Kevin McAleenan, DHS chief, restarts program to delay deporting sick illegal immigrants

Acting Homeland Security Secretary Kevin McAleenan this week 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 the 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 last week 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 last week 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.

But he suggested that USCIS moved too quickly: “However, given the complexities and wide range of circumstances to which the law must be applied, it is also necessary and proper to maintain executive branch discretion — particularly where such discretion is appropriately and fairly exercised on a case-by-case basis.”