Skip to content

Posts tagged ‘USCIS’

Guest Post: “The Revised Credible Fear Lesson Plan: Enough is Enough!”

Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair and Partner at the Immigration Law Firm Benach Ragland LLP , wrote an excellent article today in response to DHS’s recent change in policy to make it harder for individuals fleeing persecution or torture to obtain protection in the United States.

Spread it far and wide:

“This is not just a blog post, but a call to action.  Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.  The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees.  While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process.  It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system.  Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution.  In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted.  Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview.  If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution.  Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar.  With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system.  Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum.  We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement.  We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law.  And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers.  Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers.  In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes (see AILA InfoNet Doc. No. 14041845).  In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before.  Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.”  Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions.  The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net.  The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor.  The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications.  These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards.  Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States.  Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources.  Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations.  I don’t know about you all, but for me, “Enough is enough!”  As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.”


Obama administration crafts new DACA rule to exclude more dreamers

The Obama administration is ostensibly gearing up for comprehensive immigration reform while at the same time acting directly against the interests of immigrants.

On January 18, 2013, USCIS updated its “FAQs” on DACA.

The FAQs are put into quotes because there is at least one rule change dressed up as an FAQ.

USCIS’s update is by now widely known for its affirmation that DACA recipients are considered by DHS to be lawfully present in the United States. This was obviously spurred on by the fact that several states were denying DACA beneficiaries drivers licenses because they did not consider them to be lawfully present in the United States.

At first glance, USCIS’s updates seem to support DACA recipients against boogeyman anti-immigrant states like Iowa or Arizona.  But on closer examination, there is a rule change that was designed to exclude the number of young immigrants eligible for DACA. Question and answer 1 under the heading Miscellaneous states:

New – Q1: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process?
A1: Yes, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process.

This caught my attention because one of our clients would not be eligible under this new rule change.

When the DACA requirements were first published, one only needed to show that one came to the United States before one’s 16th birthday.

In fact, question 13 on Form I-821D asks: Date of Initial entry into the United States. The form emphasizes the importance of the initial entry, not whether the applicant established residence after that initial entry.

Our client did not establish residence in the U.S. until after reaching her 16th birthday. 

Under the rules at the time that our client applied, she qualified and received DACA. Under the new rules, she would not qualify for DACA.

Why did the Obama administration craft a new rule that restricts the amount of young immigrants eligible for DACA? Does Obama want to penalize young immigrants for having been lucky enough to have entered the U.S. for a vacation prior to their 16th birthday?

This new rule makes no sense and is anti-immigrant.

Snippet after snippet after snippet of evidence (De Osorio) reveals the Obama administration acting concretely against the same immigrants that he concurrently purports to want to include in a comprehensive reform package.

When all of the facts point one way, hope is useless. It is time to turn the other way–to abandon Obama–and find a new avenue for reform.

Obama Administration to DACA Recipients: You Are Second-Class Kids

Obama double speak

Truth you can only believe in if you dig through my dizzying maze of doublespeak.

On January 18, 2013,  USCIS supposedly came out with “new” information regarding Deferred Action for Childhood Arrivals.(“DACA”)  Of note is the purported clarification of whether or not whether DACA recipients are considered “lawfully present” by DHS.

USCIS’s full answer is as follows:

For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.(emphasis added) 

We knew all along that those who received DACA would not be considered unlawfully present for purposes of future inadmissibility. There is no controlling legal definition of what “lawful presence” actually means. However, for purposes of benefits such as eligibility for driver licenses or government-subsidized health care, most states look to the federal government’s definition of lawful presence, which relies heavily upon who is not unlawfully present under INA 212(a)(9)(B)(ii).

Once one looks at the specific definition, this seemingly complicated issue becomes quite simple:

“An alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

DHS has authorized the stay of DACA recipients in the United States. As such, DACA recipients are lawfully present. So why did USCIS feel the need to clarify this already-established fact just yesterday?

Because the Obama administration intentionally muddied the waters of what lawfully present means for DACA recipients in order to exclude them from medicaid and other health care benefits.

Shortly after USCIS started accepting DACA applications, the Obama administration made it clear that DACA recipients would be second-class deferred action recipients.

To be eligible for medicaid and other health insurance benefits under Obama’s new health law, one must be considered “lawfully present.” Prior the announcement of DACA, 45 CFR 152.2(1)-(7) defined what immigrants were “lawfully present.” Pay particular attention to the classes highlighted below:

Lawfully present means

(1) A qualified alien as defined in section 431 of the Personal Responsibility and Work Opportunity Act (PRWORA) (8 U.S.C. 1641);

(2) An alien in nonimmigrant status who has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission;

(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(d)(5)) for less than 1 year, except for an alien paroled for prosecution, for deferred inspection or pending removal proceedings;

(4) An alien who belongs to one of the following classes:

(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the INA (8 U.S.C. 1160 or 1255a, respectively);

(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of the INA (8 U.S.C. 1254a), and pending applicants for TPS who have been granted employment authorization;

(iii) Aliens who have been granted employment authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22), or (24);

(iv) Family Unity beneficiaries pursuant to section 301 of Public Law 101-649 as amended;

(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President;

(vi) Aliens currently in deferred action status;

(vii) Aliens whose visa petitions have been approved and who have a pending application for adjustment of status;

(5) A pending applicant for asylum under section 208(a) of the INA (8 U.S.C. 1158) or for withholding of removal under section 241(b)(3) of the INA (8 U.S.C. 1231) or under the Convention Against Torture who has been granted employment authorization, and such an applicant under the age of 14 who has had an application pending for at least 180 days;

(6) An alien who has been granted withholding of removal under the Convention Against Torture; or

(7) A child who has a pending application for Special Immigrant Juvenile status as described in section 101(a)(27)(J) of the INA (8 U.S.C. 1101(a)(27)(J)).

Immigrants in category (C)(10) have cancellation of removal applications pending in immigration court. Immigrants in category (c)(18)  have outstanding orders  of removal and report on an order of supervision. Immigrants granted deferred action outside of the DACA program are also “lawfully present.” Their EAD category is (c)(14).

The Obama administration made a new category for DACA recipients–(C)(33)–so that it could add paragraph 8 to 45 CFR 152.2 to exclude them from medicaid eligibility:

(8) Exception. An individual with deferred action under the Department of Homeland Security’s deferred action for childhood arrivals process, as described in the Secretary of Homeland Security’s June 15, 2012, memorandum, shall not be considered to be lawfully present with respect to any of the above categories in paragraphs (1) through (7) of this definition.

Put differently, if the Obama administration treated DACA recipients as the recipients of Deferred Action of yore, they would have had to include them in the definition of “lawfully present” for purposes of medicaid eligibility.

As one can see from the list above, the federal government already includes many recipients of prosecutorial discretion in the definition of lawfully present.

The reasoning is that if the government is consenting to one’s presence in the country and one is working and contributing to society, one should be afforded the same privileges of society’s most important safety net: medical care.

By intentionally excluding DACA recipients from medicaid, the Obama administration has yet again revealed its cold, disingenuous heart.

On the abstract level, the exclusion of DACA recipients may not seem like a big deal. However, many of these young immigrants are just starting out in the workforce and will not be able to afford health insurance. What happens if a young immigrant gets into a bad car accident, or is diagnosed with cancer? They will have work authorization but will only be able to use it to pay off the mountain of debt left by medical bills.

As per his routine, Barack Obama announced the DACA program with bubblingly  flowery words, noting that children of illegal immigrants “study in our schools, play in our neighborhoods, befriend our kids, pledge allegiance to our flag,” and also that:, “it makes no sense to expel talented young people who are, for all intents and purposes, Americans.”

What Obama did not say is that the poorest of these children are not for all intents and purposes Americans when it comes to medical care.  He left that dirty work to the bureaucrats in the Department of Health and Human Services, which provided an objectively farcical explanation.

Obama should have some integrity and consider DACA recipients lawfully present for purposes of medicaid eligibility. Lawfully present means lawfully present. It does mean lawfully present depending on the politics du jour.