Ail­ing il­le­gal im­mi­grants to be safe from de­por­ta­tion

The Washington Times Weekly - - Politics - BY STEPHEN DI­NAN

Act­ing Home­land Se­cu­rity Sec­re­tary Kevin McAleenan or­dered his de­part­ment to re­sume grant­ing stays of de­por­ta­tion to sick il­le­gal im­mi­grants, even in cases not specif­i­cally cov­ered by law, The Wash­ing­ton Times has learned.

Mr. McAleenan’s de­ci­sion to restart the pro­gram is a win for im­mi­grant rights ad­vo­cates who say de­ferred ac­tion — a de­ci­sion to de­lay de­por­ta­tion — can give il­le­gal im­mi­grants a chance to un­dergo med­i­cal treat­ment or care for ail­ing fam­ily mem­bers with­out fear of be­ing forced out of the coun­try.

“The act­ing di­rec­tor of USCIS shall en­sure that, ef­fec­tive im­me­di­ately, USCIS re­sumes its con­sid­er­a­tion of non-mil­i­tary de­ferred ac­tion re­quests on a dis­cre­tionary case-by-case ba­sis, ex­cept as oth­er­wise re­quired by an ap­pli­ca­ble statute, reg­u­la­tion or court or­der,” he wrote in a memo to U.S. Cit­i­zen­ship and Im­mi­gra­tion Ser­vices.

Ken Cuc­cinelli, act­ing di­rec­tor at USCIS, cur­tailed the pro­gram last month. He said he didn’t be­lieve the agency had le­gal author­ity to grant de­ferred ac­tion in cases where it is not specif­i­cally called for in law. Med­i­cal emer­gen­cies are not among the ar­eas de­fined in law.

Based on that read, USCIS sent no­tices to about 400 mi­grants telling them their ap­pli­ca­tions wouldn’t be con­sid­ered and they could be sub­ject to de­por­ta­tion — mean­ing they could ar­gue their cases to U.S. Im­mi­gra­tion and Cus­toms En­force­ment.

Af­ter an out­cry from im­mi­gra­tion ac­tivists, Mr. Cuc­cinelli re­lented and agreed to process the 400 cases in the pipe­line, but he sug­gested his agency would grant no fur­ther ap­provals.

Mr. McAleenan on Wednesday or­dered a full restart, though he stressed that cases would be scru­ti­nized and ap­proval would not be au­to­matic. He also told USCIS to make sure its de­ci­sions are con­sis­tent and that de­ferred ac­tion “is granted only based on com­pelling facts and cir­cum­stances.”

Mr. McAleenan or­dered Mr. Cuc­cinelli to up­date him on the progress in 30 days.

Rose­mary Jenks, gov­ern­ment re­la­tions man­ager at Num­ber­sUSA, which ad­vo­cates for stricter im­mi­gra­tion lim­its, said Mr. McAleenan should have backed off.

“I find it dis­turb­ing that Sec­re­tary McAleenan, hav­ing come from a law en­force­ment agency, would be in­sist­ing that USCIS, a non-law-en­force­ment agency, ex­er­cise an author­ity that it clearly does not have,” said Ms. Jenks. “I would hope that the head of DHS would care more about fol­low­ing the law, even if it means he has to ex­plain it.”

Politico re­ported that the USCIS pol­icy chief had writ­ten a memo lay­ing out a num­ber of op­tions for Mr. McAleenan. They in­cluded strip­ping USCIS of all de­ferred ac­tion powers, as well as re­turn­ing to the pol­icy be­fore the cur­tail­ment.

USCIS rec­om­mended tak­ing away de­ferred ac­tion powers, but Mr. McAleenan went the other di­rec­tion.

His of­fice didn’t re­spond to re­quests for com­ment Thurs­day, though the de­part­ment did in­form Congress that it had taken steps to re­turn to the pol­icy be­fore Aug. 6, when USCIS cur­tailed the pro­gram.

USCIS said it was fol­low­ing through with Mr. McAleenan’s new or­der.

“At the di­rec­tion of Act­ing Sec­re­tary McAleenan, USCIS is re­sum­ing its con­sid­er­a­tion of non-mil­i­tary de­ferred ac­tion re­quests on a dis­cre­tionary, case-by-case ba­sis, ex­cept as oth­er­wise re­quired by an ap­pli­ca­ble statute, reg­u­la­tion, or court or­der,” the agency told The Times.

Im­mi­grant rights ac­tivists and Democrats on Capi­tol Hill had ac­cused the ad­min­is­tra­tion of send­ing “sick kids” back to their home coun­tries to die. The House Over­sight and Re­form Com­mit­tee held a hear­ing to give Democrats a chance to vent their anger.

Chair­man Eli­jah E. Cum­mings, Mary­land Demo­crat, claimed vic­tory Thurs­day. He said his hear­ings forced the ad­min­is­tra­tion to re­treat.

“It should not take an emer­gency hear­ing by Congress — and threats for more — to force the Trump ad­min­is­tra­tion to do the right thing,” he said. “Be­cause of the se­crecy and ob­struc­tion sur­round­ing this pol­icy, we will be tak­ing ad­di­tional steps to ver­ify that th­ese chil­dren and their families do not need to live in fear and un­cer­tainty.”

De­ferred ac­tion has be­come a con­tro­ver­sial power for the Home­land Se­cu­rity De­part­ment. It is con­sid­ered a pros­e­cu­to­rial de­ci­sion not to pur­sue the pun­ish­ment for an of­fense — in this case, not to pur­sue de­por­ta­tion for il­le­gal im­mi­grants who win their re­quests.

It had long been used in a small num­ber of cases a year, but the Obama ad­min­is­tra­tion an­nounced in 2012 that it was ex­pand­ing de­ferred ac­tion to “Dream­ers,” cre­at­ing a de­por­ta­tion amnesty for more than 800,000 il­le­gal im­mi­grants.

USCIS, now un­der the con­trol of the Trump ad­min­is­tra­tion, said its power to is­sue de­ferred ac­tion is lim­ited. The law calls for grant­ing de­ferred ac­tion in cases in­volv­ing vic­tims of abuse or crimes, and for cases in­volv­ing mil­i­tary families.

But the law does not en­vi­sion de­ferred ac­tion in other cases such as med­i­cal needs, the agency says.

USCIS said de­ci­sions on de­ferred ac­tion be­yond what is en­vi­sioned in the law should be made by ICE, the de­por­ta­tion agency within Home­land Se­cu­rity.

Mr. McAleenan, said it does ap­pear the pro­gram has gone well be­yond what was in­tended.

“I am com­mit­ted to restor­ing in­tegrity to the im­mi­gra­tion sys­tem, par­tic­u­larly in ar­eas of law that have been im­prop­erly in­ter­preted in the past,” he wrote.

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