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USCIS, EOIR and DOS Policy Memos and Guidance

Latest Memos in Family Immigration and Removal Proceedings –

When/How Can Policies be Challenged?

Philip Hornik and Bonnie Stern Wasser

March 2018 NWCLE Seattle, WA

I. Some history regarding policy memos.

Legacy-INS Operating Instructions:

In the beginning, there were the legacy INS’ Operating Instructions. Some of the OIs were on white

pages and some were on blue. INS asserted that the OIs were only internal agency guidelines and

pursuant to 5 U.S.C. section 553(b)(A), could be promulgated without complying with the Administrative

Procedures Act’s requirement that "notice of proposed rulemaking shall be published in the Federal

Register." Under section 553(b)A), the notice requirement does not apply "to interpretive rules, general

statements of policy, or rules of agency organization, procedure, or practice."

The OIs also included "Interpretations" which were devoted exclusively to naturalization and other

citizenship matters.

The OI White pages were available to the public via subscription and at each INS District’s office’s

“reading room.” The OIs instructed INS to have a “reading room” at every INS office. In Portland, it

consisted of a desk in a corner with a bookcase containing about one dozen binders of reference

material in less-than-pristine order. The reading room included unpublished local office decisions on

various types of applications, and, pre-EOIR, some IJ decisions that had not been appealed.

The OI Blue pages were not made readily available to the public because they discussed investigative

procedures and other matters that INS did not want to make public.

Some of the information in the White Pages was rather mundane but they contained a few gems such

as:

∙ giving INS Trial Attorneys (the predecessor title for DHS District Counsel) the authority to adjudicate I-

130s filed for respondents in deportation proceedings;

∙ instructing INS officers to get advance authorization before issuing Orders to Show Cause against

LPRs convicted of possessing less than 100 grams of marijuana;

∙ advising INS adjudicators to give careful scrutiny to investment related petitions by any Indian whose

last name was “Patel.”

Perhaps the most famous Blue Pages, which were eventually made public via extensive FOIA requests

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and federal litigation during the 1970s, were:

∙ The criteria for the “non-priority” program, a form of prosecutorial discretion. This was a predecessor

to Deferred Action. Information about the program, contained in OI section 103.1(a)(1)(ii), was pried

loose from government secrecy during John Lennon’s battle against deportation in the 1970s.

∙ “Marriage Fraud” questions used by legacy INS in I-130 interviews. LA AILA member Robert Miller

obtained them through FOIA.

The OIs are still available at

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-53690.html

Some have been formally rescinded and the rest are rarely used any more. Most of them were gradually

replaced by USCIS’ Adjudicators Field Manual. The AFM is now being gradually replaced by the USCIS

Policy Manual. However, while several chapters of the AFM are no longer available, the Policy Manual

hasn’t replaced all of the missing AFM chapters.

II. Links to AFM, Policy Manual, Policy Memoranda and “Significant Guidance” memos.

USCIS’ website says

“The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS

Immigration Policy Memoranda site, and other policy repositories.”

A. The Adjudicators Field Manual:

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html

Some chapters of the AFM which have been replaced contain corresponding links to the Policy Manual.

B. The Policy Manual:

https://www.uscis.gov/policymanual/HTML/PolicyManual.html

This is still very much a work in progress. The following volumes of the Policy Manual, as of March 7,

2018, have no content:

Vol. 3: Protection and Parole

Vol. 4 Refugees

Vol. 5 Asylees

Vol. 10 Consent to Reapply

Vol. 11 Travel, Employment and Identity Documents.

C. USCIS Policy Memos

https://www.uscis.gov/laws/policy-memoranda

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This website link says:

“Policy memos that have been partially or fully superseded by the USCIS Policy Manual have been

stamped and republished. If you have bookmarked affected memo PDF files, you will now see the

updated stamped version of the memo indicating that you should visit www.uscis.gov/policymanual for

current policy.”

This website link includes USCIS memos from June 12, 2002 to the present.

D. Regarding “Significant Guidance” memos see:

https://www.uscis.gov/laws/significant-guidance

This link contains USCIS memos issued between Dec. 27, 2005 and Jan 7., 2008.

USICS states that “Guidance documents represent the current thinking of USCIS on a topic. They do not

create or confer any rights for or on any person and do not operate to bind USCIS or the public.”

Many USCIS documents entitled "Policy Memos" state that:

"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 any other form or manner."

Are Policy Memos exempt from APA requirements of public notice and comment?

See 5 USC 553(b)(A) exception.

Are they “internal directives”?

Are they, in effect, agency rules which must be published in the Federal Register?

See 5 USC 552(a)(1). In particular, see 5 U.S.C. section 552(d)(a)(1)(D), which requires publication in the

Federal Register of "substantive rules of general applicability adopted as authorized by law, and

statements of general policy or interpretations of general applicability formulated and adopted by the

agency."

III. Recent Government Policy Memos/Guidance

1. DOS FAM on 90-day misrepresentation: https://fam.state.gov/fam/09FAM/09FAM030209.html 2. USCIS policy manual on misrepresentation:

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartJ.html See also: “An officer should keep in mind that the 30/60- day rule is not a 'rule' in the sense of a binding principle of decision. The rule is simply an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support of finding of fraud or misrepresentation.

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Officers must not use Foreign Affairs Manual (FAM) guidance in a denial.” https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartJ-Chapter3.html

3. 1/4/18 DOS FAM on Public Charge: https://fam.state.gov/fam/09fam/09fam030208.html 1/4/18 DOS Cable on Public Charge: https://travel.state.gov/content/dam/visas/policy_updates/18_STATE_942.pdf See also Clinic’s practice advisory: https://www.nilc.org/wp-content/uploads/2018/02/PIF-FAM-Summary-2018.pdf

4. USCIS on Public Charge: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartA-Chapter6.html and https://www.uscis.gov/greencard/public-charge

https://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-54070/0-0-0-54088/0-0-0-55744.html and https://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-54070/0-0-0-56200/0-0-0-56785/0-0-0-56933.html

5. EOIR on Case Priorities: https://drive.google.com/file/d/0B_6gbFPjVDoxNlFrbmdqUDVkcENlSE9LdUxsVnh2bG5OOFZz/edit

6. USCIS Asylum Last Filed First Interviewed Memo: https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog

IV. Policy Memos v. Regulations and Judicial Review

A. Overview of the Administrative Procedures Act – Resources 1. Resources:

a. AIC practice advisory on the APA: Immigration Lawsuits and the APA: The Basics of a District Court Action

https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/immigration_lawsuits_and_the_apa_-_basics_of_a_district_court_action_6-20-13_fin.pdf

See also the American Immigration Council Practice Advisory on Litigation for Business Immigration

Practitioners, June 3, 2016,

https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/litigation_for_busin

ess_immigration_practitioners_practice_advisory.pdf, that would also apply to family petitions and

other categories. This advisory discusses suing under the APA, 5 U.S.C. 701, the Declaratory Judgment

Act, 28 U.S.C. 2201, and/or the Mandamus and Venue Act of 1962, 28 U.S.C. 1361

b. Electronic Privacy and Information Center overview of the APA https://epic.org/open_gov/Administrative-Procedure-Act.html

c. Federal Register FAQs about regulations: https://www.reginfo.gov/public/jsp/Utilities/faq.jsp

d. Congressional Research Service - CRS Overview: A brief overview of rulemaking and judicial review https://www.everycrsreport.com/reports/R41546.html#_Toc478652291

e. 9th Circuit Court of Appeals Guide (2012) Review of Agency Decisions: http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/IV_Review_AD.pdf 2. The Rulemaking Process: a. Federal Register: A guide to the rulemaking process:

https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf Includes a FAQ about when a policy is a rule.

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3. When is a policy (or policy memorandum, agency guidelines, etc.) or Executive Order actually a rule requiring APA rulemaking procedures?

a. Administrative Conference of the United States https://www.acus.gov/recommendation/agency-policy-statements

b. ABA Excerpt on Rulemaking discussing when policies may be subject to notice and comment procedures. https://www.americanbar.org/content/dam/aba/events/administrative_law/2011/11/2011_fall_administrativelawconference/rulemaking_chapter_2011.authcheckdam.pdf

B. Making regulatory challenges: The Administrative Procedure Act (APA) “sets forth the full extent of judicial authority to review

executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,

513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions”

that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

C. Recent immigration examples: Although from the business immigration area, these examples are instructive as to standing, subject matter and notice and comment requirements under the APA.

a. International Entrepreneur Parole Regulation

See: https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/lawsuit_challenges_postponement_of_the_international_entrepreneur_rule_memorandum_opinion.pdf

National Venture Capital Association v. Duke, D. D.C., No. 17-1912 (JEB) (12/1/2017). The Court granted

summary judgment for the plaintiffs and vacated DHS’ “delay rule” for failure to provide notice and

comment under the Administrative Procedures Act.) 5 USC §533. DHS had sought comments only after

six-month delay. Delay instituted 6 days before start date of original IE rule (7/17/17) and several

months after Executive Order limiting parole authority. Case decided on standing issue - difference

between a challenge to “DHS’s exercise of discretion” and one to an “overarching agency policy” as

outside the bounds of its statutory authority. See R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C.

2015). Plaintiffs have to show injury. DHS asserted no rights to a discretionary decision; plaintiffs

asserted it was an improper rule to begin with resulting in a lost opportunity to apply. Other cases

discuss/cited discuss lost opportunities as a cognizable injury for standing. DHS’ delay of the rule with

intent to issue a rescission rule was found by the court to be tantamount to a significant loss of

opportunity, which is injury to the plaintiffs for standing purposes.

Notice and comment discussion from National Venture Capital Association, supra.

The Court stated: “Under the APA, an agency must provide a '[g]eneral notice of proposed rulemaking'

in the Federal Register, as well as “an opportunity to participate in the rulemaking through submission

of written data, views, or arguments,” before promulgating a rule. See 5 U.S.C. § 553. These

requirements apply with no less force when the agency seeks to delay or repeal a valid final rule. As the

D.C. Circuit recently reiterated, “‘[A]n agency issuing a legislative rule is itself bound by the rule until

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that rule is amended or revoked.’” Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) (quoting Nat’l

Family Planning & Reprod. Health Ass’n, Inc. v. Sullivan, 979 F.2d 227, 234 (D.C. Cir. 1992)) (alterations

omitted). It “may not alter such a rule without notice and comment,” nor does it have any inherent

power to stay a final rule. Id. (internal quotation marks and alterations omitted). Defendants, as a result,

do not dispute that the Delay Rule constitutes a final rule, subject to the APA’s notice-and-comment

requirements. Nor do they claim compliance with that provision. Rather, they seek a haven in the APA’s

“good cause” exception, which allows an agency to dispense with notice and comment when it “for

good cause finds. . .. that notice and public procedure thereon are impracticable, unnecessary, or

contrary to the public interest.” 5 U.S.C. §553(b)(B). The Court reviews an agency’s finding of good cause

de novo, Sorenson v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014), and, in doing so, must “examine closely”

the agency’s explanation as outlined in the rule. See Council of S. Mountains, Inc. v. Donovan, 653 F.2d

573, 580 (D.C. Cir. 1981). Because notice and comment is the default, “the onus is on the [agency] to

establish that notice and comment” should not be given. Action on Smoking & Health v. Civil Aeronautics

Bd., 713 F.2d 795, 801 n.6 (D.C. Cir. 1983). Any agency faces an uphill battle to meet that burden. The

D.C. Circuit has repeatedly warned that “the good cause exception ‘is to be narrowly construed and only

reluctantly countenanced.’” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (quoting Util. Solid

Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001)). The APA “excuses notice and comment

in emergency situations, or where delay could result in serious harm.” Jifry v. FAA, 370 F.3d 1174, 1179

(D.C. Cir. 2004) (citations omitted). When, as here, the agency argues that its actions are in the “public

interest,” the Court will agree only “in the rare circumstance when ordinary procedures — generally

presumed to serve the public interest would in fact harm that interest.” Mack Trucks, Inc., 682 F.3d at

95.”

The Court found fatal the government’s position that it would suffer expense, sow confusion, waste

resources, and suffer from a complex regulation, all of which were discussed and considered in

promulgating the original rules after due consideration of public comments. The finale rules were based

on those comments. None of this was done when trying to delay the rule for purposes of eventually

revoking the rule. In sum, vacatur was appropriate to vacate the delay rule when there was a

fundamental flaw in notice and comment requirements.

b. H-4 EAD regulation

Save Jobs USA v. DHS, D.C. Cir., No. 16-5287 (2/28/2018)

Litigation overview: https://redbus2us.com/h4-visa-ead-2017-news-lawsuit-status-trump-

administration-impact/comment-page-4/

Latest D.C. Circuit court order 2/28/2018: https://redbus2us.com/h4-visa-ead-lawsuit-official-court-

documents-filed-dhs-save-jobs-usa/

District Court: Save Jobs USA v. DHS, D.D.C. No. 15-cv-0615(TSC) (9/27/2016)

The final H-4 EAD Rule was issued 2/25/15 at 8 Fed. Reg. 10284. Save Jobs USA (an organization

comprised of IT workers who claim they lost their jobs to H-1B workers) filed its lawsuit against DHS on

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April 23, 2015 before the rule was about to go live. The lawsuit was initially dismissed by the D.C.

Federal District Court in September 2016 as Save Jobs USA could not defend their lawsuit that H4 EAD

holders will impact them. The District Court held that under the APA, the regulations cannot be arbitrary

and capricious; and a presumption of deference is given to agency action. Regarding standing, Plaintiffs

alleged associational standing. But, since DHS failed to respond to this argument, the Court accepted it.

However, the Court found plaintiffs’ injuries of job and H-1B competition speculative; therefore, the

court held they had no standing.

The plaintiffs filed an appeal to the United States Court of Appeal for the D.C. Circuit. The plaintiffs claim

two things:

1. The new rule has no protections for US workers and increases the pool of workers looking for jobs

2. DHS never had the authority to grant EADs to H-4 visa holders.

In 2017, President Trump issued his Buy American Hire American Executive Order to protect US jobs.

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-

american/ In the Fall 2017 Notice of Regulatory Agenda list is a notice of intent to issue a rule to rescind

the H-4 EAD regulation.

On February 28, 2018 The D.C. Court of Appeals ordered a delay in the case pending a DHS report in

May 2018 regarding the status of its regulation to eliminate H-4 EADs. DHS' motion indicated it

anticipates issuing the regulation in June 2018. The DHS motion states the delay is due to the need for

“significant revisions” and “a new economic analysis.”

c. STEM OPT regulation challenges

Washington Alliance of Technology Workers v. DHS, D.D.C., No. 16-1170 (RBW) (April 19, 2017)

Litigation history can be found here:

http://www.nafsa.org/_/file/_/amresource/washtechdecision20170419.pdf

2014 WATW filed suit challenging both the original 1992 OPT regulation and the 2016 STEM OPT

regulation. The OPT challenge was dismissed for lack of standing. WATW argued lack of notice and

comment for STEM OPT regulation. DHS then issued a new final rule in 2016. 81 Fed Reg 13040

(3/11/16). 8 CFR §214.2(f)(10.)

DHS filed motions to dismiss for lack of subject matter jurisdiction, lack of standing, and failure to state a

claim. The District Court denied and granted in part holding there was standing to contest the 2016 rule,

but it was not ripe for review. The Court also held the plaintiffs failed to plausibly state claims for relief

where the court found their claims conclusory at best without more. Note: DHS intends to revoke this

rule at some point based on the 2017 Fall Regulatory Agenda.

d. Texas v US Challenges to original DACA/DAPA

https://www.americanimmigrationcouncil.org/research/legal-challenges-executive-action-on-immigration

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US v. Texas challenges under the APA: http://www.scotusblog.com/case-files/cases/united-states-v-

texas/ The District Court held DAPA should have undergone notice and comment rulemaking because it

“substantially changed” the employability and status of millions of people and would cost states and the

federal governments millions of dollars thereby conferring substantial rights and “lawful presence” on

recipients that require APA notice and comment. Texas et al did not dispute the government’s

discretionary authority and the court did not consider constitutional state-federal powers. The Court

found that DAPA was not a “general statement of policy.”

The 5th Circuit Court of Appeals in the US v. Texas decision dealt primarily with standing under the APA,

but, also, held that the DHS Secretary was foreclosed by statute to create a new immigration ground or

to apply deferred action to millions of people. http://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-

40238-CV0.pdf For more of a discussion on APA issues, see

http://www.scotusblog.com/2016/02/symposium-the-governments-violation-of-the-apas-notice-and-

comment-requirements-provides-a-simple-solution-to-a-thorny-case/

Regents of University of California v. DHS, N. Dist. Cal, No. C17-5211-WHA (Jan. 9, 2018) basically turns

the 5th circuit case on its head. Plaintiffs alleged in District Court that President Trump’s revocation of

DACA was a violation of the APA requiring notice and comment rulemaking; it is a substantive rule with

impact on small business; it violates equal protection based on discriminatory animus; and it violates

equitable estoppel. (DHS filed for certiorari in the US Supreme Court, skipping over the 9th Circuit Court

of Appeals, but the US Supreme Court sent the case back to the 9th Circuit Court of Appeals where we

await a decision). See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000927

e. Other Issues What about the Attorney General assigning cases to himself? – e.g., no full asylum hearings required

where the IJ can unilaterally determine on the face of an application that it may involve fraud or be not

likely to succeed? Aside from potential Due Process issues, is this a major rule change requiring APA

notice and comment??? Matter of E-H-L-F, 27 I&N 226 (AG 2018)

https://www.justice.gov/eoir/page/file/1040936/download

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V. HYPOTHETICALS

Hypo #1

Your client has been an LPR since March 18, 2009. He became an LPR through marriage to a U.S. citizen

spouse. In 2011, he plead guilty in Oregon to 4th degree “DV” misdemeanor assault of his now ex-wife.

His defense counsel did not advise him that this conviction would make him removable.

He remarried in 2013. His current wife is a U.S. citizen and they have 2 U.S. born children. In 2015, due

to his misunderstanding of U.S. Immigration law and the well-intentioned but ill-informed

encouragement by someone at a voter registration drive, he registered to vote and voted in the 2016

Presidential election.

In light of the Kelly memo, would you advise him to apply for naturalization? The February 20, 2017 Kelly

Memo is available online at:

https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-

Laws-to-Serve-the-National-Interest.pdf and on AILA InfoNet, Doc. No. 17021830, posted Feb. 20, 2017

Assuming that you assist your client in applying for naturalization: What will you do if USCIS argues that

the Kelly memo supersedes the May 7, 2002 Yates memo on exercising prosecutorial discretion for

naturalization applicants who have voted, as well as any informal policy to exercise discretion in favor of

removable naturalization applicants with strong equities?

The Yates memo is available on AILA InfoNet Doc. No. 05030768 and is available online at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/VoterMem_Plus86.pdf

Should you be concerned that USCIS refers to the Yates memo as an "archived memo" and "has been

partially or fully superseded by the USCIS Policy Manual"?

2. Hypo #1 cont’d.

Things didn’t go so well at the naturalization interview. USCIS decided to deny the naturalization

application and initiate removal proceedings. An NTA is issued on March 1, 2018 and it charges your

client with being removable due to his Assault/DV conviction, registering to vote and unlawful voting.

You consult a criminal defense lawyer who informs you that post-conviction relief would likely be

available to vacate your client’s plea and conviction due to his ill-advised plea of guilty. Due to court

backlog’s, defense counsel advises you that it could easily take 18 months to obtain post-conviction

relief.

You attend the client’s master calendar hearing on March 18, 2018. You advise the IJ that your client

would like to apply for LPR cancellation of removal, non LPR cancellation of removal and adjustment of

status (based on his current marriage.) You also point out to the IJ that your client will be seeking post-

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conviction relief regarding his assault conviction. You estimate that this will take 18 months. You ask

that the Immigration Judge schedule the merits hearing no earlier than October 18, 2019. The

Immigration Judge is eager to set a merits hearing date. He cites to Appendix A of EOIR Director

McHenry’s January 17, 2018 “Case Priorities” memo. The memo states that 85% of all non-status non-

detained removal cases shall be completed within 365 days of filing the NTA. The IJ schedules your

client’s merits hearing for February 1, 2019. The EOIR Case Priorities memo is available on EOIR's

website at https://www.justice.gov/eoir/page/file/1026721/download and on AILA InfoNet Doc. No.

18011834 (posted Jan. 18, 2018)

What do you do?

Hypo #2

FN and naturalized citizen have known each other for years. FN lives in Canada as a landed immigrant

based on work. Both are originally from Malaysia. FN has visited the USA a few times with a B-2 visa,

never overstaying or working illegally. About 5 years ago, FN was in the USA for a year on F-1. While in

school, she got pregnant and had a child born in the USA, but the pregnancy was complicated, and she

ended up in the ER a few months before the birth and received Medicaid. After the child was born, she

received WIC for a few months. The USC child has been living with her mom in Canada. FN never

married the father of her child.

The couple does their own research and decide that FN will come to the US for another visit. FN’s last

date of entry is Feb 2, 2018. USC pops the marriage question. FN accepts, and they marry on the Feb 28.

Both spouses have been married before and are now divorced. USC was in school, then had some low

paying jobs after graduation, and recently started a company where he expects to gross $80k in 2018.

USC is working on taxes and isn’t sure yet what his net business income will be, but it may be around

$20-25,000. FN and USC recently reconnected as they were each married to and divorced from other

people over the years.

FN and USC now want to know if they can adjust status or must consular process, and whether USC’s

income situation will be enough for affidavit of support purposes. FN would really like to visit her parent

in Indonesia who is elderly. FN doesn’t want to wait too long to see her mother. She is open to consular

processing. But USC really wants FN spouse to stay and not leave. FN quit her job in Canada before this

latest trip. She still has an apartment there, insurance, bank accounts, connections for other work, and

can go back there to live, but prefers to hang out with her parent in Indonesia v. Canada while the case

is processing, if she is required to consular process. She also has a pending Canadian naturalization case.

What options do they have?

How would the FAM 90-day misrepresentation rule apply?

How would the newest DOS affidavit of support cable apply?

What issues should the couple consider? What other information do you need to know?

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