Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 1 of 14 1 The Honorable Richard A. Jones 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 ABDIQAFAR WAGAFE, et al., No. 2:17-cv-00094-RAJ 8 Plaintiffs, 9 v. 10 11 12 DONALD TRUMP, President of the United States, et al., DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTED BY THE DELIBERATIVE PROCESS PRIVILEGE Defendants. 13 14 INTRODUCTION 15 On June 15, 2018, Plaintiffs filed a supplemental brief in support of their motion to 16 compel regarding deliberative process. See Dkt. # 194. Plaintiffs’ motion should be denied. 17 The Court has already determined that the documents at issue are “predecisional and deliberative 18 and therefore subject to the deliberative process privilege.” Furthermore, Plaintiffs have failed to 19 show that the deliberative process privilege should be overcome under the balancing test 20 articulated by the Ninth Circuit. 21 22 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 1 (2:17-CV-00094-RAJ) -1- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 2 of 14 1 2 3 BACKGROUND A. Procedural History On April 19, 2018, Plaintiffs filed a motion to compel regarding deliberative process. 4 Dkt. # 152. On April 30, 2018, Defendants filed a response supported by an affidavit from 5 Matthew D. Emrich, Associate Director of the Fraud Detection and National Security (“FDNS”) 6 Directorate, U.S. Citizenship and Immigration Services (“USCIS”). Dkt. # 174 (response); Dkt. 7 # 174-3 (affidavit). On May 4, 2018, Plaintiffs filed a reply. Dkt. # 180. 8 On May 21, 2018, the Court issued an Order reserving ruling on 40 categories of 9 documents listed in the Emrich affidavit. Dkt. # 189. The Court determined that the documents 10 were “predecisional and deliberative, and therefore subject to the deliberative process privilege.” 11 Id. at 7. The Court further expressed skepticism that the documents were “truly relevant for 12 Plaintiff’s purposes.” Id. at 8. However, the Court gave Plaintiffs an opportunity to file a 13 supplemental brief regarding the documents. Id. at 7-9. 14 Following the Court’s Order, the parties resolved their differences with respect to 38 of 15 the 40 categories of documents. On June 15, 2018, the Plaintiffs filed a supplemental brief in 16 which they challenged the documents withheld under paragraphs 17 and 45 of the Emrich 17 affidavit. Dkt. # 194. The parties have since resolved their differences on the documents 18 withheld under paragraph 45, leaving only the documents withheld under paragraph 17 19 (“Paragraph 17 documents”). 20 21 22 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 2 (2:17-CV-00094-RAJ) -2- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 3 of 14 1 B. The Paragraph 17 Documents 2 There are 122 Paragraph 17 documents. See Dkt. # 174-3 ¶ 17. In his April 30 affidavit, 3 Mr. Emrich stated that the documents “reflect the process of USCIS’s efforts to generate, review, 4 and/or revise policy and procedure in the form of draft policy memoranda and/or draft policy 5 manual content relating to [the Controlled Application Review and Resolution Program 6 (“CARRP”)] and to the handling of cases for which there may be national security concerns.” Id. 7 According to a supplemental affidavit submitted with this brief, Mr. Emrich further 8 explains that in late 2015, USCIS commenced a process that was intended to rescind, update and 9 consolidate the existing CARRP policy documents. See Exhibit A ¶ 6. That process continued 10 into 2017. Id. The effort never resulted in the implementation of a new or revised CARRP 11 policy. Id. The Paragraph 17 documents reflect the internal process of review and development 12 related to this never-completed effort at policy revision. Id. ¶ 7. 13 According to Mr. Emrich, “[p]ublic disclosure of the withheld portions of these 14 documents would jeopardize USCIS’s ability to engage in decision making by discouraging 15 future candid discussion and debate within USCIS.” See Dkt. # 174-3 ¶ 6. “USCIS personnel 16 would be reluctant to share their opinions for or against a particular decision if those 17 predecisional comments were subject to disclosure.” Id. “It is reasonable to expect that, if the 18 court elects to make these deliberations and discussion public, it will influence the future actions 19 of USCIS personnel, to the detriment of the decision making process, and the ability to make 20 well informed decisions at USCIS.” Id. 21 22 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 3 (2:17-CV-00094-RAJ) -3- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 4 of 14 1 2 3 ARGUMENT A. The Deliberative Process Privilege The deliberative process privilege protects the Government’s decision-making process by 4 shielding from disclosure documents “reflecting advisory opinions, recommendations and 5 deliberations comprising part of a process by which governmental decisions and policies are 6 formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). “[P]redecisional” and 7 “deliberative” materials are shielded from disclosure. See Renegotiation Bd. v. Grumman 8 Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975); Klamath Water Users Protective Ass'n v. Dep't 9 of the Interior, 189 F.3d 1034, 1043 (9th Cir. 1999). 10 The purpose of the privilege is “to allow agencies freely to explore possibilities, engage 11 in internal debates, or play devil’s advocate without fear of public scrutiny.” Carter v. U.S. 12 Dep’t of Commerce, 307 F.3d 1084, 1088-89 (9th Cir. 2002) (citations omitted). As the Supreme 13 Court explained: “The deliberative process privilege rests on the obvious realization that 14 officials will not communicate candidly among themselves if each remark is a potential item of 15 discovery and front page news, and its object is to enhance the quality of agency decisions by 16 protecting open and frank discussion among those who make them within the Government.” 17 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (citations 18 omitted); see also Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) 19 (observing that the privilege “maintain[s] the confidentiality of the give-and-take that occurs 20 among agency members”). Moreover, the privilege “protect[s] against confusing the issues and 21 misleading the public by dissemination of documents suggesting reasons and rationales for a 22 course of action which were not in fact the ultimate reasons for the agency’s action.” Kortlander 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 4 (2:17-CV-00094-RAJ) -4- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 5 of 14 1 v. Bureau of Land Mgmt., 816 F. Supp. 2d 1001, 1011 (D. Mont. 2011) (quoting Coastal States 2 Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). 3 The deliberative process privilege is qualified, and the privilege may be overcome by a 4 plaintiff’s showing of need. See FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 5 1984). In determining whether a party has overcome an agency’s assertion of the privilege, this 6 Court must balance four factors: “(1) the relevance of the evidence; (2) the availability of other 7 evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would 8 hinder frank and independent discussion regarding contemplated policies and decisions.” Id. A 9 party seeking to pierce the privilege bears the burden of establishing its need for the documents. 10 See Ctr. for Biological Diversity v. Norton, No. CV 01-409, 2002 WL 32136200, at *4 (D. Ariz, 11 2002). 12 The Court should accord substantial weight to the Government’s assertions of the 13 privilege, see Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012), because Government 14 agencies are best situated “to know what confidentiality is needed ‘to prevent injury to the 15 quality of agency decisions.’” See Chem. Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F. 16 Supp. 114, 118 (D.D.C. 1984) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 17 (1975)). The Government’s justification for asserting the privilege is “sufficient if it appears 18 ‘logical’ or ‘plausible.’” See Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007). 19 B. Applying the Ninth Circuit’s Balancing Test, Plaintiffs Are Not Entitled to Production of the Paragraph 17 Documents. 20 The Court has already determined that the Paragraph 17 documents are “predecisional 21 and deliberative, and therefore subject to the deliberative process privilege.” See Dkt. # 189 at 7. 22 Therefore, the only issue before the Court is whether Plaintiffs have established their need for the 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 5 (2:17-CV-00094-RAJ) -5- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 6 of 14 1 documents under the balancing test articulated in FTC v. Warner Commc’ns Inc., 742 F.2d 1156 2 (9th Cir. 1984). As discussed below, the balancing test weighs against disclosure because (1) the 3 Paragraph 17 documents are not relevant to Plaintiffs’ claims; (2) Plaintiffs have access to other 4 information obviating the need for disclosure; (3) Plaintiffs have not shown that the Government 5 is using the privilege to hide evidence of bad faith or misconduct; and (4) disclosure would 6 hinder frank and independent discussions about proposed policy changes at USCIS. 7 1. The Paragraph 17 Documents Are Not Relevant Because They Were Never Adopted as USCIS Policy. 8 Under the Ninth Circuit’s balancing test, the first factor to consider is the relevance of the 9 documents sought. See Warner Commc’ns Inc., 742 F.2d at 1161. Here, Plaintiffs have alleged 10 that CARRP is unlawful because it does not provide applicants with notice and opportunity to 11 respond to evidence against them, it delays processing, it imposes extra-statutory criteria for 12 benefit eligibility, and it was promulgated without notice and comment. See Dkt. # 47 at 45-50. 13 Given this context, the Paragraph 17 documents are irrelevant because they were never finalized, 14 adopted, or implemented as USCIS policy. See Exhibit A ¶ 6. Thus, the documents had no 15 effect on CARRP, and they will shed no light on how Plaintiffs were affected by CARRP. 16 Plaintiffs do not explain how the Paragraph 17 documents are relevant to their claims. 17 Cf. United States v. Eden, 659 F.2d 1376, 1381 (9th Cir. 1981) (conclusory statements are 18 insufficient to establish relevance). First, Plaintiffs conclusorily state that the Paragraph 17 19 documents are relevant to their claim that CARRP “imposes unlawful, extra-statutory hurdles on 20 individuals applying for residency or citizenship.” See Dkt. # 194 at 6. However, the documents 21 were never finalized, adopted, or implemented. See Exhibit A ¶ 6. Thus, the documents do not 22 “impose” anything at all. Second, Plaintiffs conclusorily state that the documents are relevant to 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 6 (2:17-CV-00094-RAJ) -6- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 7 of 14 1 their claim that “CARRP labels applicants national security concerns based on vague and 2 overbroad criteria.” See Dkt. # 194 at 6. Again, the documents were never finalized, adopted, or 3 implemented. See Exhibit A ¶ 6. Thus, they do not “label” anyone at all. Third, Plaintiffs argue 4 that the documents “will likely shed light on the motivations behind CARRP.” See Dkt. # 194 at 5 6. However, Plaintiffs have not made any claims of discriminatory motive with respect to 6 CARRP. See Dkt. # 47 at 45-50. To the contrary, Plaintiffs’ allegations of discriminatory 7 motive are limited to their claims challenging the Executive Orders, which post-date the 8 establishment of CARRP by nearly a decade. See Dkt. # 47 ¶ 106 (“First EO was intended to 9 target Muslims.); ¶ 119 (“. . . Defendant Trump issued a Second EO, which espouses the same 10 discriminatory policy and effect as the First EO.”). Consequently, the “motivations behind 11 CARRP” have no relevance to the litigation. Finally, Plaintiffs argue that the Paragraph 17 12 documents “may also reveal the details of existing policy.” Dkt. # 194 at 6. Even assuming that 13 the Paragraph 17 documents discuss existing CARRP policy, Plaintiffs have access to a wealth 14 of other documents explaining existing CARRP policy, as discussed below. 15 2. Plaintiffs Have Access to a Wealth of Other Evidence Explaining CARRPRelated Policies and Procedures. 16 Under the Ninth Circuit’s balancing test, the second factor to consider is the availability 17 of other evidence. See Warner Commc’ns Inc.,742 F.2d at 1161. One court in this Circuit has 18 concluded that “the availability of other evidence is perhaps the most important factor in 19 determining whether the deliberative process privilege should be overcome.” Ctr. for Biological 20 Diversity v. U.S. Army Corps of Eng’rs, No. CV 14-1667, 2015 WL 3606419, at *7 (C.D. Cal. 21 Feb. 4, 2015) (citation omitted). Courts weighing this factor consider documents that have been 22 produced in discovery, the availability of other discovery vehicles (such as interrogatories and 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 7 (2:17-CV-00094-RAJ) -7- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 8 of 14 1 depositions), and access to materials in the public domain. See Sterr v. Baptista, No. 2 2:08CV2307, 2010 WL 1236546, at *2 (E.D. Cal. Mar. 25, 2010); Young v. City and County of 3 Honolulu, No. CV 07-68, 2008 WL 2676365, at *6 (D. Hawaii 2008); Fabbrini v. City of 4 Dunsmuir, No. CIVS07-1099, 2008 WL 2523550, at *6 (E.D. Cal. June 19, 2008); Gen. Elec. 5 Co. v. Johnson, No. CV 00-2855, 2007 WL 433095, at *16 (D.D.C. 2007). 6 Here, Defendants have already produced a significant number of CARRP-related policy 7 and guidance documents to Plaintiffs. As of July 2, 2018, Defendants have produced 8 approximately 7,000 documents (not pages, documents) to Plaintiffs. Exhibit B ¶ 3. For 9 example, Defendants have produced the April 11, 2008 memorandum establishing CARRP and 10 subsequent policy memoranda issued by USCIS explaining the evolution of CARRP over time. 11 Id.. ¶ 4. Defendants have also produced a litany of CARRP-related handbooks, FAQ documents, 12 training manuals, and guidance documents, all of which explain how CARRP operates. Id. 13 Defendants even identified many of these documents for Plaintiffs via email in an effort to 14 resolve this dispute. Id. ¶ 5. For the Court’s convenience, Defendants have attached a sample of 15 the CARRP-related documents that have been produced to Plaintiffs. Id. ¶ 4. 16 In addition, the American Civil Liberties Union of Southern California (“ACLU”), one of 17 the organizations representing Plaintiffs in this case, has previously filed one or more Freedom 18 of Information Act (“FOIA”) requests seeking documents related to CARRP. Exhibit B ¶ 6. In 19 response, the Government released over 3,600 pages of documents relating to CARRP, including 20 policy memoranda, operational guidance, and training materials. Id. Based on these records, the 21 ACLU published two lengthy articles about CARRP on its website. Id. Indeed, the author of the 22 ACLU articles is counsel of record in this case. Id. The articles cite and discuss several 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 8 (2:17-CV-00094-RAJ) -8- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 9 of 14 1 fundamental CARRP policy documents. Id. The articles also include images of various CARRP 2 flow charts and operational diagrams. Id. Plaintiffs argue that they need the Paragraph 17 3 documents to determine “what CARRP is,” see Dkt. # 194 at 7; however, one of the ACLU 4 articles includes a 6-page section entitled “What is CARRP?”, which details the various stages of 5 CARRP. Id. 6 Plaintiffs argue that the Paragraph 17 documents “may provide Plaintiffs with the best 7 (and only) evidence of what CARRP is and how it is applied.” Dkt. # 194 at 7. However, as 8 discussed above, the Paragraph 17 documents do not reliably explain “what CARRP is or how it 9 is applied” because the documents were never finalized, adopted, or implemented. See Exhibit 10 A. Furthermore, as discussed above, Defendants have produced documents showing “what 11 CARRP is and how it is applied,” which obviates the need for discovery into un-adopted draft 12 documents. Exhibit B ¶ 4. In sum, Plaintiffs can scarcely identify a significant need for draft, 13 un-adopted revisions to CARRP when they have access to numerous documents that fully 14 describe and explain the CARRP process. 15 3. Plaintiffs Have Not Identified Any Evidence of Government Misconduct 16 Under the Ninth Circuit’s balancing test, the third factor to consider is the Government’s 17 role in the litigation. See Warner Commc’ns Inc.,742 F.2d at 1161. The third factor does not 18 weigh in favor of disclosure simply because a plaintiff has brought suit against the Government; 19 rather, this Court must analyze whether Plaintiffs have “presented [] evidence of bad faith or 20 misconduct on the part of” the Government. See Warner Commc’ns Inc., 742 F.2d at 1162; see 21 also Modesto Irrigation Dist v. Gutierrez, No. CV 06-453, 2007 WL 763370, at *12 (E.D. Cal. 22 2007) (In Warner, “the Ninth Circuit appeared to be looking for evidence of bad faith.”). Here, 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 9 (2:17-CV-00094-RAJ) -9- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 10 of 14 1 Plaintiffs do not allege that Defendants acted in bad faith or engaged in misconduct in 2 connection with CARRP. See Dkt. # 47 at 45-50. Furthermore, notwithstanding the extensive 3 documents produced to Plaintiffs thus far in discovery, supplemented by other documents in the 4 public domain, Plaintiffs have not identified any evidence that Defendants acted in bad faith or 5 engaged in misconduct in connection with CARRP. There is no reason to believe that 6 Defendants are hiding evidence of bad faith or misconduct by asserting the deliberative process 7 privilege. Hence, this factor weighs against disclosure. 8 4. Disclosure of the Paragraph 17 Documents Would Chill Frank Discussion and Deliberation and Injure the Quality of Agency Decisions. 9 Under the Ninth Circuit’s balancing test, the final factor to consider is the extent to which 10 disclosure would hinder frank and independent discussion regarding agency policies and 11 decisions. See Warner Commc’ns Inc., 742 F.2d at 1161-62. “[I]f disclosure of the privileged 12 documents would hinder [] frank and independent discussion, it would weigh heavily against 13 disclosure.” U.S. Army Corps of Eng’rs, 2015 WL 3606419, at *7 (emphasis added). 14 According to Mr. Emrich’s April 30 affidavit, disclosure of the Paragraph 17 documents 15 would hinder frank and independent discussion within the Executive Branch. See Dkt. # 174-3 16 ¶¶ 6-7. “Public disclosure of the withheld portions of these documents would jeopardize 17 USCIS’s ability to engage in decision making by discouraging future candid discussion and 18 debate within USCIS.” Id. ¶ 6. Indeed, courts considering this fourth factor have repeatedly 19 held that such information tips the scales in favor of non-disclosure. E.g., U.S. Army Corps of 20 Eng’rs, 2015 WL 3606419, at *7 (“As the 21 emails contain information revealing the mental 21 process of agency as it worked toward its final decision on the Section 404 Permit, compelled 22 disclosure of these documents would chill frank discussion and deliberation in the future among 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 10 (2:17-CV-00094-RAJ) -10- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 11 of 14 1 those responsible for making governmental decisions in this context.”); Modesto Irrigation Dist., 2 2007 WL 763370, at *12 (concluding that “[t]here is no doubt” that disclosure of documents 3 similar to those at issue here “would stifle frank and independent discussions regarding policy 4 matters”); see also Ctr. for Biological Diversity v. Norton, No. CV 01-409, 2002 WL 32136200, 5 at *4 (D. Ariz. 2002). This factor therefore weighs heavily against disclosure. 6 Plaintiffs have contended that because the Paragraph 17 documents would be produced 7 subject to the existing Protective Order, “there is minimal risk that the limited disclosure . . . 8 would hinder frank discussion within the [G]overnment.” Dkt. # 180 at 5. But this test – that the 9 privilege is defeated whenever there is a protective order – would swallow the deliberative 10 process privilege whole, and would serve to chill internal deliberations about important policies, 11 just as an order limiting access to a Court’s bench memos to the parties litigating the case would 12 warp the process of free deliberations within chambers. Moreover, according to Mr. Emrich’s 13 April 30 affidavit, the “existence of the protective order does not change [his] assessment of the 14 importance of shielding these internal predecisional agency deliberations from disclosure.” Dkt. 15 # 174-3 ¶ 7. “Even disclosure under a protective order would not mitigate the chilling effect and 16 detrimental consequences that would result from these documents being disclosed for purposes 17 of this litigation.” Id. If the documents are disclosed under the Protective Order, there is an 18 inevitable risk of inadvertent disclosure, and there is no assurance that the Protective Order will 19 remain unchanged. For example, Plaintiffs may seek a modification of the Protective Order, or a 20 third party (such as a journalist or media organization) may move the Court for a modification. 21 And if this case goes to trial and any of the documents are found to be relevant, the Court could 22 modify the Protective Order to permit the use of the documents in open court. See e.g. Davis v. 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 11 (2:17-CV-00094-RAJ) -11- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 12 of 14 1 City of New York, 2012 WL 612794, at * 12, n. 12 (“[C]onsidering the overall balance of 2 interests in this case, ordering disclosure of these documents subject to a protective order would 3 not adequately protect the interests that underlie the deliberative process privilege.”). Thus, 4 disclosure of the Paragraph 17 documents is a risk not worth taking, even under the Protective 5 Order, because the documents are irrelevant, Plaintiffs have access to other CARRP-related 6 evidence, and disclosure would have a chilling effect on future USCIS deliberations. 7 Because all four factors weigh against disclosure of the Paragraph 17 documents, this 8 Court should not require the disclosure of the Paragraph 17 material. 9 C. Defendants Do Not Object to Presenting the Paragraph 17 Documents to the Court for In Camera Review. 10 Defendants have no objection to providing some or all of the Paragraph 17 documents to 11 the Court for in camera review, notwithstanding Plaintiffs’ failure to show that the balancing test 12 warrants piercing the deliberative process privilege. The Paragraph 17 documents consist of 13 approximately 98 drafts of a policy memorandum proposing revisions to CARRP, and 24 other 14 associated documents, such as emails, consolidated comments to the memorandum, and draft 15 operational guidance. See Exhibit A ¶¶ 7-8. To minimize the burden on the Court, Defendants 16 suggest it would be most efficient to present the Court with a randomly-selected sample of 10 17 draft policy memoranda for review, which would include approximately 200 pages. 18 19 20 21 22 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 12 (2:17-CV-00094-RAJ) -12- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 13 of 14 1 2 3 CONCLUSION For these reasons, the Court should deny Plaintiffs’ Motion to Compel production of the Paragraph 17 documents. 4 5 Dated: July 6, 2018 6 CHAD A. READLER Acting Assistant Attorney General Civil Division 7 8 9 10 11 12 13 14 Respectfully Submitted, AUGUST FLENTJE Special Counsel U.S. Department of Justice, Civil Division ETHAN B. KANTER Acting Chief, National Security Unit Office of Immigration Litigation DEREK C. JULIUS Assistant Director Office of Immigration Litigation LYLE D. JENTZER Senior Counsel for National Security Office of Immigration Litigation National Security Unit ANNETTE L. HAYES United States Attorney BRIAN C. KIPNIS Assistant United States Attorney Western District of Washington LINDSAY M. MURPHY Counsel for National Security Office of Immigration Litigation National Security Unit 17 18 ANDREW C. BRINKMAN Trial Attorney Office of Immigration Litigation JEFFREY L. MENKIN Senior Counsel for National Security Office of Immigration Litigation National Security Unit 15 16 /s/ Daniel Bensing DANIEL E. BENSING Senior Trial Counsel Federal Programs Branch LEON B. TARANTO Trial Attorney Torts Branch BRENDAN T. MOORE Trial Attorney Office of Immigration Litigation 19 20 Counsel for Defendants 21 22 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 13 (2:17-CV-00094-RAJ) -13- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198 Filed 07/06/18 Page 14 of 14 1 CERTIFICATE OF SERVICE 2 I hereby certify that on July 6, 2018, I electronically filed the foregoing with the Clerk of 3 the Court using the CM/ECF system, which will send notification of such filing to all counsel of 4 record. 5 6 /s/Daniel Bensing DANIEL BENSING 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PROTECTD BY THE DELIBERATIVE PROCESS PRIVILEGE - 14 (2:17-CV-00094-RAJ) -14- UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case Document 198-1 Filed 07/06/18 Page 1 of 5 Eh?tA Case Document 198-1 Filed 07/06/18 Page 2 of 5 The Honorable Richard A. Jones UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAFE, et at, No. Plamt?ffs? AFFIDAVIT OF MATTHEW D. v. EMRICH UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. 1, Matthew D. Emrich, do hereby declare and say: I. I am the Associate Director of the Fraud Detection and National Security Directorate, US. Citizenship and Immigration Services Department of Homeland Security. As the leader of FDNS, I report directly to the Director, USCIS and Deputy Director, USCIS. 2. L. Francis Cissna, Director of USCIS, has delegated to me the authority to assert the deliberative process and law enformcement privileges on his behalf regarding the documents at issue in this litigation. 3. As the FDNS Associate Director, I am responsible for overseeing policy, planning, management, and execution ?mctions for FDNS. mission is to enhance the AFFIDAVIT 0F MATTHEW D. EM RICH - I (2: IQ Case Document 198-1 Filed 07/06/18 Page 3 of 5 integrity of the legal immigration system by leading efforts to identify threats to national security and public safety, detect and combat immigration bene?t fraud, and remove systemic and other vulnerabilities. have held this position since November 15, 2015. 4. Under my supervision, FDNS leads efforts to determine whether individuals or organizations ?ling for immigration bene?ts pose a threat to national security, public safety, or the integrity of the nation's immigration system. As part of its duties, FDNS establishes guidance and oversees the process for identifying, reviewing, and vetting immigration bene?t applications, petitions, and requests (?applications") that involve national security concerns. 5. I submit this af?davit to provide additional information regarding the documents in paragraph 17 of my April 30, 2018, declaration. These deliberative, pre-decisional documents re?ect the process of efforts to generate, review, and/or revise policy and procedure in the form of draft policy memoranda and/or draft policy manual content relating to the Controlled Application Review and Resolution Program policy and to the handling of cases for which there may be national security concerns. 6. In late 2015, commenced a process that was intended to rescind, update and consolidate CARRP policy documents. That process continued into 2017 and included the proposed redesignation of CARRP as the Situational Review Process (SRP). This effort never resulted in the implementation of a new or revised CARRP policy, or in the implementation of any new program, policy, or process under the redesignated name SRP. 7. The documents identi?ed under paragraph of my April 30, 2018, declaration re?ect the internal process of review and development related to this never-completed effort at policy revision. They include 98 draft versions of proposed revised policy re?ecting AFFIDAVIT or MATTHEW D. EM RICH - 2 (2: I 7-cv-tllitl94-RAJ) INJ I0 [9 Case Document 198-1 Filed 07/06/18 Page 4 of 5 development and discussion over time (DEF-00000954, DEF-00000617, DEF-00000942, DEF- 00000930, DEF-00000853, DEF-00000866, DEF-00000667, DEF-00000682, DEF-00000913, DEF-00000880, DEF-00000629, DEF-00000648, DEF-00000699, DEF- 00000714, DEF-00000745, DEF-00000898, DEF-00000762, DEF-00000780, DEF-00000798, DEF-00000817, DEF-00000835, DEF-00000536, DEF-00002889, DEF-00000596, DEF- 00002933, DEF-00002910, DEF-00000450, DEF-00002840, DEF-00011 158, DEF-00000468, DEF-00002858, DEF-00002822, DEF-00010895, DEF-0001 1247, DEF- 00002951, DEF-0001 1090, DEF-00011091, DEF-0001 1092, DEF-00011 174, DEF-0001 1248, DEF-00011249, DEF-0001 1283, DEF-0001 1284, DEF-00010899, DEF-0001 1250, DEF- 00011282, DEF-0001 1100, DEF-0001 1 101, DEF-0001 1102, DEF-00011 103, DEF-0001 1 109, DEF-0001 1208, DEF-00011365, DEF-0001 1368, DEF-00016329, DEF-00011360, DEF- 00011359, DEF-0001 1363, DEF-0001 1 l7, DEF-0001 1 123, DEF-00011 124, DEF-0001 1256, DEF-0001 1257, DEF-00011287, DEF-0001 1356, DEF-00011392, DEF-0001 1288, DEF- 00010902, DEF-00011217, DEF-0001 1244, DEF-0001 1271, DEF-0001 1353, DEF-00011312, DEF-0001 1332, DEF-00010898, DEF-0001 1238, DEF-00011291, DEF-0001 1292, DEF- 00010894, DEF-00010900, DEF-0001 1223, DEF-00011224, DEF-0001 1225, DEF-00011230, DEF-0001 1233, DEF-00011234, DEF-00010901, DEF-00010903, DEF-0001 1219, DEF- 0001 I226, DEF-00011227, DEF-0001 1221, DEF-0001 1231, DEF-0001 1232, DEF-00011243, DEF-00011381). 8. In addition, the documents identi?ed under paragraph 17 include general project plan and project summary documents produced at the initiation and during the project (DEF- 00000486, DEF-00002880, documents re?ecting proposed coordinate revisions to the National Background, Identity, and Security Check Operating Procedures AFFIDAVIT OF MATTHEW D. EMRICH - 3 (2: 7-cv-00094-RM) oouomaww? l9 Case Document 198-1 Filed 07/06/18 Page 5 of 5 (DEF-0001 I369, DEF-0001 I382, DEF-00016330, DEF-0001 I 125, DEF-0001 1258, DEF- 0001 1364), comment matrices generated at various times that collect comments to versions of the draft policy as well as the draft coordinate changes (DEF-00008673, DEF- 0001 126, DEF-0001 1132, DEF-00011259, DEF-0001 1265, DEF-0001 1294, DEF-0001 1314, DEF-0001 1334), emails exchanging draft versions of the policy and changes for internal discussion purposes 1216, DEF-00011218, DEF-0001 1220, DEF-00011222, DEF-0001 1223), an email providing an answer to an internal question regarding the proposed development of CARRP (DEF -00005502), and an email regarding a proposed change to handling procedures regarding certain TECS records that predates and is unrelated to the CARRP policy development process that is the subject to this declaration 00010760) I declare under penalty of perjury that the foregoing is true and correct. Executed this 5 44') day of July, 2018 at Washington, D.C. - Matthew D. Emrich Associate Director, FDNS US. Citizenship and Immigration Services Washington, DC. AFFIDAVIT OF MATTHEW o. - 4 Case Document 198-2 Filed 07/06/18 Page 1 of 89 Bh?tB Case 2:17-cv-00094-RAJ Document 198-2 Filed 07/06/18 Page 2 of 89 1 The Honorable Richard A. Jones 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 ABDIQAFAR WAGAFE, et al., No. 2:17-cv-00094-RAJ 8 Plaintiffs, 9 DECLARATION OF ANDREW C. BRINKMAN v. 10 11 DONALD TRUMP, President of the United States, et al., 12 Defendants. 13 14 15 16 17 I, Andrew C. Brinkman, hereby declare the following: 1. I am a member of the State Bar of Ohio. I am employed as a Trial Attorney at U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Appellate Section. 2. I represent Defendants in the above-captioned case. 3. According to Defendants’ litigation database, Defendants have produced 18 approximately 7,000 documents to Plaintiffs. Defendants have not asserted any deliberative 19 process privilege claims in approximately 6,000 of the documents that have been produced. 20 21 22 23 Thus, Defendants have not asserted any deliberative process privilege claims in approximately 85% of the documents that have been produced. 4. Defendants have produced a substantial number of documents that describe, outline, or explain the Controlled Application Review and Resolution Program (“CARRP”) and its implementation. For example, Defendants have produced the following CARRP-related DECLARATION OF ANDREW C. BRINKMAN - 1 (2:17-CV-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198-2 Filed 07/06/18 Page 3 of 89 1 2 3 policy and guidance documents without any deliberative process privilege redactions (these documents are attached for the Court’s convenience): • Immigration Services, Policy for Vetting and Adjudicating Cases with National Security 4 5 Memorandum from Jonathan R. Scharfen, Deputy Director, U.S. Citizenship & Concerns. April 11, 2008. DEF-00001032 – DEF-00001038. See Attachment A. • Memorandum from Don Neufeld, Acting Associate Director, Domestic Operations, U.S. 6 Citizenship & Immigration Services, Operational Guidance for Vetting and Adjudicating 7 Cases with National Security Concerns. April 24, 2008. DEF-00000984 – DEF- 8 00001031. See Attachment B. 9 • Memorandum from Michael Aytes, Acting Deputy Director, U.S. Citizenship & Immigration Services, Additional Guidance on Issues Concerning the Vetting and 10 Adjudication of Cases Involving National Security Concerns. February 6, 2009. DEF- 11 12 00000191 – DEF-00000199. See Attachment C. • U.S. Citizenship & Immigration Services, Clarification and Delineation of Vetting and 13 Adjudication Responsibilities for Controlled Application Review and Resolution Program 14 (CARRP) Cases in Domestic Field Offices. June 5, 2009. DEF-00000009 – DEF- 15 16 17 18 19 20 21 Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, 00000017. See Attachment D. • Office of Fraud Detection and National Security, U.S. Citizenship & Immigration Services, Supplemental Guidance: Revision of Responsibilities for CARRP Cases Involving Known or Suspected Terrorists. July 26, 2011. DEF-00001095 – DEF00001097. See Attachement E. In addition, Defendants have produced the following CARRP-related policy and guidance documents without any deliberative process privilege redactions (these documents are not attached due to page volume): 22 23 DECLARATION OF ANDREW C. BRINKMAN - 2 (2:17-CV-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198-2 Filed 07/06/18 Page 4 of 89 1 • U.S. Citizenship & Immigration Services, Handbook: National Background Identity and 2 Security Checks Operating Procedures. December 17, 2012. DEF-00003593 – DEF- 3 00003791. 4 5 • U.S. Citizenship & Immigration Services, Frequently Asked Questions: CARRP Policy and Operational Guidance. April 2011. DEF-00000018 – DEF-00000056. • U.S. Citizenship & Immigration Services, Fraud Detection and National Security 6 Directorate, CARRP Training Powerpoint v. 2.2. August 2011. DEF-00021130 – DEF- 7 00021338. 8 9 • U.S. Citizenship & Immigration Services, FDNS Officer Basic Training: CARRP. Undated. DEF-00016332 – DEF-00016449. This list of documents is non-exhaustive and represents a small fraction of the CARRP- 10 related policy and guidance documents that have been produced to Plaintiffs. Defendants’ 11 production remains ongoing, and additional CARRP-related policy and guidance documents will 12 be produced in due course. 13 14 15 5. On June 29, 2018, Defendants identified the above-mentioned documents for Plaintiffs via email because Plaintiffs asserted that they had “not located any ‘final’ documents in Defendants’ productions outlining CARRP policies and procedures.” See Dkt. # 194 at 7. In addition, Defendants removed all deliberative-process-related redactions from four sample 16 documents listed in paragraph 17 of Matthew Emrich’s April 30, 2018 affidavit, and Defendants 17 allowed Plaintiffs to review those documents in order to evaluate whether to continue to 18 19 20 challenge Defendants’ deliberative process claims. Defendants’ efforts at resolving the dispute were unsuccessful. 6. According to Government records, the American Civil Liberties Union of Southern California (“ACLU”) – one of the organizations representing Plaintiffs in this case – 21 has previously filed one or more Freedom of Information Act (“FOIA”) requests seeking 22 documents related to CARRP. In response, the Government released over 3600 pages of 23 documents relating to CARRP, including policy memoranda, operational guidance, and training DECLARATION OF ANDREW C. BRINKMAN - 3 (2:17-CV-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case 2:17-cv-00094-RAJ Document 198-2 Filed 07/06/18 Page 5 of 89 1 materials. Plaintiffs produced these documents to Defendants in this litigation. See Attachment 2 F. Based on these documents, the ACLU published two lengthy articles about CARRP on its 3 website. See Jennie Pasquarella, Muslins Need Not Apply, available at 4 5 https://www.aclusocal.org/sites/default/files/carrp-muslims-need-not-apply-aclu-socalreport.pdf; Jennie Pasquarella, Practice Advisory: USCIS’s Controlled Application Review and Resolution Program, available at 6 https://www.nationalimmigrationproject.org/PDFs/practitioners/our_lit/impact_litigation/2017_0 7 3Jan-ACLU-CARRP-advisory.pdf. The author of the ACLU articles is counsel of record in this 8 case. The articles cite and discuss several fundamental CARRP policy documents. The articles 9 also include images of various CARRP flow charts and operational diagrams. One of the articles includes a 6-page section entitled “What is CARRP?”, which details various stages of CARRP. 10 11 12 13 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on July 6, 2018 14 /s/ Andrew C. Brinkman ANDREW C. BRINKMAN Trial Attorney Office of Immigration Litigation 450 5th St. NW Washington, DC 20001 Andrew.Brinkman@usdoj.gov Phone: (202) 305-7035 15 16 17 18 19 20 21 22 23 DECLARATION OF ANDREW C. BRINKMAN - 4 (2:17-CV-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation Ben Franklin Station, P.O. Box 878 Washington, DC 20044 (202) 616-4900 Case Document 198-2 Filed 07/06/18 Page 6 of 89 AahntA Case Document 198-2 Filed 07/06/18 Page 7 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE 1.5.56 of ?nmeiam? Security US. Citizenship and Immigration Services O?ice 0f the Director Washington, DC 20529 I155 Ci timmship and. immigration. Services Memorandum Original DaledApril 11, 2008 TO: FIELD LEADERSHIP FROM: Jonathan R. Scharfen, Deputy Director SUBJECT: Policy for Vetting and Adjudicating Cases with National Security Concerns I. Purpose This memorandum outlines USCIS policy for identifying and processing cases with national security (NS) concerns,1 and rescinds existing policy memoranda pertaining to reporting and resolving NS concerns. It also identi?es Headquarters? Of?ce of Fraud Detection and National Security as the point of contact for technical advice to assist the ?eld2 with vetting and adjudicating cases with NS concerns. This policy, known as the Controlled Application Review and Resolution Program (CARRP), establishes the following: The ?eld is responsible for vetting and documenting Non-Known or Suspected Terrorist NS concerns, and adjudicating all NS-related applications and petitions.4 1A NS concern exists when an individual or organization has been determined to have an articulable link to prior, current, or planned involvement in, or association with, an activity, individual, or organization described in sections 212(a)(3)(A) (B) or (F) or 237(a)(4) (A) or (B) of the Immigration and Nationality Act (the Act). This determination requires that the case be handled in accordance with CARRP policy outlined in this memorandum. 2 Field refers to Field Of?ces, Service Centers, the National Benefits Center, and equivalent offices within the Refugee, Asylum, and International Operations Directorate (RAIO). 3 Known or Suspected Terrorist (KST) is a category of individuals who have been nominated and accepted for placement in the Terrorist Screening Database (TSDB), are on the Terrorist Watch List, and have a specially-coded lookout posted in and/or the Consular Lookout Automated Support System (CLASS), as used by the Department of State. is the category of remaining cases with NS concerns, regardless of source, including but not limited to: associates of KSTs, unindicted co-conspirators, terrorist organization members, persons involved with providing material support to terrorists or terrorist organizations, and agents of foreign governments. Individuals and organizations that fall into this category may also pose a serious threat to national security. 4This policy applies to all applications and petitions that convey immigrant or non-immigrant status. This policy does not apply to petitions that do not convey immigrant or non-immigrant status. See Operational Guidance for instructions. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. DEF-00001032 Case Document 198-2 Filed 07/06/18 Page 8 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE Policy for Vetting and Adjudicating Cases with National Security Concerns Page 2 The System (FDNS-DS) is the primary system for recording vetting, decon?iction, and other resolution activities. 0 maintains responsibility for external vetting6 of Known or Suspected Terrorist (KST) hits; and, upon request from the ?eld, provides advice, technical assistance (including draft decisions), and Operational support on KST and cases with NS concerns. II. Effective Date and Implementation Operational Guidance implementing this policy will soon be issued by the Domestic Operations Directorate7 (DomOps) and individual components Of the Refugee, Asylum, and International Operations Directorate (RAIO). This policy will be effective upon issuance of each directorate?s respective guidance. Rescission of Prior Policy and Procedures Upon issuance of the Operational Guidance, the following policy memoranda and procedures will be rescinded: 0 Processing of Applications for Ancillary Bene?ts Involving Aliens Who Pose National Security or Egregious Public Safely Concerns, dated May 11, 2007; 0 Processing of Forms [-90 Filed by Aliens Who May Pose National Security or Egregious Public Safety Concerns, dated May 11, 2007; 0 National Security Reporting Requirements, dated February 16, 2007 0 National Security Record Requirements, dated May 9, 2006; 0 Permanent Resident Documentation for EOIR and [-90 Cases, dated April 10, 2006; 0 Appendix A of the Inter-Agency Border Inspection System (IBIS) Procedure, dated March 1, 2006; 5 is not currently available at any specific field office, officers must document CARRP procedures by another method as identified in Operational Guidance. 6External Vetting consists of inquiries to record owners in possession of NS information to identify: facts or fact patterns necessary to determine the nature and relevance of the NS concern, including status and results of any ongoing investigation and the basis for closure of any previous investigation; and information that may be relevant in determining eligibility, and when appropriate, removability. See section IV.C for further instruction. 7 The Domestic Operations Directorate comprises Service Center Operations and Field Operations. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. DEF-00001033 Case Document 198-2 Filed 07/06/18 Page 9 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE Policy for Vetting and Adjudicating Cases with National Security Concerns Page 3 0 Revised Instructions for Processing Asylum errorisi/Suspected Terrorist Cases, dated January 26, 2005; and 0 Section of the Asylum Identity and Security Check Procedures Manual. Of?cers should refer to relevant Operational Guidance8 when adjudicating the following, if found to involve NS or Egregious Public Safety9 concerns: 0 Petitions that do not convey immigrant or non-immi grant status; 0 Applications for employment authorization; 0 Applications for travel authorization; 0 Replacement Lawful Permanent Resident cards; 0 Sanz?illan10 cases. IV. Policy Guidance This policy, in conjunction with Operational Guidance, provides direction to identify and process cases containing NS concerns in the most ef?cient manner. The process allows suf?cient ?exibility to manage the variety of cases encountered by USCIS. Of?cers Should note that at any stage of the adjudicative process described below, decon?iction may be necessary before taking action on a KST or NS concern. Deconfliction is a term used to describe coordination between USCIS and another government agency owner of NS information (the record owner) to ensure that planned adjudicative activities interview, request for evidence, site Visit, decision to grant or deny a bene?t, or timing of the decision) do not compromise or impede an ongoing investigation or other record owner interest. A. Identifying National Security Concerns As a result of the security checks11 or at any stage during the adjudicative process, the 8 Including Policy Memorandum 110 (Disposition of Cases Involving Removable Aliens) issued July 11, 2006. That memorandum is not rescinded and does not apply to asylum applications. 9An Egregious Public Safety (EPS) case is defined in Policy Memorandum 110. 10 Santillan et v. Gonzales, et al., 388 F. Supp2d 1065 (ND. Cal. 2005). 11Security checks may consist of the FBI Name Check, FBI Fingerprint Check, Treasury Enforcement Communications System/Inter?Agency Border Inspection System or United States Visitor and Immigrant Status Indicator Technology/Automated Biometrics Identification System (US VISIT-IDENT). Specific checks or combinations of checks are required for each application or petition type, pursuant to each component?s procedures. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, Stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. DEF-00001034 Case Document 198-2 Filed 07/06/18 Page 10 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE Policy for Vetting and Adjudicating Cases with National Security Concerns Page 4 Of?cer may identify one or more indicators12 that may raise a NS concern. In such cases, the Of?cer must ?rst con?rm whether the indicator(s) relates to the applicant, petitioner, bene?ciary, or derivative (?the individual?). 13 When a NS indicator has been identi?ed, the of?cer must then analyze the indicator in conjunction with the facts of the case, considering the totality of the circumstances, and determine whether an articulable link exists between the individual and an activity, individual, or organization described in sections (B), or (F), or 23 or (B) Of the Act. 1. For NS indicators, the Of?cer should refer to the Operational Guidance for instruction on identifying those indicators that may raise a NS concern. 2. After con?rming the existence of a KST NS concern via a check, the of?cer must contact the Terrorist Screening Center (TSC), as instructed in the content Of the TEC record, and must determine whether the KST NS concern relates to the individual. Of?cers are not authorized to request from the record owner any NS information related to a KST NS concern other than identi?cation Of the subject. The Of?cer must also consider and evaluate, in all cases, indicators related to family members or close associates Of the individual to determine whether those indicators relate to the individual as well. B. Internal Vetting and Assessing Eligibility in Cases with National Security Concerns For both and KST concerns, once the concern has been identi?ed, the of?cer must conduct a thorough review of the record associated with the application or petition to determine if the individual is eligible for the bene?t sought. The of?cer must also conduct internal vetting14 to Obtain any relevant information to support adjudication and, in some cases, to further examine the nature of the NS concern. 15 For NS concerns, the ?eld is authorized to perform internal and external vetting. See step IV.C below for an explanation Of external vetting. For KST NS concerns, the ?eld is only authorized to perform internal vetting. Record owners in possession Of NS information are not to be contacted. has sole responsibility for external vetting of KST NS concerns. 12 Guidelines for types of indicators that may be encountered during adjudication will be provided as an attachment to the Operational Guidance to assist officers in identifying NS concerns. 13 For purposes of this memorandum, the term ?individual? may include a petitioner. 14Internal vetting may consist of DHS, open source, or other systems checks; file review; interviews; and other research as specified in Operational Guidance. 15 If an exemption is granted under section terrorist-related inadmissibility ground, and if no other NS concern is identified, no further vetting is necessary and the application may continue through the routine adjudication process. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, Stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. DEF-00001035 Case Document 198-2 Filed 07/06/18 Page 11 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE Policy for Vetting and Adjudicating Cases with National Security Concerns Page 5 The purpose of the eligibility assessment is to ensure that valuable time and resources are not unnecessarily expended externally vetting a case with a record owner when the individual is otherwise ineligible for the bene?t sought. When this is the case, the application or petition may be denied on any legally suf?cient grounds. 16 When a NS concern exists, the NS information may be Of a restricted or classi?ed nature. These NS or law enforcement operations-based restrictions are Often directly linked tO protecting sensitive sources, methods, Operations, or other elements critical to national security. Access to this information is therefore limited to those with a direct need to know and, when applicable, appropriate security clearance. As a policy matter, USCIS requires that a thorough eligibility assessment and completion of internal vetting precede any outreach for access to NS information. C. External Vetting of National Security Concerns l. NS Concerns In a case with a NS concern, the of?cer must initiate the external vetting process before the case may proceed to ?nal adjudication if: 0 the application or petition appears to be otherwise approvable, and internal vetting is complete; 0 there is an identi?ed record owner in possession Of NS information; and the NS concern remains. At this stage, the of?cer con?rms with the record owner the earlier USCIS identi?cation of the NS concern (see step IV.A above) and obtains additional information regarding the nature of the NS concern and its relevance to the individual. This is accomplished by Obtaining from the record owner facts and fact patterns to be used in con?rming whether an articulable link exists between the individual and an activity, individual, or organization described in sections (Bthe Act. Additionally, the Of?cer seeks to Obtain additional information that may be relevant in determining eligibility and, when appropriate, removability. This process requires close coordination with law enforcement agencies, the Intelligence Community,17 or other record owners. If the external vetting process results in a ?nding that the NS concern no longer exists, and if the individual is otherwise eligible for the bene?t sought, the application or petition is approvable. 16 All references in this memorandum to ?denying? a case also encompass the possibility of referring an asylum case to an Immigration Judge. 17 Officers are not authorized to contact Intelligence Community members; such outreach is conducted by FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, Stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. warmmars-gm? DEF-00001036 Case Document 198-2 Filed 07/06/18 Page 12 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE Policy for Vetting and Adjudicating Cases with National Security Concerns Page 6 When USCIS Obtains information from another government agency during the external vetting process, DHS policy guidance18 requires that authorization from the record owner be obtained prior to any disclosure of the information. Therefore, in order to use the information during adjudication, prior written authorization must be Obtained from the record owner. If the information indicates that the individual is ineligible for the bene?t sought, and if permission from the record owner has been secured for the use of unclassi?ed information, 19 the application or petition may be denied based on that unclassi?ed information. 2. KST NS Concerns For KST NS concerns, ?eld Of?cers are not authorized to conduct external vetting with record owners in possession of NS information. As stated above, only internal vetting of KST NS concerns is permitted at this stage. has sole responsibility for external vetting of KST NS concerns, which must be conducted in cases with a con?rmed KST hit that have been determined to be otherwise approvable. D. Adiudicating National Security Cases Upon completion Of required vetting, if the NS concern remains, the of?cer must evaluate the result of the vetting and determine any relevance to adjudication, Obtain any additional relevant information via a request for evidence, an interview, and/or an administrative Site visit), and determine eligibility for the bene?t sought. Adjudication of a case with a NS concern focuses on thoroughly identifying and documenting the facts behind an eligibility determination, and, when appropriate, removal, rescission, termination, or revocation under the Act. If the individual is ineligible for the bene?t sought, the application or petition may be denied. If the vetting process results in a ?nding that the NS concern no longer exists, and if the individual is otherwise eligible for the bene?t sought, the application or petition may be approved. NS Concerns Of?cers are not authorized to approve applications with con?rmed NS concerns without supervisory approval and concurrence from a senior-level of?cial (as 18 See DHS Management Directive 11042.1, Safeguarding Sensitive But Unclassi?ed (For O?icial Use Only) Information, dated 1-6-2005; and DHS Memorandum, Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings (?Ridge Memo?), dated 10-4-2004. 19Requests for declassification of information and use of classified information during adjudication may only be made by Officers should refer to Operational Guidance for further instruction. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, Stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distributed outside of DHS. warmmomgw DEF-00001037 Case Document 198-2 Filed 07/06/18 Page 13 of 89 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE Policy for Vetting and Adjudicating Cases with National Security Concerns Page 7 de?ned in Operational Guidance). That Of?cial also has discretion to request additional external vetting assistance from in accordance with Operational Guidance. 2. KST NS Concerns Of?cers are not authorized to approve applications with con?rmed KST NS concerns. If the senior-level Of?cial concurs, external vetting assistance must be requested from in accordance with Operational Guidance. V. Conclusion Of?cers should make every effort to complete NS cases within a reasonable amount of time, by taking into consideration the nature of the concern and the facts contained in each individual case. is available to provide technical expertise in answering questions that may arise in these cases. Any questions or issues that cannot be resolved in the ?eld regarding identi?cation, vetting, or adjudication of cases with NS concerns are to be addressed through the established chain of command. Distribution List: Regional Directors District Directors Field Of?ce Directors Service Center Directors Asylum Of?ce Directors FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, Stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy governing the use of FOUO information. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This document and the information contained herein are not to be distlibuted outside of DHS. DEF-00001038 Case Document 198-2 Filed 07/06/18 Page 14 of 89 AahntB Case Document 198-2 Filed 07/06/18 Page 15 of 89 FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE US. Department of Homeland Security 20 Massachusetts Ave NW Washington, DC. 20529 i 0 i a0 US. Citizenship 7* and Immigration 4? Services :s13? HQ 70/28.1 Interof?ce Memorandum TO: FROM: Acting Associate Director, Domestic Operations DATE: APR 2 4 2008 RE: Operational Guidance for Vetting and Adjudicating Cases with National Security Concerns Introduction A central mission of United States Citizenship and Immigration Services (USCIS) is to protect the integrity of the US. immigration system and preserve the safety of our homeland. National security (NS) matters are a primary consideration in USCIS adjudications and measures must be adopted to ensure a consistent approach in resolving these concerns. In order to ef?ciently process cases with NS issues and mitigate potential risks to national security, USCIS is delegating decision-making authority to the ?eld. This authority includes the responsibility for the vetting and adjudication of applications and petitions involving national security concerns. Purpose This memorandum and attached operational guidance provides instruction to USCIS Field Of?ces for vetting and adjudicating cases with national security concerns. Issuance of this memorandum implements the recently distributed policy memorandum entitled, ?Policy for Vetting and Adjudicating Cases with National Security Concerns. This FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE This document is to be controiled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. DEF-00001030 Case Document 198-2 Filed 07/06/18 Page 16 of 89 FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE new policy establishes the Controlled Application Review and Resolution Program (CARRP), which consists of a four-step process of evaluating national security concerns. Effective immediately, all Field Of?ces are directed to comply with the attached operational guidance and instructions when adjudicating applications or petitions with national security concerns. Training A train the trainer session has been scheduled from May 5-9 in Washington, DC for identi?ed ?eld of?cers. These new trainers, along with FDNS personnel, will then be deployed to provide training to additional staff ?om May 12-23. The additional ?eld of?cers who will be identi?ed to receive this training will attend a one week training session during the week of May 12 or May 19. Training sites during the week of May 12 will be at the National Bene?ts Center, Texas Service Center, California Service Center and a location to be determined in the New York City area. Training sites during the week of May 19 will be at the 3 aforementioned centers. Coordination of this training is being handled by Headquarters, Regional Of?ce and Service Center representatives. Contact USCIS personnel with questions regarding this memorandum should raise them through the appropriate channels to the Of?ce of Field Operations and Service Center Operations. Distribution List: Regional Directors District Directors Field Of?ce Directors Service Center Directors Attachments: CARRP Policy Memorandum Operational Guidance KST Flowchart Flowchart FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressee: without prior authorization of the originator. DEF-00001031 - - . - - H- . Alvin A .9 ?at? . A 9R . ?tea, . Re, Ha awn? gnu?A a. ,ard, .mm?H- . .. new, Ame?m {Ti'ii'kaeri??ifii?grz and . it: if? iguana? 35 Operational Guidance for Vetting and Adiudicating Cases with National Security Concerns FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000984 Case Document 198-2 Filed 07/06/18 Page 18 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEIVIEN SENSITIVE TABLE OF CONTENTS I. Introduction II. Scope and Implementation A. Controlled Application Review and Resolution Program (CARRP) Processing 1. Identifying a NS Concern 2. Assessing Eligibility in Cases With a NS Concern 3. External Vetting 4. CARRP Adjudication B. Field Management Requirements C. Con?dentiality D. Information Sharing Considerations Third Agency Rule Identifying a NS Concern Step 1 A. KST NS Concern 1. Determine Identity 2. Identity Determined B. Concern 1. Determine Identity 2. Identity Determined C. Family Members and Close Associates 1. NS Concern on Family Member 2. Relates to Individual 3. NS Concern on Individual D. Documenting Determination of a NS Concern 1. FDNS-DS and BCAA Worksheet 2. TECS record IV. Assessing Eligibility in Cases With a NS Concern Step 2 A. Eligibility Assessment B. Internal Vetting 1. Required Systems Checks 2. Supplemental Systems Checks C. Decon?iction D. Documenting Eligibility Assessment and Internal Vetting E. Individual Deemed Eligible for the Bene?t V. External Vetting Step 3 KST NS Concerns NS Concerns Law Enforcement Coordination Contacting the Record Owner Obtaining Relevant Information Closed Case Ongoing Investigation Vetting Decision Criteria NNS Determination FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 2 Hmowmcow> This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000985 Case Document 198-2 Filed 07/06/18 Page 19 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE J. NS Determination K. Documenting External Vetting Activities L. Entering Data into FDNS-DS for NS concerns M. Multiple Filings at Multiple Locations VI. Requesting Assistance from A. KST NS Concerns B. NS Concerns C. Contact Information for Assistance VII. CARRP Adjudication Step 4 A. KST B. Case Speci?c Exceptions and Miscellaneous Guidance for CARRP Adjudication Work and Travel Authorization Form 1-90 Santillan Cases General EPS Guidance Motions to Reopen/Reconsider Appeals to AAO Appeals to BIA Exemptions for the INA Section 212(a)(3)(B) Terrorism?Related Provisions and NS Concerns Use Of Classi?ed Info Use of FOUO or LES Info Abeyance L. Litigation M. LI-HVI IX. Petitions and Other Forms with NS Concerns A. Operations Guidance B. Approving Petitions with NS Concerns 1. Bene?ciary is Overseas 2. Bene?ciary is in the US C. Special Considerations mommcow> wew 1 . Form 1? 129 2. Form 1-824 3. Form I-8OOA Supplements 1 3 4. Form N-400 X. Glossary FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 3 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000986 Case Document 198-2 Filed 07/06/18 Page 20 of 89 ?9.13 OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE I. INTRODUCTION On April 11, 2008, US. Citizenship and Immigration Services (USCIS) issued the national policy memorandum1 for vetting and adjudicating cases with National Security (NS) concerns. This Operational Guidance contains implementation instructions for Domestic Operations personnel. II. SCOPE AND IMPLEMENTATION The policy memorandum and this Operational Guidance apply to all applications and petitions that convey an immigrant or non-immigrant status in which an of?cer identi?es a NS concern. Of?ces in the Field2 must modify existing procedures to handle and process cases where there Because the Policy Memo rescinded 1nstruct10ns on ow to an anc1 ary ene 1t app 1catlons and applications with NS or Egregious Public Safety (EPS) concerns, of?cers should refer to Sections and IX of this Operational Guidance for instructions on adjudication of applications/petitions that do not convey an immigrant or non-immi grant status that have a NS or EPS concern. A. Controlled Application Review and Resolution Program Processing The Controlled Application Review and Resolution Program (CARRP) process provides a disciplined approach to identify, record, and adjudicate applications/petitions where a NS concern is identi?ed. It involves four (4) distinct, yet not mutually exclusive, processing steps, which include: 1. Identifying 21 NS Concern: The process of identifying and con?rming whether the indicator relates to the applicant, petitioner, bene?ciary or derivative (hereafter, ?individual?3), and whether there is an articulable link between the individual and activities, individuals or organization described in section (the Immigration and Nationality Act (INA) (see ?Attachment A: Guidance for Identifying National Security Concerns,? hereafter ?Attachment 1 Jonathan Scharfen, Deputy Director, Policy for Vetting and A djudicating Cases with National Security Concerns (April 11, 2008) 2 For purposes of this Operational Guidance, ?the Field? refers to Field Offices, Service Centers and the National Benefits Center. 3 For purposes of this memorandum, the term ?individual? may include a petitioning company. 4 Attachment A replaces Appendix/l of the current IBIS SOP. Attachment/1 identifies some of the most common indicators of NS concern encountered in Letterhead Memoranda (LHM) (produced by the FBI as a result of a positive response to a FBI Name check), records, and other sources. FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 4 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000987 Case Document 198-2 Filed 07/06/18 Page 21 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE 2. Assessing Eligibility in Cases with a NS Concern: If it is determined that a NS concern exists, the case is forwarded to a designated of?cer5 for a thorough review of the record associated with the application/petition to determine if the individual is eligible for the bene?t sought, hereafter referred to as the Eligibility Assessment/Internal Vetting stage. 3. External Vetting: If after completion of the eligibility assessment and internal vetting, the individual appears eligible for the bene?t sought, or if Field management determines further processing is necessary to strengthen or support a decision, the application/petition proceeds to the External Vetting stage cases only6) to obtain any information relevant to CARRP adjudication. If the application/petition is otherwise approvable for cases, Field management request vetting assistance from 4. CARRP Adjudication: The focus of this stage is to evaluate any additional information obtained during the vetting process to determine if the NS concern has been resolved or con?rmed, whether the application/petition should be approved or denied, and when appropriate, to proceed with removal, rescission, termination, or revocation. B. Field Management Requirements 1. Ensure that all of?cers responsible for vetting NS concerns have access to the required electronic systems (USCIS, DHS). 2. Establish a coordination mechanism (formal or informal) with the local and designate of?cers to act as the point of contact for outreach to the Law Enforcement Agency (LEA)/record owner. 3. Establish local procedures for supervisory review at the conclusion of the vetting process. The supervisory review is intended to con?rm the facts discovered during the vetting process to ensure that the NS recommendation is consistent, that proper and conclusive coordination with law enforcement is ful?lled, and that the Background Check and Adjudicative Assessment (BCAA) worksheet is complete. 4. Establish local procedures for supervisory review of applications/petitions in which the individual appears eligible for the bene?t and where a NS concern has been identi?ed prior to approving the transfer of the ?le to 5. Maintain the national security infrastructure by ensuring that each of?ce in the Field is properly equipped to receive, transmit, and store classi?ed information per the following guidelines: 5 For purposes of this memorandum, a designated officer is an Immigration Analyst, Immigration Officer, Adjudications Officer, Asylum Officer or Refugee Officer who has been designated by local management to be trained, competent and knowledgeable in CARRP procedures. 6 See Glossary for definition of 7 See Glossary for definition of KST. FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 5 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000988 Case Document 198-2 Filed 07/06/18 Page 22 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW SENSITIVE a. Obtain a minimum of a SECRET security clearance for each of?cer involved in vetting NS concerns or adjudicating applications/petitions where a NS concern has been identi?ed; b. Procure and maintain secure telephones (STU STE) and secure (classi?ed) fax machines for receiving and discussing classi?ed information; o. Maintain suf?cient classi?ed storage space in approved containers for classi?ed materials. d. Procure courier cards for all personnel involved in transporting classi?ed information; and e. Arrange for security training for all personnel involved in handling classi?ed information. 6. Ensure all processing steps and actions taken with respect to any case with a NS concern are recorded and updated in the appropriate tabs within the Fraud Detection and National Security Data System and ensure the appropriate sections of the BCAA worksheet, which replaces the National Security Record, are complete. 7. For denied NS Cases, if the record suggests the applicant is located in the United States and appears amenable to removal proceedings, ?eld of?ces will coordinate with the appropriate ICE Of?ce of Chief Counsel (ICE OCC) to determine the best strategy prior to issuance of the NTA. Local USCIS legal counsel should be copied on any coordination efforts with ICE OCC, and will assist in those cases in which the ICE OCC expresses concerns regarding the legal strategy or legal suf?ciency of planned NTA. Note: The Field may contact for guidance at any time during the processing of an application/petition with a NS concern. Such requests should be sent via email to: gov The request for guidance must include the following information: - Subject: Request for Assistance (Vetting) or Request for Assistance (Adjudication) - Full Name (Applicant, Petitioner, Bene?ciary, Derivative or Company) - A-Number - Date of Birth 8 The FDNS-DS was designed to serve the most pressing requirements of FDNS by providing a central repository of fraud lead/case data available to FDNS staff nationwide. The FDNS-DS is a web-based application that employs the Siebel Public Sector COTS product and resides on an Oracle database platform. FDNS-DS was first launched September 2005 and was formerly known as FTS (Fraud Tracking System). FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 6 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000989 Case Document 198-2 Filed 07/06/18 Page 23 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE - Pending Application(s) and/or Petition(s) Form Type(s) - Nature of assistance requested - Requesting Of?cer and Contact Information - FDNS-DS NS concern number - Litigation Case information if relevant* *If a case requires immediate action due to pending litigation etc, of?ces must ensure that the e- mail to the FDNS-NSB Mailbox is marked urgent and contact the HQ National Security Advisory Unit (NSAU) main numberW The body of the email should include 1S r1c ou ase an suspense a e. C. Confidentiality Federal law and agency policy protect against unauthorized disclosure of information collected and maintained in USCIS systems of records both in the electronic and paper form. The Privacy Act, 5 U.S.C. 552(a), restricts disclosure of information relating to US. citizens and LPRs in the absence of a written waiver from the individual to whom the information pertains or a routine use contained in a DHS SORN. By policy, DHS has extended the protections afforded by the Privacy Act, 5 U.S.C. 552(a), to personally identi?able information contained in mixed records systems systems containing information on visitors and aliens as well as on LPRs and US. citizens). Speci?c categories of data collected and maintained by USCIS may also have their own con?dentiality provisions. For example, sections 210 and 245A of the Immigration and Nationality Act limit the use and disclosure of information provided by ?amnesty? applicants under the 1986 Immigration Reform and Control Act. Section 384 of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, as amended, 8 U.S.C. 1367, limits the use and disclosure of information relating to aliens seeking protection under the Violence Against Women Act (VAWA), as amended, or as or non-immigrants. Under 8 C.F.R. 2086, information regarding an individual?s status as an asylum seeker or asylee, information contained in or pertaining to his or her application, and records pertaining to any credible fear or reasonable fear determination generally must not be disclosed without the written consent of the applicant or a waiver from the Secretary of DHS. By policy, the con?dentiality provisions of 8 C.F.R. 208.6 have been extended to information contained in or pertaining to refugee applications. Finally, even if no speci?c con?dentiality provision applies, much of the information contained in USCIS systems and ?les is con?dential and the disclosure and use of the information is governed by laws and regulations relating to sensitive but unclassi?ed For Of?cial Use Only and/or Law Enforcement Sensitive information. D. Information Sharing Considerations Third Agency Rule All DHS components are considered part of one ?agency? for information sharing purposes. As such, there is no restriction on internal (within DHS) information exchange and sharing provided the person has an authorized purpose for accessing the information in the performance of his or her duties a valid need-to-know), possesses the requisite security clearance (there is no requirement for a security clearance to access sensitive but unclassi?ed (FOUO) information), and assures adequate safeguarding and protection of the information. FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 7 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000990 Case Document 198-2 Filed 07/06/18 Page 24 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Sensitive but unclassi?ed (FOUO) information may be shared with other agencies or organizations outside of DHS, provided: a need-to-know has been established; the information is shared in the furtherance of a coordinated and of?cial governmental activity, to include homeland defense; and if the information requested or to be discussed does not belong to USCIS, comply with the originating agency?s policy concerning third party discussion and dissemination. Classified information originated by another DHS component, or classi?ed information originated by another government agency shall not be further disseminated outside of DHS Without prior approval of the originator. FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 8 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000991 Case Document 198-2 Filed 07/06/18 Page 25 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE IDENTIFYING A NS CONCERN STEP 1 OF CARRP PROCESS As a result of security checks or at any stage of the adjudicative process, an of?cer may identify one or more indicators that raise a NS concern. (See ?Attachment There are two types of NS concerns: 1. Known 0r Suspected Terrorist (KST) - 2. Non-Known 0r Suspected Terrorist - For a KST NS concern, the designated of?cer must determine: 1. Whether the indicator(s) relates to the applicant, petitioner, bene?ciary or derivative (hereafter, ?individua1?). For a NS concern, the designated of?cer must determine: 1. Whether the indicator(s) relates to the individual, and 2. Whether an articulable link exists between the individual and an activity, individual, or organization described in INA section ((B). A. KST NS Concern 1. Determine Identity FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000992 Case Document 198-2 Filed 07/06/18 Page 26 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 2. Identity Determined B. NS Concern 1. Determine Identity 2. Identity Determined a. Relates When a NS concern has been identi?ed and it relates to the individual, the designated of?cer must then analyze the indicator(s) in conjunction with the facts of the case, consider the totality of the circumstances, and determine whether an FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 10 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000993 Case Document 198-2 Filed 07/06/18 Page 27 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE articulable link exists between the individual and an activity, individual, or organization described in INA section (B) or (F) or 237(a)(4) (A) or i. Articulable Link Attachment A is provided as a tool to help designated officers identify what indicators may constitute a NS concern. Attachment A is not an exhaustive list of indicators; it is intended to serve as a supplemental tool to help officers analyze the indicator(s) in conjunction with the facts of the case, consider the totality of the circumstances, and determine whether an articulable link exists between the individual and a NS activity defined in INA section (B) or (F) or 237(a)(4) (A) or (B). An articulable link exists if a designated officer can connect the NS information to one of the grounds listed in the INA sections cited above to the individual. The connections need not rise to the level required for NTA purposes; however, some connections between the information and the activities contained in 212/237 must exist for the standard of articulable link to be met. b. Does Not Relate or No Articulable Link When the indicator does not relate to the individual or if there is no articulable link between an individual and one or more of the indicators in Attachment A, the application/petition must be released for routine adjudication following supervisory review and completion of a resolution memorandum per current IBIS SOP. - c. Further Assistance If a determination cannot be made as to whether an indicator rises to the level of a NS concern or whether there is an articulable link between an individual and one or more of the indicators in Attachment A, the Field may request assistance from Background Check Adjudication Unit (BCAU). C. Family Members and Close Associates FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 1 1 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000994 Case Document 198-2 Filed 07/06/18 Page 28 of 89 FOR OFFICIAL USE ONLY HFOUO - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored. handled, transmittedi distributed. and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 .S.C. 552). This information shall not be distributed beyond the original addressees Without prior authorization ofthe originator. Confidential - Subject to Protective Order DEF-00000995 Case Document 198-2 Filed 07/06/18 Page 29 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE Note: In the situations described above, when the NS concern involves a principal applicant and the principal applicant otherwise appears eligible for the benefit, adjudication of derivative family members must be placed on hold until the CARRP process is complete for the principal applicant unless an exception applies (see section of this Operational Guidance). No bene?t may be granted to the derivative family members unless the principal?s application is approved. Similarly, when the NS concern relates to a derivative family member, the entire ?family pack? application, including the principal, must be placed on hold. If the NS concern relates only to a derivative, adjudication of the related applications may continue on a case?by-case basis once vetting is completed for each related individual (unless an exception applies) if the NS concern on the derivative or beneficiary is determined not to present a NS concern for the principal applicant. D. Documenting Determination of 21 NS Concern FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 13 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000996 Case Document 198-2 Filed 07/06/18 Page 30 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 14 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance With DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000997 Case Document 198-2 Filed 07/06/18 Page 31 of 89 ?93 OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE IV. ASSESSING ELIGIBILITY IN CASES WITH A NS CONCERN STEP 2 OF CARRP PROCESS A. Eligibility Assessment Once a NS concern has been identi?ed, the designated of?cer must conduct a complete review Of the ?le in order to assess the individual?s eligibility for the bene?t sought. When statutory/regulatory grounds Of ineligibility are identi?ed, the Field may proceed with ?nal adjudication following supervisory concurrence10 and decon?iction with the record owner (include text in parenthesis). There should be no denial based solely on discretionary grounds at this stage. Multiple of?ces may be in possession of pending applications and/or petitions for the same individual with a NS concern. Each of?ce may initiate an eligibility assessment and proceed to deny (following local supervisory concurrence and decon?iction with the record owner) if statutory/regulatory grounds of ineligibility are identi?ed. The purpose of the eligibility assessment is to ensure that valuable time and resources are not unnecessarily expended when the individual is otherwise ineligible for the bene?t sought. If the case cannot be completed pursuant to the instructions above, the case must move to the internal vetting process. B. Internal Vetting Internal vetting includes a complete review of the ?le in order to assess the individual?s eligibility for the bene?t sought, to obtain any relevant information to support the adjudication and, in some cases, to further examine the nature of the NS concern. In addition, internal vetting may include, as appropriate, 10 In some instances, Field supervisors may determine that further CARRP processing may be necessary to strengthen an ineligibility ground or support a denial decision. When this is the case, External Vetting will be conducted to identify or strengthen ineligibility grounds. In instances where the denial grounds can be overcome with a subsequent filing, the most prudent course of action is to continue with External Vetting rather than denying on the statutory/regulatory ground. 11 Discretionary denials, however, may be considered after external vetting has been completed and the case is in the final CARRP adjudication process. FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 15 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000998 Case Document 198-2 Filed 07/06/18 Page 32 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Designated of?cers should perform the following systems checks as appropriate during the internal vetting process: 1. Required Systems Checks: 2. Supplemental Systems Checks: The following additional systems checks may be warranted based on a review of the results of the required systems checks, security checks and ?le review: FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 16 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00000999 Case Document 198-2 Filed 07/06/18 Page 33 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Designated of?cers are encouraged to critically consider all information available to them, including information derived from sources not commonly checked in routine adjudications, thereby enabling the designated of?cer to ask better-informed questions When constructing an RFE, NOID, or during an interview. Such sources include: FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 17 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001000 Case Document 198-2 Filed 07/06/18 Page 34 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE When ineligibility grounds are identi?ed, the Field may proceed with ?nal adjudication following supervisory concurrence and decon?iction (see below) with the record owner. C. Decon?iction The designated of?cer is required to advise the record owner of contemplated adjudicative actions. See Section Part of this guidance and Title 8, Code of Federal Regulations Section 103 8) for instructions on holding a case in abeyance when proposed actions would interfere with an ongoing investigation. If the individual is otherwise eligible for the bene?t or if local management determines further processing is necessary to strengthen or support a ?nal adjudication, cases will proceed to the External Vetting stage. Note: In instances where the individual is deemed ineligible for the bene?t and the denial grounds can be overcome with a subsequent ?ling, the most prudent course of action is to continue with external vetting rather than denying on the initial ground of ineligibility. D. Documenting Eligibility Assessment and Internal Vetting The results of the eligibility assessment, internal vetting, and decon?iction must be documented in FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 18 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001001 Case Document 198-2 Filed 07/06/18 Page 35 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE E. Individual Deemed Eligible for the Benefit When the NS concern remains and the individual is deemed eligible for the bene?t at the Eligibility Assessment/Internal Vetting stage, no bene?t mav be granted until external vetting is complete, unless an exception applies. See Section Case Speci?c Exceptions and Miscellaneous Guidance. FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 19 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001002 Case Document 198-2 Filed 07/06/18 Page 36 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE V. EXTERNAL VETTING STEP 3 OF CARRP PROCESS A. KST NS Concerns has sole responsibility for external vetting of KST NS concerns, which is conducted only as a last resort when no statutory or regulatory grounds of ineligibility have been identi?ed. See Section VI, Requesting Assistance from B. NS Concerns For NS concerns, the designated of?cer must initiate the external vetting process before the case may proceed to ?nal adjudication if: 1. Internal vetting is complete and the application/petition appears to be otherwise approvable; and 2. there is an identi?ed record owner in possession of NS information; and 3. a NS concern remains. During the process of external vetting, the designated of?cer must seek to obtain additional information that may be relevant to a determination of eligibility. Of?cers should note that actions that do not meet the threshold for criminal prosecution indicators of fraud, foreign travel, and information concerning employment or family relationships) may be relevant to a bene?t determination. Of?cers must make every effort to clearly articulate these facts or fact patterns for ?nal adjudication. Note: If a NS concern remains but a record owner cannot be identi?ed, contact for assistance. C. Law Enforcement Coordination External vetting requires close coordination with law enforcement agencies, the Intelligence Community13 or other record owners to determine the nature and extent of the NS concern and to identify information that is relevant to an eligibility determination. Coordination with law enforcement is essential to understanding the nature of associations that make the individual a concern, the individual?s level of involvement in activities of concern, and the progress made to date by law enforcement to investigate those concerns. It also affords the opportunity to understand the impact of adjudicative activities on ongoing and sensitive investigations. The Field must contact and establish liaison relationships with the LEA/record owner and other relevant agencies in order to coordinate background check vetting and obtain any and all information relevant to understanding the NS concern and adjudicating the application/petition. A limited number of USCIS of?cers must be the primary points of contact for outreach to the 13 Officers in the field are not authorized to contact Intelligence Community members; such outreach is conducted by See Glossary for definition of Intelligence Community. FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 20 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001003 Case Document 198-2 Filed 07/06/18 Page 37 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE LEA/record owner. This will assist USCIS efforts to develop effective information-sharing relationships and to limit the number of contacts with the record owner 1. Designated of?cers will contact all appropriate LEAs/record owners telephonically and/or through e?mail. Each telephonic and e-mail contact activity will be recorded in the activities tab of FDNS-DS. In the event there is no response to the initial contact within ten (10) business days, the appropriate local JTTF of?ce must be contacted for assistance while keeping in mind Third Agency Rules regarding disclosure of information. Note: If the local JTTF of?ce is not responsive, the Field may request vetting assistance from (BCAU) in accordance with the guidance provided in Section VI. 2. The local JTTF of?ce should also be contacted if: Designated of?cers must ensure that any potential con?icts between vetting or adjudicative activities by USCIS and investigative activities by law enforcement or other federal agencies are identi?ed during the coordination process. The designated of?cer should speci?cally ask the LEA whether any adjudicative action would impact the investigation. In the event the individual is the target of or referenced in multiple investigations, all appropriate entities/record owners and JTTF of?ces must be contacted. When an of?ce outside the jurisdiction in which the individual lives is conducting an investigation, all appropriate LEAs must be contacted by the USCIS of?ce vetting the NS concern. D. Contacting the Record Owner Prior to initiating contact with the LEA/record owner, all required and supplemental systems checks (see above) must have been conducted and recorded on the BCAA worksheet. Contact with a case agent or record owner affords an opportunity to share information that may assist each party to complete their mission. 1. Designated of?cers may obtain information that will assist in: 14 14 When USCIS obtains information from another governmental agency in the vetting process, the information sharing restriction, often referred to as the ?Third Agency Rule,? requires USCIS to obtain authorization from the record owner prior to any disclosure of the information. Therefore, in order to use the information during adjudication, prior written authorization must be obtained from the record owner. If the information indicates the individual is ineligible for the benefit sought, and if permission from the record owner has been secured for the use of unclassified information, the application/petition may be denied based on the information. Additionally, under provisions Of DHS Policy MD 11042.1, USCIS may not disclose information provided by the record owner to a third agency without the record owner?s prior authorization. FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 21 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001004 Case Document 198-2 Filed 07/06/18 Page 38 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE Determination of a Non-National Security concern Determining the nature of the concern Determining the extent of the concern Determining the status/results of the investigation, and Con?rming the information that indicates the individual is ineligible for the bene?t sought and pursuing a denial of the bene?t, removal, rescission, revocation or denaturalization under INA. 2. Designated of?cers may also provide the LEA/record owner with information of which they might not be aware to help the case agent with additional leads. Be prepared to offer to discuss the case over a secure line and to take classi?ed notes. A secure telephone conversation with a case agent may yield far more information than a similar conversation conducted over an open line. 3. Derogatory information from all relevant LEAs/record owners should be reviewed to identify the nature of the NS concern and determine if and how it was resolved. Of particular concern are situations which indicate an unresolved NS concern, such as: a. Allegations were not investigated (lack of resources); b. Cases were closed administratively in which: i. Subject moved to another of?ce?s jurisdiction and the investigation was not reopened in the new jurisdiction; ii. Subject departed the and/or Exhaustion of available leads. E. Obtaining Relevant Information Designated of?cers should request information the record owner may have about: FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 22 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001005 Case Document 198-2 Filed 07/06/18 Page 39 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE F. Closed Case In a closed case, fundamental questions must be answered to support a comprehensive vetting. Designated of?cers should ask questions regarding: G. Ongoing Investigation In an ongoing investigation, designated of?cers should ask questions regarding: H. Vetting Decision Criteria At the conclusion of the external vetting process for NS concerns, the designated of?cer must consider the facts or fact patterns developed and make one of the following recommendations for supervisory consideration: I. A NNS determination should be made if results of the external vetting fall into one or more of the following categories: FOR OFFICIAL USE ONLY FOUO -LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001006 Case Document 198-2 Filed 07/06/18 Page 40 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE J. A NS determination should be made if results of the external vetting fall into one or more of the following categories: 1. Individual is the subject of or referenced in an open NS investigation and the level of FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 24 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001007 Case Document 198-2 Filed 07/06/18 Page 41 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE K. Documenting External Vetting Activities Of?cers conducting external vetting must record the results of their vetting activities and recommendations, as well as a summary of their conversations with an LEA, in the ?activities/notes? tab of the FDNS-DS as appropriate. They must update the BCAA worksheet, contemporaneously (as actions are being taken) and not wait to update at a later date. At the end of the external vetting process, the BCAA worksheet should be attached to the FDNS- DS record and the application/petition will proceed to the CARRP Adjudication stage. When the decision is made to transfer a case to another USCIS of?ce, the transferring of?ce will fully document the results of vetting and adjudicative actions to date in FDNS-DS and the BCAA worksheet, and ensure that all relevant information properly documented in the ?le. L. Entering Data into FDNS-DS for NS concerns Prior to creating a record in FDNS-DS, the designated of?cers must determine whether a record related to the same subject has already been entered into the system. If there is such record, designated of?cers must request the ?lead? of?cer to add them as ?team members? so that they can add new ?lings to the existing record. Do not create a new record on the same subject of 1nterest. M. Multiple Filings at Multiple Locations At the vetting stage, only one of?ce in the Field should be the lead in coordinating with the appropriate The designated of?cer will identify and perform electronic consolidation of all ?lings related to an individual with a NS concern in FDNS-DS. When the individual is the applicant on or bene?ciary of multiple ?lings at multiple of?ces, the designated of?cer should refer to the following guidelines for vetting purposes and electronic consolidation: 1. If there is a pending N-4OO or I-485, the of?ce having primary responsibility for adjudicating the N-4OO or 1-485 is responsible for the electronic consolidation.15 15 If an N-400 is pending concurrently with a pending I-485 pursuant to INA Section 328 or 329 regarding members of the US. Armed Forces or those who have already been discharged from service, the office having jurisdiction over the N-400 is responsible for electronic consolidation. FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 25 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001008 Case Document 198-2 Filed 07/06/18 Page 42 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE 2. If there is no N-400 or 1-485 pending but there is another type of application/petition pending with the potential to grant status, g. a Form 1-129 Extension of Stay or Change of Status request), the of?ce with jurisdiction over the pending application/petition is responsible for the electronic consolidation; 3. If there is no pending N-400, 1-485 or other type of application/petition with the potential to grant status, the of?ce with jurisdiction over the pending immigrant visa petition(s) is responsible for the electronic consolidation (with priority over non?immigrant visa petitions); 4. In the event that separate of?ces hold both pending employment-based immigrant visa petitions and family-based petitions, the of?ce with jurisdiction over the employment? based immigrant petition is responsible for the electronic consolidation. 5. In the event that ?multiple locations? involves Service Centers, bi-specialization will be the determining factor as to which Service Center will have the lead in consolidating and conducting vetting activities. Supervisors between bi-specialized Service Centers SC and SC) must coordinate between one another to determine the best of?ce to take the lead. Note: For situations involving multiple receipt ?les or a combination of receipt ?les and A-?les, one documentary record (BCAA worksheet) per individual will be suf?cient. FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 26 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001009 Case Document 198-2 Filed 07/06/18 Page 43 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE VI. REQUESTING ASSISTANCE FROM A. Requesting External Vetting Assistance on KST NS Concerns For applications/petitions with KST NS concerns, the Field is not authorized to conduct external vetting with record owners in possession of NS information. The Field is ONLY authorized to conduct internal vetting of KST NS concerns. has sole responsibility for external vetting of KST NS concerns, which is conducted only as a last resort when ineligibility grounds have not been identi?ed. Vetting assistance may be requested from in the following circumstances: 1. When ineligibility grounds have not been identi?ed in applications/petitions with KST NS concerns; 2. When the LEA is non-responsive, is not willing to discuss any information or a POC is not identi?ed in the referral; 3. When LHMs provide Third Agency Referrals, and the Field is unable to obtain the information from the Third Agency; or 4. When coordination with the Intelligence Community16 is required. Prior to requesting vetting assistance from the local of?ce director (DD, SCD, FOD) must review the case to con?rm that no grounds of ineligibility have been identi?ed. When the decision has been made that the KST NS concern will be referred to for external vetting the entire A-?le and any related ?les must be forwarded to rin f? will request the tearline information? from the record owner, perform hi gh- side checks18 and draft an assessment of the results. will conduct a comprehensive review of the ?le and the assessment for ineligibility grounds. If no ineligibility grounds are identi?ed, will consider whether the use of classi?ed information is necessary and request authorization from the record owner as required. If ineligibility grounds are identi?ed, the ?le will be returned to the originating of?ce with instructions for further action. 16 See Glossary for definition of Intelligence Community 17 See Glossary for definition of tearline information. 18 See Glossary for definition of high-side checks. FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE 27 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001010 Case Document 198-2 Filed 07/06/18 Page 44 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE While HQ FDNS is conducting external vetting in KST matters, the designated officer must notify HQ FDNS whenever new factors arise that may affect the application/petition. Such factors include, but are not limited to congressional inquiries, management inquiries, and litigation. B. Requesting External Vetting Assistance on NS concerns Of?cers are not authorized to approve applications with remaining NS concerns without supervisory approval and concurrence from the Field director (DD, SCD, FOD, ACD). When the individual appears otherwise eligible for the bene?t, of?cers must seek supervisory guidance in evaluating the merits of the case to ensure that all appropriate adjudicative actions have been considered or taken. If the Field director con?rms that the application/petition is approvable, the case may be adjudicated or the Field director may request vetting assistance from Upon requesting external vetting assistance from as appropriate, the A-flle and any related ?les must be sent to the A completed BCAA worksheet must be attached to the file. The will perform hi gh-side checks and draft an assessment of the results. If no ineligibility grounds are identi?ed, will conduct a comprehensive review of the ?le and the assessment for ineligibility grounds and consider whether the use of classi?ed information is necessary and request authorization from the record owner as required. If ineligibility grounds are identi?ed, the ?le will be returned to the originating of?ce with instructions for further action. C. Contact Information for Assistance The Field may contact for guidance at any time during the processing of an application/petition with a NS concern. Such requests should be sent via email to: DNS -NSB @dhs. gov The request for guidance must include the following information: - Subject: Request for Assistance (Vetting) or Request for Assistance (Adjudication) - Full Name (Applicant, Petitioner, Bene?ciary, Derivative or Company) A-Number - Date of Birth - Pending Application(s) and/or Petition(s) Form Type(s) FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 28 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001011 Case Document 198-2 Filed 07/06/18 Page 45 of 89 Egg OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE - Nature of assistance requested - Requesting Officer and Contact Information - FDNS-DS NS concern number - Litigation Case information if relevant"< *If a case requires immediate action due to pending litigation etc, of?ces must ensure that the e- mail to the FDNS-NSB Mailbox is marked urgent and contact the HQ National Security Advisory Unit (NSAU) main number (202) 272-8460 or HQ NSAU Team Chief (202) 272-0917. The body of the email should include the District Court Case and suspense date. FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 29 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001012 Case Document 198-2 Filed 07/06/18 Page 46 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE VII. CARRP ADJUDICATION STEP 4 OF CARRP PROCESS Upon completion of internal and external vetting, if the NS concern remains, the designated of?cer must evaluate the results of the vetting as it pertains to the adjudication, obtain any additional relevant information and determine eligibility for the bene?t sought. As previously noted, of?cers must deconflict with the record owner prior to any contemplated adjudicative action. A. Adjudicating Applications with KST NS Concerns Of?cers in the Field are not authorized to approve applications with remaining KST NS concerns. If local management concurs that the individual appears otherwise eligible for the bene?t, the director must request assistance from (See Section VI, Requesting Vetting Assistance from As necessary, the Field may also request assistance from BCAU. If there are remaining KST NS concerns after receipt of the results from and the individual remains eligible for the bene?t, the application/petition must be returned to the respective Field HQ19 component for further evaluation and coordination with B. Adjudicating Applications/Petitions with NS Concerns Of?cers in the Field are not authorized to approve applications/petitions with the potential to grant status that have remaining NS concerns without supervisory approval and concurrence from the local management. If the local management con?rms that the individual is otherwise eligible for the bene?t, he/she has discretion to grant the bene?t or may request further assistance from (See Section VI, Requesting Assistance from If, in consultation with the respective HQ component the local management decides to grant the bene?t, the designated of?cer must document all adjudicative actions in and complete the BCAA worksheet. 19 HQ Office of Field Operations (OFO) or HQ Service Center Operations (SCOPS). FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 3 0 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001013 Case Document 198-2 Filed 07/06/18 Page 47 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE CASE SPECIFIC EXCEPTIONS AND MISCELLANEOUS GUIDANCE FOR CARRP ADJUDICATION A. Employment and Travel Authorization Applications with EPS or NS concerns B. Form 1-90 with NS or EPS Concerns FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 3 1 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001014 Case Document 198-2 Filed 07/06/18 Page 48 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE C. Santillan Cases Involving EPS or NS Concerns 20 This memorandum complements the guidance contained in the December 29, 2005 memorandum entitled, Interim Guidance for Processing of Status Documentation for EOIR-acijusted Lawful Permanent Residents Pursuant to the Permanent Injunction in Santillan, et al. No. 004-2686 (N .D. CA Dec. 22, 2005), as well as the March 31, 2005 memorandum entitled Executive O?ce for Immigration Review (EOIR) Processing, and the April 8, 2005 memorandum entitled Clarification of Memorandum Executive O?icer for Immigration Review (EOIR) Processing. FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 32 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001015 Case Document 198-2 Filed 07/06/18 Page 49 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE D. General EPS Guidance E. Motions to Reopen/Reconsider with NS Concerns F. Appeals to the Administrative Appeals Office (AAO) with NS Concerns ?3 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 3 3 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001016 Case Document 198-2 Filed 07/06/18 Page 50 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENF SENSITIVE G. Appeals to the Board of Immigration Appeals (BIA) with NS Concerns H. Exemptions for the INA Section 212(a)(3)(B) Terrorism-Related Provisions and NS Concerns Under the INA, aliens who fall under the terrorist-related inadmissibility provisions of section 212(a)(3)(B) are ineligible for most immigration bene?ts. However, under INA section as amended by the Consolidated Appropriations Act of 2008, the Secretary of Homeland Security or the Secretary of State, after consultation with each other and with the Attorney General, may exercise discretionary authority to exempt certain terrorist?related FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 34 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001017 Case Document 198-2 Filed 07/06/18 Page 51 of 89 FOR OFFICIAL USE ONLY HFOUO - LAW ENFORCEMENT SENSITIVE inadmissibility provisions of INA section 212(a)(3)(B) with respect to either an undesignated terrorist organization or to an individual alien. Therefore, I. Use of Classi?ed Information in Adjudicating Applications/Petitions with 21 NS Concern This document is to be controlled, stored. handled, transmitted distributed. and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 .S.C. 552). This information shall not be distributed beyond the original addressees Without prior authorization ofthe originator. Confidential - Subject to Protective Order DEF-00001018 Case Document 198-2 Filed 07/06/18 Page 52 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE J. Use of For Official Use Onlv (FOUO) or Law Enforcement Sensitive Information in Adjudicating Applications/Petitions with a NS concern I. lleyance L. Litigation FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored, handled, transmitted, distributed, and disposed of In accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001019 Case Document 198-2 Filed 07/06/18 Page 53 of 89 FOR OFFICIAL USE ONLY HFOUO - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored. handled, transmittedi distributed. and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 .S.C. 552). This information shall not be distributed beyond the original addressees Without prior authorization ofthe originator. Confidential - Subject to Protective Order DEF-00001020 Case Document 198-2 Filed 07/06/18 Page 54 of 89 FOR OFFICIAL USE ONLY HFOUO - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored. handled, transmittedi distributed. and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 .S.C. 552). This information shall not be distributed beyond the original addressees Without prior authorization ofthe originator. Confidential - Subject to Protective Order DEF-00001021 Case Document 198-2 Filed 07/06/18 Page 55 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 3 9 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance With DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001022 Case Document 198-2 Filed 07/06/18 Page 56 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE IX. PETITIONS AND OTHER FORMS WITH NS CONCERNS The guidance provided in this section relates to Forms 1-129 (not requesting a Change of Status (COS) or Extension of Stay 1?130, 1?140, 1-360 (Religious Worker cases only), 1-526, 1-600 and that do not convey an immigrant or non-immigrant status and 1-824 (collectively, hereinafter as The procedures outlined here do not alter outstanding guidance with respect to the consideration of relative (1?130), orphans (1-600 or 1?800), and fiance (1-129F) petitions Where the petitioner?s eligibility comes into question pursuant to the Adam Walsh Act.28 A. Operational Guidance for Petitions B. Approving Petitions with NS Concerns FOR OFFICIAL USE ONLY FOUO -LAW ENFORCEMENT SENSITIVE This document Is to be controlled, stored, handled, transmitted, distributed, and disposed of In accordance With DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001023 Case Document 198-2 Filed 07/06/18 Page 57 of 89 FOR OFFICIAL USE ONLY HFOUO - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored. handled, transmittedi distributed. and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 .S.C. 552). This information shall not be distributed beyond the original addressees Without prior authorization ofthe originator. Confidential - Subject to Protective Order DEF-00001024 Case Document 198-2 Filed 07/06/18 Page 58 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE C. Special Considerations FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 4'2 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001025 Case Document 198-2 Filed 07/06/18 Page 59 of 89 FOR OFFICIAL USE ONLY HFOUO - LAW ENFORCEMENT SENSITIVE This document is to be controlled, stored. handled, transmittedi distributed. and disposed of in accordance With DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom of Information Act (5 .S.C. 552). This information shall not be distributed beyond the original addressees Without prior authorization ofthe originator. Confidential - Subject to Protective Order DEF-00001026 Case Document 198-2 Filed 07/06/18 Page 60 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE 4'4 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to OUO. It contains information that may be exempt from release under the Freedom Of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001027 Case Document 198-2 Filed 07/06/18 Page 61 of 89 ?93 OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE X. GLOSSARY Background Check and Adj udicative Assessment (BCAA) Worksheet used to document the actions taken by the designated of?cer conducting the review, vetting and adjudication of an application/petition with a NS concern. Deconfliction Coordination between USCIS and another governmental agency owner of NS information (the record owner) to ensure that planned adjudicative activities g, interview, request for evidence, site visit, decision to grant or deny a bene?t, issuance of Notice to Appear (NTA) and the timing of the such) do not compromise or impede an ongoing investigation or other record owner interest. During decon?iction, designated of?cers may ask a record owner whether that agency has information other than NS related information that would affect the eligibility for the bene?t sought. Designated of?cers may also seek to resolve any other relevant concerns criminal, public safety, fraud) identi?ed through the security check process or review of the ?les. Of?cers may not ask for the details of the NS information as part of performing decon?iction. Designated Officer Any of?cer who has been appropriately trained and designated to conduct vetting or adjudication of national security cases by the local of?ce director. External Vetting Consists of inquiries to record owners in possession of NS information to identify facts or fact patterns necessary to determine the nature and relevance of the NS concern, including the status and results of any ongoing investigation and the basis for closure of any previous investigation and any information that may be relevant to a determination of eligibility and/or removability. High-Side Checks Intelligence Community FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 4'5 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001028 Case Document 198-2 Filed 07/06/18 Page 62 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCENIEN SENSITIVE Internal Vetting Consists of DHS, open source or other systems checks; ?le review; interviews, request for evidence (RFE), and site visits for the purpose of determining eligibility. Known 0r Suspected Terrorist National Security Concern When an individual or organization has been determined to have prior, current or planned involvement in or association with an activity, individual or organization described in section (the Immigration and Nationality Act (INA). A NS concern includes all other NS concerns, regardless of source, including but not limited to: associates of unindicted co-conspirators, terrorist organization members, persons involved with providing material support to terrorists or terrorist organizations, and agents of foreign governments. Tearline FOR OFFICIAL USE ONLY FOUO - LAW ENFORCEMENT SENSITIVE 4'6 This document is to be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to FOUO. It contains information that may be exempt from release under the Freedom of Information Act (5 U.S.C. 552). This information shall not be distributed beyond the original addressees without prior authorization of the originator. Confidential - Subject to Protective Order DEF-00001029 Case Document 198-2 Filed 07/06/18 Page 63 of 89 MC Case 0-0094- RAJ Document 198- 2 Filed 07/06/18 Page 64 of 89 U. S. Department of Homeland Security U. S. Citizenship and Immigration Seivices Office of the Director Washington, DC 20529 U. Citizenship and Immigration Services . FEB ?6 2009 Memorandum Field Leadership FROM: Michael Aytes Acting Deputy Director SUBJECT: Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns I. Purpose This memorandum provides further guidance for adjudicating National Security (NS) cases/concerns. It speci?cally addresses the following: 0 Cases that involve pending NS concerns but appear to be otherwise approvable; 0 Cases that involve indicators of NS concerns that have been ?removed? by the record owner; 0 The level of review required for the adjudication of KnoWn or Suspected Terrorist (KST) NS concerns; and Decon?iction. Most notably, under this guidance cases with unresolved KST NS concerns can be granted only after concurrence by the USCIS Deputy Director. 11. Background On April 11, 2008, USCIS released a memorandum entitled, ?Policy for Vetting and Adjudicating Cases with National Security Concerns? (CARRP memo). This memorandum instituted the Controlled Application Review and Resolution Program (CARRP), a disciplined, agency-wide approach for identifying, processing, and adjudicating applications and petitions KST is a category of individuals who have been nominated and accepted for placement in the Terrorist Screening Database (TSDB), are on the Terrorist Watch List, and have a specially?coded lookout posted in and/or Consular Lookout and Support System (CLASS), as used by the Department of State (DOS). A KST 1n IBIS has a record number beginning with a for person and ending in a 10, and should indicate that the individual 1s a ?Suspected Terrorist.? A KST in NCIC has a record number beginning See Operational Guidance for each USCIS component. FOR OFFICIAL USE ONLY (F OUO) - LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000191 Case Document 198-2 Filed 07/06/18 Page 65 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of, Cases Involving National Security Concerns I Page 2 involving an identi?ed National Security (NS) concern. CARRP involves the following four separate, but often overlapping, procedures: 1. Identifying NS concerns; 2. Internal Vetting and Assessing Eligibility in Cases with NS concerns;~ 3. External Vetting of NS concerns; and 4. Adjudicating cases with NS concerns Adjudication?). CARRP decentralized the process of vetting and adjudicating cases with NS concerns. Thus, the field2 assumed responsibility for vetting cases involving concerns and adj udicating all NS-related cases. After the release of the CARRP memorandum, Domestic Operations and Refugee, Asylum, and International Operations issued coordinated Operational Guidance3 to implement CARRP within their respective directorates. In June 2008, to enhance the accuracy of NS records maintained by US CIS conducted a Worksheet Inventory Audit of previously reported NS concerns. This audit, which included signi?cant input from the ?eld, disclosed the need to clarify CARRP policy and procedures. This memorandum aims to address that need for clari?cation as well as various questions that have arisen since the issuance of the above referenced Operational Guidance. . External Vetting in Cases involving KST NS Concerns Current CARRP guidance prohibits the external vetting of KST cases by the ?eld. has sole responsibility for conducting external vetting when a case appears to be otherwise approvable after internal vetting and the completion of an eligibility assessment.4 2 The term ??eld? refers to Field Of?ces, Service Centers, the National Bene?ts Center, and equivalent of?ces within the Refugee, Asylum, and International Operations Directorate. 3 Neufeld, Don, Operational Guidance for Vetting and Adjudicating Cases with National Security Concerns, Memorandum for Field Leadership, April 24, 2008. Ow, Alanna, Guidance for the International Operations Division on the Vetting, Decon?iction, and Adjudication of Cases with National Security Concerns, Memorandum for Overseas District Directors, April 28, 2008. USCIS Asylum Division, Identity and Security Checks Procedures Manual Section Cases Involving Terrorism or Threats to National Security, Procedures Manual, revised August 2008. (The ISCPM revised to incorporate CARRP procedures was issued via the Joseph E. Langlois memo Issuance of Revised Section of the Identity and Security Checks Procedures Manual Regarding Vetting and Adjudicating Cases with National Security Concerns, Memorandum for Asylum Division, May 14, 2008.) USCIS Refugee Affairs Division, Refugee Adjudication Standard Operating Procedure: Cases Involving National Security Concerns, Standard Operation Procedure, May 12, 2008. 4 This policy applies to all applications and petitions that convey immigrant or non-immigrant status. This policy does not apply to petitions that do not convey immigrant or non-immigrant status. ?See Operational Guidance for instructions. FOR OFFICIAL USE ONLY (F OUO) - LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000192 Case Document 198-2 Filed 07/06/18 Page 66 of 89 FOR OFFICIAL USE ONLY (F OUO) LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 3 Note: External vetting is not to be confused with decon?iction, which of?cers5 are required to complete for cases involving KST NS concerns. Decon?iction involves coordination between USCIS and the LEA/record owner to ensure that planned adjudicative activities interview, RFE, ?nal decision, NTA issuance, etc., and the timing of such) do not compromise or impede an ongoing investigation or other record owner interest. External vetting consists of making inquiries to record holders 1n possession of NS information speci?cally to determine the nature and relevance of the NS concern to a determination of eligibility and/or removability.6 If, following internal vetting and an initial eligibility assessment, an of?cer determines that the applicant or petitioner appears to be otherwise eligible for the bene?t sought, the following steps must be followed: 0 The of?cer must complete all decon?iction (if the record owner is known) prior to forwarding the physical ?le7 to for external vetting; (Note: will return cases Where internal vetting and/or decon?iction were not properly completed and/or documented by the of?cer); 0 As required by Operational Guidance, a supervisor must verify (and concur) that the internal vetting and decon?iction was completed, that the Fraud Detection and National Security Data System (FDNS-DS) was properly updated with all relevant information, and that the physical ?le was properly documented with a Background Check and Adjudicative Assessment (BCAA) (generated by DNS-DS or created manually using the Word template when generated from DNS-DS is not possible).8 Supervisory concurrence that internal vetting and decon?iction was completed be indicated in (?activities? tab) prior to forwarding the ?le; 0 The of?cger must complete a Request for Assistance to following current guidanceg; and 0 The of?cer must charge the ?le to COW D0004 1n NF TS and forward the physical ?le to attention Milagros Castillo. Of?cers are reminded that they may request both vetting and adj udicative assistance from simultaneously, and should do so in cases involving KSTs or in litigation.10 5 The term ?of?cer? is used here generally to refer to any of?cer with CARRP responsibilities. Operational Guidance will dictate the speci?c of?cer g. FDNS-IO or CARRP-trained adjudications of?cer) responsible for each speci?c task. 6 Exact de?nitions can be found 1n the Operational Guidance for each component 7 The Asylum Division has sent electronic copies of the contents of the ?les 1n the past and may continue to do so unless indicates that the physical ?le 1s necessary for external vetting The Refugee Affairs Division interviews applicants overseas often in remote locations and, in most cases, uses a work ?le rather than an A?File when processing the case. As such, in the overseas Refugee context, copies of the contents of the ?le may be sent to for external vetting 8 Of?cers must ensure that all data included 1n a manually created BCAA has been entered into FDNS-DS 9Current guidance can be found 1n the Operational Guidance for each component. 10 Of?cers may also request adjudicative assistance (as opposed to external vetting assistance) ?'om in cases where a basis for denial has been identi?ed, but, after seeking both supervisory and legal review at the local level, the of?cer has concerns about the strength of the proposed denial or concerns regarding whether it is FOR OFFICIAL USE ONLY FOUO LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000193 Case Document 198-2 Filed 07/06/18 Page 67 of 89 FOR OFFICIAL USE ONLY (F OUO) - LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 4 will perform external vetting including certain high-side (classi?ed intelligence databases) checks. In cases where does not uncover grounds of ineligibility or inadmissibility that would support a ground of denial, they will seek declassi?cation of any information that could be used to support a denial, or seek permission to use such information in a denial, as outlined in the ?Ridge Memo.?? Upon gompletion of all external vetting, will return cases to the submitting of?cer when . It has determined that the information obtained during external vetting 1s suf?cient to support a denial of the 3pending application/petition; or 0 HQ senior leadership13 and the USCIS Deputy Directo1 1ecommend approval of the application; and . The HQ program of?ce with jurisdiction over the case, in coordination with and Of?ce of Chief Counsel has issued written direction to the ?eld on how to proceed with the adjudication.14 IV. Handling .Cases in which KST Hits have been Removed from appropriate to issue a denial under the circumstances of the case and the senior-level of?cial (as de?ned in Operational Guidance) concurs with the of?cer?s request for assistance. Department of Homeland Security Guidelines for the Use of Classi?ed [Iy?ormaz?ion in Immigration Proceedings, October 4, 2004. ?3 HQ Senior leadership may include senior representatives from Domestic Operations or Refugee, Asylum and International Operations, depending on program jurisdiction, along with National Security and Records Veri?cation, and Chief Counsel. ?4 Guidance on how to proceed with the adjudication will be provided to senior-level of?cials in writing by HQ senior leadership. FOR OFFICIAL USE ONLY OUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000194 Case Document 198-2 Filed 07/06/18 Page 68 of 89 FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 5 Confidential - Subject to Protective Order DEF-00000195 Case Document 198-2 Filed 07/06/18 Page 69 of 89 FOR OFFICLALL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 6 V. Elevation of Cases Involving NS Concerns Any denial, referral, or Notice of Intent to Deny (N OID) an application or petition with NS concerns must be based on statutory or regulatory grounds of ineligibility that can be cited in. a decision?. If upon the completion of all required vetting and decon?iction, an applicant or petitioner with an unresolved NS concern appears to be otherwise eligible for the bene?t sought, the of?cer may: 1. Recommend approval of the application or petition and must elevate this recommended approval to the senior-level of?cial19 for consideration/concurrence; or 2. Recommend further review of the application or petition and must elevate this recommendation to the senior?level of?cial. If the senior-level of?cial concurs with the recommendation to approve the pending application or petition, and adjudication of the case has not been ordered withheld in accordance with 8 CFR the senior-level of?cial must sign and date the BCAA (generated by and the of?cer must update FDNS-DS (?activities? tab) to re?ect the concurrence. These cases must be updated in to re?ect a case status of ?Closed? and sub-status of concern Not Resolved.? Supervisors must verify that the above was completed, documented in the physical ?le, and properly updated within prior to ?nal adjudication. In the case where the of?cer recommends further review and the senior-level of?cial determines that the application should be approved, the senior?level of?cial will return the application to the of?cer for adjudication consistent with the of?cial?s guidance. . In the case where the senior-level of?cial does not concur with the of?cer?s recommendation to approve the pending application or petition, or would like assistance from the senior? level of?cial may submit a formal Request for Assistance (to include Vetting Assistance or Adjudicative Assistance, as desired) to If, upon the completion of additional vetting by the subject remains eligible for the bene?t sought, the senior-level of?cial may: 1. Provide ?nal concurrence to the of?cer for approval; or ?8 NOTE: Where a basis for denial of an NS case has been identi?ed, but the of?cer has concerns about its strength or concerns regarding whether it is appropriate to issue a denial under the circumstances of the case, of?cers are strongly encouraged to seek supervisory and/or legal review of the proposed denial before issuing a ?nal decision. Upon review of a case involving a NS concern, the senior-level of?cial may determine that the denial should be issued, the case should be approved, or the case should be elevated to the HQ program of?ce with jurisdiction over the case for additional guidance. 19 The term ?senior?level of?cial? refers to local management for domestic Field Of?ces and Service Centers and HQ components within the Refugee, Asylum, and International Operations Directorate. 2? The of?cer may annotate the BCAA to indicate that senior level approval was received and attach a copy of the written directive from the senior?level of?cial. i FOR OFFICIAL USE ONLY (F OUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000196 Case Document 198-2 Filed 07/06/18 Page 70 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 7 2. Request written direction on how to proceed with the adjudication from the HQ program of?ce with jurisdiction over the case. VI. Additional Decon?iction Guidance Federal Bureau of Investigation (FBI) Law Enforcement Agency (LEA) or Intelligence Community Member (IC) The CARRP Operational Guidance for Domestic Operations listed the FBI as both an LEA and a member of the IC, and indicated that officers in the ?eld were not permitted to contact members of the IC for vetting or decon?iction. This created confusion as to whether of?cers in the ?eld were permitted to contact the FBI in connection with carrying out their responsibilities under CARRP. Of?cers in the ?eld permitted to contact the FBI record owner in order to vet and decon?ict cases with NS concerns, unless otherwise speci?ed in the Operational Guidance. Of?cers are reminded that they are not permitted to perform external vetting for KST hits. However, they must perform decon?iction with KST record owners (including the FBI) prior to taking any adjudicative action. Withholding of Adjudication As part of the decon?iction process, of?cers are required to contact the LEA/record owner to advise the owner of contemplated adjudicative actions and determine if the LEA/record owner has an open investigation on the subject. The purpose of this decon?iction is to ensure that adjudicative action will not interfere with an open investigation. In performing decon?iction, of?cers should make an effort to explain the scope and nature of the immigration bene?t sought by the subject from USCIS. Of?cers should also present the LEA/record owner with the opportunity to formally request that the application be held in abeyance in accordance with 8 CFR Any requests for abeyance must be made to the District Director21 in writing on agency letterhead (can be received via fax or email attachment), reviewed by the local Of?ce of Chief Counsel (OCC), and recorded in FDNS-DS. 21 For purposes of exercising the authority provided under 8 CFR to hold a case in abeyance, the term ?District Director means District Director, Service Center Director, and any equivalent Director within the Refugee, Asylum, and International Operations Directorate. 8 CFR FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000197 Case Document 198-2 Filed 07/06/18 Page 71 of 89 FOR OFFICIAL USE ONLY (FOUO) 4 LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 8 Handling Cases where there is No Record or Identi?ed Record Owner There may be cases Where a NS concern is identi?ed during an interview or other interaction with the applicant or petitioner. In the absence of TECS records, IBIS information, or other indication of a record, an evaluation of the NS concern must be made based on information obtained from the applicant, decon?iction with external sources, and public information.22 Per 22 Of?cers may request assistance from at the completion of internal vetting and eligibility assessment. FOR OFFICIAL USE ONLY (F - LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000198 Case Document 198-2 Filed 07/06/18 Page 72 of 89 FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns Page 9 the CARRP Memo, external vetting is not required if there is no identi?ed record owner.23 . Where an applicant or petitioner is denied a bene?t based on the NS concern identi?ed through interactions with the subject or by other means, the of?cer must enter a record into for future reference by law enforcement. VII. Additional Ancillary Bene?t Adjudication Guidance Field offices may approve ancillary bene?t applications24 with both KST and NS concerns after 60 days25 if vetting is not complete. The purpose of the 60-day evaluation period is to enable the of?cer to verify the individual?s identity and to make an initial determination as to whether rescission and or removal proceedings may be appropriate. Of?cers are reminded that 8 C.F.R. 274a.l3(d) requires that 1-765 applications be adjudicated within 90 days of receipt unless an interim Employment Authorization Document (EAD) is issued or an exception applies. This guidance does not apply to 1-765 applications for initial EADs under 8 C.F.R. and 208.7 based on an underlying asylum application that. has been pending for at least 150 days at the time of ?ling. In such cases USCIS must adjudicate the Within 30 days of receipt. When an ancillary bene?t with an unresolved NS concem is approved and there is no other pending application or petition, FDNS-DS must be updated to re?ect ?Closed? and the sub-status to re?ect concern Not Resolved.? Conclusion This memorandum is provided as guidance to of?cers for the handling of cases involving national security concerns. If of?cers have further questions regarding policy and procedures related to these cases, such questions should be raised through the of?cers? chain of command. If the chain of command is unable to provide further guidance, supervisory of?cers may send a Request for Assistance for policy or procedure guidance to the FDNS-NSB mailbox, according to current procedures. 23 Scharfen, Jonathan R., Policy for Vetting and Adjudicating Cases with National Security Concerns; Memorandum for Field Leadership, April 11, 2008. Section IV, Part reads: ?in a case with a NS Concern, the of?cer must initiate the external vetting process before the case may proceed to ?nal adjudication there is an identi?ed record owner in possession of NS Programs may require external vetting in some circumstances as identi?ed in Operational Guidance. 24 Form 1-7 65, Application for Employment Authorization and Form 3 Application for Travel Document. 25 Future agency policy may have an effect on the currently required 60-day evaluation period for Form 1?90, Application to Replace Permanent Resident Card. FOR OFFICIAL USE ONLY (FOUO) - LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000199 Case Document 198-2 Filed 07/06/18 Page 73 of 89 AtahntD Case 0-0094- RAJ Document 198- 2 Filed ?Paam74 Depa ent otp Security U. Citizenship and Immigration Services FOR OFFICIAL USE ONLY (FOUO) Of?ce 0m,? 0mm LAW ENFORCEMENT SENSITIVE Washington, DC 20529 9? US. Citizenship and Immigration ?of Services JUN - 5 2009 HQ 70/43 Memorandum ?xw FROM: eufelK ?Acting Associate Director, Domestic Operations SUBJECT: Clari?cation and Delineation of Vetting and Adjudication Responsibilities for Controlled Application Review and Resolution Program (CARRP) Cases in Domestic Field Of?ces 1. Purpose The purpose of this memorandum is to provide guidance to de?ne the vetting and adjudication responsibilities for Controlled Application Review and Resolution Program (CARRP) cases in the domestic Field Of?ces. It outlines the distinctions between the duties and responsibilities of Fraud Detection and National Security Immigration Of?cer (FDNS-IO) and CARRP?trained Immigration Services Of?cer (CARRP-ISO). It also explains the roles of Supervisory Immigration Services Of?cer (S180) and FDNS-Supervisory Immigration Of?cer at each ?eld Of?ce. II. Background On April 11, 2008, USCIS released the memorandum, Policy for Vetting and Adjudicating Cases with National Security Concerns (CARRP memo). This memo instituted the CARRP process, a disciplined approach for identifying, recording, and adjudicating applications and petitions where a National Security (NS) concern is identi?ed. CARRP involves four unique, but overlapping, processing steps. These include: 1. Identifying a NS Concern 2. Assessing Eligibility in Cases with a NS Concern, consisting of: i. Eligibility Assessment ii. Internal Vetting 3. External Vetting 4. CARRP Adjudication Moreover, CARRP decentralized the process of vetting and adjudicating cases with NS concerns. Prior to CARRP, all such cases were handled at the Headquarters Of?ce of Fraud Detection and National Security With the release of CARRP, responsibility for vetting and FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000009 Case Document 198-2 Filed 07/06/18 Page 75 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 2 Clari?cation and delineation of vetting and adjudication responsibilities for CARRP cases in Domestic Field Of?ces. adjudicating most cases with NS concerns was placed with Field Of?ces, allowing USCIS to leverage ?eld resources and experienced of?cers for handling these dif?cult cases. After the release of the CARRP memo, Domestic Operations (DomOps), Refugee Affairs Division, International Operations, and the Asylum Division issued separate, but coordinated, Operational Guidance for the implementation of CARRP within their programs. The following guidance is provided to help de?ne the vetting and adjudication responsibilities for CARRP cases in the Domestic Operations Field Of?ces. Policy Guidance The current Operational Guidance for Vetting and Adjudicating Cases with National Security Concerns (Operational Guidance), issued by Domestic Operations, provides general guidelines for the processing of cases with National Security (NS) concerns under CARRP, stating the various steps of the process will be completed by a ?designated officer? While the Operational Guidance states that a ?designated of?cer? may be ?an Immigration Analyst, Immigration Of?cer, Adjudications Of?cer, Asylum Of?cer or Refugee Of?cer,? the Of?ce of Field Operations (OFO) is issuing this memorandum in order to establish the assignment of speci?c CARRP duties and responsibilities to the FDNS-IOS and the CARRP- ISOs who perform CARRP adjudications within each Field and District Of?ce or on temporary duty at a Field or District Of?ce. Per the Operational Guidance, a Field Of?ce Director (FOD) will designate a speci?c Immigration Services Of?cer(s) to be trained in both CARRP procedures and the use of the Fraud Detection and National Security Data System (FDNS-DS). In addition, the memorandum entitled, Actions to be Taken to Standardize CARRP File Identification and the Movement of CARRP Cases Between the Components of USCIS, dated March 26, 2009, authorizes the FOD to also designate one or more 8180s in each Field Of?ce to perform some or all of the duties described herein for a SISO if he or she chooses. The SISO will play a central role in managing the CARRP process by coordinating the movement of CARRP ?les, assigning CARRP cases to a CARRP-ISO for adjudication, and providing supervisory concurrence for ?nal adjudication of CARRP cases. Additionally, the OD will outline local procedures regarding supervision, coordination and actions of the FDNS-IO and CARRP-ISO when there is no FDNS-Supervisory Immigration Of?cer (FDNS-SIO) located in the Field Of?ce. Clarification of Duties and Responsibilities within the CARRP Process: As mentioned earlier, The Operational Guidance breaks down the CARRP process into four steps. 1. Identifying a NS Concern Step 1 of CARRP Process: FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000010 Case Document 198-2 Filed 07/06/18 Page 76 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 3 Clari?cation and delineation of vetting and adiudication responsibilities for CARRP cases in Domestic Field Of?ces. As noted in section of the Operational Guidance, indicators of a NS concern may be identi?ed at any time during the adjudicative processing of an application or petition. When such an indicator is noted for a case within a Field Of?ce, the FDNS-IO is responsible for completing the identi?cation of the NS concern. To do this, the FDNS-IO does the following: More detailed guidelines on completing the identi?cation of a NS concern are available in the Operational Guidance, section In many instances, CARRP cases received in a Field Of?ce will have gone through Step One of the Operational Guidance, ?Identifying a NS Concern? at either a Service Center or the National Bene?ts Center (NBC). In such cases, the SISO overseeing the CARRP process in each Field Of?ce will coordinate with the DNS-SIO, if available, or follow local procedures to have the case assigned to the appropriate for Step Two of the Operational Guidance, ?Assessing Eligibility in Cases with a NS Concern.? The SISO will also assign a CARRP-ISO to adjudicate the application or petition in each CARRP case. 2. Assessing Eligibility in Cases with 21 NS Concern Step 2 of CARRP Process: Step 2 of the Operational Guidance includes both an eligibility assessment and internal vetting of the CARRP case. The purpose of Step 2 is two-fold: First, it is at this point in the CARRP process where both the FDNS-IO and the CARRP-ISO are required to thoroughly review the case ?le. The FDNS-IO completes required systems checks and internal vetting, and the CARRP-ISO completes an eligibility assessment of the CARRP case to determine whether any statutory or regulatory ineligibility exist. Second, speci?c questions and issues are compiled by both the FDNS-IO and the CARRP-ISO for discussion with the Record Owner of the NS hit so that the critical decisions, such as when an interview should be scheduled, can be made regarding adjudicating the application or petition. The FOD in each Field Of?ce will decide on the work?ow of the CARRP case for this step of the CARRP process. More detail about the features of the elements of step two are described below: FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000011 Case Document 198-2 Filed 07/06/18 Page 77 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 4 Clari?cation and delineation of vetting and adiudication responsibilities for CARRP cases in Domestic Field Of?ces. a. The Eligibility Assessment The CARRP-ISO assigned to adjudicate the CARRP case will conduct a complete review of the case ?le in order to assess the individual?s eligibility for the bene?t sought and identify any questions and/or issues for discussion with the Record Owner during decon?iction. Any denial at this stage in the CARRP process shall be issued only after proper decon?iction, completion of required systems checks and supervisory concurrence. No denial shall be issued at this stage in the CARRP process based solely on discretionary grounds. See Section IV, ?Assessing Eligibility in Cases with a NS Concern Step 2 of CARRP Process? of the Operational Guidance. The CARRP-ISO is responsible for documenting their actions related to the adjudication process in FDNS-DS at all stages of the adjudications process. b. Internal Vetting The FDNS-IO is responsible for conducting the internal vetting of a CARRP case. This includes a complete review of the ?le to obtain any relevant information to support the adjudication, to perform the required systems checks, ensuring all systems checks are current, and, in some cases, to further examine the nature of the NS concern. A complete list of both the required and suggested systems checks which are a part of the internal vetting process can be found in Section IV, ?Assessing Eligibility in Cases with a NS Concern Step 2 of CARRP Process? of the Operational Guidance. The FDNS-IO is responsible for documenting his or her actions in FDNS-DS throughout the CARRP process. As in the Eligibility Assessment part of this step, any denial at this stage in the CARRP process shall be issued only after proper decon?iction, completion of required systems checks and supervisory concurrence. No denial shall be issued at this stage in the CARRP process based solely on discretionary grounds. See Section IV, ?Assessing Eligibility in Cases with a NS Concern Step 2 of CARRP Process? of the Operational Guidance. Performance of the eligibility assessment, internal vetting and decon?iction processes must be closely coordinated between the and the FDNS-IO. The FOD or SISO must ensure that there is ef?cient communication between and FDNS-IOs so that mistakes are not made. 0. Decon?iction As the Field Of?ce?s primary point of contact and liaison with Law Enforcement Agencies (LEA), the FDNS-IO is responsible for decon?iction with the Record Owner FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000012 Case Document 198-2 Filed 07/06/18 Page 78 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 5 Clari?cation and delineation of vetting and adiudication responsibilities for CARRP cases in Domestic Field Of?ces. for all CARRP cases. are reminded that decon?iction may be necessary at any stage of the CARRP process and that decon?iction may need to be completed more than once before the ?nal adjudication of a CARRP case. Again, this emphasizes the need for the FDNS-IO to maintain ef?cient communication with the appropriate CARRP- ISO and the 8180. When contacting an LEA, it is also important for FDNS-10s to remember that they must be careful to observe all security and special handling precautions in accordance with DHS and originating Record Owner requirements. Maintaining good security protocols promotes close and productive relationships with law enforcement partners. As per the Operational Guidance, the may ask the Record Owner whether their agency has additional information (other than NS related information) that would affect the eligibility for the bene?t sought. The FDNS-IO may also seek to resolve any other relevant concerns criminal, public safety, fraud) identi?ed through the security check process or review of the ?le. The FDNS-IO should explain the bene?t sought to the Record Owner and bring up any questions or issues requested by the CARRP-ISO during the eligibility assessment in order to gain as much information as possible for the adjudication of the case. When possible, the FDNS-IO should include the when contacting the Record Owner for decon?iction. Complete instructions for decon?iction are in Section IV, part C, ?Decon?iction? of the Operational Guidance. d. Documenting Eligibility Assessment and Internal Vetting The results of the eligibility assessment, internal vetting and decon?iction must be fully documented in FDNS-DS. A copy of the Background Check and Adjudicative Assessment (BCAA) Report should then be printed from FDNS-DS and placed in the A- File. Both the FDNS-IO and the CARRP-ISO are responsible for entering their activities, documentation, etc. into the FDNS-DS system throughout the CARRP process. USCIS policy requires that each action taken while working on a CARRP case is immediately entered into FDNS-DS and that each process phase be immediately updated as it is completed in order to ensure accurate reporting for each NS case. Field Of?ces may have varying local procedures to ensure FDNS-DS is fully up-to-date at the end of each and every stage of the CARRP process. Such procedures are permissible provided that all information pertaining to each CARRP case is entered into FDNS-DS at the appropriate time as dictated by FDNS-DS User Guidelines. (See the FDNS web site on the USCIS intranet). e. Individual Deemed Eligible for the Bene?t FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000013 Case Document 198-2 Filed 07/06/18 Page 79 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 6 Clari?cation and delineation of vetting and adiudication responsibilities for CARRP cases in Domestic Field Of?ces. Per the Operational Guidance, when a NS concern remains and the individual is deemed eligible for the bene?t at the Eligibility Assessment/Internal Vetting stage, no bene?t may be granted until external vetting is complete, unless an exception applies. See Section ?Case Speci?c Exceptions and Miscellaneous Guidance?, which includes ancillary bene?ts, 1-903, Santillan cases, motions, appeals, exemptions and dealing with classi?ed information. 3. External Vetting Step 3 of CARRP Process: a. KST NS Concerns Pursuant to current CARRP guidance, in the Field are not authorized to conduct external vetting with a Record Owner in possession of NS information where NS concerns indicate the subject is a KST. are authorized to conduct internal vetting of KST cases, as designated earlier in this memo, while CARRP-ISOS are authorized to conduct an initial eligibility assessment of KST cases. has sole responsibility for external vetting of KST NS concerns and conducts external vetting only as a last resort when the NS Concern remains and ineligibility grounds have not been identi?ed. If, following internal vetting and an initial eligibility assessment, the applicant or petitioner is found to be otherwise eligible, either the FDNS-IO or the CARRP-ISO must proceed as follows: 0 The must complete the initial eligibility assessment and update FDNS-DS accordingly; 0 The FDNS-IO must complete all internal vetting and decon?iction and update FDNS-DS accordingly; and 0 Per local procedure established by the FOD, either the SISO in charge of CARRP or the FDNS-SIO, must verify that the internal vetting and decon?iction was completed, documented in the physical ?le by including a copy of the BCAA report (printed from DNS-DS), and all actions are properly updated within FDNS-DS. Supervisory concurrence must be indicated in FDNS-DS. Per the Operational Guidance ?local management? (either the FOD or the District Director (DD) which is to be determined in each Field Of?ce) must review the case to con?rm that no grounds of ineligibility have been identi?ed. Local management (FOD and/or DD as per local policy) concurrence must be indicated in FDNS-DS. Per local of?ce procedures, the FOD or designated supervisor (?Designated supervisor? may be an 8180 or FDNS-SIO, depending on local staf?ng), in charge of CARRP will designate which of?cer, the or the must complete a Request for Assistance (RFA) to as noted in Section 11.8 of the Operational Guidance. FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000014 Case Document 198-2 Filed 07/06/18 Page 80 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 7 Clari?cation and delineation of vetting and adjudication responsibilities for CARRP cases in Domestic Field Of?ces. Also per local of?ce procedures, the POD or SISO will designate which personnel will charge the ?le to COW FD0004 in NFTS and forward the physical ?le to attention Milagros Castillo, Staff Assistant. FDNS-IOs and CARRP-ISOS are reminded that they may request both vetting and adjudicative assistance from and should do so in cases involving KSTs or cases in litigation. b. NS Concerns The FDNS-IO in each Field Of?ce is responsible for conducting external vetting of Non- KST cases. Complete instructions for Section V, ?External Vetting Step 3 of CARRP Process? are available in the Operational Guidance. The FDNS-IO must seek any additional information that may be relevant to a determination of eligibility. This may include information concerning indicators of fraud, foreign travel and information about employment or family relationships that would otherwise not rise to the threshold necessary for criminal prosecution. It is vital for the FDNS-IO to clearly document any facts or fact patterns found during the external vetting process for use by the CARRP-ISO in the ?nal adjudication of the case. As stated earlier, the FDNS-IO is the primary point of contact and liaison for external vetting of CARRP cases with any LEA, Record Owner and relevant agency. Complete instructions for Section V, ?External Vetting Step 3 of CARRP Process? are available in the Operational Guidance. Throughout the CARRP process, DNS-IOS must conduct decon?iction as necessary. This is done to ensure that planned adjudicative activities interview, request for evidence, site visit, decision to grant or deny a bene?t, or timing of the decision) do not compromise or impede an ongoing investigation or other Record Owner interest. This requires close coordination with the CARRP-ISO regarding any interview that may be necessary or required to complete the adjudicative process. It is vital for the FDNS-IO to fully document all activities and their results connected with external vetting in FDNS-DS. This documentation must be completed before the case moves forward in the CARRP process. The FDNS-IO must also ensure decon?iction is complete and documented properly in FDNS-DS before any CARRP case goes forward for adjudication. 4. CARRP Adjudication Step 4 of CARRP Process: are responsible for the adjudication of CARRP cases assigned to them by the 8180 in charge of CARRP, or the POD, in each Field Of?ce. The CARRP-ISO must check FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000015 Case Document 198-2 Filed 07/06/18 Page 81 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 8 Clari?cation and delineation of vetting and adjudication responsibilities for CARRP cases in Domestic Field Of?ces. FDNS-DS to ensure decon?iction is complete before adjudicating any CARRP case. If the decon?iction does not appear in the record, the CARRP-ISO shall inform the SISO responsible for CARRP cases. The SISO must then contact the FDNS-SIO, if one is located in the Field Of?ce, to direct the DNS-IO to either complete the required decon?iction and document this action in FDNS-DS or, if decon?iction has been completed, direct the FDNS-IO to complete the documentation of the decon?iction in FDNS-DS. If a Field Of?ce does not have an the SISO must follow local procedures to contact an FDNS-IO to complete and/or document the required decon?iction in FDNS-DS. a. Adjudicating Applications with KST NS Concerns Upon completion of all external vetting, will return cases to the submitting of?cer when: 1. has determined that the information obtained during external vetting is suf?cient to support a denial of the pending application or petition; or 2. HQ senior leadership and the USCIS Deputy Director recommend approval of the application or petition. Following this recommendation, the HQ program of?ce with jurisdiction over the case, in coordination with and Of?ce of Chief Counsel, will issue written direction to the ?eld on how to proceed with adjudication. b. Adjudicating Applications or Petitions with NS Concerns The CARRP-ISO must obtain supervisory approval and concurrence from the FOD in order to approve any application or petition that grants a bene?t to an individual with remaining NS concerns. Once the OD concurs that the individual is otherwise eligible for the bene?her discretion to have the CARRP-ISO grant the bene?t or the FOD may designate either the FDNS-IO or the CARRP-ISO to request further assistance from (Adjudication Support Unit). (See Section VI, ?Requesting Vetting Assistance from in the Operational Guidance.) If, alter consultation with the respective HQ component, the FOD decides to grant the bene?t, the FOD, or designee, must document all adjudicative actions in FDNS-DS, and print out the BCAA report for inclusion in the case ?le. REMEMBER: Both and CARRP-ISOS have distinct duties to perform in the processing of CARRP cases; however, close cooperation and coordination of effort between Of?cers is necessary in order to bring each case to completion. Field Of?ce personnel are reminded to follow the guidelines for con?dentiality, Privacy Act requirements DHS Handbook for Safeguarding Sensitive Personally Identi?able Information) and handling sensitive but unclassi?ed (For Of?cial Use Only FOUO) FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000016 Case Document 198-2 Filed 07/06/18 Page 82 of 89 FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE 9 Clari?cation and delineation of vetting and adiudication responsibilities for CARRP cases in Domestic Field Of?ces. information while working on all CARRP cases. Speci?c guidelines may be found in Sections D, pages 7 8 of the Operational Guidance. In addition, Field Of?ce personnel are reminded to adhere to all security-related policies related to protecting FOUO and classi?ed information. Speci?c guidelines regarding the provisions of Executive Order are found in the Operational Guidance. Information regarding the speci?c regulations governing the protection of FOUO and Executive Order 12958, as amended, Classi?ed National Security Information, is available at the intranet site of the USCIS Of?ce of Security and Investigations. IV. Contact Information Questions regarding this memorandum may be directed through of?cial channels to HQ, Of?ce of Field Operations. Distribution List: Regional Directors District Directors Service Center Directors Field Of?ce Directors National Bene?ts Center Director FOR OFFICIAL USE ONLY (FOUO) LAW ENFORCEMENT SENSITIVE Confidential - Subject to Protective Order DEF-00000017 Case Document 198-2 Filed 07/06/18 Page 83 of 89 AtalmtE Case 0-0094- RAJ Document 198- 2 Filed 07/06/18 Page 84 of 89 US. Repartme of Homeland Se 1: unity U. S. Citizenship and Immigration Sen 1ces O?ice of Fraud Detection and National Security Washington, DC 20529 eve t3 5; $111291?th Em and Immigratio? Stef? Supplemental Guidance: Revision of Responsibilities for CARRP Cases Involving Known or Suspected Terrorists A. KST Hits has issued a policy memo directing that external vetting for KSTs should now be done by local Field Of?ces and Service Centers. These questions and answers serve as supplemental guidance to clarify the requirements of the new CARRP policy, and answer questions raised during the drafting phase of the policy. CARRP procedures and requirements outlined in existing policy and operational guidance (provided by various HQ directorates) remain the same, other than those speci?ed in the attached policy memorandum. Also, this revised policy does not replace existing protocols, work ?ow process and procedures, or delineated roles and responsibilities of USCIS of?cers currently processing CARRP cases. 1. Who will conduct external vetting of KST cases? Confidential - Subject to Protective Order DEF-00001095 Case Document 198-2 Filed 07/06/18 Page 85 of 89 3. What is the difference between KST and external vetting? Confidential - Subject to Protective Order DEF-00001096 Case Document 198-2 Filed 07/06/18 Page 86 of 89 7. How should the KST cases be elevated to respective HQ directorate? 8. What will happen to the existing Request for Assistance (RFA) process? 9. Can the field contact the record owner who is a member of the Intelligence Committee? 1 These KSTs are generally nominated by certain members of Intelligence Community for which a POC is not available. Confidential - Subject to Protective Order DEF-00001097 Case Document 198-2 Filed 07/06/18 Page 87 of 89 AlahntF Case Document 198-2 Filed 07/06/18 Page 88 of 89 0 ?l 206 359 8000 0 I 206 359 9000 Seattle. WA 89810? 30?? Perku'isCOIe com September 20, 2017 Laura Kaplan Hennessey LHennessey@perkinscoieicom VIA OVERNIGHT MAIL +l?206r359.3592 p, +l,206.359i4592 Aaron R. Pet?y, IL 6293553 US Department of Justice Office of Immigration Litigation 219 s. Dearbom St., 5th Floor Chicago, IL 60604 Aaron.R.Pettv@usdoi.gov Edward S. White Joseph F. Carilli, Jr. District Court Section Civil Division Office of Immigration Litigation US. Department ofJustice 450 Fifth Street, NW. Washington, DC 20530 Edward.s.white@usdoi.gov ioseph.f.carilli2@usdoi.gov Re: Wagafe et al. v. Donald Trump et al. (USDC No. Document Production (Plaintiffs-FOIA 001) Dear Counsel: We have arranged to send via overnight mail a production disk to each of your offices containing copies of documents Plaintiffs obtained from the United States Citizenship and Immigration Services via FOIA request. We have bates numbered these documents: Plaintiffs-FOIA 000001 - Plaintiffs-FOIA 003636. The disk is password-protected. I have separately sent the password via email with instructions for accessing these files. Please contact me should you have any questions. Very truly yours, . -12. Laura Hennessey Enclosure 137006438] Case Document 198-2 Filed 07/06/18 Page 89 of 89 Wagafe et v. Donald Trump et September 20, 2017 Page 2 cc: Jennie Pasquarella Sameer Ahmed Nicholas P. Gellert David Perez 137006438] . i