Homeland Security shifts deportation decisions on sick immigrants to ICE

Introduction

Update Sept. 19, 2019, 6 p.m.: In the wake of public outcry, U.S. Immigration and Citizenship Services (USCIS) announced today that the agency will once again consider requests for protection against deportation submitted by immigrants suffering personal crises. These requests have benefited immigrants who are receiving life-saving medical treatment as well as caregivers of some ill people. Earlier this month, the agency reopened pending requests but with today’s announcement it will also consider new requests going forward. A USCIS spokesman said the decision to reverse course and consider new requests on a “discretionary, case-by-case basis” came at the direction of Acting Department of Homeland Security Secretary Kevin McAleenan.

Multiple lawsuits have stalled many Trump administration moves to decrease legal immigration and strip away temporary legal status protecting certain people from deportation.

But this week, bad press and an awkward rollout on one immigration change forced Department of Homeland Security officials to backtrack — just a little — after they unveiled a new rule in late August that Democratic members of Congress denounced as especially cruel.

The new rule abruptly ended a program that’s allowed a small number of immigrants with life-threatening illnesses or other desperate circumstances to request, every two years or so, a “stay” on deportation. The requests are — or were – filed with DHS’ United States Citizenship and Immigration Services. USCIS did not require immigrants seeking such reprieves — also known as “deferred action” — to go through an immigration court process and then, if they lose, try for a last-ditch reprieve from DHS’ Immigration and Customs Enforcement, ICE, which is responsible for deportations.

Now, it appears, this process is what these vulnerable immigrants will have to endure.

USCIS will still review petitions filed as of Aug. 7, officials announced Monday after the new rule came under withering attack as pitiless. A review could lead USCIS to retain a limited role in judging some requests. But at this point, this USCIS humanitarian relief appears over.

Criticism has been strong.

“This decision will needlessly endanger vulnerable children and families nationwide seeking medical deferments for individuals receiving life-saving treatment for serious illnesses. We urge you to immediately reverse this shift in policy,” argued a group of Democratic lawmakers in an Aug. 30 letter to immigration officials.

Immigrant families with sick children in hospitals panicked late last month after receiving letters from USCIS warning them that they had 33 days to leave the country or risk deportation. DHS officials made no effort to seek public comment on the new rule before abruptly making the change.  

Those affected include a 14-year-old girl from Spain waiting for heart surgery in Boston, according to Mahsa Khanbabai, a lawyer with the American Immigration Lawyers Association who represents the child. Another person is a 24-year-old woman from Guatemala, who was 7 when she was invited to the United States to participate in a rare genetic disease trial.

“What kind of stress are you putting on a young person dealing with a life-threatening illness?” Khanbabai said, remarking on the rule change.

USCIS’s role is to handle visa and citizenship applications, primarily. But the agency is now directed by former Republican Virginia Attorney General Ken Cuccinelli, an outspoken immigration hardliner.

Over the years, USCIS has received about 1,000 applications a year for this type of hardship reprieve. That’s a miniscule number for an agency that processes an average of 8 million immigration-related applications, petitions, and requests annually.

A USCIS spokesman who declined to be identified said the new rule was meant to “focus agency resources on faithfully administering our nation’s lawful immigration system.” He also said it’s “not appropriate” for USCIS to judge these requests because the agency doesn’t handle enforcement.

Alejandro Mayorkas, a former USCIS director in the Obama administration, doesn’t buy the argument that a relative few hardship reviews unjustifiably tax resources. He said he considers USCIS the best agency to evaluate these cases and uphold a system that’s consistent with American values.

Deporting ill people “will lead to tragic cases of unfairness that do not align with the goals of the system and our nation’s identity,” Mayorkas said.

Humanitarian reprieves don’t create a pathway to citizenship. But they have allowed people facing potential death or suffering to remain here lawfully and for some caregivers to apply for work authorization.

Some beneficiaries have entered the country unlawfully, others legally. A dual citizen of India and Australia, Suhas Khamgaonkar, requested a reprieve after legally living in the United States for 14 years. Her husband suddenly died in 2015, and her legal status, tied to his employer-sponsored visa, was jeopardized.

In response to media inquiries after the new rule was made public, ICE officials said initially they had no procedure in place to review applications.

ICE does grant some deportation stays, but immigration lawyers argue that ICE has rejected even the most sympathetic of cases — including the stepfather of a paraplegic child and a man suffering from diabetes and mental-health problems who grew up in the United States. The man died recently after deportation to Iraq. As the Center for Public Integrity recently reported, ICE has been accused of a poor record of responding to complaints about medical neglect and abuse in detention.

An ICE spokesman who declined to be identified said, “ICE cannot respond to baseless, vague allegations about what someone thinks are sympathetic cases. Immigration cases tend to be very complicated and are often not what they seem at first.” The agency, the spokesman said, “examines all cases on a case-by-case basis.”