Defending Fairness and Due Process under Current Federal Immigration Policy
By Mary Margulis-Ohnuma – Policy Counsel
The current federal administration has frequently made headlines with its hard-line immigration policy – from the travel ban, to the border wall, to “zero tolerance” and family separation and the threatened cancellation of Deferred Action for Childhood Arrivals (DACA). But what has been less visible to the general public and the world at large are subtle changes at the regulatory level that do not hit the mainstream news, but are nonetheless narrowing immigrants’ rights and quietly closing paths to permanent legal status and citizenship. Amidst a stream of proposed regulatory changes, the City Bar’s Immigration & Nationality Committee (Victoria Neilson, Chair) issued four reports over the course of three weeks opposing new regulations that threaten longstanding immigration policies and practices.
On October 23rd, the Committee sent a letter opposing the Department of Justice’s (DOJ) Interim Rule that changes the organization of the Executive Office of Immigration Review (EOIR). The Interim Rule “improperly politicizes EOIR’s adjudicative function” and “appears to marginalize the crucial role of the Office of Legal Access Programs (OLAP).” The EOIR’s function is to adjudicate individual cases, not to make policy – thus, establishing the Office of Policy as an official component of EOIR and putting it on par with the EOIR’s adjudicative function threatens judicial independence within the immigration system. Moreover, placing the OLAP (which serves an important function of increasing access to information and legal counsel in immigration proceedings for low-income immigrants and promoting efficiency in immigration proceedings) under the Office of Policy signals a plan to minimize OLAP’s crucial role, including potentially altering or deprioritizing the DOJ’s Recognition and Accreditation Program, which helps provide competent representation to those who would otherwise not be able to afford representation. The Committee also opposes delegation of authority from the Attorney General to the Director of EOIR that would give the director, acting alone, power to issue precedential decisions and thereby threaten the independence of immigration judges and Board of Immigration Appeals (BIA) members.
On November 6th, the Committee commented on the Department of Homeland Security’s (DHS) proposed rule to remove the regulatory provision that provides a 30-day timeframe for U.S. Citizenship and Immigration Services (USCIS) to grant or deny an asylum applicant’s initial Form I-765 Application for Employment Authorization. The Proposed Rule would eliminate the 30-day processing deadline without replacing it with any other deadline or guarantee of a reasonable and timely adjudication of asylum applicants’ initial employment authorization applications. The Committee opposes the Proposed Rule because it will have a severely negative impact on asylum seekers’ abilities to support themselves and their families while waiting for a final decision on their claims. Moreover, while the stated purpose of the Proposed Rule is to “ensure USCIS has sufficient time to receive, screen, and process applications for an initial grant of employment authorization based on a pending asylum application” and to “reduce opportunities for fraud and protect the security-related processes” associated with processing employment authorization document (EAD) applications, eliminating the 30-day rule is not necessary to achieve these goals. Under the current 30-day rule, USCIS can stop the clock if it needs more time to collect documentation from the applicant; moreover, the fraud and national security vetting procedures referenced by DHS have been extant for more than a decade and current reporting requirements show that USCIS has been able to maintain substantial compliance with the current 30-day rule. Furthermore, to the extent USCIS needs more time to review EAD applications, nothing prevents it from accepting initial EAD applications earlier – even concurrently with the filing of the asylum application – which would give USCIS up to 180 days to vet the applications and make a decision within a designated timeframe.
On November 12th, the Committee opposed the DOJ’s Proposed Rule which would authorize the Attorney General to require DHS to collect, store and share DNA of immigrants detained by the U.S., and published an op-ed the following day in the Daily News about why the proposal should concern all Americans. The proposal would require collection of DNA from every “non-US person” in U.S. custody, in addition to those who are arrested or convicted of federal criminal charges, without specifying who shall be subject to such collection. The change would exponentially increase DNA sample collection without any individualized suspicion or probable cause, come at a significant cost to the government and compromise the security and privacy of scores of immigrant families, including U.S. citizens and permanent residents. It also does not provide any details regarding the gathering, sharing, storage or protection of this vast cache of data, which will lead to, among other things, compromising the safety of asylum seekers, crime victims and other vulnerable people. The Committee states:
In addition to the vague nature of the rule and its costly implementation, the Proposed Rule has serious implications for Americans. It widely expands a surveillance apparatus that has been deployed in a biased and discriminatory manner, infringes on the privacy of civil society, and is vulnerable to bad actors and hacking. With such costs, the Proposed Rule offers no cognizable benefit. The Department of Justice provides no quantitative evidence to show how such data would aid in criminal prosecutions. In contrast, as outlined by the Government Accountability Office (GAO), scores of collected DNA information already sit untested in government laboratories due to back-logged labs and over-collection of this sensitive data. DNA collection and matching remains an imperfect science which can wrongfully implicate individuals who then have little or no recourse to respond to this intrusive search.
Finally, on November 15th, the Committee submitted comments to USCIS opposing the Proposed Rule, “Special Immigrant Juvenile Petitions.” While the Committee agrees that the existing regulations are inconsistent with the statutory provisions governing Special Immigrant Juvenile Status (SIJS) and should be updated, various aspects of the proposed rule exceed the statutory authority conferred on DHS and require significant modifications to ensure that USCIS will exercise its adjudicative authority over SIJS petitions in a manner consistent with the governing statute. The Proposed Rule departs from the statute in the following ways: (1) offering an overly broad interpretation of USCIS’s consent function by failing to accord correct deference to the state juvenile courts’ role in adjudicating child welfare issues and the best interests of children; (2) defining the term “juvenile court” in a way that would obstruct important avenues to SIJS eligibility; (3) requiring that juvenile court determinations remain in effect through USCIS adjudication, which is inconsistent with the statutory language and imposes burdensome requirements on petitioners and the state courts and agencies that protect and serve them; and (4) in a preamble to the Proposed Rule, giving the statutory “similar basis” clause such a narrow interpretation so as to, in effect, deny needed SIJS protections to many children.
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As the federal government continues to roll out regulations implementing its increasingly stringent immigration policy – some changes making headlines while others quietly chipping away at immigrants’ rights and remedies – our Immigration & Nationality Law Committee has kept a constant vigil and continues to act (and react) to the new rules changes as they emerge. We thank them for their work in upholding the tenets of fairness and due process as the U.S. continues to grapple with its history and future as a nation of immigrants.
