1 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 The reading room included unpublished local office decisions on various types of applications, and, pre-EOIR, some IJ decisions that had not been appealed.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 2018 NW Regional Immigration Law Conference Family-Removal Track, Session 9 USCIS Policy Memos and Changes March 15-16, 2018 Page 1 of 11
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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
2018 NW Regional Immigration Law ConferenceFamily-Removal Track, Session 9
USCIS Policy Memos and Changes
March 15-16, 2018 Page 1 of 11
2
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
“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.
2018 NW Regional Immigration Law ConferenceFamily-Removal Track, Session 9
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
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.
2018 NW Regional Immigration Law ConferenceFamily-Removal Track, Session 9
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.