Letter to Kenneth Cuccinelli, Senior Official of the Citizenship and Immigration Services - Duckworth Presses USCIS for Answers on Accessibility Policies

Letter

Dear Mr. Cuccinelli,

In September 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it had
reinstated consideration of non-military deferred action requests, a form of prosecutorial
discretion by which USCIS can permit individuals and their families with compelling
circumstances to remain in the United States without fear of imminent removal. Many of these
requests are made by individuals with major medical illness, and their families, seeking to
remain in the United States while receiving treatment. The USCIS decision to reinstate
consideration of non-military deferred action requests was a reversal of its abrupt position one
month earlier to halt consideration of these requests. We write to express our concern that the
agency has not in fact re-committed to the full and fair consideration of non-military deferred
action requests, and to seek information about USCIS's current policy.

Non-military deferred action is a subset of "deferred action" -- "an act of administrative
convenience to the government which gives some immigration cases lower priority."1 Through
these requests children and families suffering from severe medical conditions such as cancer,
epilepsy, cerebral palsy, muscular dystrophy, and cystic fibrosis have sought deferred action
based on compelling medical circumstances (commonly referred to as "medical deferred
action"). In many cases, the treatments these individuals have received while in the United
States have proven lifesaving.

But in August 2019, without any public notice, USCIS suddenly ceased adjudicating all nonmilitary deferred action requests, including requests for "medical deferred action." At the time,
USCIS provided no public guidance about its decision to summarily reject applications for nonmilitary deferred action. Rather, applicants from across the country received form letters from
USCIS denying their requests. The letters explained that, if applicants did not leave the United States within 33 days, they could be "removed from the United States and found ineligible for a
future visa or other U.S. immigration benefit."

These unexpected summary denials understandably caused anguish and fear for families whose
loved ones are receiving treatment for potentially fatal diseases, especially those for whom lifesaving treatment outside of the United States is unavailable. In response to widespread public
backlash to the cruelty of the USCIS decision -- including during a congressional hearing and in
correspondence from us and dozens of our colleagues5 -- the agency announced that it was
reversing course. In September 2019, the Department of Homeland Security (DHS) announced
that USCIS would resume consideration of non-military deferred action requests on a
discretionary, case-by-case basis, and would re-evaluate applications summarily denied in
August.6

We welcomed the DHS announcement that it had reversed this policy. But it is now unclear that
USCIS is actually following through on it.

The Philadelphia Inquirer recently reported on a "spate of [medical deferred action] denials"
coming out of the USCIS Philadelphia field office.7 In one case highlighted in the Inquirer
report, USCIS denied requests from the parents of a two-year-old boy with cancer. The young
boy's best chance for survival depends on continuing to receive chemotherapy and care at St.
Christopher's Hospital for Children in Philadelphia. Returning to Mexico with his parents --
who remain his primary caretakers -- may be "[his] death sentence," according to the child's
mother.

Immigration attorneys from across the country have contacted our offices with similar stories.
Although USCIS has approved a handful of applications, it has denied or left pending
indefinitely many others -- both first-time requests and renewals. Moreover, some applicants
who received summary denials last summer have received no notification from USCIS that the
agency has reopened their cases.

These reports are deeply concerning. We fear that USCIS has renewed consideration of medical
deferred action requests in name only. As the seriousness of the coronavirus disease 2019
(COVID-19) pandemic deepens, medical deferred action is as important as ever. People with chronic or underlying health conditions are at greater risk from COVID-19. The United States
cannot in good conscience force seriously sick or vulnerable individuals to travel, which also
increases their risks.10 And the pandemic has undoubtedly exacerbated the inability of patients'
home countries to provide medical care.

USCIS has rightly, temporarily closed its local field offices to in-person services in order to
prevent spreading COVID-19. However, while in-person services are reduced, it is also
important to ensure that USCIS stakeholders have accessible means of making emergency
requests with the local offices. Further, we believe USCIS must proactively maximize its use of
deferred action during this global pandemic. Accordingly, we request that USCIS provide
applicants with accessible means to apply for deferred action by email, and issue confirmation of
receipt within 3 business days. This will enable individuals to obtain critical services in these
incredibly tumultuous times.

Compounding our concerns, DHS recently responded to a request we made more than six
months ago, and in it, indicated that USCIS is "unable to provide [the] formal data" we requested
as "tracking and data are not in place for non-military deferred action requests."11 We find this
revelation extremely troubling. USCIS has stated that it receives approximately 1,000 deferred
action cases annually, and as previously noted, summarily closed all non-military cases last
August.12 These statements and actions seem to contradict the assertion that USCIS has no
mechanism to track these cases. Further, given the life-and-death nature of many medical
deferred action requests and the array of stakeholders demanding greater transparency regarding
this discretionary determination, we would expect USCIS to have begun collecting this data. We
therefore ask that you reevaluate the assertion that DHS is unable to provide data on non-military
deferred action requests, and if necessary, immediately rectify this oversight. We also ask that
you respond to the following questions by May 1, 2020:

1. What procedures are in place for the submission and adjudication of non-military deferred
action requests for the duration of the coronavirus pandemic?
2. How many non-military deferred action requests (excluding Service Center requests) has
USCIS received from Fiscal Year 2015 to date, and how many has USCIS approved? Please
break down the requests by fiscal year, and field office, and identify the number of these
requests that pertain to medical need.
3. What is USCIS's current policy with respect to deferred action, within both the medical need
and other contexts? Please provide us with any directives, instructions, policies, memos, or guidance, written or communicated by any other means, relating to the current policy on
deferred action.
4. Since purportedly reinstating consideration of non-military deferred action requests on
September 19, 2019, how many such requests has USCIS received, approved, and denied?
a. How many applicants requested deferred action based on medical need? How many
applicants requested deferred action on other bases? Please provide this information
disaggregated by adjudication outcome.
b. How many were initial requests for deferred action? How many were renewal
applications? Please provide this information disaggregated by adjudication outcome.
c. Has USCIS issued guidance related to the relief period? Who determines the period
of relief?
d. Regarding approved deferred action requests, please provide disaggregated data
indicating the period of relief.
e. Regarding pending deferred action requests, please provide the dates on which
USCIS first received them and by which USCIS anticipates ruling on them.
5. Have all applicants whose applications USCIS summarily denied under its prior policy
received notice that USCIS will reopen their cases? If not, why not? How many applicants
are awaiting this notification?

Thank you in advance for your attention to these requests.

Sincerely,