“The Cruelty Is the Point”: U.S. Still Denying Protection to Severely Ill People With No Legal Status—Despite Announcing Otherwise

Originally published at MsMagazine.com

U.S. Citizenship and Immigration Services announced on September 19, 2019 it was reinstating the “medical” deferred action program. Yet the outcome in deferred action cases across the country continue to raise concerns.

Since the reinstatement, USCIS has received 458 initial deferred action requests—with 43 granted, 90 denied, and the rest administratively closed, withdrawn or pending.

One year ago this month, we learned U.S. Citizenship and Immigration Services (USCIS) secretly terminated the “medical” deferred action program which permits individuals who desperately need medical care to remain in the United States while undergoing treatment. Children and families began receiving letters denying their application to stay in the United States and warned them to leave in 33 days or risk deportation.

Some children lay sick in hospital beds or recovering from major surgery, while others were here for many years participating in significant medical research efforts that helped advance our understanding and treatment of diseases.

As immigration attorneys with more than 50 years of collective experience in the field, and specific experience handling these cases, we have witnessed first-hand the critical gap deferred action serves in saving lives and preserving humanity.

Deferred action has been a safety valve for individuals and families without status who present compelling equities such as a serious medical condition, long term presence in the United States, or close family ties. When an agency within the Department of Homeland Security makes decisions about whether to enforce the full scope of immigration laws against a person, it is exercising prosecutorial discretion. This kind of discretion is vital to maintaining a compassionate immigration system and a healthy society, and of course carefully using limited resources to deport those who present a danger.

Public outcry against the unannounced termination by USCIS of this small but significant immigration benefit was swift.  Attorneys, non-profit organizations and Senator Edward J. Markey and Congresswoman Ayanna Pressley of Massachusetts first drew attention to the plight of these vulnerable individuals, children, and families who were left helpless.

Soon, major news outlets began to report on the sympathetic stories of families terrified about losing a loved one for the lack of critical medical attention unavailable in their home countries.

On September 11, 2019, the House Oversight Committee held an oversight hearing for testimony directly from experts and those affected by the termination of deferred action.

Remarkably, USCIS announced on September 19, 2019 that deferred action was reinstated by USCIS. Despite the reinstatement, the outcome in deferred action cases we handled or tracked across the country continue to raise concerns.

To illustrate, USCIS has denied initial requests and renewals that were granted on the exact same medical necessity two years prior. These families are now receiving boilerplate denials barren of legal reasoning even when their need to remain in the United States is unchanged.

Nohemi Rivera Lopez, citizen and national of Guatemala, is a single mother to a twelve-year-old U.S. born citizen daughter, Sara Elis Castillo. Sara has severe Down’s Syndrome and intellectual disabilities as well as a heart defect.  She also suffers from sleep apnea and extremely poor vision.

Rivera Lopez works tirelessly with her daughter to help her flourish as much as she is able and has fought to get her daughter the therapy and special educational plan that her daughter so desperately needs.  Sara must remain in the United States to continue her medical treatment, special education, and various therapies with her mother, Rivera Lopez, in order to have any quality of life. Rivera Lopez was shocked to receive a recent denial for her extension when there has been no change in her daughter’s medical condition.

Zenaida Bautista, citizen and national of Mexico, has an eight-year-old U.S. citizen daughter who was born with cerebral palsy and severe developmental disabilities and requires constant physical and occupational therapy and care, which are all provided by her team of physicians and implemented in daily life by her devoted mother.

Her daughter, Jannet is thriving despite her physical and medical hardships due to her medical team and mother who continues the daily therapies at home. These types of services are unavailable in Mexico and Jannet cannot live in the United States without her mother, should USCIS  force her to return. Her application to extend her deferred action was denied, despite a prior approval, wreaking havoc on a loving mother whose only desire is to stay legally to care for her special needs child.

Last April, USCIS provided an update about the status of deferred action in response to a letter filed by Senator Markey and three members of Congress. The response reveals that deferred action requests are still being processed, with an average processing time of seven to nine months. Medical related requests for deferred action have dropped significantly, with 704 such requests made in FY 2018 compared to 372 requests made in 2020.

Since the September 19, 2019 reinstatement, USCIS has received 458 initial deferred action requests, with 43 granted, 90 denied, and the rest administratively closed, withdrawn or pending. By USCIS’s own admission, the data set may be incomplete or inaccurate because “it is possible that some requests or adjudicative decisions were not manually recorded in USCIS’s informal tracking tool.”

The lack of transparency and the absence of a clear tracking tool for deferred action cases is historic and unchanged in more than 60 years. We find this unacceptable. It is crucial that USCIS inject more transparency into the deferred action program, providing more data to the public and tracking case processing in the first place.

Further, USCIS should commit to processing deferred action cases regularly and end the practice of denying protection to the most vulnerable.

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