Medical Whistleblower Advocacy Network

Human Rights Defenders

US Congressional Hearing

Threatened Deportation of Persons with Medical Deferred-action Cases

Threatened Deportation of Persons with Medical Deferred-action Cases

The Trump Administration suddenly decided on August 7, 2019 to revoke or modify procedures that have allowed certain immigrants to remain in the United States on humanitarian grounds including ethical considerations related to The Common Rule and the ICCPR.  U.S. Citizenship and Immigration Service (USCIS) mailed notices saying the agency will no longer consider most deferrals of deportation for people with serious medical conditions. There was no public announcement of this policy change and thus no chance for public comment. The U.S. Congress was also not informed prior to the policy change. 

The United States Citizenship and Immigration Services has now altered the medical “deferred action” policy which permitted immigrants with medical needs to avoid deportation while they or their relatives were undergoing lifesaving medical treatment. USCIS receives about 1,000 deferred-action applications related to medical issues each year. Some of the cases were immigrants who were participants as human subjects in important medical research and thus subject to human rights protections under The Common Rule.  One immigrant was a human subject in research on a very rare genetic disease called  Maroteaux-Lamy Syndrome, also known as Mucopolysaccharidosis Type 6 (MPS-VI).  This USCIS policy change affects the most vulnerable immigrants, patients who would die without their life-saving treatment, children being treated for cystic fibrosis, sickle-cell anemia, heart defects,  spina bifida, neuromuscular disease, respiratory distress syndrome, cancer and other medical conditions. The deferred action policy also was applied to crime victims who have helped law enforcement, i ii  and caretakers or relatives of sick children to remain in the U.S.A.  Women can also apply for deferred-action based on the Violence Against Women Act. iii   DACA or Deferred Action for Childhood Arrivals which was announced by President Barack Obama in 2012, is another form of deferred action.

According to the U.S. Citizenship & Immigration Services (USCIS), “deferred action” is a discretionary decision to temporarily postpone the removal from the United States of a person who is illegally present. In the deferred action cases determinations are made by the Department of Homeland Security  on a case-by-case basis. Medical Deferred-action cases are granted on a case-by-case humanitarian grounds. viii   Discretionary decisions are to be based on the totality of the evidence and circumstances.  Such cases had been decided based on the discretion of career USCIS employees, including,  but not limited to considerations similar to the Department of State’s consideration of B-2 visas, when such visas are requested for medical purposes.  Deferred action does not grant an alien lawful immigration status, nor does it excuse any past or future periods of unlawful presence.  

On August 7, 2019 the U.S. Citizenship and Immigration Services (USCIS) began notifying individuals that they no longer were considered a deferred action case and they needed to leave the U.S.A. within 33 days. For many of these immigrants, deportation would be life endangering, as the medical treatment they need is not available in their home country.  According to the recent USCIS notice, deferred action requests would now be processed by U.S. Immigration and Customs Enforcement (ICE) in the future. This change in the procedure would mean that an individual seeking deferred action would have to go through full removal proceedings and receive an order of removal, before being considered for deferred action. 

The Trump administration's Executive Orders and DHS fact sheets have expanded enforcement priorities.  The new orders have not delineated humanitarian factors to be considered for deferred-action cases.   Thus, immigrants who received deportation notices had little faith that ICE would process their applications with the same compassion or proper humanitarian consideration as USCIS.  Unfortunately, there is no appeals process for a decision to deny or terminate deferred action. On September 19, 2019, because of pressure by U.S. Congress members,xiii and the public, the Trump administration announced that it would reinstate the policy of granting temporary reprieve from deportation for immigrants facing life-threatening medical conditions and other humanitarian circumstances.  USCIS confirmed that it would "revert" to the adjudication guidelines that had been in place on August 6, 2019.   A USCIS official also said the agency had already reopened about 400 petitions it had denied this summer.  But immigrants and their families still wait anxiously for further notice of whether their loved one will be deported.

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