gating factors pertaining to the alien’s role in 
the commission of the offense. 
(D) GANG
PARTICIPATION.—An alien is 
described in this subparagraph if the alien has, 
within the 5 years immediately preceding the 
date of the application, knowingly, willfully, and 
voluntarily participated in offenses committed 
by a criminal street gang (as described in sub-
sections (a) and (c) of section 521 of title 18, 
United States Code) with the intent to promote 
or further the commission of such offenses. 
(E) EVIDENTIARY LIMITATION.—For pur-
poses of subparagraph (D), allegations of gang 
membership obtained from a State or Federal 
in-house or local database, or a network of 
databases used for the purpose of recording and 
sharing activities of alleged gang members 
across law enforcement agencies, shall not es-
tablish the participation described in such para-
graph. 
(F) NOTICE.— 
(i) IN GENERAL.—Prior to rendering 
a discretionary decision under this para-
graph, the Secretary shall provide written 
notice of the intent to provisionally deny
the application to the alien (or the alien’s 
counsel of record, if any) by certified mail 
and, if an electronic mail address is pro-
vided, by electronic mail (or other form of 
electronic communication). Such notice 
shall— 
(I) articulate with specificity all 
grounds for the preliminary deter-
mination, including the evidence relied 
upon to support the determination; 
and 
(II) provide the alien with not 
less than 90 days to respond. 
(ii) SECOND NOTICE.—Not more than 
30 days after the issuance of the notice 
under clause (i), the Secretary shall pro-
vide a second written notice that meets the 
requirements of such clause. 
(iii) NOTICE
NOT
RECEIVED.—Not-
withstanding any other provision of law, if 
an applicant provides good cause for not 
contesting a provisional denial under this 
paragraph, including a failure to receive 
notice as required under this subpara-
graph, the Secretary shall, upon a motion
filed by the alien, reopen an application for 
adjustment of status under this title and 
allow the applicant an opportunity to re-
spond, consistent with clause (i)(II). 
(G) JUDICIAL REVIEW OF A PROVISIONAL 
DENIAL.— 
(i) IN
GENERAL.—Notwithstanding 
any other provision of law, if, after notice 
and the opportunity to respond under sub-
paragraph (F), the Secretary provisionally 
denies an application for adjustment of 
status under this Act, the alien shall have 
60 days from the date of the Secretary’s 
determination to seek review of such deter-
mination in an appropriate United States 
district court. 
(ii) SCOPE
OF
REVIEW
AND
DECI-
SION.—Notwithstanding any other provi-
sion of law, review under paragraph (1) 
shall be de novo and based solely on the 
administrative record, except that the ap-
plicant shall be given the opportunity to 
supplement the administrative record and 
the Secretary shall be given the oppor-
tunity to rebut the evidence and arguments
raised in such submission. Upon issuing its 
decision, the court shall remand the mat-
ter, with appropriate instructions, to the 
Department of Homeland Security to 
render a final decision on the application. 
(iii) APPOINTED COUNSEL.—Notwith-
standing any other provision of law, an ap-
plicant seeking judicial review under clause 
(i) shall be represented by counsel. Upon 
the request of the applicant, counsel shall 
be appointed for the applicant, in accord-
ance with procedures to be established by 
the Attorney General within 90 days of the 
date of the enactment of this Act, and 
shall be funded in accordance with fees col-
lected and deposited in the Immigration 
Counsel Account under section 312. 
(4) DEFINITIONS.—For purposes of this sub-
section— 
(A) the term ‘‘felony offense’’ means an of-
fense under Federal or State law that is pun-
ishable by a maximum term of imprisonment of 
more than 1 year; 
(B) the term ‘‘misdemeanor offense’’ 
means an offense under Federal or State law
that is punishable by a term of imprisonment of 
more than 5 days but not more than 1 year; 
and 
(C) the term ‘‘crime of domestic violence’’ 
means any offense that has as an element the 
use, attempted use, or threatened use of phys-
ical force against a person committed by a cur-
rent or former spouse of the person, by an indi-
vidual with whom the person shares a child in 
common, by an individual who is cohabiting 
with or has cohabited with the person as a 
spouse, by an individual similarly situated to a 
spouse of the person under the domestic or 
family violence laws of the jurisdiction where 
the offense occurs, or by any other individual 
against a person who is protected from that in-
dividual’s acts under the domestic or family vio-
lence laws of the United States or any State, 
Indian Tribal government, or unit of local gov-
ernment. 
(d) LIMITATION ON REMOVAL OF CERTAIN ALIEN 
MINORS.—An alien who is 18 years of age or younger and 
meets the requirements under subparagraphs (A), (B), 
and (C) of subsection (b)(1) shall be provided a reasonable 
opportunity to meet the educational requirements under