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

June 28, 2018

PM-602-0050.1

Policy Memorandum
SUBJECT: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Purpose
On January 25, 2017, the President signed Executive Order 13768, Enhancing Public Safety in
the Interior of the United States. The Executive Order set forth the President’s immigration
policies for enhancing public safety, and it articulated the priorities for the removal of aliens
from the United States.
This Policy Memorandum (PM) outlines how U.S. Citizenship and Immigration Services’
(USCIS) Notice to Appear (NTA) and referral policies implement the Department of Homeland
Security’s (DHS) removal priorities, including those identified in Executive Order 13768, and it
provides updates to USCIS’ guidelines for referring cases and issuing NTAs. This PM
supersedes Policy Memorandum 602-0050, Revised Guidance for the Referral of Cases and
Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,
dated November 7, 2011.
Scope
This PM applies to and will be used to guide referrals and the issuance of NTAs by all USCIS
employees, unless otherwise specifically provided in this PM or other USCIS policy or guidance
documents.
Authority
Immigration and Nationality Act (INA) §§ 101(a)(43), 103(a), 208, 212, 216, 216A, 237, 239,
240, 242, 244, and 318; Homeland Security Act of 2002 § 402(5); Title 8, Code of Federal
Regulations (8 CFR) §§ 2.1, 103, 207.9, 208, 216.3(a), 216.6(a)(5), 236.14(c), and pts. 239 and
244.

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 2
Background
Executive Order 13768 emphasizes that enforcement of our immigration laws is critically
important to the national security and public safety of the United States. The Executive Order
also provides that the Federal Government will no longer exempt classes or categories of
removable aliens from potential enforcement.
On February 20, 2017, former Secretary of Homeland Security John Kelly issued an
implementation memorandum, Enforcement of the Immigration Laws to Serve the National
Interest, 1 which was related to the President’s immigration enforcement priorities. The
memorandum sets forth guidance for all DHS personnel regarding the enforcement priorities.
The Executive Order and DHS Implementation Memorandum prioritize the removal of aliens
described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens
who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens
subject to expedited removal. In addition to aliens described in those subsections, the Executive
Order and DHS Implementation Memorandum also prioritize removable aliens who, regardless
of the basis for removal:
(a)
(b)
(c)
(d)

Have been convicted of any criminal offense;
Have been charged with any criminal offense that has not been resolved;
Have committed acts that constitute a chargeable criminal offense; 2
Have engaged in fraud or willful misrepresentation in connection with any official
matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but have not departed; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or
national security.
USCIS has authority, under the immigration laws, 3 to issue Form I-862, Notice to Appear, which
is thereafter filed with the Immigration Court to commence removal proceedings under section
240 of the INA. 4 U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and
Border Protection (CBP) also have authority to issue NTAs. Accordingly, USCIS must ensure
that its issuance of NTAs fits within and supports DHS’s overall removal priorities – promoting
national security, public safety, and the integrity of the immigration system. This PM identifies
the circumstances under which USCIS issues NTAs or refers cases to ICE.
1

See https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-toServe-the-National-Interest.pdf.
2
Chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.
3
See, e.g., INA §§ 103(a), 239; 8 CFR §§ 2.1, 239.1.
4
Delegation by the Secretary of Homeland Security to the Bureau of Citizenship and Immigration Services,
Delegation Number 0150.1, Paragraph 2(N). However, international District Directors and officers are not
authorized to issue NTAs.

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 3
This PM will not apply to the use of discretion in adjudicating cases. Guidance on how the
enforcement priorities will affect USCIS’ use of discretion in adjudicating cases will be
addressed in a separate policy memorandum.

Policy
USCIS is updating its NTA policy to better align with enforcement priorities. It is the policy of
USCIS to issue NTAs and Referrals to ICE (RTIs), as outlined below:
I. National Security Cases
These cases fall under the priorities outlined in Executive Order 13768, and they include
aliens engaged in or suspected of terrorism or espionage, or those who are otherwise
described in INA §§ 212(a)(3) or 237(a)(4). In addition, any removable alien who, in the
judgment of a USCIS officer, otherwise poses a risk to national security is considered a
priority for removal.
This PM does not affect the handling of cases involving national security concerns. 5
Guidance from the Fraud Detection and National Security Directorate (FDNS) 6 will continue
to govern the definition of these cases and the procedures for resolution and NTA issuance.
II. NTA Issuance Required by Statute or Regulation
USCIS will continue to issue NTAs in the following circumstances:
A. Termination of Conditional Permanent Resident Status and Denials of Form I-751,
Petition to Remove the Conditions of Residence (8 CFR §§ 216.3, 216.4, 216.5). 7
B. Termination of Conditional Permanent Resident Status and Denials of Form I-829,
Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (8 CFR
§ 216.6).
C. Termination of refugee status by the District Director (8 CFR § 207.9).
D. Denials of Nicaraguan and Central American Relief Act (NACARA) Section 202 and
Haitian Refugee Immigration Fairness Act (HRIFA) adjustment of status applications:
1. NACARA 202 adjustment denials (8 CFR § 1245.13(m));
2. HRIFA adjustment denials (8 CFR § 245.15(r)(2)(i)).
E. Asylum, 8 NACARA Section 203, 9 and Credible Fear cases: 10
5

National Security Concerns include cases involving Terrorism-Related Inadmissibility Grounds (TRIG) in sections
212(a)(3)(B) and 212(a)(3)(F) of the INA. See also INA § 237(a)(4)(B) (corresponding grounds of deportability).
6
See Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008).
7
See USCIS memorandum, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the
CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or
Multiple Petitions (Oct. 9, 2009); see also USCIS memorandum, I-751 Filed Prior to Termination of Marriage
(Apr. 3, 2009).

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 4
1. Asylum referrals (8 CFR § 208.14(c)(1));
2. Termination of asylum or termination of withholding of removal or deportation
(8 CFR § 208.24(e)); 11
3. Positive credible fear findings (8 CFR § 208.30(f));
4. NACARA 203 cases, where suspension of deportation or cancellation of removal
is not granted and the applicant does not have asylum status or lawful immigrant
or nonimmigrant status (8 CFR § 240.70(d));
5. Cases where NACARA 203 was granted to persons who were ineligible to receive
suspension of deportation or special rule cancellation of removal at the time that
the grant was issued (8 CFR § 246.1).
This PM does not change NTA or notification procedures for Temporary Protected Status
(TPS) cases as described in 8 CFR part 244. 12 In individual TPS cases where USCIS denies
an initial TPS application or re-registration or withdraws TPS, and the individual has no
other lawful immigration status or other authorization to remain in the United States, officers
will first follow the procedures in the applicable regulations within 8 CFR part 244, where
required.
Once the TPS regulatory provisions have been followed or are found to be non-applicable in
the specific case, officers will issue an NTA to such an alien who has no other lawful
immigration status or authorization to remain in the United States following the final
determination to deny or withdraw TPS, unless there is a sufficient reason to delay issuance
of, or to not issue the NTA (e.g., ICE or another appropriate law enforcement agency makes
a reasonable request that USCIS not immediately issue the NTA, so as not to disrupt an
investigation). Where the alien already has an unexecuted final order of removal, the officer
should not issue another NTA without consulting with local USCIS counsel.
Independent of this PM, if the Secretary terminates a country’s TPS designation, certain
former beneficiaries who have been granted TPS under that country’s designation, but who
do not have other lawful immigration status or authorization to remain in the United States,
may become a DHS enforcement priority. In such circumstances, USCIS officers should
defer to ICE and CBP regarding the appropriate timing of any NTA issuances to former TPS
beneficiaries after the country’s TPS designation ends. However, if USCIS issues an
unfavorable decision on a benefit request submitted by, or on behalf of, a former TPS
8

USCIS may issue an NTA when an asylum applicant withdraws his or her asylum application. See also Section VI
of this memorandum for other NTA issuance by the Asylum Division in special circumstances not required by
statute or regulation.
9
This memorandum does not apply to the Asylum Division’s initiation of rescission proceedings for lawful
permanent residents (LPRs) granted LPR status under NACARA 203 by the Asylum Division.
10
This memorandum does not apply to the Asylum Division’s issuance of Form I-863, Notice of Referral to
Immigration Judge.
11
See INA § 208(c)(3) describing removal when asylum is terminated.
12
See USCIS memorandum, Service Center Issuance of Notice to Appear (Form I-862) (Sept. 12, 2003).

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 5
beneficiary who is not lawfully present in the United States, officers will follow the NTA
guidance in Section V below.
III. Fraud, Misrepresentation, and Abuse of Public Benefits Cases
Cases presenting substantiated fraud or misrepresentation are among DHS’s enforcement
priorities. Aliens falling under INA § 212(a)(6)(C), removable aliens who “have engaged in
fraud or willful misrepresentation in connection with any official matter or application before
a governmental agency,” 13 and removable aliens who have abused any program related to
receipt of public benefits are all priorities for removal. 14
When fraud, misrepresentation, or evidence of abuse of public benefit programs is part of the
record, 15 and the alien is removable, USCIS will issue an NTA upon denial of the petition or
application, or other appropriate negative eligibility determination (e.g., withdrawal,
termination, rescission). An NTA will be issued against such a removable alien, even if the
petition or application is denied for a ground other than fraud, such as lack of prosecution or
abandonment, the application or petition is terminated based on a withdrawal by the
petitioner/applicant, or where an approval is revoked, so long as the alien is removable and
USCIS has determined there is fraud in the record.
USCIS may consider referring groups of cases with articulated suspicions of fraud to ICE
prior to adjudication. USCIS will not refer to ICE individual applications or petitions
involving suspected fraud, except as agreed upon by USCIS and ICE. When USCIS refers a
case to ICE for investigation, USCIS will suspend adjudication for 60 days, but they may
resume the administrative process should ICE not respond within that timeframe or provide a
Case Closure Notice or case status report within 120 days of accepting the referral. USCIS
will ensure proper de-confliction with ICE throughout its administrative process.
While the NTA is not required to include the charge of fraud or misrepresentation (INA §§
212(a)(6)(C)(i) and/or (ii), 237(a)(1)(A), 237(a)(1)(G), or similar charge), efforts should be
made to include these charges whenever evidence in the record supports such a charge.
Please consult with USCIS counsel if there are questions determining whether to include a
charge of fraud or misrepresentation.

13

See section 5(d) of the Executive Order: Enhancing Public Safety in the Interior of the United States.
See section 5(d) of the Executive Order: Enhancing Public Safety in the Interior of the United States. For
purposes of USCIS, enforcement priority 5(d) would necessarily include instances where USCIS has established that
the alien is inadmissible under INA § 212(a)(6)(C)(i)), as well as when the fraud or willful misrepresentation was
committed in connection with any official matter or application before another government agency.
15
Adjudicators encountering Statement of Findings should follow current operational guidance regarding their
review and resolution.
14

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 6
IV. Criminal Cases
Criminal cases fall under the priorities outlined in Executive Order 13768, as follows:
• Aliens described in INA §§ 212(a)(2) or 237(a)(2), Criminal and Related Grounds;
• Removable aliens convicted of any criminal offense;
• Removable aliens charged with any criminal offense that has not been resolved; and
• Removable aliens who committed acts that constitute a chargeable criminal offense.
A. Egregious Public Safety (EPS) Cases and Non-Egregious Public Safety (Non-EPS) Cases
Executive Order 13768 does not contain language regarding Egregious Public Safety
(EPS) or Non-Egregious Public Safety (Non-EPS) cases. However, this PM uses the
terminology to assist in triaging cases for investigation and the issuance of NTAs.
An EPS case is defined by USCIS and ICE 16 as a case where information indicates the
alien is under investigation for, has been arrested for (without disposition), or has been
convicted of, any of the following:
• Murder, rape, or sexual abuse of a minor, as defined in INA § 101(a)(43)(A);
• Illicit trafficking in firearms or destructive devices, as defined in INA §
101(a)(43)(C);
• Offenses relating to explosive materials or firearms, as defined in INA §
101(a)(43)(E);
• Crimes of violence for which the term of imprisonment imposed, or where the
penalty for a pending case, is at least one year, as defined in INA §
101(a)(43)(F);
• An offense relating to the demand for, or receipt of, ransom, as defined in INA §
101(a)(43)(H);
• An offense relating to child pornography, as defined in INA § 101(a)(43)(I);
• An offense relating to peonage, slavery, involuntary servitude, and trafficking in
persons, as defined in INA § 101(a)(43)(K)(iii);
• An offense relating to alien smuggling, as described in INA § 101(a)(43)(N);
• Human Rights Violators, known or suspected street gang members, or Interpol
hits; or
• Re-entry after an order of exclusion, deportation or removal subsequent to
conviction for a felony where a Form I-212, Application for Permission to
Reapply for Admission into the United States after Deportation or Removal, has
not been approved.

16

See Memorandum of Agreement Between United States Citizenship and Immigration Services and United States
Immigration and Customs Enforcement On the Issuance of Notices to Appear to Aliens Encountered During an
Adjudication (June 15, 2006).

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 7
A Non-EPS criminal case is defined by USCIS as a case where information indicates the
alien is under investigation for, has been arrested for (without disposition), or has been
convicted of any crime not listed above.
1. EPS Cases
Executive Order 13768 and the implementing guidance provide that DHS personnel
should take enforcement actions in accordance with applicable law, and they support
that DHS personnel have full authority to initiate removal proceedings against any
alien who is removable. As a result, USCIS will issue an NTA against removable
aliens in all cases meeting the EPS definition, regardless of the existence of a
conviction, if the application or petition is denied and the alien is removable. USCIS
should refer an EPS case to ICE prior to adjudication and before an NTA is issued if
there are circumstances that warrant such action. If the case is referred, ICE will have
an opportunity to decide if, when, and how to issue an NTA or detain the alien. For
Form I-90 applications, and any adjudications involving EPS concerns where USCIS
has not issued an NTA, USCIS will refer these cases to ICE after adjudication.
If USCIS does not receive notification of the acceptance or declination of an EPS
referral to ICE after 60 days, USCIS will resume adjudication of the case.
2. Non-EPS Criminal Cases
USCIS will issue NTAs in all Non-EPS criminal cases if the application or petition is
denied and the alien is removable. Where USCIS does not issue an NTA, USCIS
should refer Non-EPS cases to ICE prior to final adjudication if the alien appears
inadmissible to or deportable from the United States based upon a criminal offense
not included on the EPS list. 17
3. N-400 Denials
USCIS will issue NTAs on all N-400 cases if the N-400 has been denied on good
moral character (GMC) grounds based on the underlying criminal offense, and
provided the alien is removable.
V. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of
Removability
USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application,
petition, or benefit request, the alien is not lawfully present in the United States.

17

A Non-EPS case referred to ICE prior to adjudication will be treated in the same manner as an EPS case referral,
subject to the suspense period and notification requirements.

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 8
For aliens removable under any other grounds not specifically addressed in this PM, USCIS
will ensure all grounds for removability supported by the record are addressed and result in
the issuance of an NTA, whenever appropriate.
VI. Special Circumstances for NTA Issuance
A. In limited and extraordinary circumstances, USCIS may issue an NTA if a removable
alien requests that an NTA be issued, either before or after the adjudication of an
application or petition, in order to seek lawful status or other relief in removal
proceedings. The request must be made in writing to the USCIS office that has
jurisdiction over the case, and USCIS retains discretion to deny such a request.
B. An Asylum Office may issue an NTA in the following situations:
1. An asylum applicant who has been issued an NTA may request issuance for family
members not included on the asylum application as dependents for family
unification purposes. The request must be made in writing, and USCIS retains
discretion to deny such a request.
2. An asylum applicant issued a denial while in lawful immigration status may request
that the Asylum Office issue an NTA after he or she falls out of lawful immigration
status. The request must be made in writing and USCIS retains discretion to deny
such a request.
3. The Asylum Office may issue an NTA after rescinding asylum status, based on a
determination that USCIS did not have jurisdiction to grant asylum status, if the
applicant does not currently have an outstanding order of removal or is not
otherwise in removal proceedings.
4. If the Asylum Office dismisses NACARA 203 because the NACARA applicant was
not removable and the applicant subsequently falls out of lawful immigration status,
the applicant may request the issuance of an NTA. The request must be made in
writing, and USCIS retains discretion to deny such a request.
C. USCIS may issue NTAs in connection with a Form N-400 filing in the following
situations, in addition to the situations described above in paragraph IV.A.3:
1. When the applicant may be eligible to naturalize, but is also deportable under INA §
237. Examples include applicants convicted of aggravated felonies prior to
November 29, 1990, or applicants convicted of deportable offenses after obtaining
lawful permanent resident (LPR) status that do not preclude GMC or otherwise
make an applicant ineligible for naturalization; or
2. When it is determined that the applicant was inadmissible at the time of adjustment
or admission to the United States, and thus deportable under INA § 237, and
ineligible for naturalization under INA § 318. 18

18

In the Third Circuit only (Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands), based on the holding
in Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009), if the alien has been an LPR for at least 5 years, the alien

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 9
Unless USCIS exercises prosecutorial discretion in favor of the alien, as described
below in Section VIII, an NTA will be issued in these two situations before
adjudication. 19 If an NTA has been issued in any case while the N-400 is pending, the
N-400 will be placed on hold until removal proceedings have concluded. Once
proceedings have concluded, the adjudication of the N-400 will resume.
D. In cases involving the confidentiality protections at 8 U.S.C. § 1367(a)(2), 20 USCIS
must follow the guidelines established in this PM, once the benefit request has been
denied. 21 8 U.S.C. § 1367 does not preclude USCIS from serving an NTA upon the
attorney of record or safe mailing address. However, USCIS cannot serve the NTA on
the physical address of the applicant or petitioner unless Section 1367 protections have
been terminated.
In following the guidelines established in this PM, USCIS must also comply with the
provisions at 8 U.S.C. § 1367(a)(1), which, with limited exception, prohibits DHS
employees and contractors from making adverse determinations of admissibility or
deportability using information furnished solely by prohibited sources. Unlike the
confidentiality provisions of 8 U.S.C. § 1367(a)(2), which expire once the benefit
request has been denied and all opportunities for appeal have been exhausted, this
prohibition on adverse determinations of admissibility or deportability using
information furnished solely by prohibited sources does not expire upon denial of the
benefit petition or application and applies regardless of whether any application or
petition has been filed. 22
cannot be placed in removal proceedings for fraud or willful misrepresentation of a material fact at time of
adjustment, if USCIS could have learned of the fraud or misrepresentation through reasonable diligence before the
5-year rescission period expired. Please consult with USCIS counsel if there are questions regarding the
applicability of this precedent.
19
In the Ninth Circuit only (Alaska, Arizona, California, Commonwealth of the Northern Mariana Islands (CNMI),
Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), based on the decision in Yith v. Nielsen, 881
F.3d 1155 (2018), please consult with counsel before issuing an NTA in these cases.
20
The confidentiality protections in 8 USC § 1367(a)(2) extend to applicants and petitioners for, and beneficiaries
of, benefit requests covered by the following form types: Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant, processed under the Violence Against Women Act (VAWA); Form I-485 based on VAWA, T or U
nonimmigrant status; Form I-751 under the battered spouse or child waiver; Form I-914, Application for T
Nonimmigrant Status; Form I-918, Petition for U Nonimmigrant Status; Form I-765V, Application for Employment
Authorization for Abused Nonimmigrant Spouse; Form I-485, Application to Register Permanent Residence or
Adjust Status, processed under VAWA amendments to the Cuban Adjustment Act; and all related ancillary forms
with a VAWA Form I-360, VAWA Cuban Adjustment Act Form I-485, Form I-914, or Form I-918. These
confidentiality protections generally continue indefinitely for individuals granted covered immigration relief or
benefits and cover information contained in prior and subsequent applications filed by protected individuals,
including petitions for derivative beneficiaries, applications for adjustment of status, and naturalization.
21
Officers should look to operational guidance for instructions on the handling of cases for which 1378(a)(2)
protections have been terminated.
22
For additional information, see USCIS Policy Memorandum, Identification and Disclosure of Section 1367
Information, PM-602-0136 (Aug. 25, 2016), and DHS Instruction No. 002-02-001, Implementation of Section 1367
Provisions (Nov. 7, 2013).

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 10

VII. Preservation of Administrative Review
Except as specifically provided by law, 23 the issuance, service, or filing of an NTA to
commence removal proceedings does not negate any right to seek administrative review,
whether by motion to the USCIS office that issued the unfavorable decision, or by appeal to
the USCIS Administrative Appeals Office. USCIS will continue to conduct its
administrative review during the course of removal proceedings. If USCIS takes favorable
action upon motion or appeal, such that an individual is no longer removable, USCIS should
advise ICE counsel so that appropriate action can be taken in removal proceedings.
VIII. Exercise of Prosecutorial Discretion
Executive Order 13768 and the implementing guidance provide that DHS personnel should
take enforcement actions in accordance with applicable law, and they support that DHS
personnel have full authority to initiate removal proceedings against any alien who is
removable. NTAs will be issued in cases where the individual is a priority for removal under
this PM, as outlined above, except in very limited circumstances involving the exercise of
prosecutorial discretion, as described here. The Executive Order and implementing guidance
also provide that prosecutorial discretion may be exercised on a case-by-case basis in
consultation with the head of the relevant field office of the component that initiated or will
initiate the enforcement action, regardless of which entity actually files any applicable
charging documents: CBP Chief Patrol Agent, CBP Director of Field Operations, ICE Field
Office Director, ICE Special Agent-in-Charge, USCIS Field Office Director, Director of the
National Benefits Center, International Operations Chief, or Service Center Director. 24
Given the high level of concurrence required, prosecutorial discretion to not issue an NTA
should only be exercised on a case-by-case basis after considering all USCIS and DHS
guidance, DHS’s enforcement priorities, the individual facts presented, and any DHS
interest(s) implicated (e.g., federal court litigation-related considerations or deconfliction
with law enforcement priorities of other agencies).
To facilitate the exercise of prosecutorial discretion, a Prosecutorial Review Panel must be
maintained in each office authorized to issue NTAs. The Prosecutorial Review Panel must
include a local supervisory officer 25 and a local USCIS Office of Chief Counsel attorney (to
serve in an advisory role for legal sufficiency review) to determine whether to recommend
23

See, e.g., INA 318 (precluding consideration of an application for naturalization if there are pending removal
proceedings pursuant to a warrant of arrest (NOTE: this is subject to Yith in the Ninth Circuit)); 8 CFR §
244.10(c)(2) (precluding administrative appeal when NTA is issued after certain denials of TPS, but providing for
de novo determination of TPS eligibility in removal proceedings).

24

See John F. Kelly, Secretary of Homeland Security, Enforcement of the Immigration Laws to Serve the National
Interest (Feb. 20, 2017).
25
In cases involving Form N-400, the NTA Panel must be represented by at least one local supervisory officer who
is an expert in naturalization laws, policies, and procedures.

AILA Doc. No. 18070539. (Posted 7/5/18)

 PM-602-0050.1: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear
(NTAs) in Cases Involving Inadmissible and Deportable Aliens
Page 11
the exercise of prosecutorial discretion not to issue an NTA in the aforementioned cases. The
Prosecutorial Review Panel will make a recommendation regarding the positive exercise of
prosecutorial discretion, as described above. A Field Office Director, an Associate Service
Center Director, the Assistant Center Director of the National Benefits Center, or the Deputy
Chief of International Operations must concur with the recommendation to exercise
prosecutorial discretion.
Implementation
Components should refer to their operational guidance for specific processing of cases in
accordance with this memorandum. Each office must create processes for referrals of cases, both
pre- and post-adjudication, and the completion of RTIs. A document outlining these processes
must be sent to the appropriate District Office, Service Center, or International Operations
Division Branch within 30 days of the issuance of this memorandum.
Use
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 in any other form or manner.
Contact Information
Questions or suggestions regarding this PM should be addressed through appropriate channels to
the Field Operations Directorate, Service Center Operations Directorate, or the Refugee,
Asylum, and International Operations Directorate.

AILA Doc. No. 18070539. (Posted 7/5/18)