Democrats have to choose between saving children's lives and hurting Trump politically

Democrats have to choose between saving children's lives and hurting Trump politically
© Greg Nash

Without any warning, U.S. Citizenship and Immigration Services (USCIS) abruptly ended a program that allowed critically ill children from other countries to come to the United States to get medical treatment that isn't available in their own countries. Democrats and immigrant advocacy groups are fighting back, but they seem to be more interested in slamming the Trump administration than in actually helping the children.

USCIS announced the termination of this program in form letters it sent to 424 aliens who had requested an extension of their deferred action status to continue their treatment in the United States. The letters informed them that USCIS no longer considers such applications, except from certain military members; and, therefore, that their requests had been denied.

USCIS didn't even give them time to make other arrangements. The letter informed that if they did not leave the United States within 33 days, they would be subject to deportation.

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One of the recipients was Maria "Isabel" Bueso, a 24-year-old woman who was 7 when she came to the United States from Guatemala. American doctors needed more subjects for clinical trials on a treatment for a rare genetic disease she has, Mucopolysaccharidosis VI. The treatment her participation helped to develop extends the life spans of children who have that disease.

According to her doctor, she will die if she is returned to Guatemala. The medical care she needs is not available there.

Isabel and other program participants need more than a restoration of the temporary deferments the program provided — they have to continue their medical treatments for the rest of their lives, and it may never become available in their own countries.

But the political response has not been entirely heartening.

Democratic Members of Congress sent a letter to DHS officials accusing them of needlessly endangering vulnerable children, which "represents another cruel action by the Trump administration to attack our most vulnerable immigrant neighbors." They urged the officials to restore the program immediately.

The Irish International Immigrant Center (Irish Center) filed a lawsuit seeking an injunction to force USCIS to restore the program. The suit alleges that the termination was part of an anti-immigrant agenda driven by racial animus, that Trump has stoked animus against immigrants of color throughout his campaign and presidency.

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The animus argument is a rehash of the "Trump is a bigot — so anything he does must be bigoted" argument that the federal courts used to block his travel ban, which ultimately was rejected by the Supreme Court.

To my knowledge, no one has established that Trump even knew about the program before it was terminated.

What's more, the courts may not have jurisdiction. According to Professor Shoba Sivaprasad Wadhia, section 242(g) of the Immigration and Nationality Act (INA) prohibits judicial review of prosecutorial discretion with respect to the commencement of removal proceedings. This applies to medical deferments because they prevent the commencement of proceedings.

And USCIS probably shouldn't have been granting deferred action requests for medical treatment in the first place. It has authority to grant some types of deferments, such as for participation in the Deferred Action for Childhood Arrivals initiative and for Temporary Protected Status. The medical deferments, however, are based solely on enforcement discretion, and USCIS is not an enforcement agency.

Aliens who lose their deferred action status might not be deported. According to Tom Homan, a former ICE director, prosecutorial discretion can be exercised for humanitarian reasons at any stage in removal proceedings. It is done informally unless the alien is subject to a deportation order, but the procedure for medical deferments at USCIS was informal too.

Lastly, the government has to use its resources judiciously if it wants to remove aliens who are a threat to our communities. As of the end of July, the immigration courts had a backlog of 975,298 cases.

Last week, the House Committee on Oversight and Reform conducted a hearing on the revocation of the program.

The first panel consisted of: a representative from the Irish Center; several program participants, including Isabel; a doctor who treats program participants; Professor Wadhia; and Homan.

The Irish Center's representative, the program participants, and the doctor made a compelling case for continuing the program. 

Professor Wadhia testified that it would not be appropriate to redirect the program to ICE because there is little reason to expect ICE to process deferred action requests with compassion.

Homan testified that it is not lawful to have a deferred action “program” in any federal agency. Deferred action is an exercise of prosecutorial discretion, and prosecutorial discretion may only be applied on a case-by-case basis by law enforcement agencies.

A second panel consisted of ICE and USCIS officials — who were not able to say anything about the program because of the pending lawsuit.

Rep. Mark DeSaulnier (D-Calif.) introduced a private bill to grant permanent resident status to Isabel and her family, H.R. 4225. That is a worthy effort, but it will not be possible to help all 424 program participants with such bills. Only four private bills have been passed since 2007.

USCIS has reopened deferral requests that were pending when the program was terminated — but nothing has changed for aliens who applied after that cut off point.

If the Democrats and advocacy groups want to help the sick children, they need to forget — for a moment — about hurting Trump in the upcoming elections.

They should work with him on legislation to create a permanent program for young children with life-threatening diseases who don't have access to necessary medical care in their own countries, with an extended deferment status for aliens who have to remain here indefinitely.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him on Twitter @NolanR1