DREAM Act Portal Forum - USCIS Response Letter to 66 senators and congress members Advance Parole

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000

April 12, 2019

The Honorable Alan Lowenthal United States Senate Washington, DC 20510
Dear Senator Lowenthal:

Thank you for your February 12, 2019 letter to the Department of Homeland Security (DHS).
As you note in your letter, several federal courts have imposed nationwide preliminary injunctions against the DHS, including U.S. Citizenship and Immigration Services (USCIS), with regard to the rescission of the Deferred Action for Childhood Arrivals (DACA) policy while the litigation proceeds on its merits. However, no court order that is currently in effect enjoins the decision by former Acting Secretary of Homeland Security, Elaine Duke, to cease accepting and adjudicating advance parole requests under standards associated with the DACA policy as of September 5, 2017. Therefore, DHS continues to adhere to the former Acting Secretary's decision with respect to such advance parole requests.
Responses to your questions, to the extent possible while litigation is ongoing, are enclosed. The co-signers of your letter will receive separate, identical responses. Should you require any additional assistance, please have your staff contact the USCIS Office of Legislative and Intergovernmental Affairs at (202) 272-1940.

Respectfully,

2. Fuai
L. Francis Cissna Director
Enclosures

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The Department of Homeland Security’s Response to
Senator Harris’ February 12, 2019 Letter

1. Please provide a detailed explanation about why USCIS has failed to exercise its
lawful discretion to allow DACA recipients to apply for or receive advance parole for
humanitarian, educational, and employment purposes since September 5, 2017.

U.S. Citizenship and Immigration Services (USCIS) is no longer accepting or approving
Form I-131 applications from DACA recipients under the standards associated with the
DACA policy. Enclosed please find a copy of the following documents: 1) DHS former
Acting Secretary Elaine Duke's September 5, 2017 Memorandum titled, “Rescission of the
June 15, 2012 Memorandum titled ‘Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children;” 2) Frequently Asked Questions:
Rescission Of Deferred Action For Childhood Arrivals (DACA) dated September 5, 2017;
and 3) Memorandum from Secretary Kirstjen Nielsen dated June 22, 2018, that was
submitted in connection with the pending lawsuit: National Association for the Advancement
of Colored People (NAACP) et al v. Trump, No.17-cv-02325-JDB (D.D.C. 2017)

2. Please clarify if USCIS is now treating DACA recipients differently than other
deferred action recipients with respect to advance parole applications, and if so,
provide an explanation, including how other advance parole applications are
adjudicated.

Under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), the Secretary of
Homeland Security may, in his or 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. As stated in the cover letter and the response to
Question 1, the Department of Homeland Security (DHS) continues to abide by the policy
regarding advance parole set forth in Acting Secretary Duke’s September 5, 2017
memorandum. The DACA rescission memorandum does not preclude a DACA recipient
from requesting advance parole under standards not associated with the DACA policy,
provided he or she falls within one of the other (non DACA-related) categories of individuals
who may seek an Advance Parole Document while they are in the United States. These
categories are listed in the Instructions for Form I-131, Application for Travel Document,
which have been provided as a separate enclosure.

3. Please provide complete documentation of any research and analysis DHS and
USCIS have conducted since 2012 about benefits to individuals, educational
institutions, employers, and the American economy of allowing DACA recipient to
apply for advance parole.

DHS cannot comment regarding research and analysis informing former Acting Secretary
Duke’s decision to rescind the DACA policy, including the granting of advance parole based
on standards associated with the DACA policy on September 5, 2017, as this matter is the
subject of ongoing litigation.

April 2019 Page 2
4. Please provide complete written documentation of DHS and USCIS policy relating to
advance parole applications and adjudications from DACA recipients since January
2017, including all research and analysis informing the policy shift since September
5, 2017.

Please reference the following documents which are enclosed or a link has been provided:
1) DHS former Acting Secretary Elaine Duke's September 5, 2017 Memorandum titled,
“Rescission of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion
with Respect to Individuals Who Came to the United States as Children;” 2) Frequently
Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) dated
September 5, 2017; 3) Instructions for Form I-131, Application for Travel Document; and

4) Archived USCIS DACA FAQ 57 & 59 https://www.uscis.gov/archive/frequently-asked-
questions. The DACA-related sections of the Form I-821D Instructions and the archived

USCIS DACA FAQs were drafted prior to January 2017, but remained in effect until the
DACA rescission memo was issued on September 5, 2017.
DHS cannot comment regarding research and analysis informing former Acting Secretary
Duke’s decision to rescind the DACA policy, including the granting of advance parole based
on standards associated with the DACA policy on September 5, 2017, as this matter is the
subject of ongoing litigation.

5. Please provide complete written documentation on guidance and training provided
to USCIS employees regarding adjudications of advance parole applications from
DACA recipients and communications with DACA recipients about advance parole
and international travel, including on advising DACA recipients about risks to their
DACA status of travel abroad, since January 2017.

USCIS did not issue any new guidance or training materials after January 2017 with respect
to adjudication policies or procedures for advance parole applications filed by DACA
recipients until the DACA rescission memo was issued on September 5, 2017. From January
2017 to September 5, 2017, USCIS operated under the same guidance and training materials
that were drafted and issued during the prior administration. For your reference, USCIS has

included relevant materials pertaining to the adjudication policies and procedures on DACA-
based advance parole applications that USCIS operated under from January 2017 to

September 5, 2017. Please reference the following documents which are enclosed or for
which a link has been provided: 1) USCIS DACA Standard Operating Procedures; 2)
Relevant internal DACA FAQs; 3) Advance Parole DACA PowerPoint April 2016; and 4)
Archived DACA FAQs 56-59 https://www.uscis.gov/archive/freque...sked-questions.
After the DACA rescission memo was issued on September 5, 2017, various USCIS
operational components implemented the parameters of the memo, including the guidance in
the memo on administratively closing and refunding the fees on all pending Form I-131
applications that were filed under the standards associated with the DACA policy. Please see
USCIS’ responses to Questions 6 and 7 for additional information and attachments related to
correspondence materials that were issued to DACA recipients whose Form I-131
applications were administratively closed after September 5, 2017, or whose Form I-131

April 2019 Page 3
applications were denied in specific circumstances described in USCIS’ response to
Question 7.
Regarding communication with DACA recipients about advance parole, or risks to their
DACA status of travel abroad, USCIS has issued several public documents which instruct
DACA requestors and recipients on the negative consequences of traveling abroad after
August 15, 2012, without first obtaining advance parole, to include the automatic termination
of an individual’s DACA and the denial of an individual’s pending DACA request, if
applicable. These documents were issued prior to January 2017, but remained in effect after
January 2017. They remain available on the USCIS website and warning language remains
included in the form instructions for the Form I-821D and Form I-131. While USCIS
stopped approving requests for advance parole under the standards associated with DACA in
accordance with the DACA rescission memorandum, the consequences of traveling abroad
without obtaining advance parole remain the same for DACA requestors and recipients as
they were before the rescission memorandum and as they were before January 2017.
Additionally, USCIS has provided general warnings regarding advance parole including
detailed instructions on the conditions, limitations, and discretionary nature of advance
parole. USCIS has included these warnings and information in public FAQs, Form
Instructions, the Form I-512L, issued to individuals granted advance parole, and in various
other public documents USCIS has shared with the public. You may review many of these

documents and information at: https://www.uscis.gov/archive/consid...ferred-action-
childhood-arrivals-daca.

Also, for your convenience, enclosed please find a copy of the following documents:
1) Instructions for Consideration of Deferred Action for Childhood Arrivals, Form I-821D;
2) Instructions for Application for Travel Document, Form I-131; 3) Examples of Form

I-512L (single and multiple entry); 4) DACA-Toolkit; 5) DACA-Presentation; 6) DACA-
Flier; and 7) Archived DACA FAQs 56-59 https://www.uscis.gov/archive/frequently-asked-
questions.

6. Please provide complete written documentation on USCIS policies, procedures, and
processes to inform DACA recipients who submitted advance parole applications
prior to September 5, 2017 about the status of their applications, including issuance
of notices of intent to deny and final decisions to deny, and to refund their application
fees following the policy shift.

Enclosed is a copy of the letter USCIS sent to applicants with a pending DACA-based Form
I-131 as of September 5, 2017, notifying them that USCIS administratively closed their Form
I-131 application in accordance with the DACA rescission memo, and informing them that
the filing fee would be refunded.

April 2019 Page 4
7. Please provide complete written documentation on USCIS policies, procedures, and
processes to inform DACA recipients who submitted advance parole applications
after September 5, 2017 about the status of their applications, including issuance of
notices of intent to deny and final decisions to deny, and to refund their application
fees following the policy shift.

Enclosed is a sample of the Form I-131 rejection notice USCIS provides to individuals who
have submitted DACA-based Form I-131s after September 5, 2017. Please note that certain
Form I-131 applications filed by DACA recipients after September 5, 2017 were not rejected
by USCIS at intake because the applicant filed the I-131 at a USCIS filing location other than
the filing location previously designated for DACA-based Form I-131 applications. USCIS
denied these Form I-131 applications. Enclosed are redacted example notices of an intent to
deny and denial notice that were used for these Form I-131 applications.

8. Please provide the total annual number of applications USCIS received from DACA
recipients for advance parole, broken down by humanitarian, educational, or
employment purposes, as well as the number of such applications approved,
respectively, during each fiscal year from 2012-2018. Please also provide a monthly
breakdown of this data.

See enclosed spreadsheet.
9. Please provide the total number of applications USCIS received from DACA
recipients for humanitarian parole as well as the number of such applications
approved since September 5, 2017.

See enclosed spreadsheet.

https://drive.google.com/file/d/1S35...nmbTJ-XGN/view

https://drive.google.com/file/d/15dQ...O0bE7BU43/view

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