

Does It Affect Continuous Residence

Q59: May I file a request for advance parole concurrently with my DACA package? A59: Concurrent filing of advance parole is not an option at this time. DHS is, however, reviewing its policy on concurrent filing of advance parole with a DACA request. In addition, DHS is also reviewing eligibility criteria for advance parole. If any changes to this policy are made, USCIS will update this FAQ and inform the public accordingly.
Return to top.
V. Criminal Convictions
Q60: If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process? A60: No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for Deferred Action for Childhood Arrivals (DACA) except where the Department of Homeland Security (DHS) determines there are exceptional circumstances. Q61: What offenses qualify as a felony? A61: A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. Q62: What offenses constitute a significant misdemeanor? A62: For the purposes of this process, a significant 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) and 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 distribution or trafficking; 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. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer 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 not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

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Q63: What offenses constitute a non-significant misdemeanor? A63: For purposes of this process, a non-significant misdemeanor is any 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) and that meets the following criteria:
1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.
Notwithstanding the above, the decision whether to defer 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 not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. Q64: If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more nonsignificant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process? A64: A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion. It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed. Q65: What qualifies as a national security or public safety threat? A65: If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States. Q66: Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process? A66: No. Immigration-related offenses 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 under this process. Q67: Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion? A67: Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a

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juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the DACA process.
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VI. Miscellaneous
Q68: Does this Administration remain committed to comprehensive immigration reform? A68: Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs. Q69: Is passage of the DREAM Act still necessary in light of the new process? A69: Yes. The Secretary of Homeland Security’s June 15, 2012, memorandum allowing certain people to request consideration for deferred action is one in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred Action for Childhood Arrivals (DACA) is an exercise of prosecutorial discretion and does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status. Q70: Does deferred action provide me with a path to permanent resident status or citizenship? A70: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. Q71: Can I be considered for deferred action even if I do not meet the guidelines to be considered for DACA? A71: This process is only for individuals who meet the specific guidelines for DACA. Other individuals may, on a case-by-case basis, request deferred action from U.S. Citizenship and Immigration Services (USCIS) or U.S. Immigration and Customs Enforcement (ICE) in certain circumstances, consistent with longstanding practice. Q72: How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda? A72: If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion. Q73: How should I fill out question 9 on Form I-765, Application for Employment Authorization? A73. When you are filing a Form I-765 as part of a DACA request, question 9 is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration.

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Q74: Will there be supervisory review of decisions by USCIS under this process? A74: Yes. USCIS has implemented a successful supervisory review process to ensure a consistent process for considering requests for DACA. Q72: Will USCIS personnel responsible for reviewing requests for DACA receive special training? A72: Yes. USCIS personnel responsible for considering requests for consideration of DACA have received special training. Q75: Must attorneys and accredited representatives who provide pro bono services to deferred action requestors at group assistance events file a Form G-28 with USCIS? A75: Under 8 C.F.R. §§ 292.3 and 1003.102, practitioners are required to file a Notice of Entry of Appearance as Attorney or Accredited Representative when they engage in practice in immigration matters before DHS, either in person or through the preparation or filing of any brief, application, petition, or other document. Under these rules, a practitioner who consistently violates the requirement to file a Form G-28 may be subject to disciplinary sanctions; however on Feb. 28, 2011, USCIS issued a statement indicating that it does not intend to initiate disciplinary proceedings against practitioners (attorneys and accredited representatives) based solely on the failure to submit a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) in relation to pro bono services provided at group assistance events. DHS is in the process of issuing a final rule at which time this matter will be reevaluated. Q76: When must an individual sign a Form I-821D as a preparer? A77: Anytime someone other than the requestor prepares or helps fill out the Form I-821D, that individual must complete Part 5 of the form. Q78: If I provide my employee with information regarding his or her employment to support a request for consideration of DACA, will that information be used for immigration enforcement purposes against me and/or my company? A78: You may, as you determine appropriate, provide individuals requesting DACA with documentation which verifies their employment. This information will not be shared with ICE for civil immigration enforcement purposes under section 274A of the Immigration and Nationality Act (relating to unlawful employment) unless there is evidence of egregious violations of criminal statutes or widespread abuses. Q79: Can I request consideration for deferred action under this process if I live in the Commonwealth of the Northern Mariana Islands (CNMI)? A79: Yes, in certain circumstances. The CNMI is part of the United States for immigration purposes and is not excluded from this process. However, because of the specific guidelines for consideration of DACA, individuals who have been residents of the CNMI are in most cases unlikely to qualify for the program. You must, among other things, have come to the United States before your 16th birthday and have resided continuously in the United States since June 15, 2007. Under the Consolidated Natural Resources Act of 2008, the CNMI became part of the United States for purposes of immigration law only on Nov. 28, 2009. Therefore entry into, or residence in, the CNMI before that date is not entry into, or residence in, the United States for purposes of the DACA process. USCIS has used parole authority in a variety of situations in the CNMI to address particular humanitarian needs on a case-by-case basis since Nov. 28, 2009. If you live in the CNMI and

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believe that you meet the guidelines for consideration of deferred action under this process, except that your entry and/or residence to the CNMI took place entirely or in part before Nov. 28, 2009, USCIS is willing to consider your situation on a case-by-case basis for a grant of parole. If this situation applies to you, you should make an appointment through INFOPASS with the USCIS ASC in Saipan to discuss your case with an immigration officer. Q80: Someone told me if I pay them a fee, they can expedite my DACA request. Is this true? A80: No. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money. Visit our Avoid Scams page to learn how you can protect yourself from immigration scams. Make sure you seek information about requests for consideration of DACA from official government sources such as USCIS or the DHS. If you are seeking legal advice, visit our Find Legal Services page to learn how to choose a licensed attorney or accredited representative. Q81: Am I required to register with the Selective Service? A81: Most male persons residing in the U.S., who are ages 18 through 25, are required to register with Selective Service. Please see link for more information. [Selective Service]. Q82: How can I tell if an employer is discriminating against me because I am a DACA recipient? A82: An employer may be engaging in discrimination if the employer:
• Demands that an employee show specific documents or asks for more or different documents than are required to complete Form I-9, Employment Eligibility Verification, or create an E-Verify case; or
• Rejects documents from the Lists of Acceptable Documents that reasonably appear to be genuine and relate to the employee, including a work authorization document because it has a future expiration date or because of an employee’s prior unauthorized status.
The Civil Rights Division of the U.S. Department of Justice has an office dedicated to ensuring that employers do not discriminate against individuals who are permitted to work in the U.S. These include DACA recipients who have been granted work authorization. If you think your employer may be discriminating against you, contact the Immigrant and Employee Rights Section (IER) at 1-800-255-7688 (TDD for the deaf and hard of hearing: 1-800-237-2515). For more information about unfair employment practices against DACA recipients, please read IER’s factsheet in English (PDF) or Spanish (PDF). For additional resources and information about workers’ rights, visit www.justice.gov/crt/worker-information.
Return to top.

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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U.S. Department of Homeland Security’s Response to Chairman Grassley and Senator Tillis’s March 20, 2015 Letter

1. Since DACA’s creation, how many applications have been approved? Please provide the answer by fiscal year.

As of March 20, 2015, U.S. Citizenship and Immigration Services (USCIS) has approved 886,638 Deferred Action for Childhood Arrivals (DACA) requests, of which 223,826 were requests for renewal of DACA. The number of DACA requests approved by fiscal year is as follows:

FY 2012 FY 2013 FY 2014 FY 2015

1,685 471,293 158,278 255,382

(Initial – 135,797; Renewal – 22,481) (Initial – 54,037; Renewal – 201,345)

2. Of the DACA applications approved, please provide the number of applicants that:

USCIS does not track this information electronically and is working toward developing a tracking system to capture this information in the future. However, USCIS recently conducted a batch TECS query of all approved DACA cases in order to identify records that contained information indicating known or suspected gang association. Based on the information obtained from the query, out of all 886,638 cases approved for initial DACA or renewal of DACA, we found TECs records pertaining to 49 DACA recipients. Of these 49, 13 individuals had TECS records entered after DACA adjudication. The 13 cases are being reviewed for possible termination. Twenty had TECS records at the time of filing, and one had a TECS record placed during the adjudication process. These cases are being reviewed. As noted below, any cases that were approved for known gang members were approved in error, as USCIS HQ has not cleared approval of any DACA requests by a known or suspected gang member. Fifteen had TECS records that were vetted and were determined not to be gang members/gang affiliates. These cases were adjudicated on their merits.

a. Had known gang affiliation.

In the analysis described above, we did not distinguish between known or suspected gang members. Further manual review would be required to obtain this information.

b. Suspected gang affiliation.

In the analysis described above, we did not distinguish between known or suspected gang members. Further manual review would be required to obtain this information.

April 2015

1

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c. Had criminal affiliations.

USCIS does not electronically track this information. A manual review of files would be required to obtain this information. Since not all crimes disqualify a requestor from being favorably considered for DACA, a requestor with one or two nonsignificant misdemeanors could have been approved. USCIS is working toward developing a tracking system to capture this information in the future.

3. Please explain why USCIS approved DACA applications for known or suspected gang members and others with criminal affiliations.

Cases that were approved for known gang members were approved in error, as USCIS HQ has not cleared approval of any DACA requests by a known or suspected gang member. USCIS is not aware of any DACA grants where there was disqualifying criminal activity. DACA Refresher Training has been provided to prevent errors in the future.

4. By fiscal year, how many DACA applications have been denied because of gang affiliation or other criminal affiliation?

USCIS does not currently electronically track information regarding the basis for a denial of a DACA request. A manual review of files would be required to obtain this information for each DACA denial. USCIS is working toward developing a tracking system to capture this information in the future.

5. By fiscal year, please provide the number of DACA terminations as a result of gang affiliation or other criminal affiliation.

USCIS does not electronically capture the reasons for termination of a DACA request. Ad hoc manual reports from each service center indicate that as of March 20, 2015, USCIS has terminated DACA for 282 requestors for having gang affiliation and/or criminal issues. Additionally, USCIS is in the process of manually reviewing another 13 DACA terminations to determine the reason for termination.

The following is a breakdown by fiscal year of the 282 DACA requests terminated due to criminal or gang issues:

FY 2013

28

FY 2014

131

FY 2015

123

April 2015

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6. What steps is USCIS taking to ensure that known or suspected gang members or criminally affiliated applications are denied DACA or approved DACA is terminated once knowledge of gang affiliation or other criminal affiliation is known?
When a suspicion of gang affiliation or other criminal affiliation comes to the attention of USCIS after the DACA request has been approved, the case is reviewed for possible termination. This information is typically communicated by ICE as result of their engagement with local law enforcement or other encounters.
DACA refresher training was conducted by USCIS HQ subject matter experts who traveled to each of the Service Centers. The training included interpreting and applying TECS records and a review of the disqualifying factors for DACA, including gang membership and significant misdemeanors. Additional refresher training was given to all officers who handle DACA requests on proper protocol and elevation of cases requiring USCIS HQSCOPS’ review and concurrence prior to a final decision. The training was delivered to each ISO who adjudicates Form I-821D, Consideration of Deferred Action for Childhood Arrivals, the ISOs assigned to work DACA in the Background Check Unit, as well as management who oversees these ISOs. This training was conducted between March 30, 2015 and April 10, 2015.

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EXHIBIT F

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National Standard Operating Procedures (SOP)
Deferred Action for Childhood Arrivals (DACA)
(Form I-821D and Form I-765) Prepared by: Service Center Operations Directorate
April 4, 2013 Version 2.0

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1.0 REVISION HISTORY

Revision History

Version

V02

Date Released

4/4/2013

Reason for SOP Update

Changes Made By

SCOPS

Reason

Chapter/Section

Page No(s).

1 New Guidance Chapter 2, ROIQ

14

2 New Guidance Chapter 2, Childhood Arrivals

18

3 New Guidance Chapter 2, DACA Requestors in Immigration Detention

19

4 New Guidance Chapter 5, Homebound Biometrics Capturing

27

5 New Guidance Chapter 7, Commonwealth of the Mariana Islands Note Eligible 42

6 New Guidance Chapter 7, Initial DACA Package

43

7 New Guidance Chapter 7, DACA Guidelines

44

8 New Guidance Chapter 8, Unobtainable A-Files

45

9 New Guidance Chapter 8, A-File Requests from USCIS Field/Asylum Offices

46

10 New Guidance Chapter 8, Unlawful Immigration Status on June 15, 2012

52

11 New Guidance Chapter 8, Continuous Residence

55

12 New Guidance Chapter 8, Education

58

13 New Guidance Chapter 8, Public or Private, Elementary…

60

14 New Guidance Chapter 8, Graduated From School

67-68

15 New Guidance Chapter 8, Misdemeanors

83

16 New Guidance Chapter 8, Requesting Certified Court Disposition

84

17 New Guidance Chapter 8, Expunged or Vacated Convictions

86

18 New Guidance Chapter 8, Juvenile Delinquency

87

19 New Guidance Chapter 8, DACA Requestors in Immigration Detention

88-89

20 New Guidance Chapter 8, Non-EPS Cases

91

21 New Guidance Chapter 8, Notice of Intent to Deny

102

22 New Guidance Chapter 8, Denials – After RFE or NOID

105

23 New Guidance Chapter 8, Denials – Supervisory Review

106

24 Correction

Chapter 12, Application Annotations

115

25 New Guidance Chapter 12, Denials

119

26 New Guidance Chapter 15, Prescribed Conditions for Advance Parole

135

27 New Guidance Chapter 15, Advance Parole Requested for Humanitarian Purposes 136

28 New Guidance Chapter 15, Advance Parole Requested for Educational Purposes 137

29 New Guidance Chapter 15, Advance Parole Requested for Employment Purposes 137

Note: SOP revisions listed are reflected in blue font.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)

Version April 4, 2013

2

This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Table of Contents

Chapter 1: Definitions and Applicability to DACA 2: Introduction 3: Summary of the Overall Process Flow for DACA Filings 4: Lockbox Intake 5: Service Center Intake 6: Background and Security Checks 7: DACA Overview 8: Adjudication of the DACA Request
A. Procedural Overview B. System Searches C. Determining if Guidelines are Met D. Economic Necessity E. Removal Proceedings F. Fingerprints and RAP Sheets G. Evaluating Issues of Criminality, Public Safety, and
National Security • Court Dispositions • Arrests and Convictions • Public Safety Concerns • National Security Concerns • Immigration Detention • Handling Procedures H. Adjudicating Form I-821D, Part 3, Criminal, National Security and Public Safety Information I. Fraud Review and Fraud Referrals 9: Decisions A. Request for Evidence B. Notice of Intent to Deny C. Approvals D. Denials • Supervisory Review 10: Post Denial Process 11: Returned Mail

Page # 6-15 16-20 20-22 23-24 25-32 33-41 42-44
45-46 47 48-69 70 71-76 77-79 80-93
84-86 87 88 88 88-89 90-93 94-96
97-100
101 102 103-104 105-109 106 110 111

Continued on next page

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)

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3

This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Table of Contents

Chapter 12: Employment Authorization
A. General Information B. Adjudication C. Replacement Cards 13: Customer Service - Use of Service Request Management Tool (SRMT) to Respond to Requests to Review Certain Denials 14: DACA Termination
15: Processing Form I-131, Application for Travel Document, for Individuals With Approved Form I821D, Consideration of Deferred Action for Childhood Arrivals (DACA)

Page #
112-113 114-119 120 121-131
132-134 135-136

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)

Version April 4, 2013

4

This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Appendices
Appendix A: June 15, 2012, Secretary of Homeland Security memorandum entitled, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.
Appendix B: November 7, 2011, memorandum entitled, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens.
Appendix C: Overview of the Background Check Process Appendix D: DACA RFE Call Ups Appendix E: Notice of Intent to Deny Call-Ups Appendix F: DACA Denial Template Appendix G: SRMT Responses Appendix H: SRMT Denial Template Appendix I: Notice of Intent to Terminate Deferred Action for Childhood Arrivals and
Termination Notice Appendix J: Notice of Intent to Deny Review Policy Appendix K: DACA Denial Call-Ups

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)

Version April 4, 2013

5

This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Chapter 1: Definitions and Applicability to DACA

Absconder

An alien who failed to surrender to DHS for removal after receiving a final order of deportation, exclusion, or removal.

Aggravated Felon

Any alien who has been convicted of a criminal offense within the definition of 101(a)(43) of the Immigration and Nationality Act (Act).

Alias

An additional name (e.g., nickname, maiden name, or married name) or an assumed name.

Ancillary Application

Applications for travel, employment authorization, or applications that do not convey an immigrant or nonimmigrant status, and are filed in connection with a primary or an underlying application or petition.

ASC

Application Support Center. The ASCs, which are located throughout the

United States and its outlying territories, facilitate the capture of fingerprints

and biometric data.

BCU

Background Check Unit. A work unit located at each of the Service Centers

and the National Benefits Center. The BCU is responsible for reviewing and resolving (b) (7)(E) hits and other criminal, national security, and public safety

concerns in accordance with Agency policy.

BCU DACA Team

A specialized team within the BCU that specifically reviews and adjudicates issues of criminality arising from DACA requests. The team may consist of Immigration Services Officers, as well as officers assigned to CARRP, NTA issuance, and Triage duties, and the analysts who support them.
Continued on next page

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)

Version April 4, 2013

6

This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Definitions and Applicability to DACA, Continued

Brief, Casual, and Innocent Absence

A brief, casual, and innocent absence from the United States before August 15, 2012 will not interrupt continuous residence for purposes of DACA. An absence will be considered brief, casual, and innocent, if:
(1) The absence was short and reasonably calculated to accomplish the purpose of the absence;
(2) The absence was not the result of an order of exclusion, deportation, or removal;
(3) The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and
(4) The purpose of the absence from the United States or actions while outside of the United States were not contrary to law.
This definition of a brief, casual, and innocent absence has its basis in case law and was codified into the regulations for the Temporary Protected Status (TPS) program. Elements of this definition of brief, casual, and innocent will be used for individuals requesting DACA. See 8 C.F.R. §244.1. See also “Continuous Residence” below for additional circumstances that will not break continuous residence.

CFDO

The Center Fraud Detection Operations (CFDO) is the Fraud Detection and National Security (FDNS) organization within Service Centers. The CFDO is comprised of FDNS officers under the direction of an FDNS supervisor who reports directly to the CFDO Assistant Center Director (ACD). While most CFDO work occurs in an office environment, some Service Centers conduct administrative investigations in support of FDNS’s field operations.

CLAIMS (C3)

Computer - Linked Application Information Management System Version 3. A case management application system to track and process the adjudication of applications, petitions, and other requests for immigration benefits and services.

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

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Definitions and Applicability to DACA, Continued

Continuous Residence

The DACA requestor is to reside in the United States for the entire period specified in the guidelines for DACA to be considered. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual, and innocent absence as defined within this section.

CARRP
DACA Deferred Action

Controlled Application Review and Resolution Program. This program outlines the process to identify, record, and adjudicate applications/petitions/requests where a National Security concern is identified.
Deferred Action for Childhood Arrivals
Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer any lawful status.

DNR

Does Not Relate. A determination by USCIS personnel of whether a security check result relates to a DACA requestor.

Egregious Public Safety (EPS) Concern

Any case where routine systems and background checks indicate that an individual is under investigation for, has been arrested for (without disposition), or has been convicted of, a specified crime, including but not limited to, murder, rape, sexual abuse of a minor, trafficking in firearms or explosives, or other crimes listed in the November 7, 2011, memorandum entitled Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens.
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from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Definitions and Applicability to DACA, Continued

Evidence

Affidavits Affidavits generally will not be sufficient on their own to demonstrate that a requestor meets the DACA guidelines. However, affidavits may be used to support the following guidelines when primary and secondary evidence are unavailable:

• A gap in the documentation demonstrating that the requestor meets the five year continuous residence requirement; and
• A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

Two or more affidavits, sworn to or affirmed by people other than the requestor, who have direct personal knowledge of the events and circumstances, can be submitted. If the affidavits are not sufficient to establish that the guideline is met, issue an RFE using RFE DACA 302 call up in Appendix D.

USCIS will not accept affidavits as proof of satisfying the following guidelines:
• The requestor is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
• The requestor was physically present in the United States on June 15, 2012;
• The requestor came to the United States before reaching his/her 16th birthday;
• The requestor was under the age of 31 on June 15, 2012; and • The requestor’s criminal history, if applicable.

Weigh the assertions in the affidavit in light of the totality of all the evidence presented. When evaluating what weight to give an affidavit, take the following into consideration:
• An affidavit needs to be signed and dated; • The identity of the affiant needs to be readily ascertainable from the
information in the affidavit; • The affidavit should state the relationship between the affiant and the
DACA requestor and contain facts that are relevant to the guideline the requestor seeks to meet; • The affidavit should state the basis of the affiant’s knowledge and exhibit first-hand knowledge of the fact asserted.

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt

from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed,

and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or

other personnel who do not have a valid “need-to-know” basis without prior approval from the

originator

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Definitions and Applicability to DACA, Continued

Evidence (Continued)

Preponderance of the Evidence A DACA requestor is to establish by a preponderance of the evidence that he/she meets the guidelines for the exercise of prosecutorial discretion in the form of deferred action. Under this standard, the requestor must demonstrate that it is more likely than not that he or she meets those guidelines. The preponderance of the evidence standard is a lower standard of proof than both the “clear and convincing evidence” standard and the “beyond a reasonable doubt” standard applicable to criminal cases.

Primary Evidence Primary evidence is evidence which, on its face, proves a fact. In the DACA context, an example of primary evidence that could be submitted to satisfy the age guideline would be a birth certificate. An example of primary evidence that could be submitted to satisfy all or part of the continuous residence guideline would be rental agreements or school records in the DACA requestor’s name.

Secondary Evidence Secondary evidence must lead the officer to conclude that it is more likely than not (in other words, probable) that the fact sought to be proven is true. For example, if an individual is unable to obtain a copy of his birth certificate to establish his date of birth, baptismal records issued by a church showing that an individual was born at a certain time would be acceptable secondary evidence of the birth for purposes of satisfying the DACA age guideline. Similarly, to satisfy the continuous residence guideline under DACA, rental agreements in the name of the DACA requestor’s parent could be acceptable secondary evidence demonstrating periods of the requestor’s residence in the United States, if corroborating evidence in the file (for example, school or medical records) points to the DACA requestor’s residence at that address.

Sufficiency of the Evidence The sufficiency of all evidence is judged according to its relevance, consistency, and credibility.

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Definitions and Applicability to DACA, Continued

Evidence (Continued)

Totality of the Evidence For DACA, the totality of the documentary evidence should be reviewed to determine whether the facts needed to establish a specific guideline have been demonstrated. In many instances, an adjudicator may be satisfied based upon the review of all the documentary evidence, that it is more likely than not that a specific guideline has been meet even if the record does not contain one specific document that, in fact, satisfies the guideline. For example, if a DACA requestor is unable to submit a specific document evidencing his/her presence in the United States on June 15, 2012, he/she may be able to satisfy this guideline by submitting various forms of credible documentation evidencing that he/she was present in the United States shortly before and shortly after June 15, 2012 from which the officer could infer, based on the totality of the evidence, that the individual was present in the United States on June 15, 2012. (Note: evidence upon which one may infer that a fact has been demonstrated is also known as “circumstantial evidence,” a term that appears in many DACA public information documents).
Officers must see documentary evidence (either primary or secondary) in order to determine if the following guidelines have been met:
• Requestor was under the age of 31 on June 15, 2012; and • Requestor is currently in school, has graduated or obtained a
certificate of completion from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States Officers may not infer from other sources that either of these two guidelines have been met.

Officers should look to the totality of the evidence (meaning that facts can be inferred from one or more sources) to determine if the following guidelines have been met:
• The requestor was physically present in the United States on June 15, 2012;
• The requestor came to the United States before reaching his/her 16th birthday;
• The requestor satisfies the continuous residence requirement, (as long as he or she presented clear documentation of continuous residence in the United States for a portion of the required five-year period and any other evidence submitted supports a finding that the requestor was actually residing in the U.S. during the period for which he has not provided clear documentary evidence of such residence); and
• Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

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Definitions and Applicability to DACA, Continued

Evidence (Continued)
Front End Check

For the remaining guidelines, i.e., the requestor was in unlawful status on June 15, 2012, has no disqualifying criminal convictions, and does not otherwise pose a threat to public safety or national security, the information presented by the DACA requestor on his/her Form I-821D in combination with background and security checks, routine systems checks, supporting evidence submitted by the requestor, and any other information on file, may establish that these guidelines have been met.
Security and systems checks performed upon the receipt of an application or petition or other requests to screen for national security, EPS, fraud, or other criminal concerns.

HQ FDNS

Headquarters Office of the Fraud Detection and National Security Directorate of USCIS.

Hit

A record returned by a security or background check system in response to a

query that may relate to the subject being queried.

Interpol

International Criminal Police Organization, the world’s largest international police organization. This organization facilitates cross-border police cooperation and supports and assists all organizations, authorities, and services whose mission is to prevent or combat international crime.

JTTF

Joint Terrorism Task Force. The JTTF is run by the Federal Bureau of Investigation (FBI). The JTTF is comprised of small groups of highly trained, locally based members from U.S. law enforcement and intelligence agencies. JTTF is responsible for all domestic and international terrorism matters.
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Definitions and Applicability to DACA, Continued

No Match

This annotation is used on the Record of results in no (b) (7)(E) hit.

(b) (7)(E)

if a(b) (7)(E) query

Non-KST

A Non-KST NS concern includes all other NS concerns, regardless of the source, including but not limited to: associates of KSTs, unindicted coconspirators, terrorist organization members, persons involved with providing material support to terrorists or terrorist organizations, and agents of foreign governments.

Primary Name The name and date of birth provided by an applicant, petitioner, or requestor

and DOB

as his/her given name and date of birth. This is generally listed in the first part

of the application/petition/request.

Relates

This annotation is used on the ROIQ if a(b) (7)(E) query results in a hit that closely corresponds to the subject queried.

Resolution ROIQ SNAP

A determination of the effect or relevance of the available information on the eligibility of the applicant, requestor, petitioner, beneficiary, or derivative for the benefit or request sought.
Record of IBIS Query. This form is used to record the search criteria queried and the results of those queries. The ROIQ was revised on March 5, 2013 to include checkbox “R” for requestors.
Scheduling and Notification of Applicants For Processing. An automated system that schedules appointments for individuals to submit biometric information to ASCs.

Secretary’s Memorandum

The June 15, 2012, memorandum entitled, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, issued by the Secretary of Homeland Security.
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Definitions and Applicability to DACA, Continued
Security Check A specific check or a combination of checks required for each application, petition, or request conducted in accordance with Agency policy.

System Match A record returned by (b) (7)(E) in response to a query, the subject of which may or may not relate to the subject being queried. This is the same as a(b) (7)(E) Hit.

TECS

TECS is formerly known as the Treasury Enforcement Communications System/Interagency Border Inspection System. TECS is an automated enforcement and inspection lookout system that combines information from multiple agencies, databases, and system interfaces to compile data relating to national security risks, public safety issues, current or past targets of investigations, and other law enforcement concerns. The system is maintained by U.S. Customs and Border Protection.

VGTOF

Violent Gang and Terrorist Organization File. The VGTOF file has been designed to provide identifying information about violent criminal gangs and terrorist organizations and members of those gangs and organizations to law enforcement personnel. This information serves to warn law enforcement officers of the potential danger posed by violent individuals and to promote the exchange of information about these organizations and members to facilitate criminal investigations. USCIS has access to VGTOF through NCIC.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Chapter 2: Introduction

Purpose

This SOP describes the procedures Service Centers are to follow when adjudicating DACA requests. This SOP includes the procedures for processing Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and Form I-765, Application for Employment Authorization. It also describes the procedures for adjudicating advance parole requests for individuals whose removal has been deferred under DACA and who need to travel outside of the United States for educational, employment, or humanitarian purposes.

References

For DACA: Memorandum issued June 15, 2012, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, by Secretary of Homeland Security Janet Napolitano to U.S. Customs and Border Protection; U.S. Citizenship and Immigration Services; and Immigration and Customs Enforcement. See Appendix A for a copy of the Secretary’s memorandum.
For Employment Authorization: 8 C.F.R. § 274a.12(c)(14) is the legal authority for employment authorization based on a grant of deferred action. The (c)(33) code will be used to distinguish EAD grants under DACA from EAD grants under other forms of deferred action. See also the Secretary’s memorandum, which provides that USCIS shall accept applications to determine whether individuals whose removal has been deferred under DACA qualify for work authorization during the period of deferred action.

Fraud Cases

All officers are required to review cases for the possibility of fraud. All officers should review the case based on the standard fraud referral protocols and the additional guidance provided in Chapter 8, Section K of this SOP.

Applicability

This SOP is applicable to all Service Center personnel performing adjudicative and clerical functions or review of those functions. Personnel outside of Service Centers performing duties related to DACA processing will be similarly bound by the provisions of this SOP.

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Introduction, Continued

Conflict Resolution

Any provision of the Act or 8 C.F.R. found by Headquarters Service Center Operations Directorate (SCOPS) to be in conflict with this SOP will take precedence over the SOP; any individual who identifies such an apparent conflict will report the matter immediately to the DACA SISO POC, who will in turn report the conflict to SCOPS.
If any apparent conflict is noted between this SOP and policy or guidance documents, the matter should be reported to SCOPS through the supervisory chain of command.

Revisions

SCOPS will issue numbered revisions to this SOP. No other document will be considered a valid modification.
Version Control All personnel who maintain a hard copy of the SOP will ensure that it is the latest version. An electronic copy of the latest version will be posted per local procedures. The training unit will archive all prior electronic versions of this SOP.

Additional Resources

For additional resources on DACA, please see a supervisor or training coordinator for DACA training presentations and modules.
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Introduction, Continued

DACA Overview

On June 15, 2012, the Secretary of Homeland Security issued a memorandum entitled, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. In this memorandum, the Secretary provides guidelines for exercising prosecutorial discretion on a case -by-case basis to defer removal action of individuals who were brought to the United States as children. By issuing this memorandum, the Secretary recognized that, as a general matter, these individuals lacked the requisite intent to violate the law when they entered the United States as children. Therefore, the Secretary determined that additional measures are necessary to ensure that enforcement resources are not expended on these low priority cases, but rather, on those who meet DHS’s enforcement priorities.

Childhood Arrival

For purposes of considering an individual for DACA under the Secretary’s memorandum, an individual may be favorably considered for DACA if he/she:
1. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012. For DACA purposes, the phrase “in unlawful status as of June 15, 2012” means that he/she never had a lawful immigration status on or before June 15, 2012, or any unlawful status or parole that he/she obtained prior to June 15, 2012 had expired before June 15, 2012;
2. Was under the age of 31 as of June 15, 2012; 3. Came to the United States prior to reaching his/her 16th birthday; 4. Has continuously resided in the United States since June 15, 2007, up
to the date of filing; 5. Was present in the United States on June 15, 2012, and at the time of
making his/her request for consideration of deferred action with USCIS; 6. Is currently in school at the time of filing, has graduated or obtained a certificate of completion from a U.S. high school, has obtained a GED certificate or other equivalent State authorized exam in the United States, or is an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; and 7. Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

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Introduction, Continued

DACA Requests Filed with USCIS
DACA Requestors in Immigration Detention

USCIS will process all DACA requests, regardless of whether the individual is in removal proceedings (unless the individual is in immigration detention under the custody of ICE) or subject to a final order of removal. Depending on when the order was issued, this could be an order of deportation, exclusion or removal. A complete DACA package consists of concurrently filed Forms I-821D, Consideration of Deferred Action for Childhood Arrivals and I-765, Application for Employment Authorization, with the worksheet, Form I765WS. Forms I-821D and I-765 must be filed concurrently. DACA requests will be adjudicated by all four Service Centers.
USCIS lacks the authority to consider requests from individuals who are in immigration detention under the custody of ICE at the time of filing Form I821D and remain in immigration detention as of the date Form I-821D is adjudicated. Since the Lockbox is currently unable to reject these cases, the Center may receive a Form I-821D when the requestor was in immigration detention under the custody of ICE at the time of filing. Whenever this occurs, the Center should follow the procedures in Chapter 8, Section G. Evaluating Issues of Criminality, Public Safety, and National Security, Continued.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Introduction, Continued

Lockbox

All DACA requests are filed, with applicable fees, and with the appropriate USCIS Lockbox. DACA filings mistakenly mailed to a Service Center will be forwarded to the appropriate Lockbox for processing. Requests received at a Lockbox Facility will be electronically scanned into OnBase (the Lockbox intake system) and all pertinent fields will be populated in CLAIMS 3 (C3) into the Form I-821 screen, but with a new category “3” as the basis for requesting DACA. While Forms I-821for TPS, and I-821D for DACA are very similar, when Form I-821 appears in CLAIMS with category “3” (to denote that it is actually an I-821D for DACA), only those fields pertaining to the DACA request will be active.

The file containing the Form I-821D and Form I-765 will be forwarded to the appropriate Service Center for adjudication, based on the agreed upon routing logic between Service Centers and Lockbox.
The Lockbox will screen DACA requests to determine whether they have been filed correctly with USCIS.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Chapter 3: Summary of Overall Process Flow For DACA Filings

Introduction

This section summarizes the general process flow for an initial DACA request, from intake at the Lockbox, to the point of a final decision.

Process Flow

Step 1: Intake occurs at the Lockbox per the agreed upon Lockbox/SCOPS business rules.
Step 2: Service Center Records performs the A-number look-up and validation process.
Step 3: Data is populated into C3 via the Lockbox-Service Center interface.
Step 4: Lockbox creates and ships A-Files/T-Files to the appropriate Service Center based on the agreed upon routing.
Step 5: Service Centers receive the files and perform file intake functions.
Step 6: ASC appointments are scheduled via SNAP by the Service Center pursuant to local procedures.
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Summary of Overall Process Flow For DACA Filings, Continued

Process Flow (Continued)

Step 7:
In parallel to the SNAP scheduling process, background and security checks are initiated via (b) (7)(E)

Step 8:
The Service Center must look for the following to determine the next steps: • Whether the DACA requestor appeared at the ASC for biometrics
capture and whether the FBI returned the fingerprint results (fingerprint
results are required only for those 14 years and older); and
• Whether (b) (7)(E) fingerprint results returned derogatory
information impacting the exercise of discretion for DACA.

Step 9: The Service Center will take adjudicative action.

Step 10: The process flow splits off here, depending on the results from the FBI, the (b) (7)(E)check, on whether an adjudication hold should be placed on the request. A DACA request will be routed based on these results, as laid out in the chart below:

No hit A hit

(b) (7)(E)
are routed to an officer for adjudication. is routed to adjudications from BCU with the annotation Does Not Relate (DNR); or is routed to BCU for confirmation and vetting of the related hit.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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Rejection Criteria

Chapter 4: Lockbox Intake
The Lockbox will use the following rejection criteria for DACA filings:
Rejection of Form I-821D: • Missing Signature on either Form I-821D or Form I-765; • Missing or wrong fee for Form I-765 (Expecting $465 total, which includes the biometrics fee, unless the individual fits within certain fee exemptions established for DACA requestors and an exemption has been previously approved); • Missing Required Fields – needed for ingestion to C3: • Family Name • Address: or • Date of Birth: • Form I-821D received without Form I-765; • Filed from a foreign address; • Form I-131 for advance parole received with Form I-821D (If the Form I-131 is filed with a separate check, only the Form I-131 will be rejected and the Form I-821D and Form I-765 will be accepted); • The requestor was 31 years or older on June 15, 2012; • The requestor is under 15 at time of filing and does not indicate that he/she is in removal proceedings in Question 3.b. of Form I-821D.
Rejection of Form I-765 (based on DACA grant): • Missing or wrong fee (Expecting $465 total, including the biometrics fee, unless the individual fits within certain fee exemptions established for DACA requestors and an exemption has been previously approved); or • Missing Signature.
The “stand-alone” Form I-765s filed by those whose removal has been deferred under DACA by ICE will be processed at the National Benefit Center. Prior to the decision that USCIS will process all DACA requests to include those in removal proceedings, ICE did defer removal for some DACA
requestors.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Lockbox Intake, Continued

A# Validation/ Assignment

The Lockbox will perform the following: • A# validation is triggered by the Form I-821D; • If the requestor provides an A# that matches the Central Index System (CIS) based upon the same name and date of birth, the A# is retained and cloned to the Form I-765; • If the A# provided by the requestor is incorrect, the transaction goes to the queue for research. If the correct A# is found in USCIS systems, it is inserted into the Form I-821D record and cloned to the Form I-765. If no A# is found in USCIS systems, then an A# is assigned to Form I821D and cloned to the Form I-765; • If there is no A# on the Form I-821D, the transaction goes to the queue for research. If the correct A# is found, it will be inserted into the Form I-821D record and cloned to the Form I-765. If no A# is found in USCIS records (manual search), then the A# is assigned to Form I-821D and cloned to the Form I-765.
Research is completed by Service Center staff remotely accessing the Lockbox intake system. DACA requests with a missing or invalid A# are routed to USCIS to review. USCIS may correct the A# or assign a new A#.

Record of Proceeding (ROP)

The Lockbox will assemble the DACA files in the following order:

Records Side Valid Form G-28 Form I-821D
Form I-765WS Form G-1145 Attorney’s Letter (if applicable) Passport Birth Certificate Form I-94 Other Supporting Documentation (e.g., school transcripts and relating envelope) Form I-765 (2 requestor’s photos will be placed in a ziplock bag and stapled to the Form I-765) Address Side of Envelope

Non-Records Side Form G-28 (not-valid) face down Property Envelope (facing backward and upside down)

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Chapter 5: Service Center Intake

Incoming Files
Biometric Capture

The contractor will perform the following actions: • Open the boxes from the Lockbox; • Date stamp and check the manifest against the files in the boxes; • Separate A-file and T-files; • Perform “new add” for the receipt files, A-files, and T-files, as well as consolidate Forms I-821D and I-765 into the A-file/T-file in the National File Tracking System (NFTS); • T-files – locate the A-file(s) using the NFTS inquiry screen and if the A-file(s) are located outside the Service Center, initiate the A-file request; • A-files – Perform “new add the A-file” into the Central Index System (CIS); and • Deliver DACA files to work distribution. Responsible Party Codes (RPCs) are used to track the location of files at the Service Center. An NFTS barcode is placed on each shelf, box, or drawer in which DACA files are stored.
The Service Center will perform the following actions: • Perform a Quality Assurance review on a random sample of incoming DACA files. ROP order, proper acceptance, and correct matching data on the form compared with the CLAIMS record, will all be reviewed. Any errors will be recorded and reported back to the Lockbox service provider for process improvement steps. Corrections will be made at the Service Center. • Initiate an automated (b) (7)(E) check of the DACA requestor’s name(s) and date(s) of birth; and • Review and resolve any identified hit (performed by BCU officers).
See Chapter 6 for more detailed information relating to background checks.
The Service Center will perform the following actions: • Compile daily bulk scheduling requests and send them to the ASC for SNAP scheduling; and • Fill officer work orders, as biometric and fingerprint results post for DACA requestors.
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Service Center Intake, Continued

Biometric Rescheduling

All reschedule requests will go through the centralized rescheduling facility. The centers will be notified via a spreadsheet from the centralized rescheduling facility upon rescheduling of an original ASC appointment.
The requestor can reschedule multiple times within 87 days of the initial ASC appointment date. If the requestor fails to appear at the ASC within the 87 days, the DACA request will be denied for abandonment.
If the requestor asks for an appointment beyond 30 days into the future, the centralized rescheduling facility will send a scanned request to the Service Center for processing. The rescheduled ASC appointment date is not to exceed the 87-day window.

Biometric No Shows

If a requestor is originally scheduled for an ASC appointment and does not appear, the center should issue RFE DACA 130. The RFE should include other deficiencies identified during the review of the request. A written response to the RFE is not required, provided that the requestor goes to the rescheduled ASC appointment and no other evidence is requested.
The centers will be notified via a spreadsheet from the centralized rescheduling facility upon rescheduling of an original ASC appointment. The center will then hold the case for the new appointment, and if the requestor fails to appear again, or if the requestor fails to reschedule a second appointment within 87 days based on that RFE, the case will be denied for abandonment.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Homebound Biometrics Capturing

If a requestor is unable to attend the biometrics appointment at the ASC due to medical limitations, the ASC notice directs the requestor to call the National Customer Service Center (NCSC) telephone line. The NCSC will create a SRMT and route it to the Service Center according to the designation within the receipt number of Form I-821D. Once the SRMT has been created, the Center will initiate contact with SCOPS for assistance.
• The Center will email HQSCOPSDACA with subject line: “Homebound DACA Requestor” and include the information provided by the requestor in the SRMT concerning medical limitations, contact information, and the SRMT referral ID {e.g., ETC.334.12.00177.CIN}.
• Once the email is received, SCOPS/SPB will coordinate with the Field Operations Directorate (FOD)/Operations Support Branch (OSB) to designate a District/Field Office that has a mobile unit to capture the required biometrics.
• SCOPS will email FOD to ask for assistance in biometric capturing for the homebound DACA requestor and identify a Center POC for the District/Field Office to liaise with if questions arise.
• Once notified, SCOPS will instruct the Service Center to transfer the SRMT to the designated District/Field Office for completion.
• The District/Field Office will contact the DACA requestor to make arrangements for biometrics capturing. Biometrics capturing should occur within 30 days of the transfer. The District/Field Office will notify the Center POC if there are extenuating circumstances that will delay the capturing of biometrics beyond 30 days.
• The Center should monitor the SRMT to ensure biometrics are captured within 30 days of the transfer.
• If 30 days have elapsed from the date of the transfer and no action has occurred, the Center should notify SCOPS/SPB so follow-up can occur with FOD/OSB.
Once collected, the mobile unit’s live scan will be uploaded into the Benefits Biometric Support System (BBSS), or if the mobile unit is unavailable at the time of biometrics capturing, the District/Field Office will send the two FD258 cards and photo material to the designated Center POC for appropriate action.

Officer Work Orders

The contractor will perform the following actions: • In accordance with local procedures, screen prints may be provided to
officers to reduce the need to search systems at the point of
adjudication; and • Adjudication ready DACA files will be delivered to officers.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Service Center Intake, Continued

Non-Sufficient Funds (NSF)

Background
This section addresses the procedures to be used for completing the nonsufficient funds (NSF) cases. The NSF cases are identified by the Burlington Finance Center (BFC) and are listed in the NSF “New Bill Report” in the Federal Finance Management Service (FFMS) system.

For DACA, Forms I-821D and I-765 must be filed concurrently. There is no fee for Form I-821D. The $380 fee is required for Form I-765. The $85 biometrics fee is also required. Lockbox will be looking for $465, either in one check or in two checks. The I-765 fee and the biometrics fee will be bundled in C3 and listed as one fee -- $465. If the DACA requestor does not remit $465, Lockbox will reject the entire filing. Even when the proper fee has been remitted, it is possible that payment may be returned due to NSF. The NSF can occur in a combination of scenarios: the fees are paid in one check and the entire check is returned as NSF; or the fee is paid in two checks and either or both checks are returned as NSF. Failure of either fee or both fees to clear the bank, or being made good within the 14 calendar days allowed, will result in denial of Form I-821D and rejection of Form I-765. See Chapter 9 for more information on the denial.

Retrieving the New Bill Listing Report in FFMS

Fee payments in the form of personal checks, cashier checks, or money orders are submitted along with a DACA request. When a discrepancy is found in a payment, such as stale, dated, or without sufficient funds, etc., the bank will notify the Burlington Finance Center (BFC) in Vermont. These non-payment checks or money orders are referred to as bounced checks. The BFC will compile all the bounced checks and enter the data into the FFMS system, create an invoice number for each bounced check case, and place them on the bounced check “New Bill Report.” The Service Center Records Divisions, on a daily basis, access this data via the FFMS website to download a bounced check “New Bill Report.”

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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Service Center Intake, Continued

Non-Sufficient Funds (NSF) (continued)

Invoicing the Payee
Along with listing the case in FFMS, the BFC will also mail an invoice to the payee of the fee, requesting that the new payment be sent to them and that a $30 NSF charge also be paid. The $30 NSF charge is assessed on each bounced check.

Notifying the DACA Requestor

The Service Center will mail an informational notice on the I-797C to the DACA requestor regarding the specific NSF payment. In this case, the DACA requestor will receive the NSF notice, regardless of whether they are the payee or not. In this manner, both the payee and the DACA requestor receive notification if they are different parties.

Placing Case in Hold Status

To reflect the hold status of the case, the action codes will be recorded in C3, are as follows:
(b) (7)(E) CHECK BOUNCED, CASE NOT YET COMPLETED and CHECK DEFICIENCY NOTICE 1 SENT

Place file on a hold shelf.

Completion procedure when case is paid

The bounced check paid cases are identified by Burlington Finance Center and are listed in the bounced check “Paid Activity Report” in the FFMS system. The Service Center Records Divisions access this data daily via the FFMS website to download the bounced check Paid Activity Report.

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Service Center Intake, Continued

Non-Sufficient Funds (NSF) (continued)

System Update Steps
The CLAIMS GUI I-765 record will be accessed. The new paid date from the Paid Activity Report will become the new Received Date in the record.

The remittance screen will be updated with the action code: (b) (7)(E)FEE COLLLECTED ELSEWHERE

A modified receipt notice will be printed and mailed reflecting the new Received Date. The action code recording this is: (b) (7)(E) MODIFIED
RECEIPT NOTICE 1 SENT

The hold status will be removed from the record. The action code recording this is: (b) (7)(E) BOUNCED CHECK CORRECTED ON CASE NOT YET
COMPLETED

The case is now ready to proceed again through the pre-adjudication process. Schedule the biometrics appointment in SNAP and place the file on the biometrics hold shelf.

Mailing the Receipt notice

The receipt notice states: “This is to notify you that we have received full payment for the above referenced application or petition and processing has resumed. Your filing date has been adjusted to reflect the receipt of payment. We will notify you separately of our decision on the application or petition.”

Completion procedure when case remains unpaid

Unless fee exempt, the DACA requestor has 14 calendar days from the invoice date to submit proper payment by credit card, money order or cashier’s check to the BFC. The proper payment is $465 -- $380 for the Form I-765 and $85 for the biometrics fee. If the $465 was paid in two checks, either check exceeding the 14 calendar days allowed to correct NSF status will result in rejection of Form I-765.

• Pull the files that have been staged on the bounced check hold shelf for over 14 days and verify the case in the CLAIMS system and determine the bounced check “paid” status in FFMS.

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Service Center Intake, Continued

Non-Sufficient Funds (NSF) (continued)

The FFMS “Status” box indicates “OPEN”
The “Open” status means the BFC has not received the bounced check payment in full from the debtor. After the 14-day hold on the bounced check hold shelf, a C3/GUI application/petition shall be pulled from the hold shelf for review. If it has been over 14 days past due and the case status shows “Open” in FFMS and there is no indication of a “Change of the Due Date” made by the BFC in the in the Customer Log (RM043) screen, reject the Form I-765 as “untimely paid.”

Recording the Rejection
The case is accessed in C3 and the action code recorded is: (b) (7)(E) BOUNCED CHECK NOT CORRECTED, REJECTED
Form I-765 form will be closed by the Records Analyst in this manner: In the “Action Block” of the application, stamp in red or black ink “REJECTED Bounced Check.”
A memorandum is printed from a template in MS Word recording the following data:
• Today’s Date • Form Type • A# (if available) • Receipt # • Date Rejected • Invoice # • Amount • Debtor’s Name (Optional)
Place this memo on the top of the right side of the DACA A-file.

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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Service Center Intake, Continued

Non-Sufficient Funds (NSF) (continued)

Mailing the Rejection
A rejection notice printed on I-797 is generated from C3 and mailed to the requestor. It reads:

We previously notified you that the payment for the filing fee in the above case was returned. The Burlington Finance Center did not receive payment within 14 days of the invoice.

Your application or petition has been rejected as improperly filed. Any previously assigned priority or processing date is no longer applicable. A new application or petition must be filed, and a new fee is required, if you wish to pursue the benefit. Personal Checks will not be accepted.

Disposition of the I-821D

After processing the rejection for Form I-765 due to the NSF, on the same day, route the A-file to a DACA Supervisory Immigration Services Officer for issuance of a denial for the Form I-821D.

The denial should be issued per the instructions in Chapter 9 of this SOP.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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Chapter 6: Background and Security Checks

Introduction

Background and security checks will be conducted for all DACA requests. As part of the background check, USCIS requires that specific security checks or a combination of checks are completed for Forms I-821D and I-765. The background checks refer to the analysis of the results of the security checks or any other identified concern relating to national security or public safety and the actions required to resolve the concern. The resolution must be conducted in accordance with current NaBISCOP and CARRP policies.
Fraud related concerns that arise during the course of background and security checks should be addressed according to the March 2011 SOP, 2008 ICE/USCIS MOA and Chapter 8, Section K of this SOP. Fraud related issues will be referred to CFDO.
The following specific background and security checks apply to DACA requestors:
(b) (7)(E)

Responsibility

All DACA requestors with national security issues, (b) (7)(E) hits, or
other criminality concerns will be processed by the BCU DACA team per the following guidance:
• National Security: All (b) (7)(E) national security issues will be
resolved through the established CARRP process. All cases with National Security concerns will be resolved and adjudicated by the CARRP officer attached to the BCU DACA Team.

(b) (7)(E)

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Background and Security Checks, Continued
(b) (7)(E) Responsibility
(continued)

(b) (7)(E)

System Updates for DACA File Movement Into and Out of BCU

For reporting purposes, DACA file movement into and out of the BCU will require the following updates in C3:
• “Sent to Background Check Unit (BCU) for Resolution” (b) (7)(E) when sending a DACA request to the BCU; and
• “Received from Background Check Unit (BCU) with Resolution” (b) (7)(E) when receiving a DACA request from the BCU for final processing.

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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Background and Security Checks, Continued
Overview of Appendix C illustrates a high level overview of the background check process Background once potentially derogatory information has been identified as a result of the Check Process security checks, or from other sources.
(b) (7)(E)

A. Procedures for confirming a match
USCIS personnel must:
• Determine if the subject of the derogatory information relates to the requestor; and
• Compare the information from the security check or other source to the biographic, biometric information, and physical descriptors about the individual.
USCIS personnel may use any combination of available identifiers, to assist in the determination. While USCIS officers primarily rely on best judgment and experience in determining whether the information relates to the individual, USCIS personnel should consult with a supervisor if there is any uncertainty as to whether the information relates to the DACA requestor. If there continues to be any uncertainty about the match, supervisors may work through their chain of command and with HQ, if necessary.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Background and Security Checks, Continued

Overview of Background Check Process (continued)

Deconfliction is the coordination between USCIS and another governmental agency or record owner to ensure that planned adjudicative activities (e.g., interview, request for evidence, site visit, decision to grant or deny, issue an NTA, and the timing of such) do not compromise or impede an ongoing investigation or other record owner interest.

D. Document the Resolution Each hit requires documentation by the BCU DACA Team member of any resolution. Review the specific information for each background and security check for more information on documenting the resolution.

E. Adjudication Once the NS/EPS/other criminal concern has been resolved, the BCU DACA ISO should proceed with adjudication.

(b) (7)(E)

USCIS will conduct (b) (7)(E) batch queries on the

(b) (7)(E)

all DACA requests within 15 calendar days of initial receipt. The objective of

(b) (7)(E)

In addition, USCIS has access to other types of records, referred to as “hot files.” The following records are “hot files”:
• Wants/Warrants; • Foreign Fugitives; • Missing Persons; • Registered Sex Offenders; • Deported Felons; • Supervised Release; • Protection Orders; • Terrorist Organization Members; and • Violent Gang Members.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Background and Security Checks, Continued

(b) (7)(E)
(continued)

Officers must determine whether the result of a security check relates to the subject or does not relate (DNR). Officers review and resolve security checks and complete the background checks. For (b) (7)(E) procedures, search criteria and best practices, refer to the current NaBISCOP policy.
(b) (7)(E)

The following items, if present, must be reviewed in the DACA A-file for

name and DOB combinations and aliases,

(b) (7)(E)

• Form I-821D; • Form I-765; • All supporting documents; and • Any other documents in the A-file relating to the DACA request
including, but not limited to the following:

 Passports;  Visas;  Border Crossing Cards (BCC);  Forms I-94;  Birth Certificates;  Marriage Certificates;  Divorce Decrees;  Diplomas/Academic Transcripts;  Student Identification Cards;  Military Identification Cards;  Driver’s Licenses;  Social Security Cards; or  Business/Membership Cards.

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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Background and Security Checks, Continued
(b) (7)(E) (b) (7)(E)
(b) (7)(E)

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Background and Security Checks, Continued

Resolution Memorandum

The resolution memorandum is the formal documentation of the reconciliation of a related hit. This is a mandatory action that must be completed before rendering a final adjudicative decision. Before completing the adjudication, the officer should ensure that each resolution memorandum completely resolves the hit. For a related hit, a separate resolution memorandum must be completed for each subject with a related hit and each file containing a related hit. For procedures and formats for the resolution of related hits, refer to the current NaBISCOP policy.

FBI Fingerprint Check

The FBI Fingerprint Check provides summary information of an individual’s administrative or criminal record within the United States. The FBI Fingerprint Check is conducted through the Integrated Automated Fingerprint Identification System (IAFIS). The IAFIS is a national fingerprint and criminal history system maintained by the FBI’s Criminal Justice Information System (CJIS) Division. State, local, and Federal law enforcement agencies submit fingerprints and corresponding administrative or criminal history information to IAFIS. Participation by state and local agencies is not mandatory, so the FBI Fingerprint check does not contain records from every jurisdiction. The information contained in the record is obtained using prior fingerprint submissions to the FBI related to arrests and, in some instances, Federal employment, naturalization, or military service.
(b) (7)(E)

Issues of criminality arising from an IDENT, IDENT handling procedures, and adjudication of the case based on the IDENT, are addressed more fully in Chapter 8, Section G of this SOP.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Background and Security Checks, Continued

FBI Fingerprint Check Procedures

All individuals filing a DACA request will be scheduled for biometrics capture (photo, fingerprints, and signature) at an ASC regardless of whether biometrics were captured for the requestor from a previous filing with USCIS within the last 15 months. DACA requestors under the age of 14 will have the press print captured instead of full fingerprints.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Filing

Chapter 7: DACA Overview
All individuals requesting DACA must file their request individually and satisfy the DACA guidelines in their own right; USCIS will not consider deferring removal action of an individual under DACA based on their familial relationship to someone who has received DACA. There is no derivative DACA.

Commonwealth of the Northern Mariana Islands (CNMI) Not Eligible

The CNMI is part of the United States and is not excluded from this process. However, because of the specific guidelines for DACA, individuals who have been residents of the CNMI are in most cases unlikely to qualify for the program because they must, among other things, have come to the United States before their 16th birthday and have resided continuously in the United States since June 15, 2007.

Under the Consolidated Natural Resources Act of 2008, the CNMI became part of the United States for purposes of immigration law only on November 28, 2009. Therefore, entry into, or residence in, the CNMI before that date is not entry into, or residence in, the United States for purposes of DACA.

USCIS has used parole authority in a variety of situation in the CNMI to address particular humanitarian needs on a case-by-case basis since November 28, 2009. If an individual lives in the CNMI and believes that he or she meets the guidelines for DACA except that his or her entry and/or residence to the CNMI took place entirely or in part before November 28, 2009, USCIS will consider the situation on a case-by-case basis for a grant of parole. Individuals who believe this situation applies to them are instructed to make an appointment through INFOPASS with the USCIS Application Support Center in Saipan to discuss their case with an immigration officer.

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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DACA Overview, Continued

Initial DACA Package

A complete DACA package must include the following items: 1. Form I-821D, Consideration of Deferred Action for Childhood Arrivals, properly filed with proper signature. 2. Form I-765, Application for Employment Authorization with I-765 WS, properly filed with proper signature, the base filing fee, and the biometric services fee. The fees for Form I-765, and the biometric services fee are not eligible for fee waiver consideration.* 3. Evidence of identity to include date of birth, which would establish compliance with the upper and lower age limits. 4. Evidence of entry prior to the requestor’s 16th birthday. 5. Evidence of continuous residence since June 15, 2007, up to the date of filing. 6. Evidence of unlawful status on June 15, 2012, if admitted or paroled. 7. Evidence of presence in the United States on June 15, 2012. 8. Evidence that any absences from the United States during the required period of continuous residence were brief, casual, and innocent absences. 9. Evidence that the requestor is currently in school at the time of filing, graduated or obtained a certificate of completion from a U.S. high school, public or private college, or university or community college, obtained a general educational certificate (GED) or other equivalent State-authorized exam in the United States, or is an honorably discharged veteran of the Coast Guard or U.S. Armed Forces.
*If the requestor has been determined exempt from the fee. The DACA package must be accompanied by the exemption approval letter from USCIS Headquarters.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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DACA Overview, Continued

DACA Guidelines

An individual meeting the following guidelines may be favorably considered for DACA if, under the totality of the circumstances, he/she:
1. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012. For DACA purposes, the phrase “in unlawful status as of June 15, 2012” means that he/she never had a lawful immigration status on or before June 15, 2012, or any unlawful status or parole that he/she obtained prior to June 15, 2012 had expired before June 15, 2012;
2. Was under the age of 31 as of June 15, 2012 (Born after June 15, 1981 so was not age 31 or older on June 15, 2012);
3. Came to the United States prior to reaching his/her 16th birthday; 4. Has continuously resided in the United States since June 15, 2007, up
to the date of filing; 5. Was present in the United States on June 15, 2012, and at the time of
making his/her request for consideration of deferred action with USCIS; 6. Is currently in school at the time of filing, has graduated or obtained a certificate of completion from a U.S. high school, has obtained a GED certificate or other equivalent State authorized exam in the United States, or is an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; and 7. Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Chapter 8: Adjudication of The DACA Request

A. Procedural Overview

Evaluating the Evidence

When evaluating the evidence submitted in support of a request for DACA consideration, refer to the discussion of the different types of evidence, the weight to be given to such evidence, and the standards of proof, all of which are discussed in Chapter 1.

Request for Evidence (RFE) versus Notice of Intent to Deny (NOID)

Officers will NOT deny a DACA request solely because the DACA requestor failed to submit sufficient evidence with the request (unless there is sufficient evidence in our records to support a denial). As a matter of policy, officers will issue an RFE or a Notice of Intent to Deny (NOID).

If additional evidence is needed, issue an RFE whenever possible.

When an RFE is issued, the response time given shall be 87 days. A list of DACA RFE call-ups and the actual templates can be found in Appendix D.

When a NOID is issued, the response time given shall be 33 days.

Unobtainable A-files

After requesting an A-file from the FCO, there may be occasions when there is no response or the file cannot be released (e.g., pending interview, etc.). After three unsuccessful attempts to obtain the file from a field office via CIS or from ICE, adjudicate the DACA filing from the T-file.
If the A-file is with ICE, the center should send three requests via CIS using standard procedures. However, if the A-file is not received from ICE within the 30 days allowed after the initial request, the center’s Records Section should also send a manifest containing a list of the A-files requested from ICE to the designated ICE e-mail box, which has been created specifically for the DACA workload. The center’s Records Section has this e-mail box and will designate a primary and an alternate Point of Contact who will send the manifest.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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A-File Requests from USCIS Field/Asylum Office

Centers may release an A-file to a USCIS Field Office or Asylum Office without SCOPS approval whenever the A-file request is based upon adjudication of a pending of a pending Form I-589, Form I-485 (or motion to reopen/reconsider I-485), or Form N-600 located within the requesting office unless the requestor’s case contains novel, complex, or sensitive information (i.e., national security concern, currently in detention, etc.).

In these instances, Centers are instructed to notify SCOPS of the novel, complex, or sensitive information within the case and wait for approval to release the A-file.

Whenever the A-file is released to a USCIS Field Office or Asylum Office, Centers will hold adjudication of the Form I-821D and I-765 and send the Afile with the DACA forms pending. Prior to release, Centers should coordinate with their Records Division to identify a POC within the requesting office to inform the POC that the A-file must be returned as soon as final adjudication is rendered so that appropriate action can be taken on the DACA forms.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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B. System Searches
(b) (7)(E)

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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C. Determining if Guidelines are Met

Introduction

Individuals may be considered for DACA upon showing that they meet the prescribed guidelines by a preponderance of the evidence. The evidentiary standards are discussed in Chapter 1. If additional information is needed for DACA consideration, issue an RFE. Appendix D has a list of DACA RFE call ups.

Identity

Acceptable evidence may consist of, but is not limited to: • A passport, • A birth certificate accompanied by some type of photo identification, • Any national identity document from the requestor’s country of origin bearing the requestor’s photo and/or fingerprint; • Any U.S.-government immigration or other document bearing the requestor's name and photograph (e.g., Employment Authorization Documents (EADs), expired visas, driver’s licenses, non-driver cards); • Any school-issued form of identification with photo; • Military identification document with photo • State-issued Photo ID showing date of birth; or • Any document that the requestor believes is relevant.
The Matricular Consular or other form of consular identification issued by a consulate or embassy in the United States will be accepted as proof of identity.
Expired documents are acceptable.
If identity is not established, then issue RFE DACA 100 call up from Appendix D.

Age at Time of Filing

If the DACA requestor is not in removal proceedings, does not have a final removal order, or does not have voluntary departure, he/she is to be age 15 or older to file the DACA request. To determine the requestor’s age at the time of filing, review the requestor’s birth certificate or other acceptable secondary evidence establishing the requestor’s date of birth.

If the DACA requestor is in removal proceedings (including cases that have been administratively closed), which includes having an order of voluntary departure after proceedings were initiated or a final order, he/she may be under age 15 at the time of filing the DACA request.

Regardless of whether the DACA requestor is in removal proceedings or not, he/she was born after June 15, 1981 and meets the remaining guidelines in the Secretary’s memorandum.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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C. Determining if Guidelines are Met, Continued

Arrived in the United States Prior to 16th Birthday

The Secretary’s memorandum states as one of the guidelines to be met before an individual is considered for DACA is that he/she arrived in the United States prior to reaching his/her 16th birthday. To determine the date of arrival, review the response to Part 1, questions 13 through 17 of Form I-821D for the date and place of initial entry into the United States and status at entry. In addition, review question 6 in Part 1 and the requestor’s birth certificate or other acceptable evidence establishing the requestor’s date of birth.

If the requestor indicates a status in response to question 15 of Form I-821D, but does not provide the I-94# or a copy of the I-94 or any other document, such as a copy of his/her passport showing the date of initial entry, perform a systems check (SQ94/Arrival Departure Information System (ADIS)) to validate the date of entry, if needed.

If the requestor entered “no status” in response to question 15 of Form I-821D, or if the requestor indicates that he/she arrived with a status or was paroled into the United States, but this cannot be validated through a systems check, review the totality of the evidence submitted to establish whether the individual entered before age 16.

If the totality of the evidence does not establish that the requestor arrived in the United States before his/her 16th birthday, issue RFE DACA 103 call up from
Appendix D for evidence of the date of arrival.

Present in the United States on June 15, 2012

The Secretary’s memorandum states as one of the guidelines to be met before an individual may be considered for DACA that the individual was present in the United States on June 15, 2012. To determine if the requestor was present in the United States on June 15, 2012, review the responses to Part 1 regarding the date of entry, status at entry and date authorized stay expired, and the responses to the questions in Part 2 regarding all absences from the United States since June 15, 2007. Review the totality of the evidence submitted. The evidentiary standards are discussed in Chapter 1. If the requestor arrived before June 15, 2007, and there is no indication of any departure and the evidence submitted establishing his/her presence in the United States on June 15, 2012 is credible, then this guideline has been met.

If a given document does not specifically refer to June 15, 2012, review the dates on all the documentation submitted in its totality to establish presence in the United States on that date.

Continued on next page

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This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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C. Determining if Guidelines are Met, Continued

Present in the United States on June 15, 2012 (continued)

The following are examples of acceptable evidence to establish presence in the

United States on June 15, 2012. This list of examples is not exhaustive.

Evidence Employment Records

Acceptable Documentation • Pay stubs; • W-2 Forms; • Federal, State, or local income tax returns; or • Letters from employer(s) or, if the DACA

requestor has been self-employed, letters from

banks, and other firms with whom he/she has

done business.

In all of these documents, the employee’s name and the name of the requestor’s employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.

Receipts, Bills, Letters
School Records Medical Records

Such letters must include: (1) the requestor’s address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) a brief summary of the requestor’s duties with the company. • Rent receipts; • Utility bills (gas, electric, telephone, etc.) bearing the requestor’s name (or family name if residing at same address) and address; or • Receipts or letters from companies showing the dates during which the requestor received service. Transcripts, letters, report cards, etc., from the school(s) that the requestor attended in the United States showing the name of school(s) and the period(s) of school attendance. Hospital or medical records showing medical treatment or hospitalization of the requestor. Such records should show the name of the medical facility or physician, as well as the date(s) of the treatment or hospitalization.

Continued on next page

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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C. Determining if Guidelines are Met, Continued

Present in the United States on June 15, 2012 (continued)

Evidence Memberships

Military Records
Additional Documents

Acceptable Documentation • Official records from a religious entity in the United
States confirming the requestor’s membership or
attendance in the entity, attendance at entity events,
or participation in a religious ceremony, rite, or
passage (e.g., baptism, first communion, wedding,
etc.). • Documentation showing membership in community
organizations (e.g. Scouts).
Military records (e.g., 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; or military health
records).
Additional documents to support the requestor’s claim may include: • Money order receipts for money sent in or out of the
country; • Passport entries; • Birth certificates of children born in the United
States; • Dated bank transactions; • Correspondence between the DACA requestor and
other persons or organizations; • U.S. Social Security card; • Selective Service card; • Automobile license receipts, title, vehicle
registration, etc.; • Deeds, mortgages, contracts to which the DACA
requestor has been a party; • Tax receipts; • Insurance policies, receipts, or postmarked letters;
and/or • Any other relevant document.

If the totality of the evidence does not establish that the requestor was present in the United States on June 15, 2012, issue RFE DACA 105 call up from Appendix D for additional evidence.

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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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C. Determining if Guidelines are Met, Continued

Unlawful Immigration Status on June 15, 2012

To be considered for DACA, the requestor is to demonstrate that he/she was in an unlawful status on June 15, 2012. For DACA purposes, the phrase “in unlawful status” means that the requestor never had a lawful immigration status on or before June 15, 2012, or any lawful immigration status or parole that he/she obtained prior to June 15, 2012, had expired before June 15, 2012.

To determine whether the requestor was in an unlawful status on June 15, 2012, review the responses to Part 1 of Form I-821D regarding date of entry, status at entry, and any date that authorized stay or parole expired, if such authorized stay or parole existed. If the requestor was admitted for duration of status or for a period of time that extended past June 14, 2012, but violated his/her immigration status (e.g., by engaging in unauthorized employment, failing to report to his/her employer, or failing to pursue a full course of study) before June 15, 2012, USCIS will not consider his/her case for DACA unless the Executive Office for Immigration Review terminated his/her status by issuing a final order of removal against you before June 15, 2012.

Examples of documents that may show the requestor’s immigration status on
June 15, 2012 include, but are not limited to the following: • I-94/I-95/I-94W Arrival/Departure Record showing the date the
requestor’s authorized stay expired; • If the requestor has a final order of exclusion, deportation, or removal
issued on or before June 15, 2012, a copy of that order and related
charging documents, if available; • An INS or DHS charging document placing the requestor into
deportation, exclusion, or removal proceedings; • Any other document that is relevant to show that the requestor lacked
lawful immigration status on June 15, 2012; or • Any document relating to parole.

If needed, officers should conduct a systems check (i.e., to determine if a record exists) for the DACA requestor that will help in establishing his/her unlawful status on June 15, 2012.

If the evidence submitted does not establish that the requestor was in an unlawful status on June 15, 2012, issue RFE DACA 104 call up from Appendix D for additional evidence.

An individual who had Temporary Protected Status (TPS) on June 15, 2012, will not be considered for deferred action for childhood arrivals.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Not Age 31 or Older on June 15, 2012

The Secretary’s memorandum provides that one of the guidelines to be met before an individual is considered for DACA is that the individual was not age 31 or older on June 15, 2012. In other words, the DACA requestor was born after June 15, 1981. To determine whether the requestor was born after June 15, 1981, review the requestor’s birth certificate or other acceptable secondary evidence establishing the requestor’s date of birth.

If there is no evidence establishing the requestor’s date of birth, issue DACA RFE 140 call up from Appendix D.

Continued on next page

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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C. Determining if Guidelines are Met, Continued

Continuous

The individual requesting DACA is to submit evidence that he/she has

Residence (CR) resided continuously in the United States since June 15, 2007, or earlier, and

up to the present time. Present time means the date of filing.

If the answers to any of the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D are blank or if page 3 of the form is missing and no documentation was submitted, or the documentation submitted does not reasonably show when the requestor arrived and that the requestor meets the continuous residence (CR) guideline, issue an RFE. Include a copy of the original Form I-821D (if page 3 is missing, also include a blank page 3) with the RFE asking the requestor to provide the missing answers and to provide documentation that may establish CR.

The following are examples of acceptable evidence of (CR). This list of

examples is not exhaustive.

Evidence Employment Records

Acceptable Documentation • Pay stubs; • W-2 Forms; • Federal, State, or local income tax returns; or • Letters from employer(s) or, if the DACA requestor

has been self-employed, letters from banks, and other

firms with whom he/she has done business.

In all of these documents, the employee’s name and the name of the requestor’s employer or other interested organization is to appear on the form or letter, as well as relevant dates. Letters from employers are to be signed by the employer and are to include the employer’s contact information.

Receipts, Bills, Letters

• Such letters are to include: (1) the requestor’s address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; (4) and a brief summary of the requestor’s duties with the company
• Rent receipts; • Utility bills (gas, electric, telephone, etc.) bearing the
requestor’s name (or family name if residing at same address) and address; or • Receipts or letters from companies showing the dates during which the requestor received service.

Continued on next page

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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C. Determining if Guidelines are Met, Continued

Continuous Residence (CR) (continued)

Evidence School Records
Medical Records Memberships
Military Records Additional Documents

Acceptable Documentation • Transcripts, letters, report cards, etc., from the school(s)
that the requestor attended in the United States showing
the name(s) of the school(s) and periods of school
attendance.
Hospital or medical records showing medical treatment or
hospitalization of the requestor. Such records are to show
the name of the medical facility or physician, as well as the
date(s) of the treatment or hospitalization. • Official records from a religious entity in the United
States confirming the requestor’s membership or
attendance in the entity, attendance at entity events, or
participation in a religious ceremony, rite, or passage
(e.g., baptism, first communion, wedding, etc.). • Documentation showing membership in community
organizations (e.g. Scouts).
Military records (e.g., 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; or military health records).
Additional documents to support the requestor’s claim may
include: • Money order receipts for money sent in or out of the
country; • Passport entries; • Birth certificates of children born in the United States; • Dated bank transactions; • Correspondence between the DACA requestor and
other persons or organizations; • U.S. Social Security card; • Selective Service card; • Automobile license receipts, title, vehicle registration,
etc.; • Deeds, mortgages, contracts to which the DACA
requestor has been a party; • Tax receipts; • Insurance policies, receipts, or postmarked letters;
and/or • Any other relevant document.

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C. Determining if Guidelines are Met, Continued

Brief, Casual and Innocent (BCI) Absence on CR

A brief, casual, and innocent absence from the United States will not interrupt the DACA requestor’s continuous residence. A departure made before August 15, 2012, will not be disqualifying if the departure was “brief, casual, and innocent.” Travel occurring after August 15, 2012, will not be considered brief, casual, and innocent, unless removal has been deferred under DACA and advance parole have been granted.

If the requestor indicated in Part 2 of the Form I-821D that he/she has been absent before August 15, 2012, review the reason for the absence and any evidence submitted to show that it was brief, casual, and innocent.

Examples of evidence establishing that an absence was brief, casual, and
innocent and therefore did not interrupt the requestor’s continuous residence
include, but are not limited to: • Plane or other transportation tickets or itinerary showing the travel
dates; • Passport entries; • Hotel receipts showing the dates the requestor was abroad; • Evidence of the purpose of the travel (e.g., the requestor attended a
wedding or funeral); • Copy of any advance parole documents; or • Any other relevant/probative evidence that could support a brief,
casual, and innocent absence, as that term is defined in the definitions
section of this SOP.

Note that a departure made while under an order of voluntary departure or deportation, exclusion, or removal is not brief, casual, and innocent.

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C. Determining if Guidelines are Met, Continued

Effect of Travel Outside of the United States After August 15, 2012

• Travel outside the United States after August 15, 2012 and before the DACA request is filed: o The departure interrupts a requestor’s continuous residence in the United States. The requestor cannot meet the continuous residence guideline for DACA and removal action should not be deferred.
• Travel outside the United States while the DACA request is pending: o The departure shall be deemed an abandonment of the DACA request; therefore, the request will be denied for abandonment.
• Travel outside the United States after removal action has been deferred under DACA, but without advance parole: o Deferred action under DACA is terminated automatically.

CR/BCI Not Met

If CR is not met, issue the following RFE DACA 101 call up from Appendix D.
If no documentation is submitted to show that a departure was brief, casual, and innocent, or the documentation is not sufficient, issue the following RFE DACA 102 call up from Appendix D.
If routine systems checks, documentation submitted with the DACA request, or evidence in the A-file indicate that a departure was made while under an order of voluntary departure or deportation, exclusion, or removal, issue a Notice of Intent to Deny (NOID) with the opportunity for the requestor to rebut the derogatory information. See Appendix E for NOID Template.
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C. Determining if Guidelines are Met, Continued

Education

To meet the educational guideline for DACA consideration, a DACA requestor may show that he/she is currently in school, has graduated or obtained a certificate of completion from a U.S. high school or has a recognized equivalent of a high school diploma under State law, public or private college, or university or community college, or has obtained a General Educational Development (GED) certificate or equivalent State-authorized exam in the United States. Note that evidence of enrollment in on-line courses is acceptable. When reviewing such evidence, the completeness, credibility, relevance, and sufficiency are germane and take precedence over the electronic medium over which the education was received.
Each component of this guideline is discussed in more detail below.

Currently In School

To be considered “currently in school,” a requestor is to be enrolled in: • a public or private elementary school, junior high or middle school, high school, or secondary school; • an education, literacy, or career training program (including vocational training or an English as a Second Language (ESL) course) that is designed to lead to placement in post-secondary education, job training, or employment; • an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under State law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other equivalent Stateauthorized exam; or • a public or private college or university or a community college;
For ease of reading, education, literacy, and career training programs will be referenced collectively as “alternative educational programs.” When the DACA requestor seeks to meet the “currently in school” component of the educational guideline based on enrollment in an alternative educational program, the requestor’s current enrollment in that program is to be in preparation for the requestor’s anticipated subsequent placement in postsecondary education, job training, or employment (new employment or advancement within existing employment). Evidence of such subsequent placement is not required.
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C. Determining if Guidelines are Met, Continued

Currently In School (continued)

A DACA requestor who is enrolled in a personal enrichment class (such as arts and crafts) or who is enrolled in a recreational class (such as canoeing) is not in an alternative educational program and thus not considered to be “currently in school” for DACA purposes.

In determining whether enrollment in an alternative educational program meets the “currently in school” component of the educational guideline for DACA consideration, first, review the documentary evidence provided to see whether the alternative educational program is an education, literacy, or career training program (including vocational training and ESL) and whether it is publicly funded in whole or in part (State, Federal, county, or municipal funds.) If it is an alternative educational program and it receives public funding, no further evaluation is required. As long as the information is provided by the school/program, it is not necessary to RFE for copies of the actual funding documents. If this information is not provided, the RFE should request the information, but not require copies of the actual funding documents. If it is a literacy program that is run by a non-profit entity, no further evaluation is required with respect to the first part of the analysis. If, however, it is an alternative educational program that does not receive any public funding and it is not a non-profit literacy program, then officers are also to assess whether the program is of demonstrated effectiveness and are to look for such evidence, as described in more detail below.

Some of the ways a DACA requestor can meet the “currently in school” component of the educational guideline for DACA consideration and the different types of evidence that can be submitted, depending on the type of program in which he/she is enrolled, are discussed separately below. The examples and types of evidence listed here are illustrative, and not exhaustive.

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Public or Private Elementary, Junior High/Middle School, or High School/Secondary School

Currently in School Public or Private Elementary, Junior High/Middle School, or High School/Secondary School Evidence of enrollment in a public or private elementary, junior high/middle school, or high school/secondary school may include, but are not limited to, copies of:

• Accepted for Enrollment: Evidence of acceptance for enrollment may include, but is not limited to: o An acceptance letter on school letterhead from the school’s authorized 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 school, the requestor’s grade level, and the date that the classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed 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 enrollment; o A copy of the current tuition bill; o A current class schedule containing the student’s name, 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 school registration cards, current transcripts, report cards, and progress reports. The document(s) presented are to show the name of the student, the name of the school, the time period or semester covered by the document, and the current grade level. A current IEP showing the student’s progress to date would also be acceptable evidence that the DACA requestor has been accepted for enrollment and is attending classes.

A claim of homeschooling is not necessarily an indicator of fraud; however, because homeschool programs and their requirements vary widely from state to state, refer the case to CFDO for further research and evaluation. Even if the file contains documents including transcripts, a diploma or a certificate of completion as a result of homeschooling, the case must be referred to CFDO for further research and evaluation prior to final adjudication. CFDO referrals on "homeschooling" are only mandatory prior to adjudication if the homeschooling is the basis for meeting the education guideline; if not, then the case can be processed normally and is then referred to the CFDO after final adjudication for tracking purposes.

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C. Determining if Guidelines are Met, Continued

Public or Private College or University, 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 authorized representative, if the requestor was accepted for enrollment, but the classes have not yet commenced. Such acceptance package or other related material is to include the name and address of the school, the requestor’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 class. In addition, the acceptance package or other related material is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed 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 enrollment; o A copy of the student’s current tuition bill; o The student’s current class schedule 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 school registration cards, current transcripts, report cards, and progress reports. The submitted document(s) are to show the name of the student, the name of the school, the time period or semester covered by the document, and the current grade level or class 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 and is attending classes.

It is not necessary to RFE for a copy of the high school diploma or GED, unless there are articulable reasons to question the evidence of acceptance and enrollment or attendance in a public or private college or university, or community college.

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C. Determining if Guidelines are Met, Continued

General Education Development (GED)

Currently in School
GED If a DACA requestor 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
representative of the program, that includes information such as: • The requestor’s name and date of enrollment; • The duration of the program and expected completion date; • Whether the 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.

If the GED/Equivalency program is not publicly funded in whole or in part,
documentation from the program should 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 program’s track record in assisting students in obtaining a
GED, or a recognized equivalent certificate; • 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.

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C. Determining if Guidelines are Met, Continued

Educational or Career Training Program (Including Vocational Training)

Currently in School Educational or Career Training Program (Including Vocational Training) The documentary evidence submitted 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:

• 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 registered for the program. Evidence of the requestor’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 requestor, the time period or semester covered by the document, 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:

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C. Determining if Guidelines are Met, Continued

Educational or Career Training Program (Including Vocational Training) (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 part, 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:
¾ The duration of the program’s existence; ¾ The program’s track record in placing students in
employment, job training, or post-secondary education; Receipt of awards or special achievement or recognition that indicate the program’s overall quality; and/or ¾ Any other information indicating the program’s overall quality.

Literacy Training

Currently in School The documentary evidence submitted in support 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 representative 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 information; o Information about the literacy program’s non-profit status, if applicable, and evidence of such status:  Evidence 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 amended, or equivalent section of prior code; or
• If the literacy program is not administered by a non-profit organization, information related to the literacy program’s source of public funding or its demonstrated effectiveness:
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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 funding. ; or
o Demonstrated Effectiveness: If the literacy program is not publicly funded in whole or in part, or not administered by a nonprofit entity, the literacy program administrator or authorized representative is to provide information about the program’s demonstrated effectiveness. Such information could include, but is not limited 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 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 following completion of the program. Therefore, the lack of such data, standing alone, does not diminish the literacy program’s record. Evaluate all of the information and evidence provided in its totality for credibility and sufficiency.
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 entity and does not receive any public funds, refer the case to CFDO for further research and evaluation.

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C. Determining if Guidelines are Met, Continued

English as a Second Language (ESL)

Currently in School English as a Second Language (ESL) The documentary evidence submitted in support of the “currently in school” guideline based on enrollment in an ESL class is to include, but is not limited to:
• A letter from 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 representative’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 administrator or authorized representative is also to provide specific details about the funding, such as the source(s) of the funding;  Non-Profit Status: If the ESL program non-profit status, the ESL program administrator or authorized representative is to provide evidence that the ESL program has non-profit status; or  Demonstrated Effectiveness: If the ESL program is not publicly funded in whole or in part, the ESL program administrator or authorized representative is to provide information about the program’s demonstrated effectiveness. Such information could include, but is not limited to:  The duration of the program’s existence; ¾ The program’s track record in placing students in postsecondary education, job training, or employment; Receipt of awards or special achievement or recognition that indicate the program’s overall quality; and/or ¾ Any other information indicating the program’s overall quality.

It should be noted that many ESL programs may not track statistics on placement rates following completion of the program. Therefore, the lack of such data, standing alone, does not diminish the school’s record. Evaluate all of the information and evidence provided in its totality for credibility and sufficiency.

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C. Determining if Guidelines are Met, Continued

School Breaks and Medical Leave

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 requestor is considered 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 return date to school are to be provided.

Graduated From School

A DACA requestor 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 he/she has graduated or obtained a certificate of completion from a U.S. high school or has a recognized equivalent of a high school diploma under State law, public or private college or university or community college, or has obtained a GED certificate or other equivalent State-authorized exam in the United States. For the purpose of considering an initial DACA request, the phrase “graduated from school” does not include graduation from an education, literacy or career training program (including vocational training or an ESL course). Evidence of graduation may include copies of:
• A diploma; • A recognized equivalent of high school diploma under State law; • Transcripts showing the date of graduation; • A GED Certificate
• Documentation sufficient to demonstrate that the DACA requestor obtained a GED includes, but is not limited to, evidence the he/she passed a GED exam, or other comparable State-authorized exam, and, as a result, he/she received the recognized equivalent of a regular high school diploma under State law;
• A certificate of completion or certificate of attendance that is equivalent to a high school diploma under state law • A certificate of completion or certificate of attendance may or may not be equivalent to a high school diploma. Because the definition of these types of certificate varies widely from state to state, it is important to seek information about how the state’s school district defines a certificate of completion or certificate of attendance and make the determination if it meets the “Graduated from School” guideline;

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Graduated From School (continued)

• If there is uncertainty about whether the certificate of completion or certificate of attendance meets the “Graduated from School” guideline, in this instance a requestor may be able to meet the “Currently Enrolled in School” guideline if the requestor shows enrollment in an education program assisting students either in obtaining a high school diploma or its recognized equivalent under State law;
• An alternate award from a public or private high school or secondary school.
A claim of homeschooling is not necessarily an indicator of fraud; however, because homeschool programs and their requirements vary widely from state to state, refer the case to CFDO for further research and evaluation. Even if the file contains documents including transcripts, a diploma or a certificate of completion as a result of homeschooling, the case must be referred to CFDO for further research and evaluation prior to final adjudication. CFDO referrals on "homeschooling" are only mandatory prior to adjudication if the homeschooling is the basis for meeting the education guideline; if not, then the case can be processed normally and is then referred to the CFDO after final adjudication for tracking purposes.
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Military Service

The Secretary’s memorandum states that, in lieu of being currently in school, or having graduated from school (including a GED), the requestor may be an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces. This may include reservists who were honorably discharged.

Examples of acceptable 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.

If the requestor indicated in question 24 of Part 1 that he/she was a member of the U. S. Armed Forces or Coast Guard, but did not submit evidence of an honorable discharge and does not otherwise meet the educational guidelines, issue RFE DACA 107 call up from Appendix D.

The Form DD-214 and NGB 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:
(1) Honorable: (2) General (Under Honorable Conditions); (3) Under Other Than Honorable Conditions; (4) Bad Conduct; (5) Dishonorable; or (6) Uncharacterized.

For purposes of DACA, if Character of Service is Honorable or General (Under Honorable Conditions) the requestor has satisfied the military service guideline.

Currently serving in the U.S. Coast Guard or U.S. Armed Forces does not qualify.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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D. 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 I-765, officers will review the I-765WS during the adjudication of Form I-821D. During file set-up, the I-765WS will be put in ROP order immediately behind the Form I-821D.
If Form I-765WS is completely blank or is missing, issue an RFE on the I765 (not the Form I-821D) using DACA 180 call up from Appendix D, but only if the requestor does not include evidence that a fee exemption was granted. The fee exemption will be indicated in C3 as “Fee Waiver Granted.” If an officer issues an RFE on the I-765, he/she should proceed with adjudication of the I-821D. When the response to the I-765 RFE is received and the I-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 I-765 RFE, the I-765 should be denied for abandonment; however, the Form I-821D can be approved for DACA if the guidelines have been met. When denying the Form I-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 Form I-765WS.
There is a general presumption that DACA requestors 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 financial resources, the Form I-765WS is sufficient to establish economic need, without any further economic analysis.

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D. Removal Proceedings

Removal Proceedings

Individuals in removal proceedings may file a DACA request, even if they are under age 15, as long as they were born after June 15, 1981. As explained more fully below, removal proceedings commence with the filing of Form I862, Notice to Appear, with the Immigration Court and terminate in one of several ways. See 8 C.F.R. §245.1(c)(8)

If a DACA requestor has been or is currently in deportation, exclusion, or removal proceedings, he/she may have another A-file, which should have been discovered by the officer during the initial review of the I-821D and/or Record of Arrest and Prosecution (RAP) sheet (if any). Please see the “AFile” section.

There are several ways to determine if the DACA requestor: • Was or is in proceedings; • What the outcome of the proceeding was; and • If he/she was previously removed.

(b) (7)(E)

See the charts below for an overview of the electronic systems to check.
(b) (7)(E)

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Removal Proceedings, Continued
(b) (7)(E) Removal
Proceedings (continued)

Effects of Deportation or Removal Proceedings

The existence of deportation, exclusion, or removal proceedings may have an effect on the exercise of prosecutorial discretion for DACA. If the DACA requestor 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).

Determining Whether an Individual is in Removal Proceedings

Deportation, exclusion, and removal proceedings begin with the filing of the charging document with the Immigration Court. Currently, the charging document used is Form I-862, Notice to Appear. Over the years, proceedings commenced in other ways, including:
1. With the issuance of Form I-221, Order to Show Cause and Notice of Hearing, prior to June 20, 1991;
2. With the filing of Form I-221, Order to Show Cause and Notice of Hearing, issued on or after June 20, 1991, with the immigration court;
3. With the issuance of Form I-122, Notice to Applicant for Admission Detained for Hearing Before Immigration Judge, prior to April 1, 1997; and
4. With the issuance and service of Form I-860, Notice and Order of Expedited Removal.

It is possible for an individual to have voluntary departure and be in removal proceedings. See Voluntary Departure section below for more information.

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E. Removal Proceedings, Continued

Determining Removal Proceedings have been Terminated

Deportation, exclusion, or removal proceedings terminate when one of the following occurs:
1. The individual leaves the United States under an outstanding order of deportation, exclusion, or removal;
2. The individual is found not to be inadmissible or deportable from the United States;
3. The individual leaves the United States before the expiration of his/her voluntary departure, which was granted in connection with an alternate order of deportation or removal;
4. The charging document is canceled (Form I-122, I-221, I-860, or I862);
5. The immigration judge or the Board of Immigration Appeals terminates the proceedings; 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 departure may be issued before the commencement of proceedings, during proceedings, or at the conclusion of proceedings. 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 removal/deportation when the individual does not leave the United States voluntarily by the specified date.

Administratively
Closed

Administratively closed proceedings means that proceedings have commenced, but the parties subsequently agreed to remove the matter from the immigration court’s docket. Administratively closed does not mean terminated, and thus the individual remains in proceedings. Either party may file a motion to place the case on the court’s active docket at any time.

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E. Removal Proceedings, Continued

Use the chart below to assist in determining if a DACA requestor is in removal proceedings:

If…

Then…

And…

(b) (7)(E)

Note: The guideline that the individual is under age 31 on June 15, 2012 applies to all DACA requestors regardless of whether they are in deportation, exclusion, or removal proceedings. If the individual was age 31 or older on June 15, 2012, issue a NOID.

Individuals With Final Removal Orders (FRO)

An individual with an unexecuted final removal order is still in removal proceedings. See 8 C.F.R. § 245.1(c)(8). Although the final removal order may have been issued before, on, or after June 15, 2012, the volume of individuals that could be considered for DACA with a post-June 15th final removal order should be small, because ICE began applying the DACA guidelines upon publication of the Secretary’s memorandum. Final removal orders issued after June 15, 2012 should be reviewed carefully to examine the underlying grounds for removal.

If the requestor is the subject of an FRO, then determine the requestor’s age on June 15, 2012. Review the answer provided to question #9 in Part 1 of Form I-821D and review the requestor’s birth certificate or other acceptable secondary evidence submitted to show the date of birth. If the evidence submitted does not show that the requestor satisfies the upper age limit, issue RFE DACA 140 call up from Appendix D.

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E. Removal Proceedings, 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 order from its original date. See INA § 241 (a)(5).

An individual who is subject to reinstatement of their prior removal order under the provisions of § 241 (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.

Underlying Removal Ground Adversely Impacts Prosecutorial Discretion

If the DACA requestor indicates in Question #3.a. in Part 1 of Form I-821D 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 underlying removal charges; and • Review the derogatory information obtained through routine checks.
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 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 Prosecutorial Discretion

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

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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E. Removal Proceedings, 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 “voluntarily,” for example, the individual leaves the United States on his/her own volition while under an order of deportation, exclusion, or removal.

In these instances, issue a NOID.

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F. Fingerprints and RAP Sheets, Continued
Introduction There are four possible results of a fingerprint query:
(b) (7)(E)
This section instructs officers on how to proceed based on the fingerprint results.
(b) (7)(E)

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

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 misdemeanor 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 requestor must specifically ask to be evaluated under this exception and must fully document the exceptional circumstances.

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 otherwise result in not considering an individual for DACA, which would be rare. Deferring removal under DACA 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 Center Director, through the appropriate chain of command.

Felony

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
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G.Evaluating Issues of Criminality, Public Safety, and National Security, Continued

Misdemeanors

Significant Misdemeanor: For DACA only, a significant 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) and 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 distribution or trafficking; 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.

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 agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding whether the offense is categorized as a significant or non-significant misdemeanor, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence or presence of a criminal history, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

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Misdemeanors (continued)

Non-Significant Misdemeanor: For DACA only, a non-significant misdemeanor is any 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) and that meets the following criteria:
1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
2. Is one for which the individual was sentenced to time in custody of 90 days or less.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE. Notwithstanding whether the offense is categorized as a significant or non-significant misdemeanor, the decision whether to defer 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 not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

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G. Evaluating Issues of Criminality, Public Safety, and National Security, Continued

Misdemeanors (continued)

Multiple Misdemeanors:
Absent exceptional circumstances, a person is not eligible for consideration of DACA if he/she has been convicted of three or more non-significant misdemeanors that did not occur on the same day and did not arise out of the same act, omission, or scheme of misconduct.
When evaluating a request for consideration for deferred action for childhood arrivals, a minor traffic offense, such as driving without a license, will not be considered a misdemeanor that counts towards the “three or more non-significant misdemeanors.” However, the requestor’s entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, he/she warrants an exercise of prosecutorial discretion.

State Law Immigration Offenses

Immigration-related offenses 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.

Foreign Convictions

When evaluating a request for consideration of deferred action for childhood arrival, a foreign conviction, standing alone, will generally not be treated as a disqualifying felony 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 of prosecutorial discretion is warranted. Cases involving foreign convictions should be elevated for supervisory review.

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Court Dispositions

Requesting Certified Court Dispositions

Using RFE DACA 151 call up from Appendix D, request a certified court disposition a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure if prohibited under state law.

If the requestor is unable to provide such records because the case was expunged or sealed, RFE DACA 151 informs the requestor that he or she must provide information about his or her arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. 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 online 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

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. Usually the state criminal statutes cite is used to indicate which charge the applicant was actually convicted of. Adjudicators should consult with their supervisor if they have any questions about how to read a court disposition.

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Convictions

Pursuant to INA § 101(a)(48)(A), a conviction is a formal judgment of guilt entered 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 contendere or has admitted sufficient facts to warrant a finding of guilt; and
2) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Nolo contendere means the individual is unwilling to contend. This subjects the individual to some form of punishment, penalty, or restraint as if he/she was found guilty.
An adjudication of juvenile delinquency is not a conviction.

Formal Adjudication of Guilt Withheld

Court orders in criminal proceedings sometimes include, as part of the disposition, terms such as: Continued without a finding (CWOF); adjudication withheld; deferred adjudication, etc. Different jurisdictions use different terminology.

Where there is no formal adjudication of guilt, officers must determine whether:

1. A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; AND

2. the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty, such as jail, a fine, parole, probation, community service, etc.

The officer must dissect the law, the statute, court order, and conviction, and put all the pieces together to determine whether these requirements for a conviction are met in the absence of a formal adjudication of guilt.

Imposition of Costs as Punishment

Imposition of costs (such as fines, court costs, etc.) in a criminal case constitutes a form of punishment, and therefore satisfies the second prong of the conviction definition.
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Court Dispositions, Continued

Deferred Prosecution

Deferred prosecution or pretrial diversion programs that do not require the defendant to plead guilty or nolo contendere or require the court to make any finding of guilt 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-help courses and programs, or if the person who filed the complaint against him/her fails to appear or chooses to drop the case.
These are not considered 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 banc denied, 2012 WL 1994862 (2012). If the conviction is ultimately reversed on appeal, the DACA requestor is free to file a new request for DACA if otherwise eligible.

Expunged or Vacated Convictions
STET

For DACA purposes only, expunged convictions will not be treated as disqualifying felonies or misdemeanors. Expunged convictions, however, will be assessed on a case-by-case basis to determine whether the person poses a threat to public safety and whether, under the particular circumstances, the exercise of prosecutorial discretion is warranted. Cases involving expunged convictions should be elevated for supervisory review.
Sealed and expunged records will be evaluated according to the nature and severity of the criminal offense.
The entry of “STET” in a criminal case simply means that the state (Maryland and West Virginia) will 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 STET is not a conviction for immigration purposes.
NOTE: Carefully review the file for J&Cs, orders, etc., to determine if a subsequent decision on the offense has been made.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Arrests and Convictions

Criminal Arrests

When a DACA requestor’s RAP sheet indicates an arrest, it is necessary to determine whether the DACA requestor has been convicted of the crime.
The only way to know if the DACA requestor has been convicted of the charge for which he/she was arrested is to obtain the certified court disposition. Occasionally the disposition of the arrest is shown on the RAP sheet. However, in all cases, the officer must review the court disposition. This may be done by obtaining the disposition online or by issuing an RFE.

Juvenile Delinquency
Pardons

Juvenile delinquency will not automatically disqualify a DACA requestor. Such criminal history will be evaluated on a case-by-case basis to determine whether, under the particular circumstances, discretion is warranted to defer removal under DACA.
If a requestor was a juvenile, but tried and convicted as an adult he/she will be treated as an adult for purposes of the DACA process. Individuals must provide a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure is prohibited under state law.
Sealed and expunged records will be evaluated according to the nature and severity of the criminal offense.
A full and unconditional pardon by the President of the United States or by the Governor of a U.S. State eliminates a conviction for purposes of DACA.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Public Safety Concerns

Evaluating Public Safety Concerns

The scope of criminal offenses deemed to be EPS are described in the November 7, 2011, NTA memorandum and the accompanying MOA between USCIS and ICE.
A DACA requestor’s criminal record may give rise to significant public safety concerns even where there is not a disposition of conviction. Therefore, when the disposition is pending, it is not necessary to hold the case. For example, an individual with multiple DUI arrests, but no convictions, could pose a significant public safety concern. Similarly, an individual arrested for multiple assaults or other violent crimes could be deemed a public safety risk even if he/she was never convicted for those crimes. Arrests and/or convictions that took place outside of the United States are also significant unfavorable factors in evaluating public safety concerns, under the totality of the circumstances.

National Security Concerns

Evaluating National Security Concerns

A case posing national security concerns is handled through the CARRP process according to existing protocols.

DACA Requestors in Immigration Detention

DACA Requestors in Immigration Detention

USCIS lacks the authority to consider requests from individuals who are in immigration detention under the custody of ICE at the time of filing Form I821D and remain in immigration detention as of the date Form I-821D is adjudicated. If upon receipt of Form I-821D, a review of DHS electronic systems or information received from ICE identifies the requestor as detained, the Center should follow the below procedures.

The BCU will contact local ICE operations having jurisdiction over the requestor to determine if the requestor is an ICE enforcement priority or if ICE intends on administratively closing the proceedings and/or physically releasing the requestor within 30 days.

1. If ICE indicates that it does not intend to physically release the requestor within 30 days, USCIS will deny the DACA request using the checkbox within Appendix F (Denial Template) that states “USCIS lacks the authority to consider your request because you were in immigration detention at the time you filed your Form I-821D and
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you remain in immigration detention as of the date of this notice.” USCIS will notify ICE once the denial notice is issued. 2. If ICE indicates that the requestor is an ICE enforcement priority but ICE intends on physically releasing the requestor, USCIS will deny the DACA request using the checkbox within Appendix F (Denial Template) that states “…exercising prosecutorial discretion in your case would not be consistent with the Department of Homeland Security’s enforcement priorities.” USCIS will notify ICE once the denial notice is issued 3. If ICE indicates that the case is not an ICE enforcement priority and ICE intends to physically release the requestor, the case will be adjudicated on its merits. A review of DHS electronic systems must be performed to ensure the requestor is physically released before the case is adjudicated on its merits.
If a BCU supervisor disagrees with ICE’s determination of whether or not the requestor is an enforcement priority, the BCU should ask local counsel for assistance in contacting local ICE operations to discuss the reasons why USCIS believes this individual is an enforcement priority. The Service Center’s local counsel can seek assistance from USCIS Headquarters’ Office of the Chief Counsel to contact ICE, if necessary.

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Non-EPS Cases

A DACA request posing issues of criminality that are based on (b) (7)(E) nonEPS, as per the NTA policy memorandum, is handled by the BCU DACA Team as follows:
• The BCU DACA Team will adjudicate Form I-821D, taking into account all issues of criminality.
• If the case is approvable, the BCU DACA Team will approve the I821D for DACA and adjudicate the I-765 for employment authorization.
• If an approval is not warranted, a denial for Form I-821D and Form I765 will be issued, pending supervisory review.
• After the decisions have been rendered on Forms I-821D and I-765, the A-file shall be routed to the NRC.
In non-EPS cases where the requestor has been arrested for a potentially disqualifying criminal offense, but the court disposition is currently unavailable because the criminal proceedings are pending, the BCU DACA Team will issue RFE DACA 151 call up from Appendix D. The BCU DACA Team will withhold adjudication until the requestor submits the court disposition or receives SCOPS authorization to deny the case absent the court disposition. The BCU DACA Team will initially provide 87 days for the requestor to respond, but may issue a second RFE DACA 151 call up if the requestor fails to provide the final court disposition within 87 days because the criminal proceedings have not concluded.
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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 Form I-821D, taking into account all issues of criminality, and in particular, the issues presenting an EPS concern. • If the disposition of the criminal charges against the DACA requestor is pending, the BCU DACA Team will deny the DACA request on public safety grounds, because the underlying issues of criminality are deemed to pose an EPS concern, pursuant to the November 7, 2011 NTA memorandum. The BCU DACA Team will also deny Form I765, requesting employment authorization. • If the disposition of the criminal charges against the DACA requestor are final, the BCU DACA Team will deny Form I821D based on the issues of criminality and the conviction. The BCU DACA Team will also deny Form I-765, requesting employment authorization. • Upon denial, the BCU DACA Team shall refer the DACA request to ERO, in accordance with the agreed upon method, and update FDNS-DS.
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Handling Procedures, Continued

EPS Cases (continued)

• ICE Accepts the Referral: If ICE accepts the case, the BCU DACA Team will follow the standard protocols outlined in the November 7, 2011 NTA memorandum.

Note: Requests involving issues of criminality that normally would not meet the guidelines for consideration 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 the Service Center Director, through the appropriate chain of command.

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I. Fraud Review and Fraud Referrals

Immigration Fraud

In the normal 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 performed during a fraud investigation. In the immigration context, fraud is a willful misrepresentation of a material fact. An omission of a material fact can also constitute a willful misrepresentation, rising to the level 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 must 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 documents that are germane.
The Fraud Detection and National Security (FDNS) Directorate administratively investigates allegations of immigration benefit fraud and produces a Statement of Findings (SOF) that adjudicators use to render their decisions. Most fraud 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.

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I. Fraud Review and Fraud 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 germane in deciding whether the DACA requestor merits the exercise of prosecutorial 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 exercise of prosecutorial discretion to defer removal. Denials based on confirmed fraud findings will be supported by a properly documented SOF generated by CFDO. FDNS-DS must be updated to show that the DACA request was actually denied 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 Forms I-821D and I-765 for DACA, officers will complete a fraud referral sheet when there are articulable elements of fraud found within the filing. When 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 prosecutorial discretion to defer removal.
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I. Fraud Review and Fraud Referrals, Continued
(b) (7)(E) Immigration
Fraud (continued)

If the CFDO is to resolve the articulated fraud after exhausting all reasonable efforts and resources, the CFDO may refer the cases to appropriate field office for interview, if an interview may resolve outstanding concerns.
The findings of the administrative or criminal investigation will be recorded in FDNS-DS and reported in an SOF and placed in the A-file to enable officers to make accurate and informed decisions on the DACA requests.
The CFDO will adhere to the Fraud Detection Standard Operating Procedures for referring fraud cases filed under the DACA program to ICE.
DACA cases denied due to a confirmed finding of fraud shall be updated in C3 as “Denial Notice with a Finding of Fraud Ordered” [EC] for tracking purposes. In addition, DACA cases denied due to a confirmed finding of fraud shall be referred for NTA issuance in accordance with the NTA memorandum dated November 7, 2011. The appropriate NTA charge will be determined on a case-by-case basis in consultation with local counsel.
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I. Fraud Review and Fraud Referrals, Continued

System Updates for DACA File Movement Into and Out of CFDO

For reporting purposes, DACA file movement into and out of the CFDO will require the following updates in C3:
• “Sent to the Fraud Detection Unit (FDU) for Analysis” (b) (7)(E) when sending a DACA request to the CFDO; and
• “Return from Fraud Detection Unit (FDU) with Results” (b) (7)(E) when receiving a DACA request from CFDO for final processing.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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Chapter 9: Decisions

A. Requests for Evidence

Request for

For DACA requests, when requesting additional evidence, an RFE will be

Evidence (RFE) used. A NOID will rarely be used. Appendix D has a list of DACA RFE call

ups to be used when processing a DACA request.

Follow the steps below to process an RFE.

Step

Action

1
2 3

(b)

(7)(E)

4 5 6 7 8

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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B. Notice of Intent to Deny

Notice of Intent to Deny (NOID)

Follow the steps below to process a NOID:

Step

Action

1
2 3

(b)

(7)(E)

4 5 6 7 8

Notice of Intent to Deny (NOID) –Local Counsel and HQ SCOPS Review

See Appendix J for current Notice of Intent to Deny review policy.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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C. Approvals

Approvals: CLAIMS Verification

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

Step

Action

1 2
4

(b)

(7)(E)

5

6

7 8

9 Check the fee payment information for Form I-765. See Chapter 5

regarding NSF processing and handling procedures.

10

(b) (7)(E)

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C. Approvals, Continued

Approval Processing for Initial I-821D

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

Step

Action

1 2
3

(b)

(7)(E)

4

5 6

7
8 9 Put in ROP order and place a pink coversheet on the left-hand side of the
file.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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D. Denials –

Denials – After RFE or NOID

In general, the officer shall issue a denial whenever the requestor’s response to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) is insufficient to establish eligibility. There may be exceptions when a NOID or second RFE is appropriate after an initial RFE.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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Denials – Supervisory Review

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 of a “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 are credible reasons to believe that the requestor poses a threat to national security or public safety. If the requestor poses a threat to national security, the officer should 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; or • Is in immigration detention at the time of filing Form I-821D and remains in immigration detention; or • Cannot receive prosecutorial discretion because it is not consistent with the Department of Homeland Security’s enforcement priorities.
If the convictions and/or arrests occurred before the requestor filed the Form I-821D and the requestor did not disclose this derogatory information, include the withholding of the material fact(s) as one of the reasons for not exercising prosecutorial discretion in the case.
When a DACA request is denied, the denial shall be issued using the Appendix F. In instances where an individual is unable to establish he or she warrants a favorable exercise of prosecutorial discretion under this process, and no other checkbox applies except “You have not established that you warrant a favorable exercise of prosecutorial discretion,” supervisors must 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 process 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.
In novel, complex, or sensitive cases, or cases that require a paragraph denial, supervisors will refer the case to HQSCOPS, through the normal chain of command.

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D. Denials, Continued

Denial (continued)

When the denial falls under one of the categories that requires supervisory review, ensure that concurrence has been obtained before processing the DACA request for denial.

Step

Action

1 2
3

(b)

(7)(E)

4

5

6

7 8 Prepare and send the denial. 9 Put in ROP order and place a pink coversheet on the left-hand side of the file over the
denial letter. 10 Process Form I-765 for denial. See Chapter 12.
Continued on next page

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D. Denials, Continued

Abandonment Abandonment denials do not require supervisory review. Abandonment Denial Letters denials are initiated on Form I-821D in the following:
• The requestor fails to respond to an RFE or NOID; • The requestor fails to appear at an ASC for biometrics collection within
the specified time frame, after failure to respond to an RFE, Refer to Chapter 5 of this SOP.

Abandonment Denials

After ALL A-files have been retrieved when processing an I-821D (unless adjudicating in a T-file if unable to obtain the A-file), follow the steps below to process an abandonment denial.

Step

Action

1 Ensure that no other addresses exist:

1. Review the file for any correspondence received;

2. Review the returned envelope for any changes from the post office;

3. Check C3, National Claims, and AR11 for an alternate address or

an address change;

4. Check the systems to see if a more recent DACA request was

submitted with updated address; and

5. Check Forms I-821D and I-765 to ensure that there is no different

address provided between the two forms.

2 3 4 5

(b)

(7)(E)

Continued on next page

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D. Denials, Continued

Abandonment Denials (continued)
Step
6 (b)
7 8

Action
(7)(E)

Denial for NSF

9 Prepare and send the denial. 10 Put in ROP order and place a pink coversheet on the left-hand side of
the file over the denial letter. 11 Process the Form I-765 for denial. See Chapter 12.
NOTE: If the RFE/NOID was not stamped as a “No Response,” the officer should write it on the document. A “No Response” will ALWAYS remain on top of the application for proper ROP and the officer will place the denial/withdrawal letter on top of the “No Response.”
When Form I-765 has been “rejected” for NSF, for the $380 I-765 fee and/or the $85 biometrics fee, Form I-821D shall be denied as the DACA filing did not include a concurrently filed I-765 and I-821D. The officer shall select the appropriate denial box on the denial template and update C3 to reflect the denial. After processing the case for denial and updating the system, hold the A-file for 45 days and then forward to the NRC, if a request to review is not received through SRMT.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Chapter 10: Post Denial Process

Determining Appropriate Action After Denial

1. Review the grounds for denial.
2. If the denial grounds do not involve criminal, national security, or public safety issues, hold the A-file for 45 days and then forward to the NRC, if a request to review is not received through SRMT.
3. If the denial involves criminal, national security, or public safety issues, refer to the November 7, 2011, memorandum entitled, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens. Confirmed fraud denials also warrant NTA issuance. See Appendix B.
4. The NTA unit will determine whether NTA issuance is appropriate under the NTA memorandum referenced above.

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Check for Address Changes

Chapter 11: Returned Mail
When notices are returned as undeliverable, the officer should: 1. Review the file for any correspondence received; 2. Review the returned envelope for any changes from the post office, Check C3, National Claims, and AR11 for an alternate address or an address change; 3. Check the systems to see if a more recent DACA request was submitted with an updated address; and 4. Check both Form I-821D and the I-765 to ensure that there is no different address provided between the two forms.

RFE, NOID, Intent to Terminate

When an RFE, NOID, or Intent to Terminate is returned to the Service Center as undeliverable, follow all procedures above to locate a new address and remail the RFE, NOIT or Intent to Terminate after updating C3.

If there is no other address to use and the response time indicated has not passed, the file should be placed on hold in accordance with local procedures for the remainder of the response time.

If there is no other address found and the response time has passed on the… RFE
NOID (with NO criminal content), Intent to Terminate,

Then…
Deny as an abandonment denial. Deny for cause. Terminate DACA.

Denial Notice

When a denial is returned to the Service Center as undeliverable, follow all procedures above to locate a new address and re-mail the denial.

If there is no new address and the 45 days… Have NOT passed, Have passed,

Then…
Hold file Send to the NRC if no further communication is received

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Chapter 12: Employment Authorization

A. General Information

(c)(33) Eligibility Category

The eligibility category for employment authorization based on a grant of deferred action is 8 C.F.R. § 274a.12(c)(14). To distinguish DACA-related EADs from other deferred action EADs, the (c)(33) code will be used.

Evidentiary Requirements

For a (c)(33) EAD, the individual must be approved for DACA.
The information needed to assess economic necessity is collected on the Form I-765WS. This worksheet should have been reviewed during the adjudication of Form I-821D.

Before proceeding with the adjudication of the Form I-765, review C3 to ensure that there is no outstanding RFE, as the RFE would have been issued during the adjudication of Form I-821D.

Validity Period The “valid from” date is the date of approval and the “valid to” date is 2 years of (c)(33) EAD minus one day from the date of approval or to the end date of the deferred
removal date under DACA, whichever is earlier.

8 C.F.R. § 274a.13(d) – 90 Day Time Period to Issue an EAD

Pursuant to 8 C.F.R. § 274.12(c)(14), the EAD is predicated on a grant of deferred action. Since Forms I-821D and I-765 are filed concurrently for DACA, Form I-821D will be adjudicated first. If Form I-821D is approved, then Form I-765 would be approved under the (c)(33) code to distinguish the DACA related EADs from other deferred action EADs. Since approval of the Form I-821D is a prerequisite, and since the EAD is based upon a grant of DACA, the 90-day EAD clock begins after Form I-821D is approved for DACA.

Continued on next page

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A. General Information, Continued

Reasons for Filing

The DACA requestor should indicate one of the following reasons for filing:
• Permission to accept employment: The initial request for employment authorization under an eligibility category; or
• Replacement (of lost or stolen employment authorization document): A request to replace a lost, stolen, mutilated, or incorrect EAD.
If neither of these boxes is checked, verify the Form I-821D approval in C3 to ensure that removal has been deferred under DACA and then check the Form I-765 history in C3 to see if a prior EAD has been issued under the (c)(33) eligibility category. If yes, process the Form I-765 EAD as a replacement. If no, process the Form I-765 EAD as an initial EAD. If a prior replacement EAD under the (c)(33) eligibility category has been issued, refer the case to CFDO.

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B. Adjudication

Verification of Forms I-821D and I-765

Access C3 and follow the steps below to verify the information:

Step

Action

1 Verify that the requestor has a pending or an approved initial I-

821D on file. (If no, see the denial section for processing

instructions.)

3

• Check the signatures on Form I-765.

• Verify that the biometrics are present.

Biometrics

Officers must check the (b) (7)(E) to determine if the requestor’s
biometrics (photograph, fingerprints, signature) have been received. (b) (7)(E)

If ...

Then ...

(b) (7)(E) the biometrics have been received. the biometric(s) have been waived.

then the data was not captured and a card will not

print.

If the requestor is a child less than 14 years of age, there should be a Waiver (W) for fingerprint and signature.

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B. Adjudication, Continued

Approvals

All corrections made to the information contained on Form I-765 must be made on the face of the application in red.

Application Annotations

When approving Form I-765, follow the steps below for proper annotation of the form:

Step

Action

1 2

(b)

(7)(E)

3 4 5
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B. Adjudication, Continued

CLAIMS Updating for Approvals

Follow the steps below to update C3 for I-765 approval.

Step

Action

1 2 3 4

(b)

(7)(E)

5

6
7 8
9 Place a pink coversheet on the left-hand side of the file. 10 In the alternative, the approval may be updated using I-765 Express per existing
protocols.
NOTE: If you go back into the approval screen to view the data before exiting the form after approving, then you must press the “save” button again to retain the approval. If the information is not saved, then a card will not be generated.
Continued on next page

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B. Adjudication, Continued

Notice of Intent Officers will prepare the intent to deny letter, annotate the worksheet, and to Deny (NOID) update CLAIMS as follows:

Step

Action

1 2

(b)

(7)(E)

3

4 5 6 Prepare and send the NOID.
NOTE: Make certain all letters are spell checked and previewed prior to sending.
Continued on next page

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B. Adjudication, Continued

Denials

Follow the steps below when denying a case.

Step

Action

1 (b) (7)(E)

2 3
4
5

6 7

8 9
NOTE: The date on the denial stamp should be date of adjudication.
Continued on next page

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B. Adjudication, Continued

Denials (continued)

Step

Action

10 For cases NOT going to the NTA team:

• The denial for the Form I-765 is included in the DACA Denial Template. See Appendix F.
• Place a pink coversheet on the left-hand side of the file over the denial letter.

NOTE: When denying only the Form I-765 for abandonment, an officer should use the DACA Form I-765 Abandonment Denial.

11 Charge out the file using local procedure.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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C. Replacement Cards

Evidence Required

The following evidence is required for replacement cards: • Biometrics from the applicant’s most recent ASC visit. • Original signature. All applicants age 14 and over must sign their own
application. The contractor can obtain the signature from Form I-765 and
waive the fingerprint when scanning and producing an EAD. • Current card issued with validity dates that have NOT expired. • Valid fingerprints are not required in order to issue a replacement EAD.

Validity Dates When issuing a replacement card the validity period should mirror the dates authorized under the previous card.

Biometrics

Upon receipt, the contractor will clone from biometrics from the applicant’s most recent ASC visit.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
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Chapter 13: Use of Service Request Management Tool (SRMT) to

Introduction

USCIS will accept SRMTs from DACA denials based on a claim that the denial is incorrect and the denial is based on an administrative error. Specifically, USCIS will accept SRMTs where the requestor believes that USCIS incorrectly denied his/her DACA request for one or more of the reasons listed in this chapter of the DACA SOP.

History Action Codes (HAC)

When responding to a request to review a denied DACA request, C3 must be updated with the appropriate History Action Code (HAC) created to track the specific action taken and to denote that the SRMT involved a denied DACA request. The following HACs will be used:

(b) (7)(E)

Templates

When providing an interim response to review a denied DACA request, standard response templates must be used for the interim response and when the denial is affirmed. When the denied DACA request is approved on Service Motion, the standard approval notice will be generated from C3. Appendix G contains the following templates:
• DACA SRMT call-ups for interim SRMT responses. • DACA SRMT call-ups to respond that the denial was correct and is
affirmed.
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Use of SRMT to Respond to Request to Review Certain Denials, Continued

Administrative Errors Related to Material Facts (continued)

Step

Action

6 The ISO will review the claimed administrative error.

If the denial… Was correct,
Was not correct,
Was not correct, but other reasons for denial still exist,

Then…
• The ISO will route the filing to the SISO for concurrence.
• The SISO will concur or not concur and route back to the ISO for appropriate systems updating.
• If SISO concurs, the ISO updates C3 with HAC code SRMT DACA Denial Affirmed and respond to the DACA requestor using the appropriate DACA SRMT call-up found in Appendix G.
• If SISO does not concur, follow the instructions below (Was Not Correct).
• The SISO routes the filing to the ISO for review. • The ISO approves Forms I-821D and I-765. • The ISO updates C3 with the HAC code (b) (7)(E)
for each form to show that the case to show that the case was approved on Service Motion. • The ISO will route the filing to the SISO for concurrence. • If the SISO concurs, the ISO will re-deny the case. • The ISO updates C3 with the HAC code (b) (7)(E) DACA Denial Affirmed for each form. • The ISO produces a new denial using the (b) (7)(E) denial template found in Appendix H.

Continued on next page

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Use of SRMT to Respond to Request to Review Certain Denials, Continued

Requestor did Appear to Have Biometrics Collected at a USCIS ASC

Follow the steps below when an SRMT is filed due to a claimed administrative error related to the requestor’s biometrics collection.

Step

Action

1 Review the electronic systems to see whether the requestor had

his/her biometrics taken. Request the A-file (if needed).

2 Reopen Forms I-821D and I-765 on Service Motion.

3 Update C3 with HAC codes

(b) (7)(E)

, for both forms.

4

Send an interim (b) (7)(E) response using

(b) (7)(E)

.

Continued on next page

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Use of SRMT to Respond to Request to Review Certain Denials, Continued

Requestor did Appear to Have Biometrics Collected at a USCIS ASC (continued)

If the requestor… Did have his/her biometrics taken,

Then…

• The ISO will adjudicate Forms I-821D and I-765.

• If Form I-821D is approved, ISO approves Form I-765.

• ISO updates C3 with HAC

(b) (7)(E)

for each form.

• If denied, ISO issues a denial using the(b) (7)(E) denial

template.

• ISO updates C3 with HAC

(b) (7)(E)

for each form.

Requestor requested that His/Her Biometrics Appointment at a USCIS ASC be Rescheduled Prior to the Scheduled Date

Follow the steps below when an SRMT is filed due to a claimed administrative error related to the request to reschedule the ASC appointment.

Step

Action

1 Request the A-file.

2 Reopen Forms I-821D and I-765 on Service Motion.

3

Update C3 with HAC code(b) (7)(E) DACA Reopened on Service

Motion for both forms.

4

Send an interim (b) (7)(E) response using

(b) (7)(E)

Continued on next page

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Use of SRMT to Respond to Request to Review Certain Denials, Continued

Requestor Paid the Filing and Biometric fees for the I-765

Follow the steps below when an SRMT is filed due to a claimed administrative error related to Non-Sufficient Funds.
Review the electronic systems to see whether the requestor paid the associated fees with the filing.

Step

Action

1 Records Division reviews electronic systems to determine if the fee

was paid timely and properly (if necessary, Request the A-file)

2 Reopen Forms I-821D and I-765 on Service motion.

3 Update C3 with HAC code

(b) (7)(E)

, for both forms.

4

Send an interim(b) (7)(E) response using

(b) (7)(E)

If the Records Division determines… The appropriate fees were not paid,

Then…
• Respond to the SRMT that the denial stands, using the SRMT denial template.

The appropriate fees were paid,

• The ISO obtains the file and schedules a new ASC

appointment and routes the A-file to the appropriate

holding shelf to await the biometrics results.

• Adjudicate the case after the biometrics results are

received.

• If Form I-821D is approved, approve Form I-765.

• Update C3 with HAC code

(b) (7)(E)

for each form.

• If denied, issue a denial using the (b) (7)(E) denial

template.

• Update C3 with HAC code (b) (7)(E)

each form.

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Use of SRMT to Respond to Request to Review Certain Denials, Continued

USCIS Mailed the RFE to the Wrong Address and the Requestor Submitted a COA Prior to the RFE Issuance

Follow the steps below when an SRMT is filed due to a claimed administrative error related to the requestor’s change of address.

Step

Action

1 Request the A-file.

2 Reopen Forms I-821D and I-765 on Service Motion.

3 Update C3 with HAC code SRMT D

(b) (7)(E)

for both forms.

4

Send an interim(b) (7)(E) response using

(b) (7)(E)

5 Verify the requestor’s address.

If the requestor… Filed a change of address, prior to the issuance of an RFE,

Then… • Re-issue the RFE with a new 87-day response time
to the correct address and route the A-file to the
RFE hold shelf. • After the RFE response is received, adjudicate
Forms I-821D and I-765 based on the evidence
submitted initially and the RFE response. • If Form I-821D is approved, approve Form I-765.
• Update C3 with HAC code (b) (7)(E) (b) (7)(E) for each form.
• If denied, issue a denial using the (b) (7)(E) denial
template.
• Update C3 with HAC code (b) (7)(E)
for each form.

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Chapter 14: DACA Termination

Removal Deferred Under DACA in 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 (see below). The individual should be allowed 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate. 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 be terminated for cause.

If the adverse grounds are not overcome, or no response is received to the Notice of Intent to Terminate, 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 terminated 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 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 Terminate. 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 be terminated for cause.
If the adverse grounds are not overcome, or no response is received to the Notice of Intent to Terminate, 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 terminated 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/information. The terminated DACA case must also be appropriately recorded in FDNS-DS.
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DACA Termination, Continued

Criminal, National Security, or Public Safety Issues

If disqualifying criminal offenses or public safety concerns, which are deemed to be EPS, arise after removal has been deferred under DACA, the officer should forward the case to the BCU DACA Team who, in turn, will refer the case to ICE and follow the handling procedures outlined in the November 7, 2011 NTA memorandum for EPS cases. If ICE accepts the case, the issuance of the NTA will result in the termination of DACA. Upon the filing of the NTA with EOIR, the individual’s employment authorization terminates automatically.
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 Terminate. 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 be terminated for cause.
If the adverse grounds are not overcome, or no response is received to the Notice of Intent to Terminate, 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 terminated for cause as of the date of the notice. Consequently, the Class of Admission (COA) code in CIS should be changed to DAT (Deferred Action Terminated) for employment verification purposes. Additionally, the BCU DACA Team should forward the individual’s name to ERO.
If national security concerns arise after removal has been deferred under DACA, the case should go through the CARRP process, per established CARRP protocols.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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DACA Termination, Continued

System Updates

The following new HACs must be used as appropriate when updating a
Notice of Intent to Terminate DACA and a DACA Termination Notice in
C3:
(b) (7)(E)

After terminating DACA, the Class of Admission (COA) code in CIS should be changed to DAT (Deferred Action Terminated) for employment verification purposes.
See Appendix I for Notice of Intent to Terminate and Termination Notice.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Chapter 15: Processing Form I-131, Application for Travel Document for Individuals With Approved Form I-821D, 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 not 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 reasons or significant public benefit. Advance parole is generally granted prior to the individual’s departure from the United States. Form I-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 Conditions for Advance Parole

In accordance with the discretionary authority provided in § 212(d)(5)(A) of the Act, USCIS will determine whether a DACA recipient’s purpose for international travel is justifiable based on the circumstances he or she describes in his or her request. Generally, USCIS will only grant advance parole if the applicant’s travel abroad will be in furtherance of:
• humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
• educational purposes, such as semester-abroad programs and academic research, or;
• employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Travel for vacation is not a valid basis for advance parole.

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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Advance Parole Requested for Humanitarian Purposes

For humanitarian purposes the applicant must show that the travel is for the purpose of:
• Obtaining medical treatment; • Attending funeral services for a family member; or • Visiting an ailing relative.
Evidence to demonstrate this purpose includes, but is not limited to:
• A letter from the applicant’s physician explaining the nature of his or her medical condition, the specific medical treatment to be sought outside of the United States, and a brief explanation why travel outside the U.S. is medically necessary; or
• Documentation of a family member's serious illness or death.
Continued on next page

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Processing Form I-131, Application for Travel Document for Individuals With Approved Form I-821D, Continued

Advance Parole Requested for Educational Purposes

For educational purposes the applicant must show that the travel will be undertaken for educational pursuits.
• Examples include semester abroad programs or travel necessary to conduct academic research.
• Travel during an academic year unrelated to academics (e.g., a vacation) is insufficient to qualify as an educational purpose.
• Evidence to demonstrate this purpose includes, but is not limited to:
• A letter from a school employee acting in an official capacity describing the purpose of the travel and explaining why travel is required or beneficial; or
• A document showing enrollment in an educational program requiring travel.

Advance Parole Requested for Employment
Purposes

For employment purposes the applicant must show that the travel relates to fulfilling job 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 limited to:
• A letter from the applicant’s employer or conference host describing the need for travel; or
• A document showing a specific employment need, such as a conference program, that also shows the applicant’s participation.

Expedites

As a general matter of course, expedite requests will not be granted, because USCIS will make every effort to process the advance parole request 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 the need for an expedite to be compelling 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 Center under normal protocols.
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FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Processing Form I-131, Application for Travel Document for Individuals With Approved Form I-821D, Continued

Filing Location

A DACA recipient seeking advance parole files Form I-131 with the USICS Lockbox Facility according to the instruction on the form. The Lockbox Facility will forward the application to the appropriate Service Center according to the agreed upon routing.

DACA Recipients in Removal Proceedings

Individuals in removal proceedings, including those with a final removal order, may seek advance parole if the request meets the guidelines for advance parole consideration under DACA. Notwithstanding the advance parole, a departure made while under a final order of removal (including a voluntary departure that converted automatically to a final removal order) renders that individual inadmissible under § 212(a)(9)(A) of the Act.

Processing Steps

Step 1: Determine whether the applicant is in removal proceedings and/or has a final removal order.

Step 2: Captured digital photos from the recent ASC visit should be used in creating the travel document within the I-512L program.

Step 3:

Review the results of the initial(b) (7)(E) checks. • If there is no(b) (7)(E), or the (b) (7)(E) shows the hit does not
relate (DNR), or the hit has already been resolved, go to step 4. • If there is an unresolved(b) (7)(E) hit, follow the instructions in the
NaBISCOP.

Step 4:

Adjudicate the I-131. • If the criteria have been met, issue the advance parole valid for the duration of the event, as documented in the advance parole application. For multiple events, issue the advance parole valid for the duration of all the documented events, not to exceed the duration of the deferral of removal under DACA. • Update the I-131 in C3 for approval and issuance of an I-512L Advance Parole Document. • If the criteria have not been met, issue a denial and update C3.

Update RFEs, approvals and denials in C3 using current procedures.

FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE (LES)
This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. § 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid “need-to-know” basis without prior approval from the originator

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Appendix A
Secretary U.S. Department of Homeland Security Washington, DC 20528

June 15, 2012

Homeland Security

MEMORANDUM FOR:

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

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.
The following criteria should be 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 resided 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 school, has graduated from high school, has obtained a general education
development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and • is not above the age of thirty.

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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 even speak the language. Indeed, many of these young people have already contributed 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. DHS cannot provide any assurance that relief 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 and CBP should immediately exercise 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 individuals 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 individual basis, for individuals who 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 use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
• ICE is directed to begin 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 meet 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 not currently in removal proceedings and meet the above criteria, and pass a background check:
• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the

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above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent 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 of 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 applications to determine whether these individuals qualify for work authorization during this period of deferred action.
This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains 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.

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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.
II. NTA Issuance Required by Statute or Regulation
USCIS will issue an NTA in the following circumstances:4
A. Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5)5
B. Denials of Form I-829, Petition by Entrepreneur to Remove Conditions (8 CFR 216.6) C. Termination of refugee status by the District Director (8 CFR 207.9) D. Denials of NACARA 202 and HRIFA adjustments
1. NACARA 202 adjustment denials (8 CFR 245.13(m)); 2. HRIFA adjustment denials (8 CFR 245.15(r)(2)(i)). E. Asylum6, NACARA 203, and Credible Fear cases:7 1. Asylum referrals (8 CFR 208.14(c)(1)); 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 apply to, or change, NTA or notification procedures for Temporary Protected Status cases.9 Further, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, processed under the Violence Against Women Act (VAWA), should continue to
2 National Security Cases include cases involving Terrorist Related Grounds of Inadmissibility (TRIG) pursuant to sections 212(a)(3)(B) and 212(a)(3)(F) of the INA. 3 See, e.g., Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008). 4 If any Form I-751 or I-829 cases are also Egregious Public Safety cases, they will be referred to ICE in accordance with Section IV.A.1 of this PM. 5 See the October 9, 2009 internal memo, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions. See also the April 3, 2009 memo, I-751 Filed Prior to Termination of Marriage. 6 USCIS may issue an NTA when an asylum applicant withdraws his or her asylum application. 7 This memo does not apply to the Asylum Division’s issuance of Form I-863, Notice of Referral to Immigration Judge, to certain stowaways, crewmembers, and VWP individuals who are requesting asylum or withholding of removal; reasonable fear screenings and negative credible fear screenings. 8 See also section 208(c)(3) of the INA describing removal when asylum is terminated. 9 See the September 12, 2003 internal memo, Service Center Issuance of Notice to Appear (Form I-862).

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be processed under existing protocols. If the VAWA applicant’s Form I-485 is denied, this memorandum is applicable in terms of NTA issuance.10
III. Fraud Cases with a Statement of Findings Substantiating Fraud
To protect the integrity of the immigration system and address fraud, USCIS will issue NTAs when a Statement of Findings (SOF) substantiating fraud is part of the record.11 An NTA will be issued upon final adjudicative action on the petition and/or application or other appropriate eligibility determination.12 NTAs will be issued even if the petition and/or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as an SOF substantiating fraud is in the record.
The NTA should include the charge of fraud or misrepresentation, if possible. The appropriate charge(s) will be determined on a case-by-case basis. Consultation with local USCIS counsel to determine the appropriate charge(s) is recommended.
IV. Cases to be Referred to ICE for a Decision on NTA Issuance
A. Criminal Cases: Criminal aliens are a top immigration enforcement priority for the government. The following guidance recognizes the prioritization and requires USCIS to refer criminals to ICE for action or issue an NTA in accordance with this PM.
1. Egregious Public Safety (EPS) Cases
USCIS will refer all EPS cases, including cases with pending N-400s, to ICE prior to adjudicating the case even if USCIS can deny the petition and/or application on its merits. An EPS case is defined by USCIS and ICE as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following:
a. Murder, rape, or sexual abuse of a minor as defined in section 101(a)(43)(A) of the INA.
b. Illicit trafficking in firearms or destructive devices as defined in section 101(a)(43)(C) of the INA.
c. Offenses relating to explosive materials or firearms as defined in section 101(a)(43)(E) of the INA.
10 When making determinations, employees must keep in mind USCIS’s obligations under 8 USC § 1367, which prohibits the release of any information, outside of DHS, relating to aliens who are seeking or have been approved for immigration benefit(s) under the provisions for battered spouses, children, and parents in the Violence Against Women Act. 11 Alternatively, ICE will determine whether to issue the NTA if a criminal investigation is conducted, fraud is found, and the investigation results in criminal prosecution. 12 This includes, but is not limited to, aliens that were granted asylum status by USCIS, adjusted to Lawful Permanent Resident status, presented fraud indicators, were subject to the Post Adjustment Eligibility Review (PAER) process in an Asylum Office, and met the PAER criteria for NTA issuance.

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

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a. If the case is approvable, USCIS will consult with ICE prior to adjudication.
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.
EPS cases referred to ICE prior to adjudication should be called up and reviewed no later than 60 days after referral. Normally, the case should be adjudicated by USCIS. However, USCIS retains discretion to place the case on hold for more than 60 days if ICE requests additional time to conduct an investigation.13
Office-Specific Processes
1. Cases to be adjudicated by Service Centers and the National Benefits Center. Adjudication will be suspended and the case will immediately be sent to the appropriate Service Center Background Check Unit (BCU). The BCU will refer the case to the ICE Benefit Fraud Unit (BFU) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. The BCU will retain the file unless ICE requests it or the 60 days expire.
2. Cases to be adjudicated by Field Offices. The Immigration Services Officer (ISO) will suspend adjudication and the case will immediately be referred to the local ICE Special Agent in Charge (SAC) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. A copy of the RTI must also be sent to the ICE BFU. USCIS will retain the file unless ICE requests the file for their review.
An RTI should include any relevant attachments that USCIS has at the time, such as a copy of the RAP sheet and a copy of the petition and/or application.
2. Non-Egregious Public Safety Criminal Cases
If it appears that the alien is inadmissible or removable for a criminal offense not included on the EPS list, USCIS will complete the adjudication and then refer the case to ICE. This section applies to N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the criminal offense.14 ICE will decide if, and how, it will institute removal proceedings and whether or not it will detain the alien. USCIS will not issue an NTA if ICE declines to issue an NTA.
13 Pursuant to 8 CFR 274a.13(d), USCIS must complete processing of an Employment Authorization Document (EAD) within 90 days or issue an interim EAD card valid up to 240 days. Officers should be mindful of this regulatory timeframe when cases with a pending Form I-765, Application for Employment Authorization, are referred to ICE. 14 See Section V of this memo addressing N-400 cases.

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

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V. Cases Involving Form N-400, Application for Naturalization
The following guidance applies to the issuance of NTAs in cases in which applicants for naturalization are removable. There are two primary situations in which NTAs may be issued in connection with a filed Form N-400. If the N-400 case involves fraud (documented in the SOF) the procedures found in this section must be followed, rather than the procedures found in Section III (Fraud Cases with a Statement of Findings Substantiating Fraud). However, the below guidance does not apply to EPS cases. EPS cases must be referred in accordance with Section IV.A.1 (Egregious Public Safety Cases) of this memo. Additionally, the below guidance does not apply to non-EPS criminal cases when the N-400 can be denied on GMC grounds based on the criminal act. These cases must be denied and referred in accordance with Section IV.A.2 (Non-Egregious Public Safety Criminal Cases).
A. The first situation occurs when the applicant may be eligible to naturalize but is also deportable under section 237 of the INA. Examples include applicants convicted of aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining Lawful Permanent Resident (LPR) status that do not fall within the GMC period. The ISO should:
1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., and prior immigration violations, and contributions to society to include the pursuit of education and military service.15
2. Once the ISO has made a recommendation on whether or not to issue an NTA, the case should be forwarded to the N-400 NTA Review Panel (Review Panel), along with the written recommendation. A Review Panel must be formed in each Field Office and include a local Supervisory Immigration Services Officer (SISO), a local USCIS Office of Chief Counsel attorney, and a district representative. An attorney from ICE’s local Office of Chief Counsel will be invited to participate and will have an advisory role on the panel. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.
3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once proceedings have concluded, or if the Review Panel declines to issue an NTA, adjudicate the case appropriately.
15 Additional factors to be taken under consideration can be found in the June 17, 2011 ICE memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.

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B. The second situation occurs when it is determined that the applicant was inadmissible at the time of adjustment or admission to the United States, thus deportable under section 237 of the INA and not eligible for naturalization under section 318 of the INA.16 The ISO should:
1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: willfulness of actions, fraud factors, length of LPR status, criminal history, and officer error at time of adjustment.
2. Once the ISO has made a recommendation on the issuance of the NTA, the case should be forwarded to the Review Panel (see Section V.A.2), along with the written recommendation. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.
3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once removal proceedings have concluded, adjudicate the case appropriately. If the Review Panel declines to issue an NTA, deny the case under section 318 of the INA.
VI. Other Cases
A. An alien may request NTA issuance to renew an application for adjustment or in certain cases with a denied N-400. The request must be made in writing.17
B. An asylum applicant issued an NTA may request NTA issuance for family members not included on the asylum application as dependents for family unification purposes. The request must be made in writing.18
VII. Exceptions
Exceptions to the guidance in this PM require concurrence from Regional or Center Directors, who will consult with ICE before issuing an NTA.
16 In the Third Circuit only (Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands), based on the holding in Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009), if the alien has been an LPR for at least five years, the alien cannot be placed in removal proceedings for fraud or willful misrepresentation of a material fact at time of adjustment, if USCIS could have learned of the fraud or misrepresentation through reasonable diligence before the five year rescission period expired. Please consult with USCIS counsel if there are questions regarding the applicability of this precedent. 17 USCIS retains discretion to deny a request. USCIS should consider ICE actions and determinations when making an NTA issuance decision under this section. 18 USCIS retains discretion to deny a request.

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 151 of 265 PM-602-0050: Revised Guidance for the Referral of Cases and Issuance of NTAs in Cases Involving Inadmissible and Removable Aliens Page 9
VIII. Coordination with ICE According to the June 2011 ICE memo regarding the exercise of prosecutorial discretion consistent with priorities,19 USCIS will receive notice before an ICE attorney exercises prosecutorial discretion and dismisses, suspends, or closes a case. The local N-400 NTA Review Panel will work with ICE to come to a resolution if USCIS does not agree with ICE’s use of prosecutorial discretion in a particular case. If concurrence cannot be reached, the case should be elevated to the USCIS Office of Chief Counsel in headquarters.
Implementation Each field office must form an N-400 NTA Review Panel and create a process to complete RTIs and refer EPS and non-EPS criminal cases to ICE. A written list enumerating the members of the Review Panel and a document outlining the process of referral must be sent to the appropriate district office within 30 days of the issuance of this memorandum. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to the Field Operations Directorate, Service Center Operations Directorate, or the Refugee, Asylum, and International Operations Directorate.
19 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, signed June 17, 2011.

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Appendix D
DEFERRED ACTION FOR CHILDHOOD ARRIVALS RFE CALL-UPS
NOTE: Text highlighted in YELLOW and bracketed by [ ] is hidden text that requires ISO input. The ISO should delete the highlighted bracketed [Text] and type in the necessary information, or choose the appropriate information from choices and delete the information that does not apply. Text only highlighted in YELLOW and not bracketed is directive in nature and should not be printed in the letter being sent but should be deleted. Please mix call-ups into a single RFE as needed.
NOTE: Please add call-ups DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION and DACA 301 – YOU MAY SUBMIT PHOTOCOPIES to any other call-ups below as needed.
I. GUIDELINES
DACA 100 – IDENTITY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to prove your identity is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Passport; • Birth certificate accompanied by photo identification: • Any national identity documents from your country of origin bearing your photo and/or
fingerprint; • Any U.S.-government immigration or other document bearing your name and photograph (e.g.,
Employment Authorization Documents (EADs), expired visas, driver’s licenses, non-driver cards, etc.); • Any school-issued form of identification with photo; • Military identification document with photo; • State-issued photo ID showing date of birth; or • Any other document that you believe is relevant.
Expired documents are acceptable.
DACA 101 – CONTINUOUS RESIDENCE The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to establish that you have continuously resided in the United States during the 5-year period immediately before June 15, 2012 and up to the time of filing is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, Federal and State income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business);
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 154 of 265 NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service;
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance;
d. Military records (e.g., 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; or military health records);
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.);
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.
(ISO: Add the appropriate language below to the RFE if any of the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D are blank OR if page 3 of the Form I-821D is missing.)
In addition, you did not answer question(s)(ISO should list the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D that were not answered) in Part 2, Arrival/Residence Information, of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to answer these question(s) on the enclosed copy of your original Form I-821D.
Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
OR
In addition, you did not submit page three (3) with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to complete the enclosed page three (3) of the form.
Also enclosed is a copy of your original Form I-821D. Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 155 of 265 (Include a copy of the requestor’s Form I-821D and a blank page 3 of the form with the RFE)
DACA 102 - BRIEF, CASUAL, AND INNOCENT ABSENCE To be considered for deferred action as a childhood arrival, you must have continuously resided in the United States during the 5 years period immediately before June 15, 2012 and up to the date you filed your request for deferred action. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence.
An absence will be considered brief, casual, and innocent, if:
(1) The absence was short and reasonably calculated to accomplish the purpose of the absence; (2) The absence was not the result of an order of exclusion, deportation, or removal; (3) The absence was not because of an order of voluntary departure, or an administrative grant of
voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (4) The purpose of the absence from the United States or actions while outside of the United States were not contrary to law.
The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for each departure you made from the United States since June 15, 2007 to show that each departure you made from the United States since June 15, 2007 was brief, casual, and innocent is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Plane or other transportation tickets or itinerary showing the travel dates; • Passport entries; • Hotel receipts showing the dates you were abroad; • Evidence of the purpose of the travel (e.g., you attended a wedding or funeral); • Advance parole document; or • Any other evidence that could support a brief, casual, and innocent absence.
DACA 103A – ARRIVED IN THE UNITED STATES BEFORE AGE 16 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to establish that you came to the United States prior to your 16th birthday is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Passport with an admission stamp indicating when you entered the United States; • I-94/I-95/I-94W Arrival/Departure Record; • Any INS or DHS document stating your date of entry (e.g., Form I-862, Notice to Appear); • Travel records, such as transportation tickets showing your dates of travel to the United States; • School records (transcripts, report cards, etc.) from the schools that you have attended in the
United States, showing the name(s) of the schools and the periods of school attendance; • Hospital or medical records concerning treatment or hospitalization, showing the name of the
medical facility or physician and the date(s) of the treatment or hospitalization; • Official records from a religious entity in the United States confirming your participation in a
religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.); or • Any other document that you believe is relevant.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 156 of 265 ACA 103B – ESTABLISHED RESIDENCE IN THE UNITED STATES PRIOR TO AGE 16 The record indicates that you left the United States for some period of time before returning on or after your 16th birthday and beginning your current period of continuous residence. Please submit evidence that you established residence in the United States before your 16th birthday. You can demonstrate that you established residence in the United States before your 16th birthday by, for example, submitting records showing that you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time.
Evidence of establishing residence in the United States before your 16th birthday may include, but is not limited to, copies of:
a. School records (transcripts, report cards, etc.) from the schools that you attended in the United States before turning 16 years old, showing the name(s) of the schools and periods of school attended;
b. Employment records showing that you worked in the United States before turning 16 years old (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, State verification of the filing of state income tax returns, letters from employer(s), or, if you are self-employed, letters from banks and other firms with whom you have done business);
c. Documents evidencing that you were physically present in the United States for multiple years prior to your 16th birthday; or
d. Any other relevant document.
DACA 104A –IN UNLAWFUL STATUS ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were in unlawful status on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired; • If you have a final order of exclusion, deportation, or removal issued on or before June 15, 2012,
submit a copy of that order and related charging documents, if available; • An INS or DHS charging document placing you into removal proceedings; • Any other document that you believe is relevant to show that you lacked lawful immigration
status on June 15, 2012; or • Any document relating to parole.
DACA 104B –STUDENT IN UNLAWFUL STATUS ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were in unlawful status on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired; • If you have a final order of exclusion, deportation, or removal issued on or before June 15, 2012,
submit a copy of that order and related charging documents, if available; • An INS or DHS charging document placing you into removal proceedings; • Copies of your transcripts showing your student status from (ISO should insert dates);
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 157 of 265 • Copies of all properly completed old I-120AB/I-20ID forms or new SEVIS I-20 forms (required
since August 1, 2003) for all schools attended; • Proof of reinstatement; • Any other document that you believe is relevant to show that you lacked lawful immigration
status on June 15, 2012; • Any document relating to parole.
DACA 105 – PROOF OF PRESENCE IN THE UNITED STATES ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were present in the United States on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, Federal and State income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business).
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service.
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance.
d. Military records (e.g., 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; or military health records).
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization.
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.).
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.
DACA 106 – CURRENTLY ENROLLED IN SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, showing that you have been accepted for enrollment or are already attending classes in one of the following is insufficient:
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 158 of 265 • A public or private elementary, junior high/middle school or high school/secondary school; • A public or private college or university, or community college; • A course of study to pass a General Education Development (GED) Certificate exam or other
State-authorized exam; • An educational or career training program (including vocational training); • Literacy training; or • An English as a Second Language (ESL) program.
(ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly)
You may still submit evidence, which may include the following: (ISO should delete any of the following that were already provided by the requestor)
• A public or private elementary, junior high/middle school or high school/secondary school; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school’s authorized representative. Such acceptance letter is to include the name and address of the school, your grade level, and the date that classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; o A current class schedule containing the student’s name, the list of courses, and the day and time of each class; or o Any other relevant evidence.  If already enrolled – Current school registration cards; current transcripts; report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade; or a current IEP showing your process to date.
• A public or private college or university, or community college; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance package or related material on school letterhead from the school’s authorized representative. Such acceptance package or related material is to include the name and address of the school, your grade level or class year, and the date or term when classes are scheduled to commence. In addition, the acceptance package or related material is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; o A copy of your current tuition bill; o A current class schedule containing your name, the list of courses, and the day and time of each class; or o Any other relevant evidence.
 If already enrolled – Current school registration cards; current transcripts; report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade or class year; or a current IEP showing your process to date.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 159 of 265 • A course of study to pass a General Education Development (GED) Certificate exam or
other equivalent State-authorized exam; Such evidence is to include a letter from the authorized representative of the program that includes information such as:  Your name and date of enrollment;  The duration of the program and expected completion date;  Whether the course of study is for a regular high school diploma or recognized equivalent under State law or a GED exam or other equivalent State-authorized exam;  The program’s source and amount of funding;  The program’s authorized representative’s contact information; and  The program’s demonstrated effectiveness if it is not publicly funded (Federal, State, county, or municipal) in whole or in part.
 An educational or career training program (including vocational training); Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school registrar/authorized school representative. 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 when the classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for the program; o A copy of your current year registration (intake form/enrollment form); or o Any other relevant documentation.  If already attending classes– Current transcripts, report cards, or progress reports showing the name of the school, the time period or semester covered by the document, and if relevant, the current educational or grade level.  The program’s demonstrated effectiveness if it is not publicly funded (Federal, State, county, or municipal) in whole or in part.
• Literacy training; or Such evidence is to include a letter from the literacy program administrator or authorized representative providing information such as:  Your name;  The date of your enrollment;  The duration of the literacy program and the expected completion date;  The program administrator or authorized representative’s contact information; and  The program’s demonstrated effectiveness if it is not publicly funded (Federal, State, county, or municipal) in whole or in part.
• An English as a Second Language (ESL) program. Such evidence is to include a letter from the ESL program administrator or authorized representative. This letter is to include the following:  Your name;  The date of your enrollment;  The duration of the ESL program and the expected completion date;  The program administrator or authorized representative’s contact information; and  The program’s demonstrated effectiveness if it is not publicly funded (Federal, State, county, or municipal) in whole or in part.
DACA 106A – EVIDENCE OF ACCEPTANCE BUT NO EVIDENCE OF REGISTERING FOR CLASSES: You have provided an acceptance letter or other related material indicating that you have been accepted at (ISO should list the name of the private elementary/junior high/middle school/high school/secondary school or public or private college/university/community college). However, you did not include evidence that you have enrolled in that school. Therefore, you are requested to submit such evidence
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 160 of 265 which is to include, but is not limited to paid tuition bills or evidence that you have registered for class at that school.
DACA 106B – LITERACY PROGRAM’S NON-PROFIT STATUS If the literacy program in which you are enrolled has non-profit status, please provide evidence of such status. Evidence 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 amended, or equivalent section of prior code.
DACA 106C –PUBLIC FUNDING (GED; Educational or Career Training Program (Including Vocational Training); ESL) If the (ISO should insert GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; or English as a Second Language) in which you are enrolled is funded in whole or in part by public funds (Federal, State, county or municipal), you are requested to submit a letter from the (ISO should insert GED program administrator/authorized representative; school registrar/authorized school representative if requestor is enrolled in Career Training Program (Including Vocational Training); literacy program administrator/authorized representative; or ESL program administrator/authorized representative) providing basic details about the funding, such as the source(s) of the funding.
DACA 106D – PUBLIC FUNDING – (Literacy Program) If the literacy program in which you are enrolled is not funded in whole or in part by public funds (Federal, State, county, or municipal) or not administered by a non-profit entity you are requested to submit a letter from the program administrator or authorized representative providing basic details about the funding, such as the amount and the source(s) of the funding.
DACA 106E – DEMONSTRATED EFFECTIVENESS (GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; ESL)
(ISO should select the correct RFE paragraph below depending upon the program in which the requestor is enrolled)
If the GED/Equivalency program, in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part, you are requested to submit information from the GED program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in assisting students in obtaining a regular high school diploma, GED,
or a recognized equivalent certificate, or passing a GED or recognized equivalent exam; • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
If the educational or career training program (including vocational training), in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part, you are requested to submit information, with supporting documentation, if available, from the school registrar/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in placing students in employment, job training, or post-secondary
education; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 161 of 265 If the literacy program in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part, you are requested to submit information from the literary program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in placing students in post-secondary education, job training
programs, or employment; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
If the English as a Second Language (ESL) program in which you are enrolled is not publicly funded (Federal, State, county, or municipal) in whole or in part, you are requested to submit information from the ESL program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The length of the program’s existence; • The program’s track record in assisting students in obtaining placement in postsecondary schools,
job training programs, or employment; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
DACA 106F– GRADUATED FROM SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you graduated or obtained a General Educational Development (GED) Certificate or equivalent State authorized exam in the United States is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A diploma; • Transcripts showing the 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.
Documentation sufficient to demonstrate that you obtained a GED includes, but is not limited to, evidence you passed a GED exam, or other comparable State-authorized exam, and, as a result, you received the recognized equivalent of a regular high school diploma under State law.
DACA 107 – MEDICAL LEAVE You indicate in your filing that you are currently on medical leave from school. Therefore, you are requested to submit evidence of your medical leave and indicate the date you expect to return to school. Evidence of your medical leave may include, but is not limited to, an explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long your treatment is expected to last.
DACA 108 - MILITARY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 162 of 265
• 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; or • Military health records.
DACA 109- REMOVAL PROCEEDINGS Submit documents that you have been issued an order of exclusion, deportation or removal. Such documentation could include copies of:
• Any removal, deportation, or exclusion order issued by an Immigration Judge; • Final decision from the Board of Immigration Appeals (BIA); or • Final decision from a U.S. Court of Appeals in your case.
II. APPLICATION SUPPORT CENTER (ASC) RELATED
DACA 130 – SCHEDULE ASC APPOINTMENT Your request cannot be processed until you have appeared at an Application Support Center (ASC) for the collection of a digital photograph, signature, and fingerprint(s). Our records indicate that you have not yet appeared at an ASC for this purpose. Follow the instructions on the appointment notice for biometrics capture [enclosed with this notice/that will be mailed to you separately]. Additional information regarding the location of the ASC can be found on the USCIS web site at www.USCIS.gov. Please bring this notice with you to your appointment.
If you have appeared at an ASC for biometrics capture, please return this notice to the address below with the appointment information.
Date of Appointment: ___________________
Location of Appointment: ___________________
DACA 131– RESCHEDULE ASC APPOINTMENT (TECHNICAL DIFFICULTIES) Our records indicate that you have already appeared at an Application Support Center (ASC) as previously scheduled. However, due to technical problems, your previously-acquired biometrics from the ASC cannot be used.
[USCIS will mail a separate notice to you containing information for a new appointment for biometrics capture at the ASC nearest you/Follow the instructions of the enclosed appointment for biometrics capture at the ASC nearest you.] Additional information regarding the location of the ASC can be found on the USCIS web site at www.USCIS.gov. Please bring this notice with you to your appointment in addition to any other required documents as stated in the new appointment notice.
We sincerely regret any inconvenience this has caused you.
III. NAME, DATE OF BIRTH DISCREPANCY
DACA 140 – DATE OF BIRTH DISCREPANCY USCIS records indicate that you were born on [DATE]. You indicated on your request for consideration of deferred action for childhood arrivals that you were born on [DATE]. Submit documentary evidence to establish your true date of birth. Such evidence may include your birth certificate and/or passport. If you submit a copy of your birth certificate, you must submit copies of the front and back (if there is information on the back).
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 163 of 265 DACA 142 – NAME CHANGE/DISCREPANCY USCIS records and/or evidence you submitted indicate that your name is [NAME]. You indicated on your request for consideration of deferred action for childhood arrivals that your name is [NAME]. Submit documentary evidence to establish your true name. Such evidence may include a birth certificate, adoption records, marriage certificate, passport, or government documentation showing that you have officially changed your name.
DACA143 – SUBMIT EVIDENCE OF NAME CHANGE Submit proof of your name change. Such proof would normally be a marriage certificate, termination of marriage (divorce or annulment decree), adoption decree, or court order.
IV. FINGERPRINTING / CRIMINALITY
DACA 150A – 2 UNCLASSIFIABLE PRINTS – SUBMIT LOCAL POLICE CLEARANCES To date, you have been fingerprinted twice and USCIS has been unable to get a required clearance for you because both sets of fingerprints were rejected as unclassifiable by the Federal Bureau of Investigation. At this time you must submit a local police clearance certificate for each jurisdiction (city, town, county, or municipality) in which you have lived for six months or more within the past five years.
Important Note: The police clearance certificate(s) must show your name and date of birth, and all aliases, if applicable, for all names researched. You must supply the law enforcement agency with all aliases you listed on your Form I-821D [ISO should list ONLY those names provided in Part1. Other Names Used (including maiden name) of the Form I-821D. Aliases obtained from any other source should not be listed in the RFE], including maiden name, [If applicable, insert maiden name unless it was included in the list of names in Part 1. Other Names Used (including maiden name) of the Form I-821D] if applicable. Fingerprint cards are not acceptable evidence of a police clearance certificate.
If the police clearance shows you have been arrested for, charged with, or convicted of a felony or misdemeanor, you must provide a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure is prohibited under state law within the United States. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The charge and disposition of each arrest must be specifically identified (not just numeric citations or codes). Additionally, if you were convicted, you may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department identifying the statute under which you were convicted and the sentence you received.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 150B – FINGERPRINT WAIVER The Application Support Center (ASC) granted a fingerprint waiver on your case. At this time you must submit a local police clearance certificate for each jurisdiction (city, town, county, or municipality) in which you have lived for six months or more within the past five years.
Important Note: The police clearance certificate(s) must show your name and date of birth, and all aliases, if applicable, for all names researched. You must supply the law enforcement agency with all aliases you listed on your Form I-821D [ISO should list ONLY those names provided in Part1. Other Names Used (including maiden name) of the Form I-821D. Aliases obtained from any other source should not be listed in the RFE], including maiden name, [If applicable, insert maiden name unless it was included in the list of names in Part 1. Other Names Used (including maiden name) of the Form I-821D] if applicable. Fingerprint cards are not acceptable evidence of a police clearance certificate.
If the police clearance shows you have ever been arrested for, charged with, or convicted of a felony or misdemeanor, you must provide a certified court disposition, arrest record, charging document,
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 164 of 265 sentencing record, etc. for each arrest, unless disclosure is prohibited under state law within the United States. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The charge and disposition of each arrest must be specifically identified (not just numeric citations or codes). Additionally, if you were convicted, you may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department identifying the statute under which you were convicted and the sentence you received.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 151– SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A background check has been conducted based upon the fingerprints you provided at the Application Support Center. Your criminal history check has revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. (Where appropriate, Service Center may also need to include the name under which the arrest took place if different from name being used by requestor on Form I-821D. If there are multiple charges, you may bullet each charge.)
At this time you must provide a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure is prohibited under state law within the United States. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The charge and disposition of each arrest must be specifically identified (not just numeric citations or codes). Additionally, if you were convicted, you may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department identifying the statute under which you were convicted and the sentence you received.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
V. I-821D PART 3 INCOMPLETE
DACA 155 – FORM I-821D INCOMPLETE You did not answer question(s)(ISO should list the question numbers in Part 3 of the Form I-821D that the requestor did not answer) in Part 3 of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to answer these question(s) on the enclosed copy of your original Form I-821D.
After you answer these questions, you must re-sign and date page four (4) of the enclosed copy of your original Form I-821D. The completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
As stated in the instructions on Part 3 of the Form I-821D, if any of the questions apply to you, please describe the circumstances and include a full explanation in Part 7 of the Form I-821D. To view the instructions of the Form I-821D, please visit the USCIS website at http://www.uscis.gov/USCIS/files/form/i-821d.pdf or call toll-free (800) 870-3676 to request this form by mail.
(Include a copy of the requestor’s Form I-821D with the RFE)
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 165 of 265 VI. I-821D PART 3, CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY
INFORMATION AFFIRMATIVE RESPONSES POSSIBLE INELIGIBILITY ISSUES
DACA 160 – ANSWERED “YES” TO QUESTION 1 AND 2 IN PART 3 – DOCUMENTS NEEDED AND EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
1. Have you been arrested for, charged with, or convicted of a felony or misdemeanor in the United States?
2. Have you been arrested for, charged with, or convicted of any crime in any country other than the United States?
You did not provide a full explanation in Part 7 of your Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D. Therefore, please provide a full explanation describing the circumstances. DELETE IF AN EXPLANATION WAS PROVIDED
At this time you must provide a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure is prohibited under state law within the United States. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The charge and disposition of each arrest must be specifically identified (not just numeric citations or codes). Additionally, if you were convicted, you may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department identifying the statute under which you were convicted and the sentence you received.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 161 – ANSWERED “YES” TO QUESTION 3 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
3. Have you ever engaged in or do you continue to engage in or plan to engage in terrorist activities?
You did not provide a full explanation in Part 7 of your Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation of the terrorist activities you have ever engaged in, continue to engage in, or plan to engage in. Your explanation should include:
Whether other people were engaged in terrorist activities with you; The names of the other people with whom you engaged in terrorists activities; The role you played in terrorist activities; The role that others played in terrorist activities; Whether you planned or actually carried out the terrorist activities; Whether you engaged in, continued to engage, or planned to engage in terrorist activities in the United States or abroad; and Describe the type of terrorist activities you engaged in, continue to engage in, or plan to engage in.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 166 of 265 DACA 162 – ANSWERED “YES” TO QUESTION 4 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
4. Are you now or have you ever been a member of a gang?
You did not provide a full explanation in Part 7 of the Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation of your gang membership, including:
When you joined the gang(s); How long you were a member of the gang(s); The name of the gang(s); and The criminal activities you participated in with the gang(s).
DACA163 – ANSWERED “YES” TO QUESTIONS 5a. 5b, 5c, AND 5d IN PART 3– SUBMIT EXPLANATION On your Request for Deferred Action for Childhood Arrivals (Form I-821D) you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
5. Have you EVER engaged in, ordered, incited, assisted, or otherwise participated in any of the following:
a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
You did not provide a full explanation in Part 7 of the Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation describing your participation in activities involving torture, genocide, human trafficking, killing any person, severely injuring any person, or any sexual contact or relations with any person who was being forced or threatened.
VII. I-821D PART 3, CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY INFORMATION
DACA 170– ANSWERED “NO” TO QUESTIONS 1 AND 2 IN PART 3– USCIS FOUND CLEAR CHARGES OR OTHER DEROGATORY INFORMATION, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A background check has been conducted based upon the fingerprints you provided at the Application Support Center. Your background check revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. Where appropriate, Service Center may also need to include the name under which the arrest took place if different from name being used by requestor on Form I-821D. If there are multiple charges, you may bullet each charge.)
At this time you must provide a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure is prohibited under state law within the United States. If you are unable to provide such records because your case was expunged or sealed, you must provide
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 167 of 265 information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The charge and disposition of each arrest must be specifically identified (not just numeric citations or codes). Additionally, if you were convicted, you may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department identifying the statute under which you were convicted and the sentence you received.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 171– ANSWERED “NO”TO QUESTIONS 1 AND 2 IN PART 3 - CRIMINAL ACTIVITY UNCLEAR TO USCIS, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS Based on a review of your case, it appears that you have some type of criminal record/interaction with law enforcement authorities. It appears that on [DATE] the following occurred:
[Provide explanation of findings, to include name of police dept. If applicable, charges if applicable, etc. NOTE: Do not inform the applicant where the information came from systems that are not our records (ex. IBIS)]
(Where appropriate, you may also need to include the name under which the arrest took place if different from name being used by the requestor on Form I-821D. If there are multiple interactions, you may bullet each interaction.)
At this time you must provide a certified court disposition, arrest record, charging document, sentencing record, etc. for each arrest, unless disclosure is prohibited under state law within the United States. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The charge and disposition of each arrest must be specifically identified (not just numeric citations or codes). Additionally, if you were convicted, you may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department identifying the statute under which you were convicted and the sentence you received.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 172– ANSWERED “NO” TO QUESTIONS 3, 4, 5a. 5b, 5c, AND 5d IN PART 3 – USCIS DISCOVERED UNCLEAR INFORMATION, SUBMIT EXPLANATION Based on a review of your case, the following was discovered: (Delete those that do not apply)
3. you engaged in or do you continue to engage or plan to engage in terrorist activities?
4. you are now or have been a member of gang?
5. you engaged in, ordered, incited, assisted, or otherwise participated in any of the following: a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
[Provide explanation of findings. This can include where the information was found if it is knowledge that can be shared with the requestor. NOTE: Do not inform the requestor where the information came from systems that are not our records (ex. IBIS).]
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 168 of 265 Therefore, you must submit a statement explaining and/or refuting the information/circumstances found in USCIS records. Please note that if you refute the above information, and USCIS later receives information that the above does relate to you, USCIS may terminate deferred action and you may be barred from other immigration benefits.
VIII. FORM I-765
DACA 180 – FAILURE TO SUBMIT OR COMPLETE FORM I-765WS USCIS is unable to complete the adjudication of your Form I-765, Application for Employment Authorization, because you did not submit or complete the Form I-765WS. Please provide a response to Part 1 (Full Name), and Part 2 (Financial Information), and if applicable, Part 3 (Additional Information) of Form I-765WS to indicate whether or not you have an economic need to work and return it to the address provided within the specified time.
To obtain Form I-765WS, please visit the USCIS website at http:www.uscis.gov/files/form/i-765ws.pdf or call toll-free (800) 870-3676 to request this form by mail.
DACA 190 – SUBMIT PASSPORT PHOTOS Please submit two (2) passport-style color photo(s) of [NAME] taken within 30 days of the date of this notice, which conform(s) to the specifications below. Using a pencil or felt pen, lightly print name (and Alien Registration Number, if known) on the back of each photograph.
Please do not staple through any part of the photo(s). Enclose the photo(s) in a plastic or paper envelope and staple the envelope to this notice when returning it to this office.
Passport-style photos must be 2 inches by 2 inches: • Frame subject with full face, front view, eyes open. • Make sure photo presents full head from top of hair to bottom of chin; height of head should measure 1 inch to 1 3/8 inch (25 mm to 35 mm). • Center head within frame. • Make sure eye level is between 1 1/8 inch and 1 3/8 inch (28 mm and 35 mm) from bottom of photo. • Photograph subject against a plain white or off-white background. • Position subject and lighting so that there are no distracting shadows on the face or background. • Encourage subject to have a natural expression. • Include headpieces if worn daily for religious purposes; they should not obscure or cast shadows on the eyes or any other part of the face.
For more information on photo requirements, please see the Department of State website at: http://www.travel.state.gov/passport/pptphotos/index.html, or contact the USCIS National Customer Service Center at 1-800-375-5283.
IX. FORM 131
DACA 200 – PROOF OF DACA To be considered for advance parole you must submit evidence to establish that you have been granted deferred action for childhood arrivals. Submit a copy of the approval notice issued by USCIS for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals.
DACA 201 – GENERAL
On [insert filing date], you filed an Application for Travel Document (Form I-131) based on an approved Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), the Secretary of Homeland Security may, in her discretion,
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 169 of 265 parole into the United States any alien applying for admission to the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. To assist USCIS in adjudicating your application, please provide additional information about your proposed travel, including the reasons for requesting advance parole in order to travel outside the United States. In response to this notice, you should also submit evidence in support of your request (e.g., documentation showing that your proposed travel is related to your current employment or education or a humanitarian purpose).
DACA 202 – PROOF OF EDUCATIONAL NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for education purposes. Examples of travel abroad for education purposes include study abroad programs, school-sponsored trips abroad, or travel necessary to conduct academic research.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for education purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for educational purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A letter from the educational institution, or from an employee of the institution acting in his or her official capacity, describing the purpose of the travel, or documentation showing enrollment in a specific program or class coupled with documentary evidence showing that you will benefit from, or are required to travel for the specific program or class; or
NOTE: Travel during an academic year unrelated to academics (i.e., a vacation) is insufficient to qualify as an educational purpose.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 203 – PROOF OF HUMANITARIAN NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for humanitarian reasons. Examples of travel abroad for humanitarian reasons include medical reasons, to visit a family member, or to attend funeral services for a family member.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for humanitarian purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for humanitarian, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long the treatment is expected to last;
• Information on the reasons why you cannot obtain treatment in the United States; • An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis of
the family member’s condition; or • A death certificate or newspaper obituary of the family member or other document evidencing the
death of the family member.
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(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 204 – PROOF OF EMPLOYMENT NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individual granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for employment purposes. Examples of travel abroad for employment purposes include: pursuit of a position in the United States with a foreign employer; an overseas assignment, interview, conference, or training; a meeting with overseas clients or others with whom you interact professionally; or a trip to cultivate business or sales overseas or any other overseas trip taken in furtherance of the applicant’s professional responsibilities.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for employment purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for employment purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A letter on official letterhead from your employer describing the need for your travel; or • A document showing a specific employment need, such as a conference program, that also shows
your participation.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
X. ASSORTED OTHERS
DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION All foreign language documents must be accompanied by a full English language translation which the interpreter has certified as complete and accurate, and by the interpreter’s certification that he or she is competent to translate from the foreign language into English. Please submit a full English translation of (ISO should list the document(s)). You must submit the requested foreign language document along with the translation.
DACA 301– YOU MAY SUBMIT PHOTOCOPIES You may submit either the original documents or legible photocopies of the originals, including copies of the front and back of each document. If you choose to submit original documents, they will not be returned to you. (Not for use when USCIS is requesting original documents.)
DACA 302– AFFIDAVITS Affidavits can support two of the DACA guidelines:
• Brief, casual, and innocent departures during the five years of required continuous presence in the United States: and
• Any minor gap in the five year continuous residence requirement.
In support of your DACA request, you submitted affidavits, but you did not indicate that: • primary and secondary evidence cannot be obtained; and • what effort you undertook to obtain that evidence. Page 18 4/4/2013

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Therefore, you are requested to provide the following: • A written statement from the appropriate issuing authority attesting to the fact that no record exists or can be located, or that the record sought was part of some segment of records which were lost or destroyed; or • Evidence (such as an affidavit) "that repeated good faith attempts were made to obtain the required document or record."
DACA 303A – SIGNATURE ON FORM I-821D As stated in the Form I-821D instructions, each request must be properly signed. Part 4 of your Form I821D, Consideration of Deferred Action for Childhood Arrivals is not properly signed because (ISO should indicate why the form was incorrectly signed. For example, the preparer signed Part 4 instead of Part 5 of the form or the requestor is over the age of 14, but the requestor's parent or legal guardian signed Part 4). Therefore, a copy of your original Form I-821D is enclosed so that you can sign and date Part 4, 2.a. and 2.b. of your Form I-821D. The completed form must contain a new original signature. Attach your properly signed Form I-821D to this Request for Evidence and return to the address listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
DACA 303B - SIGNATURE ON FORM I-765 As stated in the Form I-765 instructions, each application must be properly signed. Form I-765, Application for Employment Authorization is not properly signed because (ISO should indicate why the form was incorrectly signed. For example, the preparer signed the form or the requestor is over the age of 14, but the requestor's parent or legal guardian signed the signature area). Therefore, a copy of your original Form I-765 is enclosed so that you can sign and date. The completed form must contain a new original signature. Attach your properly signed Form I-765 to this Request for Evidence and return to the address listed on this notice.
(Include a copy of the requestor’s Form I-765 with the RFE)
DACA 304 – FORM I-821D MISSING PAGE(S) You did not submit page(s) (ISO should list the missing page number(s)) with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. In addition to submitting these missing pages, you must sign and date page four (4) of the Form I-821D. The completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice
To obtain Form I-821D, please visit the USCIS website at http://www.uscis.gov/USCIS/files/form/i821d.pdf or call toll-free (800) 870-3676 to request this form by mail.
XI. ACKNOWLEDGEMENT OF WITHDRAWAL
DACA 350 FORM I-821D ACKNOWLEDGEMENT OF WITHDRAWAL On [DATE] you filed a request for deferred action under the Secretary of Homeland Security’s June 15, 2012, directive concerning Deferred Action for Childhood Arrivals. Your filing included a Form I-821D, Consideration of Deferred Action for Childhood Arrivals, a Form I-765, Application for Employment Authorization, and a Form I-765WS, Form I-765 Worksheet, together with the required filing fee.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 172 of 265 On [DATE], you withdrew your Form I-821D. This withdrawal applies equally to the forms I-765 and I765WS that you concurrently filed with the Form I-821D. USCIS hereby acknowledges your withdrawal. USCIS will not take any further action on your Form I821D or the related forms I-765 and I-765WS. If you later wish to request Consideration of Deferred Action for Childhood Arrivals, you may file a new Form I-821D concurrently with a new Form I-765 and Form I-765WS, with a new fee. DACA 351 FORMS I-765/I-765WS ACKNOWLEDGEMENT OF WITHDRAWAL On [DATE] you filed a request for deferred action under the Secretary of Homeland Security’s June 15, 2012, directive concerning Deferred Action for Childhood Arrivals. Your filing included a Form I-821D, Consideration of Deferred Action for Childhood Arrivals, a Form I-765, Application for Employment Authorization, and a Form I-765WS, Form I-765 Worksheet, together with the required filing fee. On [DATE], you withdrew your Form I-821D. This withdrawal applies equally to the forms I-765 and I765WS that you concurrently filed with the Form I-821D. USCIS hereby acknowledges your withdrawal. USCIS will not take any further action on your forms I765 and I-765WS or the related Form I-821D. The filing fee is not refundable. If you later wish to request Consideration of Deferred Action for Childhood Arrivals, you may file a new Form I-821D concurrently with a new Form I-765 and Form I-765WS, with a new fee.
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Appendix D
DEFERRED ACTION FOR CHILDHOOD ARRIVALS RFE CALL-UPS
NOTE: Text highlighted in YELLOW and bracketed by [ ] is hidden text that requires ISO input. The ISO should delete the highlighted bracketed [Text] and type in the necessary information, or choose the appropriate information from choices and delete the information that does not apply. Text only highlighted in YELLOW and not bracketed is directive in nature and should not be printed in the letter being sent but should be deleted. Please mix call-ups into a single RFE as needed.
NOTE: Please add call-ups DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION and DACA 301 – YOU MAY SUBMIT PHOTOCOPIES to any other call-ups below as needed.
I. GUIDELINES
DACA 100 – IDENTITY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to prove your identity is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Passport; • Birth certificate accompanied by photo identification: • Any national identity documents from your country of origin bearing your photo and/or
fingerprint; • Any U.S.-government immigration or other document bearing your name and photograph (e.g.,
Employment Authorization Documents (EADs), expired visas, driver’s licenses, non-driver cards, etc.); • Any school-issued form of identification with photo; • Military identification document with photo; • State-issued photo ID showing date of birth; or • Any other document that you believe is relevant.
Expired documents are acceptable.
DACA 101 – CONTINUOUS RESIDENCE The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to establish that you have continuously resided in the United States during the 5-year period immediately before June 15, 2012 and up to the time of filing is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, Federal and State income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business);
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 174 of 265 NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service;
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance;
d. Military records (e.g., 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; or military health records);
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.);
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.
(ISO: Add the appropriate language below to the RFE if any of the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D are blank OR if page 3 of the Form I-821D is missing.)
In addition, you did not answer question(s)(ISO should list the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D that were not answered) in Part 2, Arrival/Residence Information, of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to answer these question(s) on the enclosed copy of your original Form I-821D.
Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
OR
In addition, you did not submit page three (3) with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to complete the enclosed page three (3) of the form.
Also enclosed is a copy of your original Form I-821D. Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 175 of 265 (Include a copy of the requestor’s Form I-821D and a blank page 3 of the form with the RFE)
DACA 102 - BRIEF, CASUAL, AND INNOCENT ABSENCE To be considered for deferred action as a childhood arrival, you must have continuously resided in the United States during the 5 years period immediately before June 15, 2012 and up to the date you filed your request for deferred action. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence.
An absence will be considered brief, casual, and innocent, if:
(1) The absence was short and reasonably calculated to accomplish the purpose of the absence; (2) The absence was not the result of an order of exclusion, deportation, or removal; (3) The absence was not because of an order of voluntary departure, or an administrative grant of
voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (4) The purpose of the absence from the United States or actions while outside of the United States were not contrary to law.
The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for each departure you made from the United States since June 15, 2007 to show that each departure you made from the United States since June 15, 2007 was brief, casual, and innocent is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Plane or other transportation tickets or itinerary showing the travel dates; • Passport entries; • Hotel receipts showing the dates you were abroad; • Evidence of the purpose of the travel (e.g., you attended a wedding or funeral); • Advance parole document; or • Any other evidence that could support a brief, casual, and innocent absence.
DACA 103 – ARRIVED IN THE UNITED STATES BEFORE AGE 16 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to establish that you came to the United States prior to your 16th birthday is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Passport with an admission stamp indicating when you entered the United States; • I-94/I-95/I-94W Arrival/Departure Record; • Any INS or DHS document stating your date of entry (e.g., Form I-862, Notice to Appear); • Travel records, such as transportation tickets showing your dates of travel to the United States; • School records (transcripts, report cards, etc.) from the schools that you have attended in the
United States, showing the name(s) of the schools and the periods of school attendance; • Hospital or medical records concerning treatment or hospitalization, showing the name of the
medical facility or physician and the date(s) of the treatment or hospitalization; • Official records from a religious entity in the United States confirming your participation in a
religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.); or • Any other document that you believe is relevant.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 176 of 265 DACA 104A –IN UNLAWFUL STATUS ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were in unlawful status on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired; • If you have a final order of exclusion, deportation, or removal issued on or before June 15, 2012,
submit a copy of that order and related charging documents, if available; • An INS or DHS charging document placing you into removal proceedings; • Any other document that you believe is relevant to show that you lacked lawful immigration
status on June 15, 2012; or • Any document relating to parole.
DACA 104B –STUDENT IN UNLAWFUL STATUS ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were in unlawful status on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired; • If you have a final order of exclusion, deportation, or removal issued on or before June 15, 2012,
submit a copy of that order and related charging documents, if available; • An INS or DHS charging document placing you into removal proceedings; • Copies of your transcripts showing your student status from (ISO should insert dates); • Copies of all properly completed old I-120AB/I-20ID forms or new SEVIS I-20 forms (required
since August 1, 2003) for all schools attended; • Proof of reinstatement; • Any other document that you believe is relevant to show that you lacked lawful immigration
status on June 15, 2012; • Any document relating to parole.
DACA 105 – PROOF OF PRESENCE IN THE UNITED STATES ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were present in the United States on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, Federal and State income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business).
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
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b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service.
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance.
d. Military records (e.g., 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; or military health records).
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization.
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.).
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.
DACA 106 – CURRENTLY ENROLLED IN SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, showing that you have been accepted for enrollment or are already attending classes in one of the following is insufficient:
• A public or private elementary, junior high/middle school or high school/secondary school; • A public or private college or university, or community college; • A course of study to pass a General Education Development (GED) Certificate exam or other
State-authorized exam; • An educational or career training program (including vocational training); • Literacy training; or • An English as a Second Language (ESL) program.
(ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly)
You may still submit evidence, which may include the following: (ISO should delete any of the following that were already provided by the requestor)
• A public or private elementary, junior high/middle school or high school/secondary school; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school’s authorized representative. Such acceptance letter is to include the name and address of the school, your grade level, and the date that classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; Page 5 01/18/2013

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o A current class schedule containing the student’s name, the list of courses, and the day and time of each class; or
o Any other relevant evidence.  If already enrolled – Current school registration cards; current transcripts; report
cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade; or a current IEP showing your process to date. • A public or private college or university, or community college; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance package or related material on school letterhead from the school’s
authorized representative. Such acceptance package or related material is to include the name and address of the school, your grade level or class year, and the date or term when classes are scheduled to commence. In addition, the acceptance package or related material is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; o A copy of your current tuition bill; o A current class schedule containing your name, the list of courses, and the day and time of each class; or o Any other relevant evidence.
 If already enrolled – Current school registration cards; current transcripts; report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade or class year; or a current IEP showing your process to date.
• A course of study to pass a General Education Development (GED) Certificate exam or other equivalent State-authorized exam; Such evidence is to include a letter from the authorized representative of the program that includes information such as:  Your name and date of enrollment;  The duration of the program and expected completion date;  Whether the course of study is for a regular high school diploma or recognized equivalent under State law or a GED exam or other equivalent State-authorized exam;  The program’s source and amount of funding; and  The program’s authorized representative’s contact information.
• An educational or career training program (including vocational training); Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school registrar/authorized school representative. 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 when the classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for the program; o A copy of your current year registration (intake form/enrollment form); or o Any other relevant documentation.  If already attending classes– Current transcripts, report cards, or progress reports showing the name of the school, the time period or semester covered by the document, and if relevant, the current educational or grade level.
• Literacy training; or Such evidence is to include a letter from the literacy program administrator or authorized representative providing information such as:
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 179 of 265  Your name;  The date of your enrollment;  The duration of the literacy program and the expected completion date; and  The program administrator or authorized representative’s contact information.
• An English as a Second Language (ESL) program. Such evidence is to include a letter from the ESL program administrator or authorized representative. This letter is to include the following:  Your name;  The date of your enrollment;  The duration of the ESL program and the expected completion date;  The program administrator or authorized representative’s contact information.
DACA 106A – EVIDENCE OF ACCEPTANCE BUT NO EVIDENCE OF REGISTERING FOR CLASSES: You have provided an acceptance letter or other related material indicating that you have been accepted at (ISO should list the name of the private elementary/junior high/middle school/high school/secondary school or public or private college/university/community college). However, you did not include evidence that you have enrolled in that school. Therefore, you are requested to submit such evidence which is to include, but is not limited to paid tuition bills or evidence that you have registered for class at that school.
DACA 106B – LITERACY PROGRAM’S NON-PROFIT STATUS If the literacy program in which you are enrolled has non-profit status, please provide evidence of such status. Evidence 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 amended, or equivalent section of prior code.
DACA 106C –PUBLIC FUNDING (GED; Educational or Career Training Program (Including Vocational Training); ESL) If the (ISO should insert GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; or English as a Second Language) in which you are enrolled is funded in whole or in part by public funds (Federal, State, county or municipal), you are requested to submit a letter from the (ISO should insert GED program administrator/authorized representative; school registrar/authorized school representative if requestor is enrolled in Career Training Program (Including Vocational Training); literacy program administrator/authorized representative; or ESL program administrator/authorized representative) providing basic details about the funding, such as the source(s) of the funding.
DACA 106D – PUBLIC FUNDING – (Literacy Program) If the literacy program in which you are enrolled is not funded in whole or in part by public funds (Federal, State, county, or municipal) or not administered by a non-profit entity you are requested to submit a letter from the program administrator or authorized representative providing basic details about the funding, such as the amount and the source(s) of the funding.
DACA 106E – DEMONSTRATED EFFECTIVENESS (GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; ESL)
(ISO should select the correct RFE paragraph below depending upon the program in which the request is enrolled)
Your record shows that the GED/Equivalency program, in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the GED program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence;
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 180 of 265 • The program’s track record in assisting students in obtaining a regular high school diploma, GED,
or a recognized equivalent certificate, or passing a GED or recognized equivalent exam; • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
Your record shows that the educational or career training program (including vocational training), in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information, with supporting documentation, if available, from the school registrar/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in placing students in employment, job training, or post-secondary
education; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
Your record shows that the literacy program in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the literary program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in placing students in post-secondary education, job training
programs, or employment; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
Your record shows that the English as a Second Language (ESL) program in which you are enrolled is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the ESL program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The length of the program’s existence; • The program’s track record in assisting students in obtaining placement in postsecondary schools,
job training programs, or employment; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
DACA 106F– GRADUATED FROM SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you graduated or obtained a General Educational Development (GED) Certificate or equivalent State authorized exam in the United States is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A diploma; • Transcripts showing the 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.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 181 of 265 Documentation sufficient to demonstrate that you obtained a GED includes, but is not limited to, evidence you passed a GED exam, or other comparable State-authorized exam, and, as a result, you received the recognized equivalent of a regular high school diploma under State law.
DACA 107 – MEDICAL LEAVE You indicate in your filing that you are currently on medical leave from school. Therefore, you are requested to submit evidence of your medical leave and indicate the date you expect to return to school. Evidence of your medical leave may include, but is not limited to, an explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long your treatment is expected to last.
DACA 108 - MILITARY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• 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; or • Military health records.
DACA 109- REMOVAL PROCEEDINGS Submit documents that you have been issued an order of exclusion, deportation or removal. Such documentation could include copies of:
• Any removal, deportation, or exclusion order issued by an Immigration Judge; • Final decision from the Board of Immigration Appeals (BIA); or • Final decision from a U.S. Court of Appeals in your case.
II. APPLICATION SUPPORT CENTER (ASC) RELATED
DACA 130 – SCHEDULE ASC APPOINTMENT Your request cannot be processed until you have appeared at an Application Support Center (ASC) for the collection of a digital photograph, signature, and fingerprint(s). Our records indicate that you have not yet appeared at an ASC for this purpose. Follow the instructions on the appointment notice for biometrics capture [enclosed with this notice/that will be mailed to you separately]. Additional information regarding the location of the ASC can be found on the USCIS web site at www.USCIS.gov. Please bring this notice with you to your appointment.
If you have appeared at an ASC for biometrics capture, please return this notice to the address below with the appointment information.
Date of Appointment: ___________________
Location of Appointment: ___________________
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 182 of 265 DACA 131– RESCHEDULE ASC APPOINTMENT (TECHNICAL DIFFICULTIES) Our records indicate that you have already appeared at an Application Support Center (ASC) as previously scheduled. However, due to technical problems, your previously-acquired biometrics from the ASC cannot be used.
[USCIS will mail a separate notice to you containing information for a new appointment for biometrics capture at the ASC nearest you/Follow the instructions of the enclosed appointment for biometrics capture at the ASC nearest you.] Additional information regarding the location of the ASC can be found on the USCIS web site at www.USCIS.gov. Please bring this notice with you to your appointment in addition to any other required documents as stated in the new appointment notice.
We sincerely regret any inconvenience this has caused you.
III. NAME, DATE OF BIRTH DISCREPANCY
DACA 140 – DATE OF BIRTH DISCREPANCY USCIS records indicate that you were born on [DATE]. You indicated on your request for consideration of deferred action for childhood arrivals that you were born on [DATE]. Submit documentary evidence to establish your true date of birth. Such evidence may include your birth certificate and/or passport. If you submit a copy of your birth certificate, you must submit copies of the front and back (if there is information on the back).
DACA 142 – NAME CHANGE/DISCREPANCY USCIS records and/or evidence you submitted indicate that your name is [NAME]. You indicated on your request for consideration of deferred action for childhood arrivals that your name is [NAME]. Submit documentary evidence to establish your true name. Such evidence may include a birth certificate, adoption records, marriage certificate, passport, or government documentation showing that you have officially changed your name.
DACA143 – SUBMIT EVIDENCE OF NAME CHANGE Submit proof of your name change. Such proof would normally be a marriage certificate, termination of marriage (divorce or annulment decree), adoption decree, or court order.
IV. FINGERPRINTING / CRIMINALITY
DACA 150A – 2 UNCLASSIFIABLE PRINTS – SUBMIT LOCAL POLICE CLEARANCES To date, you have been fingerprinted twice and USCIS has been unable to get a required clearance for you because both sets of fingerprints were rejected as unclassifiable by the Federal Bureau of Investigation. Instead of a fingerprint clearance, you must submit a local police clearance certificate for each jurisdiction (city, town, county, or municipality) in which you have lived for six months or more within the past five years.
Please note: The police clearance certificate(s) must be researched by name and date of birth. You must supply the law enforcement agency with all aliases you have used, including maiden name, if applicable. Fingerprint cards are not acceptable evidence of a police clearance certificate.
If any record indicates that you have been arrested, you must provide documentation of each of the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not merely numeric citations or codes).
b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a
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Along with the above information, you must also answer the following questions. You should respond on this notice and sign your name where it asks for your signature. If more space is needed, you may respond to the following questions on separate sheet(s) of paper. Please sign every separate sheet of paper.

1) Have you ever been arrested or detained by a law enforcement officer? If yes, please explain.

Answer: ____________________________________________________________

____________________________________________________________________

2) Have you had your fingerprints taken for any reason by a law enforcement officer for a criminal offense? If yes, please explain.

Answer:

____________________________________________________________

____________________________________________________________________

3) Have you been issued a ticket or been taken into custody by a law enforcement officer? If yes, please explain.

Answer: ____________________________________________________________

____________________________________________________________________

4) Have you ever been ordered by a court to: pay a fine; serve a probationary sentence; perform community service; make restitution; or have your wages garnished (e.g., for failure to make child support payments)? If yes, please explain.

Answer: ____________________________________________________________

____________________________________________________________________

5) Have you ever received an expungement, parole, pardon, or successfully completed a diversion or rehabilitation program? If yes, please explain.

Answer:

____________________________________________________________

____________________________________________________________________

I certify, under penalties of perjury under the laws of the United States of America, that the foregoing is true and correct. Furthermore, I authorize the release from my records that USCIS needs to determine my eligibility for deferred action of childhood arrivals.

Signature of Requestor: _______________________________________________________

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DACA 150B – FINGERPRINT WAIVER The ASC granted a fingerprint waiver on your case, and provided you with a Police Clearance Notice instructing you to obtain police clearances and arrest reports (if any) for every U.S. residence during the past (5) five years.

Please note: The police clearance certificate(s) must be researched by name and date of birth. You must supply the law enforcement agency with all aliases you have used, including maiden name, if applicable. Fingerprint cards are not acceptable evidence of a police clearance certificate.

If any record indicates that you have been arrested, you must provide documentation of each of the following:

a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not merely numeric citations or codes).

b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guidelines, and/or statement from the court clerk or police department for this purpose.

Along with the above information, you must also answer the following questions. You should respond on this notice and sign your name where it asks for your signature. If more space is needed, you may respond to the following questions on separate sheet(s) of paper. Please sign every separate sheet of paper.

1) Have you ever been arrested or detained by a law enforcement officer? If yes, please explain.

Answer: ____________________________________________________________

____________________________________________________________________

2) Have you had your fingerprints taken for any reason by a law enforcement officer for a criminal offense? If yes, please explain.

Answer:

____________________________________________________________

____________________________________________________________________

3) Have you been issued a ticket or been taken into custody by a law enforcement officer? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
4) Have you ever been ordered by a court to: pay a fine; serve a probationary sentence; perform community service; make restitution; or have your wages garnished (e.g., for failure to make child support payments)? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________

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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 185 of 265 5) Have you ever received an expungement, parole, pardon, or successfully completed a diversion or
rehabilitation program? If yes, please explain.

Answer:

____________________________________________________________

____________________________________________________________________

I certify, under penalties of perjury under the laws of the United States of America, that the foregoing is true and correct. Furthermore, I authorize the release from my records that USCIS needs to determine my eligibility for deferred action of childhood arrivals.

Signature of Requestor: _______________________________________________________

DACA 151– SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A background check has been conducted based upon the fingerprints you provided at the Application Support Center. Your criminal history check has revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. (Where appropriate, Service Center may also need to include the name under which the arrest took place if different from name being used by requestor on Form I-821D. If there are multiple charges, you may bullet each charge.)
You must provide certified judgment and conviction/disposition documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The certified judgment and conviction/disposition documents must address the following:
a. The final disposition (e.g., your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony, misdemeanor or other type of offense. Please submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
V. I-821D PART 3 INCOMPLETE
DACA 155 – FORM I-821D INCOMPLETE You did not answer question(s)(ISO should list the question numbers in Part 3 of the Form I-821D that the requestor did not answer) in Part 3 of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to answer these question(s) on the enclosed copy of your original Form I-821D.
As stated in the instructions on Part 3 of the Form I-821D, if any of the questions apply to you, please describe the circumstances and include a full explanation in Part 7 of the Form I-821D. Re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
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VI. I-821D PART 3, CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY INFORMATION AFFIRMATIVE RESPONSES POSSIBLE INELIGIBILITY ISSUES
DACA 160 – ANSWERED “YES” to QUESTION 1 AND 2 IN PART 3 –DOCUMENTS NEEDED AND EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
1. Have you been arrested for, charged with, or convicted of a felony or misdemeanor in the United States?
2. Have you been arrested for, charged with, or convicted of any crime in any country other than the United States?
You did not provide a full explanation in Part 7 of your Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D. Therefore, please provide a full explanation describing the circumstances. DELETE IF AN EXPLANATION WAS PROVIDED
You must provide certified judgment and conviction/disposition documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The certified judgment and conviction/disposition documents must address the following:
a. The final disposition (e.g., your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony, misdemeanor, or some other type of offense. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 161 – ANSWERED “YES” TO QUESTION 3 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
3. Have you ever engaged in or do you continue to engage in or plan to engage in terrorist activities?
You did not provide a full explanation in Part 7 of your Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation of the terrorist activities you have ever engaged in, continue to engage in, or plan to engage in. Your explanation should include:
Whether other people were engaged in terrorist activities with you; The names of the other people with whom you engaged in terrorists activities; The role you played in terrorist activities; The role that others played in terrorist activities;
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 187 of 265 Whether you planned or actually carried out the terrorist activities; Whether you engaged in, continued to engage, or planned to engage in terrorist activities in the United States or abroad; and Describe the type of terrorist activities you engaged in, continue to engage in, or plan to engage in.
DACA 162 – ANSWERED “YES” TO QUESTION 4 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
4. Are you now or have you ever been a member of a gang?
You did not provide a full explanation in Part 7 of the Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation of your gang membership, including:
When you joined the gang(s); How long you were a member of the gang(s); The name of the gang(s); and The criminal activities you participated in with the gang(s).
DACA163 – ANSWERED “YES” TO QUESTIONS 5a. 5b, 5c, AND 5d IN PART 3– SUBMIT EXPLANATION On your Request for Deferred Action for Childhood Arrivals (Form I-821D) you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
5. Have you EVER engaged in, ordered, incited, assisted, or otherwise participated in any of the following:
a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
You did not provide a full explanation in Part 7 of the Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation describing your participation in activities involving torture, genocide, human trafficking, killing any person, severely injuring any person, or any sexual contact or relations with any person who was being forced or threatened.
VII. I-821D PART 3, CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY INFORMATION
DACA 170– ANSWERED “NO” TO QUESTIONS 1 AND 2 IN PART 3– USCIS FOUND CLEAR CHARGES OR OTHER DEROGATORY INFORMATION, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A background check has been conducted based upon the fingerprints you provided at the Application Support Center. Your background check revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. Where appropriate, Service Center may also need to include the name under which the arrest took place if different from name being used by requestor on Form I-821D. If there are multiple charges, you may bullet each charge.)
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You must provide certified judgment and conviction/disposition documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The certified judgment and conviction/disposition documents must address the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 171– ANSWERED “NO”TO QUESTIONS 1 AND 2 IN PART 3 - CRIMINAL ACTIVITY UNCLEAR TO USCIS, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS Based on a review of your case, it appears that you have some type of criminal record/interaction with law enforcement authorities. It appears that on [DATE] the following occurred:
[Provide explanation of findings, to include name of police dept. If applicable, charges if applicable, etc. NOTE: Do not inform the applicant where the information came from systems that are not our records (ex. IBIS)]
(Where appropriate, you may also need to include the name under which the arrest took place if different from name being used by the requestor on Form I-821D. If there are multiple interactions, you may bullet each interaction.)
Submit a statement explaining the results of this interaction with law enforcement authorities. You must provide certified judgment and conviction/disposition documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. If you are unable to provide such records because your case was expunged or sealed, you must provide information about your arrest and evidence demonstrating that such records are unavailable under the law of the particular jurisdiction. The certified judgment and conviction/disposition documents must address the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 172– ANSWERED “NO” TO QUESTIONS 3, 4, 5a. 5b, 5c, AND 5d IN PART 3 – USCIS DISCOVERED UNCLEAR INFORMATION, SUBMIT EXPLANATION Based on a review of your case, the following was discovered: (Delete those that do not apply)
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 189 of 265 3. you engaged in or do you continue to engage or plan to engage in terrorist activities?
4. you are now or have been a member of gang?
5. you engaged in, ordered, incited, assisted, or otherwise participated in any of the following: a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
[Provide explanation of findings. This can include where the information was found if it is knowledge that can be shared with the requestor. NOTE: Do not inform the requestor where the information came from systems that are not our records (ex. IBIS).]
Therefore, you must submit a statement explaining and/or refuting the information/circumstances found in USCIS records. Please note that if you refute the above information, and USCIS later receives information that the above does relate to you, USCIS may terminate deferred action and you may be barred from other immigration benefits.
VIII. FORM I-765
DACA 180 – FAILURE TO SUBMIT OR COMPLETE FORM I-765WS USCIS is unable to complete your Form I-765, Application for Employment Authorization because you failed to submit or complete the Form I-765WS. Please complete the worksheet and return it to the address provided within the specified time.
DACA 190 – SUBMIT PASSPORT PHOTOS Please submit two (2) passport-style color photo(s) of [NAME] taken within 30 days of the date of this notice, which conform(s) to the specifications below. Using a pencil or felt pen, lightly print name (and Alien Registration Number, if known) on the back of each photograph.
Please do not staple through any part of the photo(s). Enclose the photo(s) in a plastic or paper envelope and staple the envelope to this notice when returning it to this office.
Passport-style photos must be 2 inches by 2 inches: • Frame subject with full face, front view, eyes open. • Make sure photo presents full head from top of hair to bottom of chin; height of head should measure 1 inch to 1 3/8 inch (25 mm to 35 mm). • Center head within frame. • Make sure eye level is between 1 1/8 inch and 1 3/8 inch (28 mm and 35 mm) from bottom of photo. • Photograph subject against a plain white or off-white background. • Position subject and lighting so that there are no distracting shadows on the face or background. • Encourage subject to have a natural expression. • Include headpieces if worn daily for religious purposes; they should not obscure or cast shadows on the eyes or any other part of the face.
For more information on photo requirements, please see the Department of State website at: http://www.travel.state.gov/passport/pptphotos/index.html, or contact the USCIS National Customer Service Center at 1-800-375-5283.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 190 of 265 IX. FORM 131
DACA 200 – PROOF OF DACA To be considered for advance parole you must submit evidence to establish that you have been granted deferred action for childhood arrivals. Submit a copy of the approval notice issued by USCIS for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals.
DACA 201 – GENERAL
On [insert filing date], you filed an Application for Travel Document (Form I-131) based on an approved Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), the Secretary of Homeland Security may, in her discretion, parole into the United States any alien applying for admission to the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. To assist USCIS in adjudicating your application, please provide additional information about your proposed travel, including the reasons for requesting advance parole in order to travel outside the United States. In response to this notice, you should also submit evidence in support of your request (e.g., documentation showing that your proposed travel is related to your current employment or education or a humanitarian purpose).
DACA 202 – PROOF OF EDUCATIONAL NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for education purposes. Examples of travel abroad for education purposes include study abroad programs, school-sponsored trips abroad, or travel necessary to conduct academic research.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for education purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for educational purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A letter from the educational institution, or from an employee of the institution acting in his or her official capacity, describing the purpose of the travel, or documentation showing enrollment in a specific program or class coupled with documentary evidence showing that you will benefit from, or are required to travel for the specific program or class; or
NOTE: Travel during an academic year unrelated to academics (i.e., a vacation) is insufficient to qualify as an educational purpose.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 203 – PROOF OF HUMANITARIAN NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for humanitarian reasons. Examples of travel abroad for humanitarian reasons include medical reasons, to visit a family member, or to attend funeral services for a family member.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for humanitarian purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 191 of 265 support his/her need to travel abroad for humanitarian, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long the treatment is expected to last;
• Information on the reasons why you cannot obtain treatment in the United States; • An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis of
the family member’s condition; or • A death certificate or newspaper obituary of the family member or other document evidencing the
death of the family member.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 204 – PROOF OF EMPLOYMENT NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individual granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for employment purposes. Examples of travel abroad for employment purposes include: pursuit of a position in the United States with a foreign employer; an overseas assignment, interview, conference, or training; a meeting with overseas clients or others with whom you interact professionally; or a trip to cultivate business or sales overseas or any other overseas trip taken in furtherance of the applicant’s professional responsibilities.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for employment purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for employment purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A letter on official letterhead from your employer describing the need for your travel; or • A document showing a specific employment need, such as a conference program, that also shows
your participation.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
X. ASSORTED OTHERS
DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION All foreign language documents must be accompanied by a full English language translation which the interpreter has certified as complete and accurate, and by the interpreter’s certification that he or she is competent to translate from the foreign language into English. Please submit a full English translation of (ISO should list the document(s)). You must submit the requested foreign language document along with the translation.
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 192 of 265 DACA 301– YOU MAY SUBMIT PHOTOCOPIES You may submit either the original documents or legible photocopies of the originals, including copies of the front and back of each document. If you choose to submit original documents, they will not be returned to you. (Not for use when USCIS is requesting original documents.)
DACA 302– AFFIDAVITS Affidavits can support two of the DACA guidelines:
• Brief, casual, and innocent departures during the five years of required continuous presence in the United States: and
• Any minor gap in the five year continuous residence requirement.
In support of your DACA request, you submitted affidavits, but you did not indicate that: • primary and secondary evidence cannot be obtained; and • what effort you undertook to obtain that evidence.
Therefore, you are requested to provide the following: • A written statement from the appropriate issuing authority attesting to the fact that no record exists or can be located, or that the record sought was part of some segment of records which were lost or destroyed; or • Evidence (such as an affidavit) "that repeated good faith attempts were made to obtain the required document or record."
DACA 303A – SIGNATURE ON FORM I-821D As stated in the Form I-821D instructions, each request must be properly signed. Part 4 of your Form I821D, Consideration of Deferred Action for Childhood Arrivals is not properly signed because (ISO should indicate why the form was incorrectly signed. For example, the preparer signed Part 4 instead of Part 5 of the form or the requestor is over the age of 14, but the requestor's parent or legal guardian signed Part 4) Therefore, a copy of your Form I-821D is enclosed so that you can sign and date Part 4, 2.a. and 2.b. of your Form I-821D. Please note that a photocopy of a signed request or a typewritten name in place of a signature is not acceptable. Please attach your properly signed Form I-821D to this Request for Evidence and return to the address listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
DACA 303B - SIGNATURE ON FORM I-765 As stated in the Form I-765 instructions, each application must be properly signed. Form I-765, Application for Employment Authorization is not properly signed because (ISO should indicate why the form was incorrectly signed. For example, the preparer signed the form or the requestor is over the age of 14, but the requestor's parent or legal guardian signed the signature area). Therefore, a copy of your Form I-765 is enclosed so that you can sign and date. Please note that a photocopy of a signed application or a typewritten name in place of a signature is not acceptable. Please attach your properly signed Form I765 to this Request for Evidence and return to the address listed on this notice.
(Include a copy of the requestor’s Form I-765 with the RFE)
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Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 193 of 265 DACA 304 – FORM I-821D MISSING PAGE(S) You did not submit page (ISO should list the missing page number(s)) with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to complete the enclosed page (ISO should list the missing page number(s)) of the form. Also enclosed is a copy of your original Form I-821D. Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice. (Include a copy of the requestor’s Form I-821D and the blank missing page(s) of the form with the RFE)
XI. ACKNOWLEDGEMENT OF WITHDRAWAL DACA 350 FORM I-821D ACKNOWLEDGEMENT OF WITHDRAWAL On [DATE] you filed a request for deferred action under the Secretary of Homeland Security’s June 15, 2012, directive concerning Deferred Action for Childhood Arrivals. Your filing included a Form I-821D, Consideration of Deferred Action for Childhood Arrivals, a Form I-765, Application for Employment Authorization, and a Form I-765WS, Form I-765 Worksheet, together with the required filing fee. On [DATE], you withdrew your Form I-821D. This withdrawal applies equally to the forms I-765 and I765WS that you concurrently filed with the Form I-821D. USCIS hereby acknowledges your withdrawal. USCIS will not take any further action on your Form I821D or the related forms I-765 and I-765WS. If you later wish to request Consideration of Deferred Action for Childhood Arrivals, you may file a new Form I-821D concurrently with a new Form I-765 and Form I-765WS, with a new fee. DACA 351 FORMS I-765/I-765WS ACKNOWLEDGEMENT OF WITHDRAWAL On [DATE] you filed a request for deferred action under the Secretary of Homeland Security’s June 15, 2012, directive concerning Deferred Action for Childhood Arrivals. Your filing included a Form I-821D, Consideration of Deferred Action for Childhood Arrivals, a Form I-765, Application for Employment Authorization, and a Form I-765WS, Form I-765 Worksheet, together with the required filing fee. On [DATE], you withdrew your Form I-821D. This withdrawal applies equally to the forms I-765 and I765WS that you concurrently filed with the Form I-821D. USCIS hereby acknowledges your withdrawal. USCIS will not take any further action on your forms I765 and I-765WS or the related Form I-821D. The filing fee is not refundable. If you later wish to request Consideration of Deferred Action for Childhood Arrivals, you may file a new Form I-821D concurrently with a new Form I-765 and Form I-765WS, with a new fee.
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Appendix D
DEFERRED ACTION FOR CHILDHOOD ARRIVALS
RFE CALL-UPS
NOTE: Text highlighted in YELLOW and bracketed by [ ] is hidden text that requires ISO input. The ISO should delete the highlighted bracketed [Text] and type in the necessary information, or choose the appropriate information from choices and delete the information that does not apply. Text only highlighted in YELLOW and not bracketed is directive in nature and should not be printed in the letter being sent but should be deleted. Please mix call-ups into a single RFE as needed.
NOTE: Please add call-ups DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION and DACA 301 – YOU MAY SUBMIT PHOTOCOPIES to any other call-ups below as needed.
DACA 100 – IDENTITY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to prove your identity is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Passport; • Birth certificate accompanied by photo identification: • Any national identity documents from your country of origin bearing your photo and/or
fingerprint; • Any U.S.-government immigration or other document bearing your name and photograph (e.g.,
Employment Authorization Documents (EADs), expired visas, driver’s licenses, non-driver cards, etc.); • Any school-issued form of identification with photo; • Military identification document with photo; or • Any other document that you believe is relevant.
DACA 101 – CONTINUOUS RESIDENCE The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to establish that you have continuously resided in the United States during the 5-year period immediately before June 15, 2012 and up to the time of filing is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, Federal and State income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business);
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.

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b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service;
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance;
d. Military records (e.g., 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; or military health records);
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.);
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.
(ISO: Add the appropriate language below to the RFE if any of the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D are blank OR if page 3 of the Form I-821D is missing.)
In addition, you did not answer question(s)(ISO should list the questions on page 3 (Part 2, Arrival/Residence Information) of the Form I-821D that were not answered) in Part 2, Arrival/Residence Information, of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to answer these question(s) on the enclosed copy of your original Form I-821D.
Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
OR
In addition, you did not submit page three (3) with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to complete the enclosed page three (3) of the form.
Also enclosed is a copy of your original Form I-821D. Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D and a blank page 3 of the form with the RFE)

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 196 of 265 DACA 102 - BRIEF, CASUAL, AND INNOCENT ABSENCE To be considered for deferred action as a childhood arrival, you must have continuously resided in the United States during the 5 years period immediately before June 15, 2012 and up to the date you filed your request for deferred action. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence.
An absence will be considered brief, casual, and innocent, if:
(1) The absence was short and reasonably calculated to accomplish the purpose of the absence; (2) The absence was not the result of an order of exclusion, deportation, or removal; (3) The absence was not because of an order of voluntary departure, or an administrative grant of
voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (4) The purpose of the absence from the United States or actions while outside of the United States were not contrary to law.
The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for each departure you made from the United States since June 15, 2007 to show that each departure you made from the United States since June 15, 2012 were brief, casual, and innocent is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Plane or other transportation tickets or itinerary showing the travel dates; • Passport entries; • Hotel receipts showing the dates you were abroad; • Evidence of the purpose of the travel (e.g., you attended a wedding or funeral); • Advance parole document; or • Any other evidence that could support a brief, casual, and innocent absence.
DACA 103 – ARRIVED IN THE UNITED STATES BEFORE AGE 16 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to establish that you came to the United States prior to your 16th birthday is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• Passport with an admission stamp indicating when you entered the United States; • I-94/I-95/I-94W Arrival/Departure Record; • Any INS or DHS document stating your date of entry (e.g., Form I-862, Notice to Appear); • Travel records, such as transportation tickets showing your dates of travel to the United States; • School records (transcripts, report cards, etc.) from the schools that you have attended in the
United States, showing the name(s) of the schools and the periods of school attendance; • Hospital or medical records concerning treatment or hospitalization, showing the name of the
medical facility or physician and the date(s) of the treatment or hospitalization; • Official records from a religious entity in the United States confirming your participation in a
religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.); or • Any other document that you believe is relevant.

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 197 of 265 DACA 104 –IN UNLAWFUL STATUS AS OF JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were in unlawful status as of June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired; • If you have a final order of exclusion, deportation, or removal issued on or before June 15, 2012,
submit a copy of that order and related charging documents, if available; • An INS or DHS charging document placing you into removal proceedings; • Any other document that you believe is relevant to show that you lacked lawful immigration status
on June 15, 2012; or • Any document relating to parole.
DACA 105 – PROOF OF PRESENCE IN THE UNITED STATES ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you were present in the United States on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, Federal and State income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business).
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service.
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance.
d. Military records (e.g., 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; or military health records).
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization.
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.).
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.

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DACA 106 – CURRENTLY ENROLLED IN SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, showing that you have been accepted for enrollment or are already attending classes in one of the following is insufficient:
• A public or private elementary, junior high/middle school or high school/secondary school; • A public or private college or university, or community college; • A course of study to pass a General Education Development (GED) Certificate exam or other State-
authorized exam; • An educational or career training program (including vocational training); • Literacy training; or • An English as a Second Language (ESL) program.
(ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly)
You may still submit evidence, which may include the following: (ISO should delete any of the following that were already provided by the requestor.
• A public or private elementary, junior high/middle school or high school/secondary school; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school’s authorized representative. Such acceptance letter is to include the name and address of the school, your grade level, and the date that classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; o A current class schedule containing the student’s name, the list of courses, and the day and time of each class; or o Any other relevant evidence.  If already enrolled – Current school registration cards; current transcripts; report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade; or a current IEP showing your process to date.
• A public or private college or university, or community college; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance package or related material on school letterhead from the school’s authorized representative. Such acceptance package or related material is to include the name and address of the school, your grade level or class year, and the date or term when classes are scheduled to commence. In addition, the acceptance package or related material is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; o A copy of your current tuition bill; o A current class schedule containing your name, the list of courses, and the day and time of each class; or o Any other relevant evidence.

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 199 of 265  If already enrolled – Current school registration cards; current transcripts; report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade or class year; or a current IEP showing your process to date.
• A course of study to pass a General Education Development (GED) Certificate exam or other equivalent State-authorized exam; Such evidence is to include a letter from the authorized representative of the program that includes information such as:  Your name and date of enrollment;  The duration of the program and expected completion date;  Whether the course of study is for a regular high school diploma or recognized equivalent under State law or a GED exam or other equivalent State-authorized exam;  The program’s source and amount of funding; and  The program’s authorized representative’s contact information.
• An educational or career training program (including vocational training); Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school registrar/authorized school representative. 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 when the classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for the program; o A copy of your current year registration (intake form/enrollment form); or o Any other relevant documentation.  If already attending classes– Current transcripts, report cards, or progress reports showing the name of the school, the time period or semester covered by the document, and if relevant, the current educational or grade level.
• Literacy training; or Such evidence is to include a letter from the literary program administrator or authorized representative providing information such as:  Your name;  The date of your enrollment;  The duration of the literacy program and the expected completion date; and  The program administrator or authorized representative’s contact information.
• An English as a Second Language (ESL) program. Such evidence is to include a letter from the ESL program administrator or authorized representative. This letter is to include the following:  Your name;  The date of your enrollment;  The duration of the ESL program and the expected completion date;  The program administrator or authorized representative’s contact information.
DACA 106A – EVIDENCE OF ACCEPTANCE BUT NO EVIDENCE OF REGISTERING FOR CLASSES: You have provided an acceptance letter or other related material indicating that you have been accepted at [ISO should list the name of the private elementary/junior high/middle school/high school/secondary school or public or private college/university/community college]. However, you did not include evidence that you have enrolled in that school. Therefore, you are requested to submit such evidence which is to include, but is not limited to paid tuition bills or evidence that you have registered for class at that school.
DACA 106B – LITERACY PROGRAM’S NON-PROFIT STATUS If the literacy program in which you are enrolled has non-profit status, please provide evidence of such status. Evidence 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 amended, or equivalent section of prior code.

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 200 of 265 DACA 106C –PUBLIC FUNDING (GED; Educational or Career Training Program (Including Vocational Training); ESL) If the [ISO should insert GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; or English as a Second Language] in which you are enrolled is funded in whole or in part by public funds (Federal, State, county or municipal), you are requested to submit a letter from the [ISO should insert GED program administrator/authorized representative; school registrar/authorized school representative if requestor is enrolled in Career Training Program (Including Vocational Training); literacy program administrator/authorized representative; or ESL program administrator/authorized representative] providing basic details about the funding, such as the source(s) of the funding.
DACA 106D – PUBLIC FUNDING – (Literacy Program) If the literacy program in which you are enrolled is not funded in whole or in part by public funds (Federal, State, county, or municipal) or not administered by a non-profit entity you are requested to submit a letter from the program administrator or authorized representative providing basic details about the funding, such as the amount and the source(s) of the funding.
DACA 106E – DEMONSTRATED EFFECTIVENESS (GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; ESL)
(ISO SHOULD SELECT THE CORRECT RFE PARAGRAPH BELOW DEPENDING UPON THE PROGRAM IN WHICH THE REQUESTOR IS ENROLLED)
Your record shows that the GED/Equivalency program, in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the GED program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in assisting students in obtaining a regular high school diploma, GED,
or a recognized equivalent certificate, or passing a GED or recognized equivalent exam; • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
Your record shows that the educational or career training program (including vocational training), in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information, with supporting documentation, if available, from the school registrar/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in placing students in employment, job training, or post-secondary
education; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
Your record shows that the literacy program in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the literary program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The duration of the program’s existence; • The program’s track record in placing students in post-secondary education, job training programs,
or employment; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 201 of 265 Your record shows that the English as a Second Language (ESL) program in which you are enrolled is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the ESL program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
• The length of the program’s existence; • The program’s track record in assisting students in obtaining placement in postsecondary schools,
job training programs, or employment; and • Receipt of awards or special achievement or recognition, that indicate the program’s overall
quality; and/or • Any other relevant information indicating the program’s overall quality.
DACA 106F– GRADUATED FROM SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you graduated from school is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A diploma; • Transcripts showing the 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.
Documentation sufficient to demonstrate that you obtained a GED includes, but is not limited to, evidence you passed a GED exam, or other comparable State-authorized exam, and, as a result, you received the recognized equivalent of a regular high school diploma under State law.
DACA 107G – MEDICAL LEAVE You indicate in your filing that you are currently on medical leave from school. Therefore, you are requested to submit evidence of your medical leave and indicate the date you expect to return to school. Evidence of your medical leave may include, but is not limited to, an explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long your treatment is expected to last.
DACA 107 - MILITARY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• 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; or • Military health records.
DACA 108- REMOVAL PROCEEDINGS Submit documents that you have been issued an order of exclusion, deportation or removal. Such documentation could include copies of:
• Any removal, deportation, or exclusion order issued by an Immigration Judge; • Final decision from the Board of Immigration Appeals (BIA); or • Final decision from a U.S. Court of Appeals in your case.

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APPLICATION SUPPORT CENTER (ASC) RELATED
DACA 130 – SCHEDULE ASC APPOINTMENT Your request cannot be processed until you have appeared at an Application Support Center (ASC) for the collection of a digital photograph, signature, and fingerprint(s). Our records indicate that you have not yet appeared at an ASC for this purpose. Please schedule an appointment at the ASC nearest you by calling the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833). You also can find the location of the ASC nearest you on the USCIS web site at www.USCIS.gov.
Once you have scheduled an appointment, or if you have a scheduled appointment, please return this notice to the address below with the appointment information.
Date of Appointment: ___________________
Location of Appointment: ___________________
DACA 131– RESCHEDULE ASC APPOINTMENT (TECHNICAL DIFFICULTIES) On [DATE], USCIS asked you to schedule an appointment at an Application Support Center (ASC) for the collection of a digital photograph, signature and fingerprint(s). In response to that request, you indicated that you already appeared at an ASC as required. However, due to technical problems, your previouslyacquired biometrics from the ASC cannot be used.
USCIS will mail a separate notice to you containing information for a new appointment for biometrics capture at the ASC nearest you and listing identity documents that you must bring with you to your ASC appointment. Once you receive that notice, additional information regarding the location of the ASC can be found on the USCIS web site at www.USCIS.gov. Please bring this notice with you to your appointment.
Once you have provided your biometrics to the ASC, respond to this request with evidence of your attendance of the ASC appointment. Such evidence typically consists of a copy of your appointment notice, bearing a stamp from the ASC technician. Along with the evidence of your appointment, please include all other evidence requested in this notice.
We sincerely regret any inconvenience this has caused you.
NAME, DATE OF BIRTH DISCREPANCY
DACA 140 – DATE OF BIRTH DISCREPANCY USCIS records indicate that you were born on [DATE]. You indicated on your request for consideration of deferred action for childhood arrivals that you were born on [DATE]. Submit documentary evidence to establish your true date of birth. Such evidence may include your birth certificate and/or passport. If you submit a copy of your birth certificate, you must submit copies of the front and back (if there is information on the back).
DACA 142 – NAME CHANGE/DISCREPANCY USCIS records and/or evidence you submitted indicate that your name is [NAME]. You indicated on your request for consideration of deferred action for childhood arrivals that your name is [NAME]. Submit documentary evidence to establish your true name. Such evidence may include a birth certificate, adoption records, marriage certificate, passport, or government documentation showing that you have officially changed your name.
DACA143 – SUBMIT EVIDENCE OF NAME CHANGE Submit proof of your name change. Such proof would normally be a marriage certificate, termination of marriage (divorce or annulment decree), adoption decree, or court order.

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FINGERPRINTING / CRIMINALITY
DACA 150 – 2 UNCLASSIFIABLE PRINTS – SUBMIT LOCAL POLICE CLEARANCES To date, you have been fingerprinted twice and USCIS has been unable to get a required clearance for you because both sets of fingerprints were rejected as unclassifiable by the Federal Bureau of Investigation. Instead of a fingerprint clearance, you must submit a local police clearance certificate for each jurisdiction (city, town, county, or municipality) in which you have lived for six months or more within the past five years.
Please note: The police clearance certificate(s) must be researched by name and date of birth. You must supply the law enforcement agency with all aliases you have used, including maiden name, if applicable. Fingerprint cards are not acceptable evidence of a police clearance certificate.
If any record indicates that you have been arrested, you must provide documentation of each of the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not merely numeric citations or codes).
b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guidelines, and/or statement from the court clerk or police department for this purpose.
Along with the above information, you must also answer the following questions. You should respond on this notice and sign your name where it asks for your signature. If more space is needed, you may respond to the following questions on separate sheet(s) of paper. Please sign every separate sheet of paper.
1) Have you ever been arrested or detained by a law enforcement officer? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
2) Have you had your fingerprints taken for any reason by a law enforcement officer for a criminal offense? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
3) Have you been issued a ticket or been taken into custody by a law enforcement officer? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
4) Have you ever been ordered by a court to: pay a fine; serve a probationary sentence; perform community service; make restitution; or have your wages garnished (e.g., for failure to make child support payments)? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 204 of 265 5) Have you ever received an expungement, parole, pardon, or successfully completed a diversion or
rehabilitation program? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
I certify, under penalties of perjury under the laws of the United States of America, that the foregoing is true and correct. Furthermore, I authorize the release from my records that USCIS needs to determine my eligibility for deferred action of childhood arrivals.
Signature of Requestor: _______________________________________________________
DACA 151– SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A criminal history check has been conducted based upon the fingerprints you provided at the Application Support Center. Your criminal history check has revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. (WHERE APPROPRIATE, SERVICE CENTER MAY ALSO NEED TO INCLUDE THE NAME UNDER WHICH THE ARREST TOOK PLACE IF DIFFERENT FROM NAME BEING USED BY REQUESTOR ON FORM I-821D. IF THERE ARE MULTIPLE CHARGES, YOU MAY BULLET EACH CHARGE.)
You must provide certified judgment and conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (e.g., your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony, misdemeanor or other type of offense. Please submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
I-821D PART 3 INCOMPLETE
DACA 155 – FORM I-821D INCOMPLETE You did not answer question(s)(ISO should list the question numbers in Part 3 of the Form I-821D that the requestor did not answer) in Part 3 of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to answer these question(s) on the enclosed copy of your original Form I-821D.
As stated in the instructions on Part 3 of the Form I-821D, if any of the questions apply to you, please describe the circumstances and include a full explanation in Part 7 of the Form I-821D. Re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)

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I-821D PART 3, CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY INFORMATION AFFIRMATIVE RESPONSES POSSIBLE INELIGIBILITY ISSUES
DACA 160 – ANSWERED “YES” to QUESTION 1 AND 2 IN PART 3 –DOCUMENTS NEEDED AND EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
1. Have you been arrested for, charged with, or convicted of a felony or misdemeanor in the United States?
2. Have you been arrested for, charged with, or convicted of any crime in any country other than the United States?
You did not provide a full explanation in Part 7 of your Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D. Therefore, please provide a full explanation describing the circumstances. DELETE IF AN EXPLANATION WAS PROVIDED
You must provide certified judgment and conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (e.g., your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony, misdemeanor, or some other type of offense. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals. DACA 161 – ANSWERED “YES” TO QUESTION 3 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
3. Have you ever engaged in or do you continue to engage in or plan to engage in terrorist activities?
You did not provide a full explanation in Part 7 of your Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation of the terrorist activities you have ever engaged in, continue to engage in, or plan to engage in. Your explanation should include:
Whether other people were engaged in terrorist activities with you; The names of the other people with whom you engaged in terrorists activities; The role you played in terrorist activities; The role that others played in terrorist activities; Whether you planned or actually carried out the terrorist activities; Whether you engaged in, continued to engage, or planned to engage in terrorist activities in the United States or abroad; and Describe the type of terrorist activities you engaged in, continue to engage in, or plan to engage in.

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DACA 162 – ANSWERED “YES” TO QUESTION 4 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
4. Are you now or have you ever been a member of a gang?
You did not provide a full explanation in Part 7 of the Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation of your gang membership, including:
When you joined the gang(s); How long you were a member of the gang(s); The name of the gang(s); and The criminal activities you participated in with the gang(s).
DACA163 – ANSWERED “YES” TO QUESTIONS 5a. 5b, 5c, AND 5d IN PART 3– SUBMIT EXPLANATION On your Request for Deferred Action for Childhood Arrivals (Form I-821D) you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
5. Have you EVER engaged in, ordered, incited, assisted, or otherwise participated in any of the following:
a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
You did not provide a full explanation in Part 7 of the Form I-821D describing the circumstances, as requested in the instructions on Part 3 of the Form I-821D.
Please provide a full and complete explanation describing your participation in activities involving torture, genocide, human trafficking, killing any person, severely injuring any person, or any sexual contact or relations with any person who was being forced or threatened.
I-821D PART 3, CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY INFORMATION
DACA 170– ANSWERED “NO” TO QUESTIONS 1 AND 2 IN PART 3– USCIS FOUND CLEAR CHARGES OR OTHER DEROGATORY INFORMATION, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A background check has been conducted based upon the fingerprints you provided at the Application Support Center. Your background check revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. (WHERE APPROPRIATE, YOU MAY ALSO NEED TO INCLUDE THE NAME UNDER WHICH THE ARREST TOOK PLACE IF DIFFERENT FROM NAME BEING USED BY THE REQUESTOR ON FORM I821D. IF THERE ARE MULTIPLE CHARGES, YOU MAY BULLET EACH CHARGE.)
You must provide certified judgment and/or conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 207 of 265 b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 171– ANSWERED “NO”TO QUESTIONS 1 AND 2 IN PART 3 - CRIMINAL ACTIVITY UNCLEAR TO USCIS, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS Based on a review of your case, it appears that you have some type of criminal record/interaction with law enforcement authorities. It appears that on [DATE] the following occurred:
[PROVIDE EXPLANATION OF FINDINGS, TO INCLUDE NAME OF POLICE DEPT. IF APPLICABLE, CHARGES IF APPLICABLE, ETC. NOTE: DO NOT INFORM THE APPLICANT WHERE THE INFORMATION CAME FROM SYSTEMS THAT ARE NOT OUR RECORDS (EX. IBIS)]
(WHERE APPROPRIATE, YOU MAY ALSO NEED TO INCLUDE THE NAME UNDER WHICH THE ARREST TOOK PLACE IF DIFFERENT FROM NAME BEING USED BY THE REQUESTOR ON FORM I821D. IF THERE ARE MULTIPLE INTERACTIONS, YOU MAY BULLET EACH INTERACTION.)
Submit a statement explaining the results of this interaction with law enforcement authorities. You must provide certified judgment and conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 172– ANSWERED “NO” TO QUESTIONS 3, 4, 5a. 5b, 5c, AND 5d IN PART 3 – USCIS DISCOVERED UNCLEAR INFORMATION, SUBMIT EXPLANATION Based on a review of your case, the following was discovered: DELETE THOSE THAT DON’T APPLY
3. you engaged in or do you continue to engage or plan to engage in terrorist activities?
4. you are now or have been a member of gang?
5. you engaged in, ordered, incited, assisted, or otherwise participated in any of the following: a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
[PROVIDE EXPLANATION OF FINDINGS. THIS CAN INCLUDE WHERE THE INFORMATION WAS FOUND IF IT IS KNOWLEDGE THAT CAN BE SHARED WITH THE REQUESTOR. NOTE: DO NOT INFORM THE REQUESTOR WHERE THE INFORMATION CAME FROM SYSTEMS THAT ARE NOT OUR RECORDS (EX. IBIS).]

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 208 of 265 Therefore, you must submit a statement explaining and/or refuting the information/circumstances found in USCIS records. Please note that if you refute the above information, and USCIS later receives information that the above does relate to you, USCIS may terminate deferred action and you may be barred from other immigration benefits.
FORM I-765
DACA 180 – FAILURE TO SUBMIT OR COMPLETE FORM I-765WS USCIS is unable to complete your Form I-765, Application for Employment Authorization because you failed to submit or complete the Form I-765WS. Please complete the worksheet and return it to the address provided within the specified time.
DACA 190 – SUBMIT PASSPORT PHOTOS Please submit two (2) passport-style color photo(s) of [NAME] taken within 30 days of the date of this notice, which conform(s) to the specifications below. Using a pencil or felt pen, lightly print name (and Alien Registration Number, if known) on the back of each photograph.
Please do not staple through any part of the photo(s). Enclose the photo(s) in a plastic or paper envelope and staple the envelope to this notice when returning it to this office.
Passport-style photos must be 2 inches by 2 inches: • Frame subject with full face, front view, eyes open. • Make sure photo presents full head from top of hair to bottom of chin; height of head should measure 1 inch to 1 3/8 inch (25 mm to 35 mm). • Center head within frame. • Make sure eye level is between 1 1/8 inch and 1 3/8 inch (28 mm and 35 mm) from bottom of photo. • Photograph subject against a plain white or off-white background. • Position subject and lighting so that there are no distracting shadows on the face or background. • Encourage subject to have a natural expression. • Include headpieces if worn daily for religious purposes; they should not obscure or cast shadows on the eyes or any other part of the face.
For more information on photo requirements, please see the Department of State website at: http://www.travel.state.gov/passport/pptphotos/index.html, or contact the USCIS National Customer Service Center at 1-800-375-5283.
FORM 131
DACA 200 – PROOF OF DACA To be considered for advance parole you must submit evidence to establish that you have been granted deferred action for childhood arrivals. Submit a copy of the approval notice issued by USCIS for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals.
DACA 201 – PROOF OF EDUCATIONAL NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for education purposes. Examples of travel abroad for education purposes include study abroad programs, school-sponsored trips abroad, or travel necessary to conduct academic research.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for education purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 209 of 265 his/her need to travel abroad for educational purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A letter from the educational institution, or from an employee of the institution acting in his or her official capacity, describing the purpose of the travel, or documentation showing enrollment in a specific program or class coupled with documentary evidence showing that you will benefit from, or are required to travel for the specific program or class; or
NOTE: Travel during an academic year unrelated to academics (i.e., a vacation) is insufficient to qualify as an educational purpose.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 202 – PROOF OF HUMANITARIAN NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for humanitarian reasons. Examples of travel abroad for humanitarian reasons include medical reasons, to visit a family member, or to attend funeral services for a family member.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for humanitarian purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for humanitarian, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long the treatment is expected to last;
• Information on the reasons why you cannot obtain treatment in the United States; • An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis of
the family member’s condition; or • A death certificate or newspaper obituary of the family member or other document evidencing the
death of the family member.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 203 – PROOF OF EMPLOYMENT NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individual granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for employment purposes. Examples of travel abroad for employment purposes include: pursuit of a position in the United States with a foreign employer; an overseas assignment, interview, conference, or training; a meeting with overseas clients or others with whom you interact professionally; or a trip to cultivate business or sales overseas or any other overseas trip taken in furtherance of the applicant’s professional responsibilities.

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The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for employment purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for employment purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
• A letter on official letterhead from your employer describing the need for your travel; or • A document showing a specific employment need, such as a conference program, that also shows
your participation.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
ASSORTED OTHERS
DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION If you submit a document in any language other than English, it must be completely translated word-forword. The translator must certify that the translation is accurate and that he or she is competent to translate. Note: You must submit the requested foreign language document along with the translation.
DACA 301– YOU MAY SUBMIT PHOTOCOPIES You may submit either the original documents or legible photocopies of the originals, including copies of the front and back of each document. If you choose to submit original documents, they will not be returned to you. [NOT FOR USE WHEN USCIS IS REQUESTING ORIGINAL DOCUMENTS.]
DACA 302– AFFIDAVITS Affidavits can support two of the DACA guidelines:
• Brief, casual, and innocent departures during the five years of required continuous presence in the United States: and
• Any minor gap in the five year continuous residence requirement.
In support of your DACA request, you submitted affidavits, but you did not indicate that: • primary and secondary evidence cannot be obtained; and • what effort you undertook to obtain that evidence.
Therefore, you are requested to provide the following: • A written statement from the appropriate issuing authority attesting to the fact that no record exists or can be located, or that the record sought was part of some segment of records which were lost or destroyed; or • Evidence (such as an affidavit) "that repeated good faith attempts were made to obtain the required document or record."

Case 2:17-cv-00218-RSM Document 78-6 Filed 04/25/17 Page 211 of 265 DACA 303 – SIGNATURE ON FORM I-821D As stated in the Form I-821D instructions, each request must be properly signed. Part 4 of your Form I821D, Consideration of Deferred Action for Childhood Arrivals is not properly signed because (ISO should indicate why the form was incorrectly signed. For example, the preparer signed Part 4 instead of Part 5 of the form or the requestor is over the age of 14, but the requestor's parent or legal guardian signed Part 4) Therefore, your Form I-821D is enclosed so that you can sign and date Part 4, 2.a. and 2.b. of your Form I821D. Please note that a photocopy of a signed request or a typewritten name in place of a signature is not acceptable. Please attach your properly signed Form I-821D to this Request for Evidence and return to the address listed on this notice.
(Include a copy of the requestor’s Form I-821D with the RFE)
DACA 304 – Form I-821D Missing Page(s) You did not submit page (ISO should list the missing page number(s)) with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. Therefore, you are requested to complete the enclosed page (ISO should list the missing page number(s)) of the form.
Also enclosed is a copy of your original Form I-821D. Please re-sign and date page four (4) of the completed form; the completed form must contain a new original signature. Attach your completed Form I-821D to this Request for Evidence and send to the address as listed on this notice.
(Include a copy of the requestor’s Form I-821D and the blank missing page(s) of the form with the RFE)
ACKNOWLEDGEMENT OF WITHDRAWAL
DACA Acknowledgement of Withdrawal On [DATE] you filed a request for deferred action under the Secretary of Homeland Security’s June 15, 2012, directive concerning Deferred Action for Childhood Arrivals. The complete DACA package included Form I-821D, Consideration of Deferred Action for Childhood Arrivals, a Form I-765, Application for Employment Authorization, and a Form I-765WS, Form I-765 Worksheet, together with the required filing fee (“DACA Package”).
On [DATE], you withdrew your DACA Package. This withdrawal applies equally to the Form I-821D, the Form I-765, and the Form I-765WS.
USCIS hereby acknowledges your withdrawal of your DACA Package. Your withdrawal terminates each separate request that is part of your DACA Package. USCIS will not take any further action on your Form I821D or the related Form I-765. The filing fee is not refundable.
This acknowledgement of your withdrawal of your DACA Package is not a “decision” that is subject to administrative appeal or to the filing of a motion to reopen/reconsider. However, if you later believe you are eligible and wish to request Consideration of Deferred Action for Childhood Arrivals, you may file a new Form I-821D concurrently with a new Form I-765 and Form I-765WS, with a new fee.

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Appendix D
DEFERRED ACTION FOR CHILDHOOD ARRIVALS
RFE CALL-UPS
NOTE: Text highlighted in YELLOW and bracketed by [ ] is hidden text that requires ISO input. The ISO should delete the highlighted bracketed [Text] and type in the necessary information, or choose the appropriate information from choices and delete the information that does not apply. Text only highlighted in YELLOW and not bracketed is directive in nature and should not be printed in the letter being sent but should be deleted. Please mix call-ups into a single RFE as needed.
NOTE: Please add call-ups DACA 300 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION and DACA 301 – YOU MAY SUBMIT PHOTOCOPIES to any other call-ups below as needed.
DACA 100 – IDENTITY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to prove your identity is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
Passport; Birth certificate accompanied by photo identification: Any national identity documents from your country of origin bearing your photo and/or fingerprint; Any U.S.-government immigration or other document bearing your name and photograph (e.g., Employment Authorization Documents (EADs), expired visas, driver’s licenses, nondriver cards, etc.); Any school-issued form of identification with photo; Military identification document with photo; or Any other document that you believe is relevant.

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DACA 101 – CONTINUOUS RESIDENCE The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to that establish that you have continuously resided in the United States during the 5-year period immediately before June 15, 2012 and up to the time of filing is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, State verification of the filing of state income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business);
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service;
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance;
d. Military records (e.g., 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; or military health records);
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.);
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, rental agreements, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.

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DACA 102 - BRIEF, CASUAL, AND INNOCENT ABSENCE To be considered for deferred action as a childhood arrival, you must have continuously resided in the United States during the 5 years period immediately before June 15, 2012 and date you filed your request for deferred action. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence.
An absence will be considered brief, casual, and innocent, if:
(1) The absence was short and reasonably calculated to accomplish the purpose of the absence;
(2) The absence was not the result of an order of exclusion, deportation, or removal; (3) The absence was not because of an order of voluntary departure, or an administrative
grant of voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (4) The purpose of the absence from the United States or actions while outside of the United States were not contrary to law.
The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for each departure you made from the United States since June 15, 2007 to show that each departure you made from the United States since June 15, 2012 were brief, casual, and innocent is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
Plane or other transportation tickets or itinerary showing the travel dates; Passport entries; Hotel receipts showing the dates you were abroad; Evidence of the purpose of the travel (e.g., you attended a wedding or funeral); Advance parole document; or Any other evidence that could support a brief, casual, and innocent absence.
DACA 103 – ARRIVED IN THE UNITED STATES BEFORE AGE 16 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to that establish you came to the United States prior to your 16th birthday is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
Passport with an admission stamp indicating when you entered the United States; I-94/I-95/I-94W Arrival/Departure Record; Any INS or DHS document stating your date of entry (e.g., Form I-862, Notice to Appear); Travel records, such as transportation tickets showing your dates of travel to the United States; School records (transcripts, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and the periods of school attendance; Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization;

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Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.); or Any other document that you believe is relevant.
DACA 104 –IN UNLAWFUL STATUS AS OF JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to that show that you were in unlawful status as of June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
I-94/I-95/I-94W Arrival/Departure Record showing the date your authorized stay expired; If you have a final order of exclusion, deportation, or removal issued on or before June 15, 2012, submit a copy of that order and related charging documents, if available; An INS or DHS charging document placing you into removal proceedings; Any other document that you believe is relevant to show that you lacked lawful immigration status on June 15, 2012; or Any document relating to parole.
DACA 105 – PROOF OF PRESENCE IN THE UNITED STATES ON JUNE 15, 2012 The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to that show that you were present in the United States on June 15, 2012 is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
a. Employment records (e.g., pay stubs, W-2 Forms, certification of the filing of Federal income tax returns, State verification of the filing of state income tax returns, letters from employer(s), or, if you are self employed, letters from banks and other firms with whom you have done business).
NOTE: In all of these documents, your name and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be signed by the employer and must include the employer’s contact information.
Such letters must include: (1) your address(es) at the time of employment; (2) the exact period(s) of employment; (3) period(s) of layoff; and (4) duties with the company.
b. Rent receipts, utility bills (gas, electric, phone, etc.), receipts or letters from companies showing the dates during which you received service.
c. School records (transcripts, letters, report cards, etc.) from the schools that you have attended in the United States, showing the name(s) of the schools and periods of school attendance.

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d. Military records (e.g., 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; or military health records).
e. Hospital or medical records concerning treatment or hospitalization, showing the name of the medical facility or physician and the date(s) of the treatment or hospitalization.
f. Official records from a religious entity in the United States confirming your participation in a religious ceremony, rite, or passage (e.g., baptism, first communion, wedding, etc.).
g. Money order receipts for money sent into or out of the country; passport entries; birth certificates of children born in the United States; dated bank transactions; correspondence between you and another person or organization; U.S. Social Security card; Selective Service card; automobile license receipts, title, vehicle registration, etc.; deeds, mortgages, contracts to which you have been a party; tax receipts; insurance policies; receipts; postmarked letters; or
h. Any other relevant document.
DACA 106 – CURRENTLY ENROLLED IN SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, showing that you have been accepted for enrollment or are already attending classes in one of the following is insufficient:
A public or private elementary, junior high/middle school or high school/secondary school; A public or private college or university, or community college; A course of study to pass a General Education Development (GED) Certificate exam or other State-authorized exam; An educational or career training program (including vocational training); Literacy training; or An English as a Second Language (ESL) program.
(ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly)
You may still submit evidence, which may include the following: (ISO should delete any of the following that were already provided by the requestor.
A public or private elementary, junior high/middle school or high school/secondary school;
Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school’s authorized representative. Such acceptance letter is to include the name and address of the school, your grade level, and the date that classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability;

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o A current class schedule containing the student’s name, the list of courses, and the day and time of each class; or
o Any other relevant evidence.  If already enrolled – Current school registration cards; current transcripts;
report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade; or a current IEP showing your process to date.
A public or private college or university, or community college; Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance package or related material on school letterhead from the school’s authorized representative. Such acceptance package or related material is to include the name and address of the school, your grade level or class year, and the date or term when classes are scheduled to commence. In addition, the acceptance package or related material is to be accompanied by evidence that the student has registered for classes, or other evidence showing the student has accepted the offer and has committed to start classes on a certain date; o A current individualized education program (IEP), as required under the Individuals with Disabilities Education Act, if you have a disability; o A copy of your current tuition bill; o A current class schedule containing your name, the list of courses, and the day and time of each class; or o Any other relevant evidence.  If already enrolled – Current school registration cards; current transcripts; report cards; progress reports showing the name of the school, the time period or semester covered by the document, and the current grade or class year; or a current IEP showing your process to date.
A course of study to pass a General Education Development (GED) Certificate exam or other equivalent State-authorized exam;
Such evidence is to include a letter from the authorized representative of the program that includes information such as:
 Your name and date of enrollment;  The duration of the program and expected completion date;  Whether the course of study is for a regular high school diploma or
recognized equivalent under State law or a GED exam or other equivalent State-authorized exam;  The program’s source and amount of funding; and  The program’s authorized representative’s contact information.
An educational or career training program (including vocational training); Such evidence may include, but is not limited to:  If accepted for enrollment, but classes have not yet commenced: o An acceptance letter on school letterhead from the school registrar/authorized school representative. 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 when the classes are scheduled to commence. The letter is to be accompanied by evidence that the student has registered for the program; o A copy of your current year registration (intake form/enrollment form); or o Any other relevant documentation.

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 If already attending classes– Current transcripts, report cards, or progress reports showing the name of the school, the time period or semester covered by the document, and if relevant, the current educational or grade level.
Literacy training; or Such evidence is to include a letter from the literary program administrator or authorized representative providing information such as:  Your name;  The date of your enrollment;  The duration of the literacy program and the expected completion date; and  The program administrator or authorized representative’s contact information.
An English as a Second Language (ESL) program. Such evidence is to include a letter from the ESL program administrator or authorized representative. This letter is to include the following:  Your name;  The date of your enrollment;  The duration of the ESL program and the expected completion date;  The program administrator or authorized representative’s contact information.
DACA 106A – EVIDENCE OF ACCEPTANCE BUT NO EVIDENCE OF REGISTERING FOR CLASSES: You have provided an acceptance letter or other related material indicating that you have been accepted at [ISO should list the name of the private elementary/junior high/middle school/high school/secondary school or public or private college/university/community college]. However, you did not include evidence that you have enrolled in that school. Therefore, you are requested to submit such evidence which is to include, but is not limited to paid tuition bills or evidence that you have registered for class at that school.
DACA 106B – LITERACY PROGRAM’S NON-PROFIT STATUS If the literacy program in which you are enrolled has non-profit status, please provide evidence of such status. Evidence 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 amended, or equivalent section of prior code.
DACA 106C –PUBLIC FUNDING (GED; Educational or Career Training Program (Including Vocational Training); ESL) If the [ISO should insert GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; or English as a Second Language] in which you are enrolled is funded in whole or in part by public funds (Federal, State, county or municipal), you are requested to submit a letter from the [ISO should insert GED program administrator/authorized representative; school registrar/authorized school representative if requestor is enrolled in Career Training Program (Including Vocational Training); literacy program administrator/authorized representative; or ESL program administrator/authorized representative] providing basic details about the funding, such as the source(s) of the funding.
DACA 106D – PUBLIC FUNDING – (Literacy Program) If the literacy program in which you are enrolled is not funded in whole or in part by public funds (Federal, State, county, or municipal) or not administered by a non-profit entity you are requested to submit a letter from the program administrator or authorized representative providing basic details about the funding, such as the amount and the source(s) of the funding.

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DACA 106E – DEMONSTRATED EFFECTIVENESS (GED; Educational or Career Training Program (Including Vocational Training); Literacy Program; ESL)
(ISO SHOULD SELECT THE CORRECT RFE PARAGRAPH BELOW DEPENDING UPON THE PROGRAM IN WHICH THE REQUESTOR IS ENROLLED)
Your record shows that the GED/Equivalency program, in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the GED program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
The duration of the program’s existence; The program’s track record in assisting students in obtaining a regular high school diploma, GED, or a recognized equivalent certificate, or passing a GED or recognized equivalent exam; Receipt of awards or special achievement or recognition, that indicate the program’s overall quality; and/or Any other relevant information indicating the program’s overall quality.
Your record shows that the educational or career training program (including vocational training), in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information, with supporting documentation, if available, from the school registrar/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
The duration of the program’s existence; The program’s track record in placing students in employment, job training, or postsecondary education; and Receipt of awards or special achievement or recognition, that indicate the program’s overall quality; and/or Any other relevant information indicating the program’s overall quality.
Your record shows that the literacy program in which you are enrolled, is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to information from the literary program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
The duration of the program’s existence; The program’s track record in placing students in post-secondary education, job training programs, or employment; and Receipt of awards or special achievement or recognition, that indicate the program’s overall quality; and/or Any other relevant information indicating the program’s overall quality.
Your record shows that the English as a Second Language (ESL) program in which you are enrolled is not publicly funded (Federal, State, county, or municipal) in whole or in part. Therefore, you are requested to submit information from the ESL program administrator/authorized representative relating to the program’s demonstrated effectiveness. Such information can include, but is not limited to:
The length of the program’s existence; The program’s track record in assisting students in obtaining placement in postsecondary schools, job training programs, or employment; and Receipt of awards or special achievement or recognition, that indicate the program’s overall quality; and/or

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Any other relevant information indicating the program’s overall quality.
DACA 106F– GRADUATE D FROM SCHOOL The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to show that you graduated from school is insufficient (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the documents provided by the requestor are incomplete (i.e. no identifying information) or illegible, the ISO should note this in the RFE. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
A diploma; Transcripts showing the 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.
Documentation sufficient to demonstrate that you obtained a GED includes, but is not limited to, evidence you passed a GED exam, or other comparable State-authorized exam, and, as a result, you received the recognized equivalent of a regular high school diploma under State law.
DACA 107G – MEDICAL LEAVE You indicate in your filing that you are currently on medical leave from school. Therefore, you are requested to submit evidence of your medical leave and indicate the date you expect to return to school. Evidence of your medical leave may include, but is not limited to, an explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long your treatment is expected to last.
DACA 107 - MILITARY The evidence you submitted with your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to that show that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States is insufficient. (ISO should list what evidence was submitted for this guideline and briefly state why the evidence is insufficient. If the requestor did not submit any evidence for this guideline, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
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; or Military health records.
DACA 108- REMOVAL PROCEEDINGS Submit documents that you have been issued an order of exclusion, deportation or removal. Such documentation could include copies of:
Any removal, deportation, or exclusion order issued by an Immigration Judge; Final decision from the Board of Immigration Appeals (BIA); or Final decision from a U.S. Court of Appeals in your case.
APPLICATION SUPPORT CENTER (ASC) RELATED

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DACA 130 – SCHEDULE ASC APPOINTMENT Your request cannot be processed until you have appeared at an Application Support Center (ASC) for the collection of a digital photograph, signature, and fingerprint(s). Our records indicate that you have not yet appeared at an ASC for this purpose. Please schedule an appointment at the ASC nearest you by calling the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1800-767-1833). You also can find the location of the ASC nearest you on the USCIS web site at www.USCIS.gov.
Once you have scheduled an appointment, or if you have a scheduled appointment, please return this notice to the address below with the appointment information.
Date of Appointment: ___________________
Location of Appointment: ___________________
DACA 131– RESCHEDULE ASC APPOINTMENT (TECHNICAL DIFFICULTIES) On [DATE], USCIS asked you to schedule an appointment at an Application Support Center (ASC) for the collection of a digital photograph, signature and fingerprint(s). In response to that request, you indicated that you already appeared at an ASC as required. However, due to technical problems, your previously-acquired biometrics from the ASC cannot be used.
USCIS will mail a separate notice to you containing information for a new appointment for biometrics capture at the ASC nearest you and listing identity documents that you must bring with you to your ASC appointment. Once you receive that notice, additional information regarding the location of the ASC can be found on the USCIS web site at www.USCIS.gov. Please bring this notice with you to your appointment.
Once you have provided your biometrics to the ASC, respond to this request with evidence of your attendance of the ASC appointment. Such evidence typically consists of a copy of your appointment notice, bearing a stamp from the ASC technician. Along with the evidence of your appointment, please include all other evidence requested in this notice.
We sincerely regret any inconvenience this has caused you.
NAME, DATE OF BIRTH DISCREPANCY
DACA 140 – DATE OF BIRTH DISCREPANCY USCIS records indicate that you were born on [DATE]. You indicated on your request for consideration of deferred action for childhood arrivals that you were born on [DATE]. Submit documentary evidence to establish your true date of birth. Such evidence may include your birth certificate and/or passport. If you submit a copy of your birth certificate, you must submit copies of the front and back (if there is information on the back).
DACA 142 – NAME CHANGE/DISCREPANCY USCIS records and/or evidence you submitted indicate that your name is [NAME]. You indicated on your request for consideration of deferred action for childhood arrivals that your name is [NAME]. Submit documentary evidence to establish your true name. Such evidence may include a birth certificate, adoption records, marriage certificate, passport, or government documentation showing that you have officially changed your name.
DACA143 – SUBMIT EVIDENCE OF NAME CHANGE

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Submit proof of your name change. Such proof would normally be a marriage certificate, termination of marriage (divorce or annulment decree), adoption decree, or court order.
FINGERPRINTING / CRIMINALITY
DACA 150 – 2 UNCLASSIFIABLE PRINTS – SUBMIT LOCAL POLICE CLEARANCES To date, you have been fingerprinted twice and USCIS has been unable to get a required clearance for you because both sets of fingerprints were rejected as unclassifiable by the Federal Bureau of Investigation. Instead of a fingerprint clearance, you must submit a local police clearance certificate for each jurisdiction (city, town, county, or municipality) in which you have lived for six months or more within the past five years.
Please note: The police clearance certificate(s) must be researched by name and date of birth. You must supply the law enforcement agency with all aliases you have used, including maiden name, if applicable. Fingerprint cards are not acceptable evidence of a police clearance certificate.
If any record indicates that you have been arrested, you must provide documentation of each of the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not merely numeric citations or codes).
b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guidelines, and/or statement from the court clerk or police department for this purpose.
Along with the above information, you must also answer the following questions. You should respond on this notice and sign your name where it asks for your signature. If more space is needed, you may respond to the following questions on separate sheet(s) of paper. Please sign every separate sheet of paper.
1) Have you ever been arrested or detained by a law enforcement officer? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
2) Have you had your fingerprints taken for any reason by a law enforcement officer for a criminal offense? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
3) Have you been issued a ticket or been taken into custody by a law enforcement officer? If yes, please explain.
Answer: ____________________________________________________________

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____________________________________________________________________
4) Have you ever been ordered by a court to: pay a fine; serve a probationary sentence; perform community service; make restitution; or have your wages garnished (e.g., for failure to make child support payments)? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
5) Have you ever received an expungement, parole, pardon, or successfully completed a diversion or rehabilitation program? If yes, please explain.
Answer: ____________________________________________________________
____________________________________________________________________
I certify, under penalties of perjury under the laws of the United States of America, that the foregoing is true and correct. Furthermore, I authorize the release from my records that USCIS needs to determine my eligibility for deferred action of childhood arrivals.
Signature of Requestor: _______________________________________________________
DACA 151– SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A criminal history check has been conducted based upon the fingerprints you provided at the Application Support Center. Your criminal history check has revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. (WHERE APPROPRIATE, SERVICE CENTER MAY ALSO NEED TO INCLUDE THE NAME UNDER WHICH THE ARREST TOOK PLACE IF DIFFERENT FROM NAME BEING USED BY REQUESTOR ON FORM I-821D. IF THERE ARE MULTIPLE CHARGES, YOU MAY BULLET EACH CHARGE.)
You must provide certified judgment and conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (e.g., your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony, misdemeanor or other type of offense. Please submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
I-821D PART 3. CRIMINAL, NATIONAL SECURITY

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AND PUBLIC SAFETY INFORMATION AFFIRMATIVE RESPONSES
POSSIBLE INELIGIBILITY ISSUES
DACA160 – ANSWERED “YES” to QUESTION 1 AND 2 IN PART 3 –DOCUMENTS NEEDED AND EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
1. Have you been arrested for, charged with, or convicted of a felony or misdemeanor in the United States?
2. Have you been arrested for, charged with, or convicted of any crime in any country other than the United States?
You did not provide a full explanation on a separate sheet of paper(s) describing the circumstances, as requested by the Form I-821D instructions. Therefore, please provide a full explanation describing the circumstances. DELETE IF AN EXPLANATION WAS PROVIDED
You must provide certified judgment and conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (e.g., your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony, misdemeanor, or some other type of offense. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 161 – ANSWERED “YES” TO QUESTION 3 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
3. Have you ever engaged in or do you continue to engage in or plan to engage in terrorist activities?
You did not provide a full explanation on a separate sheet of paper(s) describing the circumstances, as requested by the Form I-821D instructions.
Please provide a full and complete explanation of the terrorist activities you have ever engaged in, continue to engage in, or plan to engage in. Your explanation should include:

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Whether other people were engaged in terrorist activities with you; The names of the other people with whom you engaged in terrorists activities; The role you played in terrorist activities; The role that others played in terrorist activities; Whether you planned or actually carried out the terrorist activities; Whether you engaged in, continued to engage, or planned to engage in terrorist activities in the United States or abroad; and Describe the type of terrorist activities you engaged in, continue to engage in, or plan to engage in.
DACA 162 – ANSWERED “YES” TO QUESTION 4 IN PART 3 – SUBMIT EXPLANATION On your Consideration of Deferred Action for Childhood Arrivals (Form I-821D), you checked “Yes” to the following question in Part 3, Criminal, National Security and Public Safety Information:
4. Are you now or have you ever been a member of a gang?
You did not provide a full explanation on a separate sheet of paper(s) describing the circumstances, as requested by the Form I-821D instructions.
Please provide a full and complete explanation of your gang membership, including:
When you joined the gang(s); How long you were a member of the gang(s); The name of the gang(s); and The criminal activities you participated in with the gang(s).
DACA163 – ANSWERED “YES” TO QUESTIONS 5a. 5b, 5c, AND 5d IN PART 3– SUBMIT EXPLANATION On your Request for Deferred Action for Childhood Arrivals (Form I-821D) you checked “Yes” to the following question(s) in Part 3, Criminal, National Security and Public Safety Information: DELETE THOSE THAT DON’T APPLY
5. Have you EVER engaged in, ordered, incited, assisted, or otherwise participated in any of the following:
a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
You did not provide a full explanation on a separate sheet(s) of paper describing the circumstances, as requested by the Form I-821D instructions.
Please provide a full and complete explanation describing your participation in activities involving torture, genocide, human trafficking, killing any person, severely injuring any person, or any sexual contact or relations with any person who was being forced or threatened.
I-821D PART 3. CRIMINAL, NATIONAL SECURITY AND PUBLIC SAFETY INFORMATION

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DACA 170– ANSWERED “NO” TO QUESTIONS 1 AND 2 IN PART 3– USCIS FOUND CLEAR CHARGES OR OTHER DEROGATORY INFORMATION, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS A background check has been conducted based upon the fingerprints you provided at the Application Support Center. Your background check revealed that you were arrested on [DATE], in [JURISDICTION] and charged with [CHARGES]. (WHERE APPROPRIATE, YOU MAY ALSO NEED TO INCLUDE THE NAME UNDER WHICH THE ARREST TOOK PLACE IF DIFFERENT FROM NAME BEING USED BY THE REQUESTOR ON FORM I-821D. IF THERE ARE MULTIPLE CHARGES, YOU MAY BULLET EACH CHARGE.)
You must provide certified judgment and/or conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor. You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 171– ANSWERED “NO”TO QUESTIONS 1 AND 2 IN PART 3 - CRIMINAL ACTIVITY UNCLEAR TO USCIS, SUBMIT JUDGMENT AND CONVICTION DOCUMENTS Based on a review of your case, it appears that you have some type of criminal record/interaction with law enforcement authorities. It appears that on [DATE] the following occurred:
[PROVIDE EXPLANATION OF FINDINGS, TO INCLUDE NAME OF POLICE DEPT. IF APPLICABLE, CHARGES IF APPLICABLE, ETC. NOTE: DO NOT INFORM THE APPLICANT WHERE THE INFORMATION CAME FROM SYSTEMS THAT ARE NOT OUR RECORDS (EX. IBIS)]
(WHERE APPROPRIATE, YOU MAY ALSO NEED TO INCLUDE THE NAME UNDER WHICH THE ARREST TOOK PLACE IF DIFFERENT FROM NAME BEING USED BY THE REQUESTOR ON FORM I-821D. IF THERE ARE MULTIPLE INTERACTIONS, YOU MAY BULLET EACH INTERACTION.)
Submit a statement explaining the results of this interaction with law enforcement authorities. You must provide certified judgment and conviction documents from the court(s) for all of your arrests, including but not limited to, the charges listed above. The certified judgment and conviction documents must address the following:
a. The final disposition (your sentence, probation, dismissal, etc.) of every charge against you. The charge and disposition must be specifically identified (not just numeric citations or codes).
b. If you were convicted of any charge, you must also provide evidence showing whether the charge for which you were convicted was classified as a felony or misdemeanor.

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You may submit a copy of the pertinent statute, sentencing guide, or statement from the court clerk or police department for this purpose.
If you fail to submit such evidence, USCIS may deny your request for consideration of deferred action for childhood arrivals.
DACA 172– ANSWERED “NO” TO QUESTIONS 3, 4, 5a. 5b, 5c, AND 5d IN PART 3 – USCIS DISCOVERED UNCLEAR INFORMATION, SUBMIT EXPLANATION Based on a review of your case, the following was discovered: DELETE THOSE THAT DON’T APPLY
3. you engaged in or do you continue to engage or plan to engage in terrorist activities?
4. you are now or have been a member of gang?
5. you engaged in, ordered, incited, assisted, or otherwise participated in any of the following:
a. acts involving torture, genocide, or human trafficking? b. killing any person? c. severely injuring a person? d. any kind of sexual contact or relations with any person who was being forced or threatened?
[PROVIDE EXPLANATION OF FINDINGS. THIS CAN INCLUDE WHERE THE INFORMATION WAS FOUND IF IT IS KNOWLEDGE THAT CAN BE SHARED WITH THE REQUESTOR. NOTE: DO NOT INFORM THE REQUESTOR WHERE THE INFORMATION CAME FROM SYSTEMS THAT ARE NOT OUR RECORDS (EX. IBIS).]
Therefore, you must submit a statement explaining and/or refuting the information/circumstances found in USCIS records. Please note that if you refute the above information, and USCIS later receives information that the above does relate to you, USCIS may terminate deferred action and you may be barred from other immigration benefits.
FORM I-765
DACA 180 – FAILURE TO SUBMIT OR COMPLETE FORM I-765WS USCIS is unable to complete your Form I-765, Application for Employment Authorization because you failed to submit or complete the Form I-765WS. Please complete the worksheet and return it to the address provided within the specified time.
DACA 190 – SUBMIT PASSPORT PHOTOS Please submit two (2) passport-style color photo(s) of [NAME] taken within 30 days of the date of this notice, which conform(s) to the specifications below. Using a pencil or felt pen, lightly print name (and Alien Registration Number, if known) on the back of each photograph.
Please do not staple through any part of the photo(s). Enclose the photo(s) in a plastic or paper envelope and staple the envelope to this notice when returning it to this office.
Passport-style photos must be 2 inches by 2 inches:

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Frame subject with full face, front view, eyes open. Make sure photo presents full head from top of hair to bottom of chin; height of head should measure 1 inch to 1 3/8 inch (25 mm to 35 mm). Center head within frame. Make sure eye level is between 1 1/8 inch and 1 3/8 inch (28 mm and 35 mm) from bottom of photo. Photograph subject against a plain white or off-white background. Position subject and lighting so that there are no distracting shadows on the face or background. Encourage subject to have a natural expression. Include headpieces if worn daily for religious purposes; they should not obscure or cast shadows on the eyes or any other part of the face.
For more information on photo requirements, please see the Department of State website at: http://www.travel.state.gov/passport/pptphotos/index.html, or contact the USCIS National Customer Service Center at 1-800-375-5283.
FORM 131
DACA 200 – PROOF OF DACA To be considered for advance parole you must submit evidence to establish that you have been granted deferred action for childhood arrivals. Submit a copy of the approval notice issued by USCIS for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals.
DACA 201 – PROOF OF EDUCATIONAL NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for education purposes. Examples of travel abroad for education purposes include study abroad programs, school-sponsored trips abroad, or travel necessary to conduct academic research.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for education purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for educational purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
A letter from the educational institution, or from an employee of the institution acting in his or her official capacity, describing the purpose of the travel, or documentation showing enrollment in a specific program or class coupled with documentary evidence showing that you will benefit from, or are required to travel for the specific program or class; or
NOTE: Travel during an academic year unrelated to academics (i.e., a vacation) is insufficient to qualify as an educational purpose.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)

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DACA 202 – PROOF OF HUMANITARIAN NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individuals granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for humanitarian reasons. Examples of travel abroad for humanitarian reasons include medical reasons, to visit a family member, or to attend funeral services for a family member.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for humanitarian purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for humanitarian, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)
An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis, and how long the treatment is expected to last; Information on the reasons why you cannot obtain treatment in the United States; An explanation from a medical doctor on official letterhead stating the diagnosis and prognosis of the family member’s condition; or A death certificate or newspaper obituary of the family member or other document evidencing the death of the family member.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
DACA 203 – PROOF OF EMPLOYMENT NEED In accordance with the discretionary authority provided in section 212(d)(5)(A) of the Act, grants of advance parole to individual granted deferred action for childhood arrivals may be made based on the need to travel abroad for educational, employment, or humanitarian purposes. You claim that you need to travel abroad for employment purposes. Examples of travel abroad for employment purposes include: pursuit of a position in the United States with a foreign employer; an overseas assignment, interview, conference, or training; a meeting with overseas clients or others with whom you interact professionally; or a trip to cultivate business or sales overseas or any other overseas trip taken in furtherance of the applicant’s professional responsibilities.
The evidence you submitted with your Form I-131, Application for Travel Document, to establish your need to travel abroad for employment purposes is insufficient. (ISO should list what evidence was submitted and briefly state why the evidence is insufficient. If the requestor did not submit any evidence to support his/her need to travel abroad for employment purposes, modify RFE call up accordingly). You may still submit evidence, which may include, but is not limited to, copies of: (ISO should delete any of the following that were already provided by the requestor)

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A letter on official letterhead from your employer describing the need for your travel; or A document showing a specific employment need, such as a conference program, that also shows your participation.
(ISO: If the applicant did not establish the dates of travel, please include in the RFE as advance parole is valid for the duration of the event, as documented in the advance parole application. For multiple events, the advance parole is valid for the duration of all the documented events)
ASSORTED OTHERS
DACA 200 – FOREIGN LANGUAGE DOCUMENT MUST BE ACCOMPANIED BY AN ENGLISH TRANSLATION If you submit a document in any language other than English, it must be completely translated word-for-word. The translator must certify that the translation is accurate and that he or she is competent to translate. Note: You must submit the requested foreign language document along with the translation.
DACA 201– YOU MAY SUBMIT PHOTOCOPIES You may submit either the original documents or legible photocopies of the originals, including copies of the front and back of each document. If you choose to submit original documents, they will not be returned to you. [NOT FOR USE WHEN USCIS IS REQUESTING ORIGINAL DOCUMENTS.]
DACA 202– AFFIDAVITS Affidavits can support two of the DACA guidelines:
Brief, casual, and innocent departures during the five years of required continuous presence in the United States: and Any minor gap in the five year continuous residence requirement.
In support of your DACA request, you submitted affidavits, but you did not indicate that: primary and secondary evidence cannot be obtained; and what effort you undertook to obtain that evidence.
Therefore, you are requested to provide the following: A written statement from the appropriate issuing authority attesting to the fact that no record exists or can be located, or that the record sought was part of some segment of records which were lost or destroyed; or Evidence (such as an affidavit) "that repeated good faith attempts were made to obtain the required document or record."

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Appendix E
DEFERRED ACTION FOR CHILDHOOD ARRIVALS NOIDs
NOTE: Text highlighted in YELLOW and bracketed by [ ] is hidden text that requires ISO input. The ISO should delete the highlighted bracketed [Text] and type in the necessary information, or choose the appropriate information from choices and delete the information that does not apply.
DACA 400 -NOTICE OF INTENT TO DENY – NOT A BCI DEPARTURE – UNDER VOLUNTARY DEPARTURE OR FINAL EXCLUSION, DEPORTATION, OR REMOVAL ORDER
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have been residing continuously in the United States since June 15, 2007, to the present time. A brief, casual, and innocent departure from the United States does not meaningfully disrupt the period of continuous residence. A departure is deemed to be brief, casual, and innocent if:
(1) It was short and reasonably calculated to accomplish the purpose of the absence; (2) It was not the result of an order of exclusion, deportation, or removal; (3) It was not because of an order of voluntary departure, or an administrative grant of voluntary
departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (4) Its purpose or the actions taken while outside of the United States were not contrary to law.
PICK PARAGRAPH (A) OR (B) BELOW, AS APPLICABLE:
A. USE THIS PARAGRAPH IF THE DISQUALIFYING TRAVEL OCCURRED BEFORE 8/15/12, THEN PROCEED TO THE CLOSING PARAGRAPH:
According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you departed the United States on or about [insert date; this date should be before 8/15/2012]. It also appears that, at the time of your departure, you [INSERT WHICEVER IS APPROPRIATE: departed under an order of voluntary departure; departed under an administrative grant of voluntary departure prior to the commencement of removal proceedings; your departure was the result of an order of exclusion, deportation, or removal (including an order of voluntary departure that converted automatically to a final order of exclusion, deportation or removal).] Because such a departure is not brief, casual, or innocent, you have not established that you have resided continuously in the United States since at least June 15, 2007, until the present time.
[Proceed to the closing paragraph.] OR
B. USE THIS PARAGRAPH IF THE DISQUALIFYING TRAVEL OCCURRED ON OR AFTER 8/15/12 AND BEFORE FORM I-821D WAS APPROVED
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According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you departed the United States on or about [insert date – this date should be on or after 8/15/12 ]. A departure made on or after August 15, 2012 is not brief, casual, or innocent unless removal action has been deferred, as evidenced by an approved Form I-821D. Because your departure occurred after August 15, 2012, but before USCIS has determined whether to defer action in your case, your departure from the United States was not brief, casual, or innocent. Therefore, you have not established that you have resided continuously in the United States since at least June 15, 2007, until the present time. [CLOSING PARAGRAPH] Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
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DACA 401 NOTICE OF INTENT TO DENY – DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety.
According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction.
The court disposition that you submitted indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute]
Driving under the influence of alcohol or drugs constitutes a significant misdemeanor.1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.

1 For the purposes of the DACA process, a significant 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) and 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 distribution or trafficking; 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 The sentence must involve time

to be served in custody, and therefore does not include a suspended sentence

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U S Immigration and Customs Enforcement (ICE)
See www.uscis.gov/childhoodarrivals.

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DACA 402 NOTICE OF INTENT TO DENY – DOMESTIC VIOLENCE USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction. The court disposition that you submitted indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute] An offense of domestic violence constitutes a significant misdemeanor. 1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred
1 For the purposes of the DACA process, a significant 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) and 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 distribution or trafficking; 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. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE).
See www.uscis.gov/childhoodarrivals.
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DACA 403 NOTICE OF INTENT TO DENY – BURGLARY USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction. The court disposition that you submitted indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute] Burglary constitutes a significant misdemeanor. 1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirtythree (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred
1 For the purposes of the DACA process, a significant 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) and 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 distribution or trafficking; 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. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE).
See www.uscis.gov/childhoodarrivals.
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DACA 404 NOTICE OF INTENT TO DENY –NO ENTRY BEFORE 16
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you came to the United States before reaching your 16th birthday.
According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you initially entered the United States when you were [insert age] years old. On [insert date Form I-821D received], you submitted Form I-821D, Consideration of Deferred Action for Childhood Arrivals. You indicated on your Form I-821D that you were born on [insert date of birth], and that your initial entry into the United States was on [insert date of entry]. Your date of birth is supported by your [identify the document (e.g. birth certificate, passport, etc.) that establishes the requestor’s DOB], and you did not submit evidence that you entered the United States before reaching the age of 16.
Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
DACA 405 NOTICE OF INTENT TO DENY –STUDENT IN LAWFUL STATUS ON JUNE 15, 2012 [Updated 2/27/2013]
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you were in unlawful immigration status as of June 15, 2012. For deferred action for childhood arrivals, the phrase “in unlawful immigration status as of June 15, 2012” means that you never had a lawful immigration status on or before June 15, 2012, or any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired before June 15, 2012.
According to the information provided with your request, and based on information obtained during routine systems checks, your current F-1 nonimmigrant status is active in Student & Exchange Visitor Information System (SEVIS). [Identify other facts e.g., Employment Authorization Card validity date]. Based on these facts, USCIS has determined that you were not in an unlawful status on June 15, 2012.
Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
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DACA 406 NOTICE OF INTENT TO DENY –ARRIVED AFTER JUNE 15, 2007
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have continuously resided in the United States since June 15, 2007.
According to the information you provided with your request, and/or based on information obtained during routine systems checks, it appears that you initially arrived in the United States on or about [insert date of initial entry].
Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
DACA 407 NOTICE OF INTENT TO DENY – NOT IN SCHOOL
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
On your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, you indicated that you are currently in school. However, according to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you are not currently enrolled in school. [Insert specific information; e.g., official transcripts showing enrollment status as “Removed for Lack of Attendance” or school enrollment history listing requestor as a “No Show”.]
Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
DACA 408 NOTICE OF INTENT TO DENY – NONIMMIGRANT STATUS ON JUNE 15, 2012
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you were in unlawful immigration status as of June 15, 2012. For deferred action for childhood arrivals, the phrase “in unlawful immigration status as of June 15, 2012” means that you never had a lawful immigration status on or before June 15, 2012, or any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired before June 15, 2012.
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According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you entered the United States on [Date] as [insert nonimmigrant classification. For example, “an E-2 Nonimmigrant Treaty Investor or as the spouse or child of a Nonimmigrant Treaty Investor”]. It appears that your lawful immigration status [insert “is” or “was” depending if still in status] valid until [Date], and therefore had not expired before June 15, 2012. Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals. DACA 409 NOTICE OF INTENT TO DENY – TEMPORARY PROTECTED STATUS ON JUNE 15, 2012 USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you were in unlawful immigration status as of June 15, 2012. For deferred action for childhood arrivals, the phrase “in unlawful immigration status as of June 15, 2012” means that you never had a lawful immigration status on or before June 15, 2012, or any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired before June 15, 2012. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you had Temporary Protected Status (TPS) on June 15, 2012. USCIS has no record that your status as a TPS beneficiary was withdrawn or terminated before June 15, 2012, therefore it appears you were not in unlawful status on June 15, 2012. Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
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DACA 410 NOTICE OF INTENT TO DENY – MULTIPLE MISDEMEANORS
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have multiple criminal convictions.
The court dispositions that you submitted indicate that you were convicted on:

•

[Insert date of conviction, court name, city/state, crime, and statute]

•

[Insert date of conviction, court name, city/state, crime, and statute]

•

[Insert date of conviction, court name, city/state, crime, and statute]

You have been convicted of three or more non-significant misdemeanors.1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.

1 For the purposes of the DACA process, a “non-significant misdemeanor” is any 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) and that meets the following criteria:
1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE).
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DACA 411 NOTICE OF INTENT TO DENY – FELONY CONVICTION USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction. The court disposition indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute] [Explain why the offense is a felony under federal law. For example, “Possession of drug paraphernalia is classified as a Class 6 felony under Arizona law, with a maximum term of imprisonment of 1.5 years. See A.R.S. §§ 13-702(D), 13-3415.”] Therefore, the offense is a felony for purposes of deferred action for childhood arrivals.1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
1 For the purposes of the DACA process, a felony is a federal, state, or local criminal offense for which the maximum term of imprisonment authorized is for a period of more than one year.
See www.uscis.gov/childhoodarrivals.
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Appendix E
DEFERRED ACTION FOR CHILDHOOD ARRIVALS NOIDs
NOTE: Text highlighted in YELLOW and bracketed by [ ] is hidden text that requires ISO input. The ISO should delete the highlighted bracketed [Text] and type in the necessary information, or choose the appropriate information from choices and delete the information that does not apply.
DACA 400 -NOTICE OF INTENT TO DENY – NOT A BCI DEPARTURE – UNDER VOLUNTARY DEPARTURE OR FINAL EXCLUSION, DEPORTATION, OR REMOVAL ORDER
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have been residing continuously in the United States since June 15, 2007, to the present time. A brief, casual, and innocent departure from the United States does not meaningfully disrupt the period of continuous residence. A departure is deemed to be brief, casual, and innocent if:
(1) It was short and reasonably calculated to accomplish the purpose of the absence; (2) It was not the result of an order of exclusion, deportation, or removal; (3) It was not because of an order of voluntary departure, or an administrative grant of voluntary
departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (4) Its purpose or the actions taken while outside of the United States were not contrary to law.
PICK PARAGRAPH (A) OR (B) BELOW, AS APPLICABLE:
A. USE THIS PARAGRAPH IF THE DISQUALIFYING TRAVEL OCCURRED BEFORE 8/15/12, THEN PROCEED TO THE CLOSING PARAGRAPH:
According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you departed the United States on or about [insert date; this date should be before 8/15/2012]. It also appears that, at the time of your departure, you [INSERT WHICEVER IS APPROPRIATE: departed under an order of voluntary departure; departed under an administrative grant of voluntary departure prior to the commencement of removal proceedings; your departure was the result of an order of exclusion, deportation, or removal (including an order of voluntary departure that converted automatically to a final order of exclusion, deportation or removal).] Because such a departure is not brief, casual, or innocent, you have not established that you have resided continuously in the United States since at least June 15, 2007, until the present time.
[Proceed to the closing paragraph.] OR
B. USE THIS PARAGRAPH IF THE DISQUALIFYING TRAVEL OCCURRED ON OR AFTER 8/15/12 AND BEFORE FORM I-821D WAS APPROVED
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According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you departed the United States on or about [insert date – this date should be on or after 8/15/12 ]. A departure made on or after August 15, 2012 is not brief, casual, or innocent unless removal action has been deferred, as evidenced by an approved Form I-821D. Because your departure occurred after August 15, 2012, but before USCIS has determined whether to defer action in your case, your departure from the United States was not brief, casual, or innocent. Therefore, you have not established that you have resided continuously in the United States since at least June 15, 2007, until the present time. [CLOSING PARAGRAPH] Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
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DACA 401 NOTICE OF INTENT TO DENY – DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety.
According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction.
The court disposition that you submitted indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute]
Driving under the influence of alcohol or drugs constitutes a significant misdemeanor.1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.

1 For the purposes of the DACA process, a significant 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) and 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 distribution or trafficking; 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 The sentence must involve time

to be served in custody, and therefore does not include a suspended sentence

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U S Immigration and Customs Enforcement (ICE)
See www.uscis.gov/childhoodarrivals.

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DACA 402 NOTICE OF INTENT TO DENY – DOMESTIC VIOLENCE USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction. The court disposition that you submitted indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute] An offense of domestic violence constitutes a significant misdemeanor. 1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred
1 For the purposes of the DACA process, a significant 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) and 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 distribution or trafficking; 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 The sentence must involve time to be served in custody, and therefore does not include a suspended sentence
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U S Immigration and Customs Enforcement (ICE)
See www.uscis.gov/childhoodarrivals.
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DACA 403 NOTICE OF INTENT TO DENY – BURGLARY USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and you do not otherwise pose a threat to national security or public safety. According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you have a criminal conviction. The court disposition that you submitted indicates that you were convicted on:
[Insert date of conviction, court name, city/state, crime, and statute] Burglary constitutes a significant misdemeanor. 1 Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirtythree (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred
1 For the purposes of the DACA process, a significant 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) and 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 distribution or trafficking; 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 The sentence must involve time to be served in custody, and therefore does not include a suspended sentence
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U S Immigration and Customs Enforcement (ICE)
See www.uscis.gov/childhoodarrivals.
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DACA 404 NOTICE OF INTENT TO DENY –NO ENTRY BEFORE 16
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you came to the United States before reaching your 16th birthday.
According to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you initially entered the United States when you were [insert age] years old. On [insert date Form I-821D received], you submitted Form I-821D, Consideration of Deferred Action for Childhood Arrivals. You indicated on your Form I-821D that you were born on [insert date of birth], and that your initial entry into the United States was on [insert date of entry]. Your date of birth is supported by your [identify the document (e.g. birth certificate, passport, etc.) that establishes the requestor’s DOB], and you did not submit evidence that you entered the United States before reaching the age of 16.
Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
DACA 405 NOTICE OF INTENT TO DENY –STUDENT IN LAWFUL STATUS ON JUNE 15, 2012 [Updated 2/27/2013]
USCIS has reviewed your request for consideration of deferred action for childhood arrivals.
In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you were in unlawful immigration status as of June 15, 2012. For deferred action for childhood arrivals, the phrase “in unlawful immigration status as of June 15, 2012” means that you never had a lawful immigration status on or before June 15, 2012, or any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired before June 15, 2012.
According to the information provided with your request, and based on information obtained during routine systems checks, your current F-1 nonimmigrant status is active in Student & Exchange Visitor Information System (SEVIS). [Identify other facts e.g., Employment Authorization Card validity date]. Based on these facts, USCIS has determined that you were not in an unlawful status on June 15, 2012.
Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
DACA 406 NOTICE OF INTENT TO DENY –ARRIVED AFTER JUNE 15, 2007
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USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you have continuously resided in the United States since June 15, 2007. According to the information you provided with your request, and/or based on information obtained during routine systems checks, it appears that you initially arrived in the United States on or about [insert date of initial entry]. Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals. DACA 407 NOTICE OF INTENT TO DENY – NOT IN SCHOOL USCIS has reviewed your request for consideration of deferred action for childhood arrivals. In order to be considered for deferred action as a childhood arrival, you are to demonstrate that you are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. On your Form I-821D, Consideration of Deferred Action for Childhood Arrivals, you indicated that you are currently in school. However, according to the information provided with your request, and/or based on information obtained during routine systems checks, it appears that you are not currently enrolled in school. [Insert specific information; e.g., official transcripts showing enrollment status as “Removed for Lack of Attendance” or school enrollment history listing requestor as a “No Show”.] Accordingly, USCIS intends to deny your request for consideration of deferred action for childhood arrivals. You are afforded thirty-three (33) days from the date of this notice of intent to deny to submit additional information, evidence, or arguments overcoming the grounds for the intended denial. Failure to respond to this notice of intent to deny will result in the denial of your request for consideration of deferred action for childhood arrivals.
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Appendix F
NOTICE OF DENIAL OF CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS, FORM I-821D
USCIS has evaluated your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. For the reason(s) indicated below, USCIS has, in its unreviewable discretion, determined that it will not defer action in your matter. Accordingly, your Form I-765, Application for Employment Authorization, has also been denied. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. You may not file an appeal or motion to reopen/reconsider this decision.
At the time of filing, you were under the age of fifteen (15) and were not in removal proceedings, did not have a final removal order, or did not have a voluntary departure order.
You have not established that you came to the United States under the age of sixteen (16).
You have not established that you were under age 31 on June 15, 2012.
You have not established that you have continuously resided in the United States since June 15, 2007, until the date of filing your request.
During your period of residence in the United States, you had one or more absences that did not qualify as “brief, casual, and innocent.”
You have not established that you were present in the United States on June 15, 2012.
You have not established that you were in an unlawful immigration status in the United States on June 15, 2012.
You have not established that you are currently in school at the time of filing your request, have graduated or obtained a certificate of completion from a U.S. high school, or have obtained a general educational development (GED) certificate or other equivalent State-authorized exam in the United States, or that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
You have been convicted of a felony or a significant misdemeanor, or you have been convicted of three or more misdemeanors, or you do not warrant a favorable exercise of prosecutorial discretion because of public safety concerns, or exercising prosecutorial discretion in your case would not be consistent with the Department of Homeland Security’s enforcement priorities.
You have not established that you warrant a favorable exercise of prosecutorial discretion.
You have not paid the fee for your concurrently filed Application for Employment Authorization, Form I-765, and/or your biometrics fee, because your payment has been rejected for insufficient funds and you have failed to correct the fee deficiency within the allotted time.
USCIS was unable to conduct a background check on you because you did not appear for your scheduled appointment at an Application Support Center for the collection of biometrics, or your fingerprints were rejected as unclassifiable and you did not submit a local police clearance certificate for each jurisdiction in which you have lived for six months or more within the past five years.
You did not respond to a Request for Evidence or Notice of Intent to Deny within the time prescribed.
You have abandoned your Form I-821D, Consideration of Deferred Action for Childhood Arrivals because you departed the United States while the form was pending.
USCIS lacks the authority to consider your request because you were in immigration detention at the time you filed your Form I-821D and you remain in immigration detention as of the date of this notice.
5/2/2013

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NOTICE OF DENIAL OF CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS, FORM I-821D
USCIS has evaluated your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. For the reason(s) indicated below, USCIS has, in its unreviewable discretion, determined that it will not defer action in your matter. Accordingly, your Form I-765, Application for Employment Authorization, has also been denied. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. You may not file an appeal or motion to reopen/reconsider this decision.
You are under the age of fifteen (15) and are not in removal proceedings, do not have a final removal order, or do not have a voluntary departure order.
You have not established that you came to the United States under the age of sixteen (16).
You have not established that you were under age 31 on June 15, 2012.
You have not established that you have continuously resided in the United States since June 15, 2007, until the date of filing your request.
During your period of residence in the United States, you had one or more absences that did not qualify as “brief, casual, and innocent.”
You have not established that you were present in the United States on June 15, 2012.
You have not established that you were in an unlawful immigration status in the United States on June 15, 2012.
You have not established that you are currently in school at the time of filing your request, have graduated or obtained a certificate of completion from a U.S. high school, or have obtained a general educational development (GED) certificate or other equivalent State-authorized exam in the United States, or that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
You have been convicted of a felony or a significant misdemeanor, or you have been convicted of three or more misdemeanors, or you do not warrant a favorable exercise of prosecutorial discretion because of public safety concerns, or exercising prosecutorial discretion in your case would not be consistent with the Department of Homeland Security’s enforcement priorities.
You have not established that you warrant a favorable exercise of prosecutorial discretion.
You have not paid the fee for your concurrently filed Application for Employment Authorization, Form I-765, and/or your biometrics fee, because your payment has been rejected for insufficient funds and you have failed to correct the fee deficiency within the allotted time.
USCIS was unable to conduct a background check on you because you failed to appear for your scheduled appointment at an Application Support Center for the collection of biometrics, or your fingerprints were rejected as unclassifiable and you did not submit a local police clearance certificate for each jurisdiction in which you have lived for six months or more within the past five years.
You did not respond to a Request for Evidence or Notice of Intent to Deny within the time prescribed.
You have abandoned your Form I-821D, Consideration of Deferred Action for Childhood Arrivals because you departed the United States while the form was pending.
USCIS lacks the authority to consider your request because you were in immigration detention at the time you filed your Form I-821D and you remain in immigration detention as of the date of this notice.
3/13/2013

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Appendix F
NOTICE OF DENIAL OF CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS, FORM I-821D
USCIS has evaluated your Form I-821D, Consideration of Deferred Action for Childhood Arrivals. For the reason(s) indicated below, USCIS has, in its unreviewable discretion, determined that that it will not defer action in your matter. Accordingly, your Form I-765, Application for Employment Authorization, has also been denied. Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. You may not file an appeal or motion to reopen/reconsider this decision.
You are under the age of fifteen (15) and are not in removal proceedings, do not have a final removal order, or do not have a voluntary departure order.
You have failed to establish that you came to the United States under the age of sixteen (16).
You have failed to establish that you were under age 31 on June 15, 2012.
You have failed to establish that you have continuously resided in the United States since June 15, 2007, until the date of filing your request.
During your period of residence in the United States, you had one or more absences that did not qualify as ‘brief, casual, and innocent.”
You have failed to establish that you were present in the United States on June 15, 2012 and that you were unlawfully present in the United States on that date.
You have failed to establish that you are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or that you are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
You have been convicted of a felony or a significant misdemeanor, or you have been convicted of three or more misdemeanors, or you do not warrant a favorable exercise of prosecutorial discretion because of public safety concerns.
You do not warrant a favorable exercise of prosecutorial discretion because of other concerns.
You have failed to pay the fee for your concurrently filed Application for Employment Authorization, Form I-765, and/or your biometrics fee, because your payment has been rejected for insufficient funds and you have failed to correct the fee deficiency within the allotted time.
You failed to appear for the collection of biometrics at an Application Support Center.
You failed to respond to a Request for Evidence or Notice of Intent to Deny within the time prescribed.
You have abandoned your Form I-821D, Consideration of Deferred Action for Childhood Arrivals because you departed the United States while the form was pending.

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Appendix G
SRMT Call Ups Pertaining to Denied Form I-821D, Consideration of Deferred Action for Childhood Arrivals
Administrative Errors
1. Denial of Form I-821D on the grounds that the requestor did not come to the United States prior to reaching his/her 16th birthday.
Final response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records. You will receive an approval notice for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and if your Form I-765, Application for Employment Authorization is approved, you will receive an Employment Authorization Document.
2. Denial of Form I-821D on the grounds that the requestor was under the age of 15 at the time of filing, but not in removal proceedings.
Final response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records. You will receive an approval notice for your Form I821D, Consideration of Deferred Action for Childhood Arrivals and if your Form I-765, Application for Employment Authorization is approved, you will receive an Employment Authorization Document.

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3. Denial of Form I-821D on the grounds that the requestor was not under the age of 31 on June 15, 2012.
Final response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records. You will receive an approval notice for your Form I821D, Consideration of Deferred Action for Childhood Arrivals and if your Form I-765, Application for Employment Authorization is approved, you will receive an Employment Authorization Document.
4. Denial of Form I-821D on the grounds that the requestor was not in an unlawful immigration status as of June 15, 2012.
Final response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records. You will receive an approval notice for your Form I821D, Consideration of Deferred Action for Childhood Arrivals and if your Form I-765, Application for Employment Authorization is approved, you will receive an Employment Authorization Document.
5. Denial of Form I-821D on the grounds that the requestor was not physically present in the United States on June 15, 2012.
Final response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records. You will receive an approval notice for your Form I821D, Consideration of Deferred Action for Childhood Arrivals and if your Form I-765, Application for Employment is approved, you will receive an Employment Authorization Document.

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6. Denial of Form I-821D on the grounds that the requestor did not appear to have biometrics collected at a USCIS ASC
SRMT DACA 1 Interim Response: We have received your request to review the denial of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals on the grounds that you failed to appear for the collection of biometrics at an Application Support Center. We have reopened your case on a service motion and will review your file. You will receive a notice that your case is reopened on a service motion and a response once our review is complete.
Final response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records and have routed your file for adjudication. You will receive an approval notice for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and your Form I-765, Application for Employment after adjudication is complete.
7. Denial of Form I-821D on the grounds that the requestor did not request to have his/her biometrics appointment at a USCIS ASC rescheduled prior to the scheduled date
SRMT DACA 2 Interim Response: We have received your request to review the denial of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals on the grounds that you failed to appear for the collection of biometrics at an Application Support Center nor did you request to have your biometrics appointment rescheduled prior to the date you were scheduled to appear. We have reopened your case on a service motion and will review your file. You will receive a notice that your case is reopened on a service motion and a response once our review is complete.
Final Response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records. Your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and your Form I-765, Application for Employment have resumed processing. Once adjudication is complete, you will receive a decision.

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8. Denial of Form I-821D on the grounds that the requestor failed to pay the filing and biometric fees for the Form I-765
SRMT DACA 3 Interim Response: We have received your request to review the denial of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals on the grounds that you failed to pay the fee for your concurrently filed Form I-765, Application for Employment Authorization, and/or your biometrics fee because your payment has been rejected for insufficient funds and you have failed to correct the fee deficiency within the allotted time. We have reopened your case on a service motion and will review your file. You will receive a notice that your case is reopened on a service motion and a response once our review is complete.
Final Response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records and have routed your file for adjudication. You will receive an approval notice for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and your Form I-765, Application for Employment after adjudication is complete.
9. Denial of Form I-821D due to abandonment and the requestor claims he/she did respond to RFE within the prescribed time
SRMT DACA 4 Interim Response: We have received your request to review the denial of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals on the grounds that you failed to respond to a Request for Evidence within the time prescribed. We reopened your case on a service motion and will review your file. You will receive a notice that your case is reopened on a service motion and a response once our review is complete.
Final Response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records and have routed your file for adjudication. You will receive an approval notice for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and your Form I-765, Application for Employment after adjudication is complete.

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10. Denial of Form I-821D due to abandonment – USCIS mailed the RFE to the wrong address and the requestor submitted a change of address prior to the issuance of RFE.
SRMT DACA 5 Interim Response: We have received your request to review the denial of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals on the grounds that you failed to respond to a Request for Evidence (RFE) within the time prescribed. In your request to review the denial of your Form I821D, you indicated that the RFE was mailed to the wrong address and you had submitted a Change of Address prior to the RFE issuance. We have reopened your case on a service motion and will review your file. You will receive a notice that your case is reopened on a service motion and a response once our review is complete.
Final Response if denial was correct: Use SRMT Denial Template
Final response if denial was incorrect: Since the date we received your request, we have reopened your case on a service motion and reviewed the decision made on your case. Upon review, it has been determined that the denial was issued in error.
We have corrected the error in our records and have routed your file for adjudication. You will receive an approval notice for your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and your Form I-765, Application for Employment after adjudication is complete.

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Appendix H
SRMT Denial Template
We have received your request to review the denial of your Form I-821D, Consideration of Deferred Action for Childhood Arrivals and the accompanying Form I-765, Application for Employment Authorization. Your request was based on your belief that the denial involved one or more of the administrative errors, as indicated below: