We come to this issue as mothers and immigration attorneys with more than thirty-five years of experience in the field and intimate knowledge of a policy known as deferred action. Deferred action is a kind of prosecutorial discretion once housed in the Immigration and Naturalization Service and now in the domain of the Department of Homeland Security (DHS). Deferred action is a temporary form of protection and provides no legal status; but is a life-saving stopgap for immigrants who face compelling situations. From its infancy, the U.S. Citizenship and Immigration Services of (USCIS) was a hub in DHS responsible for processing “affirmative” deferred action requests made by individuals with extraordinary equities that include a serious medical need, long term residence in the United States, or a survivor of a major crime.
Last August, USCIS announced that it would end the deferred action policy for most people, and in carrying this out, sent letters notifying applicants that the agency no longer handles the program and to depart the United States within 33 days.
Public outrage from immigration advocates, congressional members, health specialists, and families was tremendous, leading in part to a congressional hearing on September 11, 2019. One author testified at this hearing in support of preserving the policy at USCIS, detailing the long history of the program.
Remarkably, the deferred action policy was reinstated on September 19, 2019, when USCIS reached out to the House Committee of Oversight and Reform, “We wanted to let you know that, at the direction of Acting Secretary McAleenan, USCIS is resuming its consideration of non-military deferred action requests on a discretionary, case-by-case basis, except as otherwise required by an applicable statute, regulation, or court order.”
Despite the restoration of deferred action at USCIS, serious concerns remain about whether the reinstatement has been fully realized. Since September, one author has received multiple denials from the Philadelphia field office for deferred cases that were previously granted and where the medical necessity is unchanged. Further, there have been cases denied involving life and death circumstances.
Fabian Flores Aguirre and Damaris Alameda Ramos are from the same small town of Chiautzingo, Mexico. Nine months ago, their now two-and-a-half-year-old son and U.S. Citizen, Fabian Flores Alameda, was diagnosed with high-risk Langerhans cell histiocytosis (LCH), a rare type of blood cancer. Since that time, he has had two cancer-related surgeries and has been receiving continuous chemotherapy. Fabian is a vivacious toddler despite his grueling every two-week schedule of intensive chemotherapy. His parents are utterly devoted to ensuring their son receives the life-saving care provided by his team of physicians at St. Christopher’s Hospital for Children in Philadelphia.
Beyond the extreme stress inherent with caring for a young child with cancer, Fabian’s parents have endured an emotional roller coaster and uncertainty of deferred action. The couple received a letter from USCIS last August that the program had expired and that they must leave the United States within 33 days. Once the program had been purportedly resumed, the case was pending processing. Earlier this month, the couple got a devastating blow: a boilerplate denial without explanation. Fabian will not have access to this treatment in his parents’ home country of Mexico. If his parents are forced to return to Mexico, there is no one in the United States who can take their place and care for him. Denying deferred to Fabian’s parents is a death sentence for their son and a dark day for our country.
In a second case, Ms. H, a citizen and national of St. Vincent and the Grenadines was also denied deferred action last November. Her 15-month-old daughter and U.S. Citizen, Ms. J, was born prematurely and weighed only about one pound at birth. Shortly after birth, Ms. J suffered two severe hemorrhages on both sides of her brain. Her brain cannot work efficiently to reabsorb necessary fluids, causing her brain and head to swell. Doctors had to place a shunt into her brain to drain the fluid into her stomach so she could pass her brain fluid with other bodily fluids. The failure rate of such stunts is 80 percent and necessitates immediate replacement. Ms. J was also diagnosed with severe bronchopulmonary dysplasia, a chronic lung disease that requires twice daily respiratory treatments. Ms. J requires continuous and advanced medical care, which she would not have access to in St. Vincent and the Grenadines. Returning Ms. J to her mother’s home country because of a baseless denial of deferred action is unconscionable and undermines the purpose of the program.
The denials from USCIS are form letters with no explanation.
USCIS has not articulated the degree to which deferred action has been fully restored nor has it been transparent about the number of cases process or outcomes. Moving forward, USCIS must fully restore the deferred action program and improve the transparency that deferred action has historically lacked. Denying deferred action to the most vulnerable undermines our rule of law and our shared humanity.
Audrey Allen practices exclusively immigration law and devotes substantial time to pro bono advocacy of immigrant families with severely ill children. Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar at Penn State Law, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015) and Banned: Immigration Enforcement in the Time of Trump (NYU Press 2019).
This commentary originally appeared in The Philadelphia Inquirer.
I am a Pennsylvania lawyer, and was a federal prosecutor in Alaska and then in Los Angeles from 1986 through 2015. I served the Justice Department in Los Angeles as both the deputy chief of the DOJ’s Organized Crime Strike Force and as senior litigation counsel in white-collar crimes. I have held security clearances and worked for presidents from Ronald Reagan to Barack Obama. I have never seen anything like what has happened these last two weeks.
Department of Justice higher-ups, at the direction of Attorney General William Barr, withdrew an appropriately computed sentencing recommendation from federal prosecutors to the federal judge and replaced it, within hours, with a reduced jail time recommendation for a criminal defendant. The reason? The defendant, Roger Stone, is a close friend of the president. After the president tweet-ranted about the “horrible and very unfair” sentencing recommendation made by the Justice Department prosecutors, the department blinked and immediately changed its recommendation.
The four prosecutors who tried the Stone case to the D.C. jury, and who made the original sentencing recommendation, would not abide such presidential co-opting. All withdrew from the case, with one of the prosecutors resigning immediately from the Department of Justice. With new prosecutors sitting at the government counsel’s table, Judge Amy Berman Jackson on Thursday sentenced Stone to 40 months in prison.
I am privileged to have joined 2,500-plus of my fellow DOJ alumni, who this past week signed a letter in support of the four federal prosecutors. These career prosecutors, who took an oath of office to support and defend the Constitution, have stood up for the independence of the Justice Department.
I was too young, just a high schooler in Abington, to comprehend when something similar happened in the Nixon administration. The president had ordered the firing of Watergate special prosecutor Archibald Cox. Rather than let the president weaponize the Justice Department to serve his personal interests, those federal prosecutors resigned from the department. I am stunned to see this happening anew.
Stone was convicted by a federal jury in November 2019 of witness tampering, obstruction of justice, and lying multiple times to congressional Intelligence Committees investigating Russian interference in the 2016 election. Since federal prosecutors are required to submit to the court — after a defendant’s guilty plea or guilt established by jury verdicts — a written sentencing recommendation, the prosecutors followed suit. They demonstrated in their filing how Stone’s crimes of governmental corruption and obstruction justified their recommendation for a seven-to-nine-year term of imprisonment.
When recommending a sentence for a defendant, prosecutors must demonstrate that their recommendation comports with the United States sentencing guidelines. The guidelines were instituted as part of the U.S. Sentencing Reform Act of 1984 because there was too much disparity in sentencing across the nation, according to the findings of congressional investigations. There were regional differences in sentencing — with Southern federal districts treating some crimes, and some offenders, more harshly than did courts in the North and West. Minority offenders would typically get longer sentences for convictions than nonminority defendants, and white-collar defendants and defendants involved in political corruption would get no time at all.
The guidelines were implemented to impose uniformity and accountability. The defendant’s lawyer is provided with the government’s memorandum and responds to it with the defendant’s sentencing memorandum, all for the judge to consider in fashioning a defendant’s sentence. The defense and the public ensure that the government’s guideline analysis is done correctly and transparently.
In the Stone case, the initial prosecutors’ sentencing recommendation scrupulously followed the guidelines. The revised, more lenient recommendation of the replacement prosecutors did not. In fact, theirs reads like a sentencing memorandum prepared by the defense counsel.
I am heartbroken that the department to which I devoted the bulk of my career has bent not to the arc of justice, but to the whims of a president acting in his own self-interest. It is not enough for the nation’s leader to denigrate judges, jury forepersons, and prosecutors. The president now has induced the Justice Department to retract its sentencing recommendation for one more palatable to him, in an election year where an immediate pardon of such a close presidential friend could cause some degree of backlash.
I worked under Attorney General Barr during the first Bush administration. I do not recognize the man in this, his second incarnation, as attorney general. He is the nation’s top lawyer, not the personal lawyer of the president.
The president has now claimed the right to intervene in Justice Department cases. There is no such authorization in the Constitution or in federal case law. Instead, it has been the policy of the Justice Department and the White House, both part of the executive branch, to not interfere in the administration of justice as conducted by the Justice Department so that the public has faith that the laws will be applied uniformly.
I personally condemn the president and the attorney general’s interference in the fair administration of justice. America, we are better than this.
Julie Werner-Simon is a former federal prosecutor and a fellow in constitutional studies at Southwestern Law School in Los Angeles.