Introduction

On October 19, 2017, the United States Citizenship and Immigration Services released a new Policy Memorandum (PM)-602-0150 titled “Revised Guidance for Processing Cases Subject to Terrorism-Related Inadmissibility Grounds and Rescission of the Prior Hold Policy for Such Cases” [PDF version]. The new memorandum rescinds guidance requiring administrative holds in certain cases where an applicant was determined to be inadmissible under a specific terrorism-related inadmissibility provision. It then provides new guidance for these cases.

In this article, we will examine the effect of the new policy and the background of the old policy regarding holds for those charged with terrorism-related inadmissibility grounds.

Rescinded Policy from 2016

The new memorandum rescinds a policy regarding mandatory administrative holds on certain cases where applicants for benefits were determined to be inadmissible on terrorism-related inadmissibility grounds. The new memorandum excerpted the rescinded policy. The policy, which derives from a 2016 USCIS memorandum titled “Revised Guidance for Processing Asylum Cases Involving Terrorism-Related Inadmissibility Grounds and Amendment to the Hold Policy for Such Cases” (USCIS PM-602-137) [PDF version], is reproduced below as follows:

NACARA

[Click image to view full size]

The rescinded guidance set forth three general situations in which an administrative hold would generally be required for certain applicants charged with certain terrorism-related inadmissibility grounds. First, it is important to note that the first two cases outlined in the 2016 memo did not apply to applicants for asylum, refugee status, suspension of deportation, or special rule cancellation of removal under NACARA. Holds were not required in these cases where there was no existing authority to grant relief to the applicant charged with inadmissibility on terrorism-related grounds. A hold in these cases would only be required in response to specific instructions. Previous USCIS guidance in 2011 and 2009 included a slightly broader list of categories where holds were required and included applicants for asylum, refugee status, suspension of deportation and NACARA special rule cancellation of removal [PDF version]. Accordingly, the 2016 guidance limited the scope of the hold policy that had been in place since 2009. The 2011 guidance allowed that holds were not required in the first two cases where the USCIS determined that the totality of the circumstances made it clear that the applicant would not merit the favorable exercise of discretion (no such exception existed for the third category, however). The 2011 memorandum included more discretion on this point than did the 2009 memorandum.

The first category for which holds were required involved cases where an applicant was charged with inadmissibility based on any activity or association that was not under duress with a Tier III terrorist organization. Tier III terrorist organizations are defined in section 212(a)(3)(B)(vi)(III) of the INA. Holds were not required in cases where the applicant was seeking asylum, refugee status, suspension of deportation, or NACARA cancellation. Holds were only required in cases where the applicant was not otherwise exempt from inadmissibility on this ground. The 2011 memo provided an exception if the USCIS determined that it was clear the applicant would not merit the favorable exercise of discretion based on the totality of the circumstances.

The second circumstance in which holds were required applied to applicants who were inadmissible based on any activity or association related to any terrorist organization from Tier I to Tier III where the activity or association was under duress. The 2011 memo provided an exception of the USCIS determined that it was clear the applicant would not merit the favorable exercise of discretion based on the totality of the circumstances.

Finally, holds were required in cases where an individual sought status as the spouse or child of an alien described above, except in cases where the applicant was seeking refugee status, but where the applicant was inadmissible under section 212(a)(3)(B)(i)(IX). Section 212(a)(3)(B)(i)(IX) renders the spouse or child of any alien inadmissible under section 212(a)(3)(B)(i) (various terrorism-related inadmissibility grounds) inadmissible provided that the activity that caused the spouse or parent to be inadmissible occurred within the previous five years. It is important to note that section 212(a)(3)(B)(i)(IX) is not attached to the spouse or parent applying for an immigration benefit. Accordingly, the hold policy applied whether or not the inadmissible spouse or parent had applied for an immigration benefit.

Holds delay final adjudication of a case and refer the case to USCIS for further consideration.

New Policy

The new 2017 USCIS memorandum rescinded the portion of the 2016 memorandum which set forth the three situations in which holds were generally required. Under the new policy, “cases for which no exception(s) is available should not be placed on hold…” The only exception to this is if the USCIS officer adjudicating the case receives instructions to hold the case from his or her superior(s). USCIS officers must refer to the 212(a)(3)(B) Exception Worksheet for guidance as to whether an exception from a terrorism-related inadmissibility ground is available.

Relationship to March 6 Executive Order

On March 6, 2017, President Donald Trump issued an Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” [PDF version] [see article]. Section 7 of the Executive Order directed the Secretary of State, the Attorney General, and the Secretary of Homeland Security to consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.” Section 212(d)(3)(B) allows in certain cases for the Secretary of State or the Secretary of Homeland Security, in limited cases and after consultation, to grant an exception to an alien who would otherwise be subject to certain provisions of section 212(a)(3)(B). The new memorandum, which would fall under “guidance,” signals that the use of this section 212(d)(3)(B) authority may be increasingly limited going forward.

Conclusion

The new policy will permit USCIS officers to render final decisions on a limited selection of cases involving terrorism-related inadmissibility grounds in section 212(a)(3)(B) that would have previously been subject to the hold policy. In many of these cases, the new guidance may lead to quicker denials. If an alien is charged with inadmissibility on a terrorism-related ground or may have issues in this regard when seeking an immigration benefit, he or she should consult with an experienced immigration attorney immediately. Whether the alien is ultimately charged with inadmissibility and be eligible for an exception will depend on the specific facts of the case. An experienced immigration attorney will be able to examine the case and determine whether the alien has a path forward in seeking an immigration benefit and/or relief from removal.