RE: American Bar Association
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May 19, 2021
Ms. Samantha Deshommes
Regulatory Coordination Division Chief
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746
RE: Identifying Barriers Across U.S. Citizenship and Immigration Services (USCIS) Benefits
and Services; Request for Public Input, 86 Fed. Reg. 20398 (Apr. 19, 2021); USCIS—
2021—0004, RIN 1615—ZB87
Dear Ms. Deshommes:
On behalf of the American Bar Association (ABA), thank you for this opportunity to provide
comments on how U.S. Citizenship and Immigration Services (USCIS) can reduce
administrative and other barriers and burdens within its regulations and policies, including those
that prevent foreign citizens from easily obtaining access to immigration services and benefits.
We appreciate the efforts taken by USCIS in this regard thus far, specifically the suspension of
the “blank space” policy 1 and the resumption of the Central American Minors (CAM) program. 2
The “blank space” policy erected unnecessary administrative and other barriers and burdens for
noncitizens seeking humanitarian relief, and the suspension of the CAM program cut off a vital
lifeline for at-risk children in the Northern Triangle whose parents were living in the United
States. Below we offer additional recommendations for ways that USCIS can increase access to
immigration services and benefits. 3
The ABA is the largest voluntary association of lawyers and legal professionals in the world. As
the national voice of America’s legal profession, the ABA works to improve the administration
of justice, promotes programs that assist lawyers and judges in their work, accredits law schools,
provides continuing legal education, and works to build public understanding around the world
of the importance of the rule of law. Working with and through its Commission on Immigration,
the ABA advocates for improvements to immigration law and policy; provides continuing
1
USCIS, “USCIS Confirms Elimination of ‘Blank Space’ Criteria” (Apr. 1, 2021), USCIS Confirms Elimination of
“Blank Space” Criteria | USCIS.
2
U.S. Department of State, “Restarting the Central American Minors Program” (March 10, 2021), Restarting the
Central American Minors Program - United States Department of State.
3
Many of these recommendations also are included in the ABA’s recent paper Achieving America's Immigration
Promise: ABA Recommendations to Advance Justice, Fairness, and Efficiency. Am. B. Ass’n Commission on
Immigr. (Jan. 2021) (hereinafter “Achieving America’s Immigration Promise”),
https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/achieving-americas-
immigration-promis-full-doc.pdf.education to the legal community, judges, and the public on immigration law issues; and
develops and assists in the operation of pro bono legal representation programs for immigrants
and asylum-seekers, with a special emphasis on the needs of the most vulnerable.
Our views are informed in part by our experience in operating two direct representation
immigration projects at the border (South Texas Pro Bono Asylum Representation Project
(ProBAR) in Harlingen, Texas, and the Immigration Justice Project (IJP) in San Diego,
California) that serve detained (and some non-detained) adult and unaccompanied minor
immigrants and asylum-seekers, as well as the Children’s Immigration Law Academy (CILA), a
legal resource center in Houston that serves children’s immigration legal services programs
throughout Texas.
The ABA consistently has emphasized the importance of an administrative agency structure that
provides due process protections to all noncitizens in the processing of their applications and
petitions. We also have called for a system for administering immigration laws that is
transparent, user-friendly, accessible, fair, and efficient. These policies serve as the basis for our
comments below.
USCIS Should Maintain Filing Fees at Levels that Do Not Erect Barriers for Eligible
Applicants and Retain Access to Fee Waivers for Those Unable to Pay
Fairness in immigration adjudication requires that noncitizens be able to seek benefits for which
they are eligible regardless of their ability to pay any application fees. However, during the prior
administration, USCIS proposed to sharply increase fees and eliminate fee waivers for many
applications. For example, for the first time, USCIS would have required asylum-seekers to pay
a fee for seeking protection in the United States. This and other proposed changes would price
out countless noncitizens and their families from applying for immigration benefits for which
they are eligible. Two federal courts enjoined enforcement of the proposed USCIS fee increases
and USCIS is complying with those injunctions. 4 USCIS also has stated that it is currently
conducting a fee review. 5 USCIS should repeal the proposed fee increases and should maintain
fees at a level that enables all eligible noncitizens to apply for benefits for which they qualify,
regardless of income. The Department of Homeland Security (DHS) also should never charge a
fee for seeking humanitarian protection, including asylum.
USCIS also should revert to prior policies concerning fee waiver requests for humanitarian-
related benefits, such as T-nonimmigrant status 6 and U-nonimmigrant status. 7 USCIS now
requires individuals requesting a fee waiver to file a Form I-912. Previously, USCIS accepted
written fee waiver requests, which are far less burdensome, especially to pro se applicants, and
we urge USCIS to reinstate that policy.
4
USCIS, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration
Benefit Request Requirements, 86 Fed. Reg. 7493 (Jan. 29, 2021).
5
Status Report, Nw. Immigrant Rts. Proj. v. USCIS, Case 1:19-cv-03283-RDM, ECF No. 100 (D.D.C. May 13,
2021).
6
8 U.S.C. § 1101(a)(15)(T) (for victims of severe forms of trafficking in persons).
7
Id. § 1101(a)(15)(U) (for individuals who have suffered physical or mental abuse as a result of having been a
victim of certain criminal activity).
2In addition, when adjudicating fee waiver requests, USCIS may reject them because applicants
have not submitted documents that they do not have or may request additional evidence that the
applicant does not possess. For example, USCIS may reject fee waiver requests where the
applicant has no financial means, no income, and no history of tax filings, citing to the absence
of documentary evidence. But proving the negative – lack of income, financial means or tax
records – with third party documents is essentially impossible. This makes it more difficult for
the most vulnerable, such as detained individuals, to show that they are eligible for a fee waiver.
USCIS should develop procedures for accepting and adjudicating fee waiver requests that are
easily accessible for those who most need them.
USCIS Should Work with its Agency Counterparts to Revise Policies and Procedures that
Restrict Asylum Eligibility and Access
The ABA has long supported a legal system that provides refugees, asylum seekers, and others
seeking humanitarian protection optimal access to legal protections in the United States. The
prior administration took numerous actions and proposed others to severely restrict the ability of
asylum seekers to access our nation’s asylum system and the due process protections to which
they are entitled. These policies violate fundamental notions of fairness and fail to comport with
the United States’ international treaty obligations or domestic statutory and regulatory
requirements. The policies should be rescinded.
For example, in December 2020, the Executive Office for Immigration Review (EOIR) and DHS
finalized a rule that would fundamentally alter asylum law with respect to substance and
procedure by defining terms to significantly circumscribe who can demonstrate eligibility for
asylum; limiting access to full and fair hearings; changing the applicable standards of proof;
shifting burdens of proof; and denying access to legal counsel and information. 8 A federal
district judge enjoined implementation of the rule and the case is presently stayed while the
agencies review the regulation. 9 In October 2020, EOIR and DHS finalized a rule that
significantly expands barriers to asylum eligibility based on criminal history. 10 That rule would
exclude individuals from asylum protection based on relatively minor criminal convictions, as
well as allegations of certain types of criminal misconduct, in contravention of due process
principles and international law. A federal judge enjoined the rule and the government’s appeal
to the Ninth Circuit currently is being held in abeyance while the agencies review it. 11 USCIS
should work with EOIR and other DHS components to repeal these rules.
In addition to substantive eligibility and procedural rules affecting eligibility in individual cases,
the last administration implemented sweeping policies to prevent people from applying for
asylum by creating categorical bars on asylum eligibility or by cutting off access to the asylum
system entirely. While none of these policies currently are in effect, USCIS should repudiate
these actions by working with EOIR and other DHS components to rescind rules that (1) banned
8
Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg.
80274 (Dec. 11, 2020).
9
Pangea Legal Servs. v. DHS, 3:20-cv-09253-JD (N.D. Cal.).
10
Procedures for Asylum and Bars to Asylum Eligibility, 85 Fed. Reg. 67202 (Oct. 21, 2020).
11
Joint Motion to Stay Appellate Proceedings, Pangea Legal Servs. v. DHS, 20-17490, Dkt. Entry 18 (9th Cir. Apr.
26, 2021).
3migrants from receiving asylum if they entered the United States at the Southern border other
than at a designated port of entry, 12 (2) barred asylum seekers, including unaccompanied
children, who entered or attempted to enter the United States at the Southern border from asylum
eligibility unless they had applied for and were denied in at least one country of transit on the
journey to the United States (with some narrow exceptions); 13 and (3) set forth implementation
procedures for “asylum cooperative agreements” signed with the governments of Guatemala,
Honduras, and El Salvador. 14 These rules are inconsistent with the asylum statute and devoid of
fundamental due process protections. 15 The Executive Branch already has revoked the
Presidential Proclamation that banned migrants from asylum eligibility based on the place or
manner of arrival at the U.S. border, 16 and has suspended and initiated the process to terminate
the asylum cooperative agreements with the Northern Triangle countries. 17 But DHS and EOIR
must take the additional step of rescinding these rules.
EOIR and DHS also have postponed the effective date of a rule that would redefine the statutory
bar to eligibility for asylum and withholding of removal for noncitizens who present a danger to
the security of the United States to include noncitizens whose entry into the United States would
pose a risk of spreading a communicable disease. 18 The rule increases, rather than reduces,
barriers for noncitizens seeking protection in the United States, is overbroad, and lacks crucial
procedural safeguards. It should be rescinded.
The ABA applauds the administration’s pledge to work with Central American governments on a
regional response to migration that focuses on protection as part of a broader effort to address
situations that force individuals to flee. Coupled with robust use of refugee processing and other
programs that consider protection claims while an individual is still in his or her country of
origin, this approach has the potential to restore the United States to its position as a model for
humanitarian protection. The steps outlined above will contribute to this effort.
USCIS Should Rebuild and Increase Safeguards for Immigrant Children
The ABA supports the preservation and development of laws, regulations, policies, and
procedures that protect or increase due process and other safeguards for immigrant and asylum-
seeking children, especially those who have entered the United States without a parent or legal
12
Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,
83 Fed. Reg. 55934 (Nov. 9, 2018).
13
Asylum Eligibility and Procedural Modifications, 85 Fed. Reg. 82260 (Dec. 17, 2020).
14
Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality
Act, 84 Fed. Reg. 63994 (Nov. 11, 2019).
15
Achieving America’s Immigration Promise § IV.A.2.a.-c.
16
Executive Order 14010, Executive Order on Creating a Comprehensive Regional Framework to Address the
Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly
Processing of Asylum Seekers at the United States Border § 4.a.ii.F.2, 86 Fed. Reg. 8267 (Feb. 2, 2021).
17
U.S. Department of State, “Suspending and Terminating the Asylum Cooperative Agreements with the
Governments of El Salvador, Guatemala, and Honduras,” (Feb. 6, 2021), Suspending and Terminating the Asylum
Cooperative Agreements with the Governments El Salvador, Guatemala, and Honduras - United States Department
of State.
18
Security Bars and Processing; Delay of Effective Date, 86 Fed. Reg. 15069 (March 22, 2021).
4guardian, including as provided in Section 235 of the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA). 19
Most importantly, the ABA believes that counsel should be appointed at government expense for
unaccompanied immigrant children. The asylum process is complicated and requires a child to
prove her claim and recount the most difficult details of her life to a stranger, often through an
interpreter. Applications for relief require the timely completion of lengthy forms, in English,
supplemented by extensive evidentiary support and documentation. This is a difficult process for
anyone who is unfamiliar with the English language and the American legal system. It is
unrealistic and unreasonable to expect children to represent themselves in these proceedings.
Accordingly, appointed counsel should be available to unaccompanied children in all stages of
their immigration processes and proceedings, including initial interviews before USCIS asylum
offices, and at proceedings necessary to obtain Special Immigrant Juvenile (SIJ) status, asylum,
and other remedies. Until appointed counsel for unaccompanied children is realized, USCIS
should remove barriers to protection for unaccompanied children and implement additional
child-friendly practices for children in their interactions with USCIS.
The ABA’s Standards for the Custody, Placement and Care; Legal Representation; and
Adjudication of Unaccompanied Alien Children in the United States (ABA Standards) 20 address
the comprehensive psychological, legal, medical, mental health, educational, and other basic
needs of unaccompanied immigrant children. The ABA urges that USCIS apply and use these
Standards in the training of all stakeholders involved with unaccompanied children. Below we
discuss ways in which USCIS can implement the ABA Standards and increase access to
protection for unaccompanied children seeking asylum and SIJ status.
• USCIS Should Take Additional Actions to Protect Special Immigrant Juveniles
First, as we said in a recent letter to Secretary Mayorkas, 21 USCIS should grant deferred action
to children with approved petitions for SIJ status. To qualify for SIJ status, a state juvenile court
must find that a child has been subjected to parental mistreatment or abandonment and that
returning to the child’s home country would not be in her best interest. 22 Yet current policy does
not protect from removal those children with approved SIJ petitions who often must wait for a
visa to become available before they can apply for lawful permanent resident (LPR) status.
19
Pub. L. No. 110-457, 122 Stat. 5044 § 235.
20
Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied
Alien Children in the United States, Am. B. Ass’n Commission on Immigr. (Aug. 2018), https://
www.americanbar.org/content/dam/aba/publications/commission_on_immigration/standards_for_children_2018.pdf
(hereinafter “ABA Standards for Unaccompanied Children” or “ABA Standards”).
21
Letter from Patricia Lee Refo, ABA President, to the Honorable Alejandro Mayorkas, Secretary of the U.S.
Department of Homeland Security (Apr. 8, 2021), Letter Re Deferred Action for Special Immigrant Juveniles
(americanbar.org).
22
8 U.S.C. § 1101(a)(27)(J). SIJ status is for children who are unable to reunify with one or both of their parents due
to abuse, abandonment, or neglect. To qualify for SIJ classification, the petitioner also must be present in the United
States, be unmarried, be under 21 at the time he or she files the SIJ petition, have a juvenile court order with the
required determinations, and warrant consent for the classification by DHS. USCIS Policy Manual, Vol. 6, Part J,
Ch. 2, §A, 6 USCIS-PM J.2(A), https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2.
5If the SIJ petitioner is not in removal proceedings, and a visa number is currently available, the
child may file an application for adjustment of status concurrently with USCIS. 23 However, if a
visa number is not currently available, classification as an SIJ allows a child to “get in line” for
the opportunity to apply for LPR status in the United States. The number of immigrant visas
available to Special Immigrants is limited by statute. SIJs are subject to the fourth preference
employment-based category and are further limited by a per-country cap. 24 SIJ beneficiaries in
oversubscribed categories may be required to wait years before being allowed to apply for LPR
status. For example, due to the increasing number of SIJ petitions, immigrant visas for children
from Honduras, Guatemala, and El Salvador now have a waiting list, or backlog.
Moreover, having an approved SIJ petition does not afford any additional benefits and is not
considered a defense to removal. Immigration judges have ordered the removal of children
subject to the visa backlog even though a state juvenile court has found that returning the child to
their home country is not in their best interest. And the Board of Immigration Appeals (BIA) has
upheld the removal of children in removal proceedings who have an approved SIJ petition. 25
This frustrates the intent of the SIJ statute and leaves children vulnerable to future harm.
Granting deferred action to SIJs would alleviate this concern. Deferred action is an exercise of
prosecutorial discretion to defer removal action against an individual for a certain period of
time. 26 For an SIJ beneficiary waiting for a visa to become available, deferred action can protect
a child or young adult from removal from the United States and grant employment authorization,
if the beneficiary can show an economic necessity for employment. 27 USCIS already uses its
discretion to grant protection from removal for recipients of other forms of humanitarian-based
immigration relief. Since 1997, Violence Against Women Act (VAWA) beneficiaries have been
eligible to receive deferred action if they are subject to the backlog of cases waiting for visa
availability and are in removal proceedings. 28 Similarly, crime victims who have been granted
U-status but who are waiting for a U-nonimmigrant visa to become available also are granted
23
See 8 C.F.R § 245.2(a)(1), (a)(2).
24
See 8 U.S.C. § 1153(b)(4). Earlier this year, the ABA urged Congress to exempt SIJ beneficiaries from numerical
visa limitations, or, in the alternative, to increase the number of visas available for SIJ beneficiaries and lift the
statutory per country cap.
25
In re REDACTED, XXX-XXX-XXX (BIA July 20, 2020) (affirming immigration judge’s denial of continuance
and order of removal because “[t]he high degree of uncertainty as to when the respondent will be eligible to adjust
her status as an SIJ outweighs her otherwise apparent prima facie eligibility for such relief and the underlying
humanitarian concerns of the SIJ program”); Garcia v. Barr, 960 F.3d 893, 897, 902 (6th Cir. 2020) (finding an
appeal of a request for a continuance that was denied by the immigration judge and the BIA moot where the person
with SIJ status had already been removed to his home country). See also Joshua M. v. Barr, 439 F. Supp. 3d 632,
677 (E.D. Va. 2020) (denying government motion to dismiss habeas claim because litigating from abroad does not
provide an adequate substitute for habeas for a person with SIJ status who has no meaningful criminal history and
who faces specific threats should he return to Honduras).
26
Deferred action is defined as “an act of administrative convenience to the government which gives some cases
lower priority.” 8 C.F.R. § 274a.12(c)(14).
27
Id.
28
Memorandum to Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner,
INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues 3 (May 6, 1997),
available at DOJ-Memorandum-Supplemental-Guidance-on-Battered-Alien-Self-Petitioning-Process-and-Realated-
Issues.pdf (asistahelp.org).
6deferred action from USCIS. 29 SIJ status should be no different because it serves a similar
purpose: to recognize past harm and protect a child or young adult from future harm.
Second, USCIS should issue a final rule regarding adjudications of SIJ status that does not
impose requirements beyond those mandated by Congress and does not exclude children who are
otherwise eligible for SIJ status. Proposed regulations were reopened in October 2019 on the
adjudication of SIJ petitions. 30 The ABA submitted comments and urges USCIS to adopt final
regulations in line with those recommendations. 31 The ABA does not support regulations that
create requirements beyond those mandated by Congress or that seek to exclude children who are
otherwise eligible for SIJ status, such as those that essentially direct DHS adjudicators to
redetermine those matters expressly delegated to state courts for decision and resolution.
Third, USCIS should only require SIJs to appear for adjustment of status interviews when
necessary and should encourage its interviewers to follow the guidelines in the USCIS Policy
Manual when conducting adjustment interviews for SIJs, regardless of age. CILA has received
reports from practitioners about adjustment interviews being scheduled for individuals with SIJ
status where there are no complicating factors. USCIS regulations provide that an interview of an
applicant for adjustment of status can be waived for a child under 14 or when an interview is
unnecessary. 32 Recognizing “the vulnerable nature of SIJ based applicants for adjustment of
status,” USCIS generally will not require an adjustment interview for an SIJ “if the record
contains sufficient information and evidence to approve the adjustment application without an in-
person interview.” 33 USCIS should follow this policy and not schedule adjustment interviews for
SIJs when the record contains sufficient information and there are no complications.
The USCIS Policy Manual also states that, where an SIJ adjustment interview is conducted, the
agency “takes special care to establish a child-friendly interview environment” due to “the
vulnerable nature of SIJ based adjustment applicants.” 34 Despite this policy, CILA has received
reports from practitioners of inappropriate conduct during SIJ-based adjustment interviews. In
one case, an interviewing officer refused to allow the child to use an interpreter after the child
expressed a need for one, finding that the child’s English was sufficient. 35 Examples such as this
evidence a disregard for the special challenges that interviews present for SIJs. USCIS should
ensure that its interviewing officers are trained on and use child-friendly and trauma-informed
techniques during SIJ-based adjustment interviews. 36
29
8 C.F.R. § 214.14(d)(2).
30
Special Immigrant Juvenile Petitions, 84 Fed. Reg. 55250 (to be codified at 8 C.F.R. pts. 204, 205, 245) (Oct. 16,
2019), https://www.federalregister.gov/documents/2019/10/16/2019-22570/ special-immigrant-juvenile-petitions.
31
Letter from Judy Perry Martinez, ABA President, to Samantha Deshommes, Chief of the Regulatory
Coordination Division of the Office of Policy and Strategy, Department of Homeland Security (Nov. 15,
2019), https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/aba-comments-dhs-
docket-no-uscis-2009-000411-15-19.pdf?logActivity=true.
32
8 C.F.R. § 254.6.
33
USCIS Policy Manual, Vol. 7, Part F, Ch. 7, §E2, 7 USCIS-PM F.7(E2), Chapter 7 - Special Immigrant Juveniles
| USCIS.
34
Id.
35
ABA Standards for Unaccompanied Children § III.G. (unaccompanied children have the right to language access
by means of an interpreter in all interviews with an immigration officer; interpretation should be full and
simultaneous).
36
Id. § IV.A.-C. (personnel who interview children should be trained on working with children in immigration
proceedings, including training in child-sensitive and culturally appropriate interviewing techniques).
7• USCIS Should Restore Protections for Children Seeking Asylum
USCIS should retain its initial jurisdiction over asylum applications filed by all children who are
designated as unaccompanied. The TVPRA provides multiple protections for unaccompanied
children. Among the most significant protections is the ability for unaccompanied children to
apply for asylum in the first instance in a non-adversarial setting at the USCIS asylum office,
rather than applying before the immigration court, even while they are in removal proceedings. 37
This protection affords children better access to the asylum system and a more child-friendly
adjudication that considers their age and any trauma they have endured in their home countries
or during their journey to the United States. The ABA believes that all those who are determined
to be unaccompanied children in the United States, or who have ever been so determined, should
be afforded the protections of the TVPRA, and therefore, the USCIS asylum office should have
initial jurisdiction over their asylum applications. 38 The unaccompanied child determination
should remain valid until the case is completed. This would improve fairness, uniformity, and
accessibility to the asylum system for children and ensure their cases are heard in a more child-
friendly setting.
As a result of litigation, USCIS is enjoined from relying on a 2019 memorandum to decline
jurisdiction over asylum applications of individuals previously determined to be unaccompanied
children and from deferring to EOIR determinations in assessing jurisdiction over asylum
applications filed by unaccompanied children in removal proceedings. Rather, USCIS is
currently following the procedures outlined in the 2013 “Kim Memo” 39 to determine whether it
has jurisdiction over asylum applications filed by unaccompanied children. 40 However, in 2018
the BIA decided Matter of M-A-C-O-, 41 which held that an immigration judge has initial
jurisdiction over an asylum application filed by a respondent who was previously determined to
be an unaccompanied child but who turned 18 before filing the application. As a result, there is a
conflict between USCIS and EOIR about how to determine unaccompanied child status in
certain situations.
This conflict can lead to serious consequences for children, especially those who filed asylum
applications that are now stuck in the significant backlog of pending asylum applications. An
immigration judge could decide that she has jurisdiction over the asylum application for an
individual in removal proceedings because the individual is no longer an unaccompanied child,
deny a request for a continuance to wait for USCIS to adjudicate the application, and proceed to
an individual hearing before USCIS can adjudicate the asylum application. USCIS should work
with EOIR to resolve this conflict and develop a consistent policy between agencies that
maintains USCIS’ initial jurisdiction over any asylum application filed by a child who has been
determined to be an unaccompanied child. In the interim, USCIS should prioritize for interviews
37
8 U.S.C. § 1158(b)(3)(C).
38
ABA Standards for Unaccompanied Children § III.
39
Memorandum from Ted Kim, Chief of the Asylum Division, U.S. Citizenship & Immigration Services to Asylum
Office Staff (May 28, 2013), https://www.uscis.gov/sites/default/files/document/memos/determ-juris-asylum-app-
file-unaccompanied-alien-children.pdf.
40
USCIS, “J.O.P. v. U.S. Dept. of Homeland Security , et. al., Information,” J.O.P. v. U.S. Dept. of Homeland
Security, et. al., Information | USCIS (Last Reviewed/Updated: March 23, 2021).
41
27 I & N Dec. 477 (BIA 2018).
8those cases where an individual hearing before EOIR is proximate to allow the unaccompanied
child the opportunity for a non-adversarial hearing before USCIS.
CILA has received complaints from practitioners regarding difficult interview environments
during asylum and asylum-based adjustment interviews for unaccompanied children. These
include reports of adversarial and abrasive conduct by asylum officers, and overly long asylum
interviews where breaks were limited or denied, and no breaks were provided for the child to eat
or drink. The Refugee, Asylum, and International Operations Directorate’s (RAIO) Combined
Training Module for children’s claims provides guidance on conducting a non-adversarial
interview with a child applicant, building rapport with and offering reassurance to the child,
monitoring a child’s need for a break, and using child-sensitive questioning techniques. 42 This
guidance is consistent with the ABA Standards. USCIS should ensure that individuals who
interview children are properly trained on this guidance and follow it during interviews with
children.
USCIS Should Reduce Barriers to Employment Authorization for Asylum Applicants
The last administration published two final rules that substantially altered employment
authorization eligibility and application processing for asylum seekers. 43 These rules repealed the
30-day timeline for USCIS to process initial employment authorization applications by asylum
seekers and erected barriers to asylum seekers’ ability to qualify for employment authorization.
On May 7, 2021, DHS announced that Secretary Mayorkas had ratified the rule that removes the
30-day processing requirement for initial employment authorizations applications filed by
asylum seekers. The press release stated that the ratification was “necessary and justified due to
operational realities,” but that Secretary Mayorkas “recognizes that work authorization is
crucially important to people requesting asylum and reaffirms the Department of Homeland
Security’s commitment to adjudicate applications as quickly and efficiently as possible.” The
press release also states that DHS plans to engage in rulemaking “to advance this important
interest.” 44 The ABA appreciates the Secretary’s recognition of the importance of work
authorization to individuals with a pending asylum application and offers the following
recommendations as USCIS considers rulemaking on employment authorization for asylum
seekers.
USCIS should promulgate regulations that enable asylum seekers to file an initial application for
employment authorization far enough in advance so that they receive their employment
authorization document when they are first eligible for employment authorization. This would
put less pressure on USCIS to adjudicate initial employment authorization applications quickly
while giving asylum applicants access to lawful employment as soon as they are eligible for it.
To accomplish this, USCIS could calibrate the time for filing initial employment authorization
42
USCIS, RAIO Combined Training Program: Children’s Claims § 6 (Dec. 20, 2019), RAIO Children's Claims LP
(uscis.gov).
43
Asylum Application, Interview, and Employment Authorization for Applicants, 85 Fed. Reg. 38,532 (June 26,
2020) (effective Aug. 25, 2020); Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-
765 Employment Authorization Applications, 85 Fed. Reg. 37,502 (June 22, 2020) (effective Aug. 21, 2020).
44
DHS, “DHS Ratifies Rule that Removes 30 Day EAD Processing Requirement and Acknowledges Importance of
Issuing Timely Work Authorizations,” (May 7, 2021), DHS Ratifies Rule that Removes 30 Day EAD Processing
Requirement | Homeland Security.
9applications to reflect how long it takes USCIS to process these applications. For example, if
asylum applicants were eligible for employment authorization when their asylum applications
have been pending for 180 days, and the applications take 60 days to process, asylum applicants
should be able to file a request for work authorization after their applications have been pending
for 120 days (or even earlier).
In addition, for employment authorization applicants who filed applications for asylum with the
immigration court, USCIS should not require a copy of the court-stamped I-589 as proof of
filing. Providing a copy of the court-stamped I-589 is particularly challenging for pro se
applicants. Our ProBAR project already has confronted this issue when attempting to assist
individuals who were subjected to the Migrant Protection Protocols, filed their I-589 Form when
they were representing themselves pro se, have been paroled into the United States, and now
wish to apply for employment authorization. Under current requirements, pro se individuals must
contact the immigration courts where their I-589 Forms were filed to request copies of their
court-stamped I-589 Form. This is unduly burdensome for pro se individuals, particularly when
USCIS could request this information directly from EOIR.
USCIS also should ensure that existing employment authorization documents do not expire due
to delayed processing of renewal applications by automatically extending the expiration date of
the existing employment authorization document until USCIS issues the renewal card, as long as
the applicant showed a good faith effort to apply for renewal before the existing employment
authorization document expired. USCIS also must ensure that employees and contractors are
well trained on these procedures, to reduce the number of improper rejections of properly filed
employment authorization applications.
Many of the changes in the June 26, 2020 final rule with respect to employment authorization
eligibility are inconsistent with principles expressed by United Nations High Commissioner for
Refugees in terms of access to employment for asylum seekers. 45 They also unduly restrict the
ability of asylum seekers and torture victims to be self-sufficient while they wait for their
applications to be processed. Therefore, in addition to the above recommendations, USCIS
should rescind policies: (1) restricting employment authorization eligibility for asylum seekers
who enter the United States other than at a port of entry; (2) restricting eligibility for
employment authorization based on failure to file an asylum application within one year of an
individual’s latest arrival in the United States; (3) barring asylum applicants other than
“aggravated felons” from employment authorization based on criminal history; (4) prohibiting
eligibility for work authorization during any period of judicial review of the denial of an asylum
application; and (5) making arriving noncitizens who have been paroled into the United States
after establishing a fear of persecution or torture ineligible for employment authorization. 46
45
UNHCR, Expert opinion of UNHCR on issues of the right to work for refugees and asylum-seekers in the case of
[South African Somali Association v. Limpopo Department of Economic Development, Environment and Tourism]
in the North Gauteng High Court, Pretoria, South Africa 2 (March14, 2013),
https://www.refworld.org/docid/5215d0734.html.
46
For more information on the ABA’s views regarding the Proposed Rule that was finalized on June 26, 2020 see
Letter from Judy Perry Martinez, ABA President, to Samantha Deshommes, Chief of the Regulatory
Coordination Division of the Office of Policy and Strategy, Department of Homeland Security (Jan. 13, 2020).
10USCIS Should Exercise Existing Authority to Increase Access to Services and Benefits for
Victims of Crime
The ABA supports avenues for lawful status, employment authorization, and benefits for
victims, and derivative family members, of human trafficking and crimes described in 8 U.S.C. §
1101(a)(15)(U) (U-nonimmigrant status). USCIS should exercise its existing authority to reduce
barriers and burdens for these vulnerable individuals.
First, USCIS should comply with its obligation under the regulations to grant parole to eligible
qualifying family members of individuals who are placed on a waitlist of eligible petitioners who
are not granted U-nonimmigrant status solely due to the statutory cap on visas. 47 Implementing
this provision would promote family unity, especially given the lengthy wait times for a U visa
to become available.
Second, USCIS should comply with its obligation to conduct an initial review of an application
for T-nonimmigrant status to determine if the application is bona fide. 48 This is significant
because “[i]f USCIS determines that an application is bona fide it automatically stays the
execution of any final order of removal, deportation, or exclusion. This administrative stay will
remain in effect until any adverse decision becomes final.” 49 Once an applicant for T-
nonimmigrant status has been removed, she is no longer eligible for a T-visa because an
applicant must be “physically present in the United States . . on account of such trafficking.” 50
USCIS should prioritize this requirement to avoid the removal of individuals who have been
subjected to human trafficking.
Third, USCIS should exercise its discretion to grant work authorization to individuals with a
pending, bona fide application for U-nonimmigrant status. 51 Applications for U-nonimmigrant
status are subject to lengthy wait times and providing applicants with employment authorization
while they wait would enable them to be self-sufficient while their application is being
processed.
Fourth, USCIS should resume issuing deferred action to VAWA self-petitioners in removal
proceedings or with final removal orders. As the 1997 Immigration and Naturalization Service
memorandum noted, VAWA cases, “by their nature,” “generally possess factors that warrant
consideration for deferred action.” 52 Failing to provide deferred action to VAWA self-petitioners
also contravenes Congressional intent.
Finally, during the COVID-19 pandemic, USCIS has waived interviews for adjustment of status
based on VAWA in some instances. USCIS should consider applying this practice to more
VAWA adjustment cases even after the COVID-19 pandemic, especially considering that a
similar approach is used for SIJ adjustment cases.
47
8 C.F.R. § 214.14(d)(2).
48
Id. § 214.11(e).
49
Id. § 214.11(e)(2).
50
Id. § 214.11(g).
51
8 U.S.C. § 1184(p)(6).
52
See note 23, supra, at 3.
11USCIS Should Restore the Infopass System When It Is Safe to Do So
Infopass is convenient because individuals can go to the USCIS website to schedule an in-person
appointment with an officer at a local USCIS office. The ABA understands the need to limit the
number of in-person visits to USCIS offices during the COVID-19 pandemic. However, we urge
USCIS to resume the use of Infopass as soon as it is safe to do so.
The discontinuation of Infopass has created difficulties for individuals who need to document
relief they have been granted in immigration court. For example, due to backlogs in USCIS
adjudications, some individuals with SIJ status choose to adjust their status to a lawful
permanent resident in immigration court when a visa becomes available. If the immigration
judge grants the adjustment application, the individual still must rely on USCIS to obtain their
LPR card. In the past, individuals could make an Infopass appointment with their local USCIS
field office, bring to their appointment paperwork from the immigration court demonstrating that
their adjustment application was approved, and USCIS would begin processing their LPR card.
Without Infopass, individuals now must call the USCIS customer service number instead. There
are very long waits to get through to a person on the customer service line, and the first line
responders are not immigration officers. Rather, the first line responder decides whether the
individual on the line should be scheduled for an appointment with the local field office. 53 To
reduce this administrative burden, USCIS should reinstate the Infopass system when it is safe to
do so, or create an alternative system that is user-friendly accessible, efficient, and transparent.
Conclusion
Thank you for considering our views. If you have any questions or need additional information,
please contact Kristi Gaines in our Governmental Affairs Office at
kristi.gaines@americanbar.org.
Sincerely,
Patricia Lee Refo
President
53
USCIS also should strive to make the customer service number a more accessible option by limiting wait times
and increasing the amount of and types of information that first-line responders can provide to callers.
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