By Delisa Bressler, Partner
Life’s not always fair. There’s nothing like two decades of immigration law practice to hammer that home. Even so, while we know life’s circumstances are not always fair, we do expect a certain sense of fair play in U.S. government adjudications.
But we are in danger of seeing that precious notion of fair play fall casualty to the disruptive and destructive force that the Trump Administration has been for U.S. immigration. We are losing the sense that fair play is a fundamental requirement, even for the government.
Some would say any notion of fair play was swiftly dispatched in early 2017 with the “travel ban” and the beginnings of “extreme vetting.” While that may be true, the echo of the nails being hammered into the coffin have resounded continuously over the past year and a half with incremental steps that have amounted to a full-scale assault on legal immigration.
U.S. Citizenship & Immigration Services, the agency within the Department of Homeland Security (DHS) that adjudicates immigration benefits, changed its Mission Statement to remove the reference to our country being a nation of immigrants. The President’s “extreme vetting” and “Buy American, Hire American” policies require adjudicators to deny more immigration benefits. Government adjudicators issue more and more Requests for Further Evidence (RFEs) and deny more and more petitions and applications that were previously considered approvable. Policies of discretion have been replaced with policies of denial, and adjudicators are no longer required to give deference to the government’s own prior decisions with respect to the same employer, employee, and occupation. In other words, “just because we approved this same case before doesn’t mean we have to approve it again.”
These tactics we have come to live with, if not appreciate, but now the U.S. Department of Homeland Security (DHS) has taken two major steps that ensure that adjudicators are no longer bound by traditional notions of fair play.
First, on June 28th, the DHS issued a policy memorandum that encourages the initiation of removal (deportation) proceedings against individuals who have had an immigration benefit denied, even without giving them time to wrap up their affairs and depart the U.S. or seek to remedy the denial or acquire a new immigration status. Initiation of removal proceedings could occur after an H-1B extension petition is denied based on the adjudicator no longer giving deference to the government’s prior approval for the same employee for the same job with the same employer.
Second, on July 13th, the DHS issued a policy memorandum that opens the door for adjudicators to deny more petitions and applications without first issuing a Request for Further Evidence (RFE) to give the petitioner or applicant a chance to supply additional or missing information or documents. Denial without the opportunity to cure a perceived defect is a tough consequence, especially for a simple oversight. Following that denial with the initiation of removal proceedings is downright unfair. But based on the new DHS policies, it could happen.
One of the things this country has been known for, and which causes so many people from around the world to immigrate to the U.S., is the fundamental notion of justice and fair play, even at the hands of government officials. If these new government policies are not carefully and conscientiously interpreted and implemented in a way that treats petitioners and applicants fairly, they will erode the very precious notion of fair play that sets us apart from so much of the world. Life’s circumstances are not fair, but U.S. government adjudications should be.