USCIS estimates that roughly 1,000 people request deferred action annually, with fewer than half granted relief. Advocates insist that ending the policy will put vulnerable immigrants at risk. | Mario Tama/Getty Images Immigration Trump official urges end to medical exemption for deportations

An internal memo prepared by a top Trump immigration official recommends that U.S. Citizenship and Immigration Services be stripped of its authority to delay deportations for undocumented immigrants receiving treatment for serious medical conditions.

The Trump administration in August quietly halted its processing of such requests, which are known as "deferred action." Democrats and activists argued that the move put vulnerable people at risk of deportation and possibly even death.


The memo, obtained by POLITICO, clarifies that the agency would prefer to see its authority removed altogether to grant relief from deportation in such cases.

In the memo, USCIS Policy and Strategy Chief Kathy Nuebel Kovarik lays out six options for acting Homeland Security Secretary Kevin McAleenan to take. These range from removing the agency’s deferred action authority to reverting to the earlier status quo.

Nuebel Kovarik writes that USCIS would prefer that McAleenan revoke the agency’s authority to grant deferred action unless required to do so by statute — a change that would eliminate any possibility of its honoring such humanitarian requests in the future. If McAleenan doesn’t take that route, she says, the agency recommends that he maintain the current freeze on processing deferred action requests.

“USCIS strongly believes that the exercise of deferred action is subject to abuse,” Nuebel Kovarik writes, “and if we continue to accept such requests, even with narrow medical criteria, we will be creating a de facto ‘program’ of criteria ... which are not enumerated in statute or regulations.”

Nuebel Kovarik adds that any expansion of the authority “runs counter to the president's agenda to enforce our existing laws and potentially contrary to his goal of making sure aliens are self-sufficient.”

USCIS did not immediately respond to a request for comment.

Acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli | Steve Helber/AP File Photo

Mark Krikorian, executive director of the restrictionist Center for Immigration Studies, pointed to the creation of the Deferred Action for Childhood Arrivals program, which is unrelated to medical deferred action, as an example of potential misuse. Former President Barack Obama launched DACA in 2012 in order to allow undocumented immigrants brought to the U.S. as children to live and work legally.

“DACA is deferred action, so obviously it has been abused,” Krikorian said. “Amnestying hundreds of thousands of people is something that Congress needs to do, not bureaucrats. This isn’t an issue of postponing someone’s deportation.”

The recent USCIS decision did not affect DACA, which Trump began to phase out in September 2017. Several federal judges blocked the termination, and the Supreme Court will hear oral arguments on the matter in mid-November.

The memo, part of briefing materials for a Sept. 9 meeting to be led by acting USCIS Director Ken Cuccinelli, offers a window into the Trump administration's internal decisionmaking over how to handle deportation relief going forward.

Cuccinelli, speaking to reporters after an Axios event Thursday, said he couldn’t comment on the deferred action moves because of ongoing litigation. A Boston-based immigrant rights groups filed a lawsuit last week that seeks to block the change.

“Until we sort out our response to the litigation, we’re going to be very limited in what we have to say about it,” he said.

USCIS' authority to grant deportation relief through deferred action dates back to the creation of the Homeland Security Department in 2003.

The agency estimates that roughly 1,000 people request deferred action annually, with fewer than half granted relief. Advocates insist that ending the policy will put vulnerable immigrants at risk.

“I think the effects would be devastating — morally, legally and to the individuals affected,” said Shoba Sivaprasad Wadhia, director of an immigrant rights clinic at Penn State Law.

Sivaprasad Wadhia, who testified before a House Oversight subcommittee on the matter Wednesday, stressed that people approved for deferred action sometimes come to the U.S. to participate in clinical trials not available in their home countries, or receive other critical treatment.

“You are adding to an already overwhelmed immigration court system by placing the most vulnerable people into removal proceedings,” she added.

Beginning Aug. 7, USCIS sent letters to approximately 400 deferred action applicants that said the agency would no longer process their deferred action requests. The letters instructed the applicants to depart the country within 33 days.

The agency did not publicize the move, which came to light following advocacy efforts and subsequent news reports. In response to media requests, USCIS said deferred action requests should be directed to Immigration and Customs Enforcement, although that guidance was not provided in several letters to deferred action applicants.

The internal memo suggests that ICE would provide dramatically fewer opportunities for immigrants to obtain relief.

“ICE does not accept any requests for deferred action nor does it accept affirmative requests for prosecutorial discretion for aliens in removal proceedings,” the document reads. “Moreover, ICE has no processes or procedures to consider prosecutorial discretion requests for aliens who have yet to come to ICE’s attention.”

Morning Shift newsletter Get the latest on employment and immigration, every weekday morning — in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Jason Boyd, an attorney with the American Immigration Lawyers Association, said that where the earlier USCIS policy allowed immigrants to request relief under deferred action, passing that function over to ICE would not.

“ICE’s deferred action adjudications are in no way a viable alternative,” he said.

Timothy Robbins, an acting director of ICE’s enforcement and removal operations, said at the House Oversight subcommittee hearing Wednesday that his agency does not accept pro-active deferred action applications along the lines of those previously handled by USCIS. However, he added, ICE allows immigrants to request deportation relief after their removal proceedings have concluded.

“ICE will consider all relevant factors in deciding whether to issue a stay of removal, including any claimed medical basis for this request,” Robbins said. “However, such stays are considered solely on ICE's discretion on a case-by-case basis.“

The decision to halt non-military deferred action requests infuriated Democrats and pro-migrant advocates. Amid the backlash, USCIS announced in early September that it would resume processing applications pending before Aug. 7.

Former acting ICE Director Thomas Homan, another witness at the hearing this week, accused Democrats of distorting the issue.

“You want to conjure up a false narrative about sending dying children home,” he said at the hearing, “but you won’t address sanctuary policies that provide sanctuaries to criminals and put our communities at risk.”