DHS Walks Back Immigration Directives as Muslim Ban Chaos Continues

The contradictory directives came as government agencies struggled to interpret and implement the Trump administration’s travel ban.

Photo: Joe Penney

Less than one week after senior leadership at the Department of Homeland Security issued a policy guidance that threatened to bring much of the government’s asylum and refugee work to a grinding halt, a new directive issued to employees appears to reverse key elements of the procedures U.S. immigration officials are expected to follow. The contradictory directives came as government agencies struggled to interpret and implement the Trump administration’s travel ban targeting seven Muslim-majority countries — a broad and ambiguous order that is already facing legal challenges in several federal courts across the country.

According to an internal memo issued Thursday by Lori Scialabba, the acting director of U.S. Citizenship and Immigration Services, the portion of Trump’s controversial ban pertaining to the issuance of visas and other benefits to immigrants from the targeted countries “does not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States regardless of their country or nationality.”

The new memo, obtained by The Intercept, stands in direct contradiction to the earlier DHS guidance, which effectively blocked U.S. immigration officials from issuing decisions in any adjustment of status cases for nationals of the banned countries — including applications for permanent residency and naturalization by individuals already in the United States.

Last weekend, as DHS personnel scrambled to figure out what the executive order meant for their work, a directive from Daniel M. Renaud, associate director of field operations for USCIS, informed senior officials that “Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.”

A number of rank-and-file DHS staffers were horrified to learn of the directive when they returned to work on Monday.

Thursday’s memo essentially walked back the previous memo — a sign of the chaos that continues to dominate the agency and an indication that policies related to the ban remain uncertain, fluid, and subject to public as well as internal pressure.

In the more recent memo, Scialabba noted that the portion of the executive order dealing with visas and immigration benefits for individuals from the listed countries “does not affect applications and petitions by lawful permanent residents outside the United States, or applications and petitions for individuals outside the United States whose approval does not directly confer travel authorization (including any immigrant or nonimmigrant visa petition).”

The acting director added that USCIS “may continue to adjudicate” permanent resident and status change applications for individuals from the countries targeted by Trump’s order and that the office will continue to adjudicate refugee and asylum petitions for individuals from any country who are already in the United States. “USCIS will continue refugee interviews when the person is a religious minority in his or her country of nationality facing religious persecution,” she wrote.

“Additionally, USCIS will continue refugee interviews in jurisdictions where there is a preexisting international agreement related to refugee processing. USCIS will not approve a refugee application for an individual who we determine would pose a risk to the security or welfare of the United States,” Scialabba wrote, adding that her office will also “continue adjudicating all affirmative asylum cases according to existing policies and procedures.”

The new memo was met with some relief — if ongoing confusion — by immigration officials who had essentially seen their jobs transformed overnight by the original directive.

“This memo completely reverses the hold imposed Monday,” a senior U.S. immigration official told The Intercept, speaking on condition of anonymity. “There is now no additional processing requirements for all immigration petitions for nationals of affected countries. It is essentially a return to the status quo.”

“The speed of the volte-face is surprising,” the official added, noting that a reversal of directive in less than a week was “light speed in government.”

As The Intercept reported earlier this week, the inspector general of DHS opened an investigation into the chaotic rollout of the executive order as well as reports of noncompliance with court orders and “allegations of individual misconduct on the part of DHS personnel.” The probe came in response to “congressional request and whistleblower and hotline complaints,” the office said in a statement confirming the investigation.

Both the internal review and rapid changes in the directives issued to DHS staff are a result of an executive order that was drafted without the input of the agency’s career officials.

This haphazard implementation of Trump’s plan to remake America’s immigration system has resulted in widespread fear and confusion. In addition to an indeterminate number of deportations that have occurred since last week, reports have surfaced of individuals being pressured to sign documents forfeiting their green cards and legal U.S. residents being stranded abroad while traveling.

A State Department memo released last week as part of a lawsuit challenging the travel ban authorized the government to “provisionally revoke all valid nonimmigrant and immigrant visas of nationals” of the seven countries affected. A U.S. government lawyer in Virginia on Friday said that more than 100,000 visas have now been revoked, while the State Department itself has claimed that the figure is closer to 60,000. Both figures contradict Trump administration claims that just 109 travelers were adversely impacted by the ban.

Many of the changes triggered by Trump’s ban have affected international students and other legal permanent residents of the United States, leading to fears of a wave of deportations in the future.

The sweeping, abrupt shifts in U.S. immigration policy triggered by Trump’s executive order have generated widespread protests, with activists descending on major U.S. airports to demand the release of travelers held in detention by border officials. Internal pressure also appears to be building, with immigration officials pushing back against some of the most callous aspects of their new mandate.

The directive DHS officials received earlier this week caused shock and confusion within the department itself — but also spread anxiety among those whose status and immigration prospects were suddenly in limbo, and frustration among the lawyers representing them.

“I think they’re walking themselves back,” said Claudia Cubas, an attorney at the Capital Area Immigrants’ Rights Coalition, who works with immigrants at risk of detention and deportation in the D.C. area.

The early memo, Cubas said, was “very broadly worded” — applying not only to adjustment of status cases, but also to more routine applications that have a significant impact on people, like renewing their green card application or renewing their employment authorization. “That meant people would be placed in legal limbo but also in financial limbo,” she said, noting that many immigrants rely on the processing of these applications to continue to work legally.

The new memo suggests the impact would be more limited, she added, but not insignificant. “If there’s still some type of impediment for people to file applications, I think the repercussions will be less than with the previous guidance, but there are still repercussions.”

Most importantly, she noted, the lack of clarity and consistency remains a problem for the thousands of people affected by the executive order. “The importance that government bureaucracies provide, especially such large ones as DHS and USCIS, is consistency in the application of the laws and clear guidance,” Cubas said. “And that has been ultimately the concern since the executive order was issued by the president — that it wasn’t clearly applied, it’s been affecting people very, very differently. And these are not just numbers, these are people’s lives.”

Top photo: Yemeni-led protest outside Brooklyn Borough Hall on Feb. 2, 2017.

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