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Immigration Enforcement Agency Still Iced Out of DACA Info

July 6, 2018, 3:33 PM

U.S. Citizenship and Immigration Services is continuing to follow its policy of not providing Immigration and Customs Enforcement with the personal information of immigrants who apply for the Deferred Action for Childhood Arrivals program.

The USCIS will continue to follow 2012 guidance on whether an applicant’s information can be shared with Immigration and Customs Enforcement, and if so, when. This is according to a policy memorandum released by the agency July 5. The policy applies to processing of DACA applications as well as decisions on whether to terminate a person’s DACA protections.

The Obama administration program provides deportation protection and work permits to young, undocumented immigrants who came to the U.S. as children. But the Trump administration said it will end DACA and has increased its immigration enforcement efforts generally, creating uncertainty for DACA recipients.

The new memorandum is intended to clarify how those enforcement efforts apply to DACA.

Under 2012 guidance, the USCIS can’t share a DACA applicant’s information with ICE unless the person meets the criteria for a “notice to appear” (NTA) for removal proceedings. The information could be shared if the person presents a public safety or national security threat, has committed certain crimes, or has engaged in fraud.

The USCIS released a new NTA policy memorandum July 5 that broadens these categories for other immigrants and asylum seekers. That new policy doesn’t apply to DACA, the agency said.

Lawsuits Pending on Appeal

A federal judge in California halted the USCIS’ practice of automatically terminating DACA recipients’ protections if they received an NTA.

DACA recipients can lose their eligibility for the program if they commit certain types of crimes. The recipients in the lawsuit—which has been allowed to proceed as a class action—say they were handed NTAs based on accusations that they committed crimes that disqualified them from DACA. They didn’t actually commit those crimes, they say.

Judge Philip S. Gutierrez of the U.S. District Court for the Central District of California earlier this year said DACA recipients have the right to notice and the opportunity to respond before their protections are revoked.

That case is on appeal before the U.S. Court of Appeals for the Ninth Circuit, as is another lawsuit challenging the Trump administration’s decision to end DACA entirely. The program continues to operate under a handful of federal court orders.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com