USCIS headquarters reminds officers that they should not be looking for ways to deny cases

After September 11, 2001, the INS was split up (or divided) into three separate agencies: Immigration and Customs Enforcement (ICE); Customs and Border Protection (CBP); and United States Citizenship and Immigration Services (USCIS). ICE and CBP were to be the “enforcement” agencies, and USCIS was to be the “benefits” agency, meaning USCIS was in charge of granting or approving cases, to enable people to achieve their American dream.

Ironically, ICE (the “enforcement” agency), has been showing compassion and discretion towards aliens. For example, although ICE is in charge of enforcing our immigration laws, prosecuting cases, and removing/deporting aliens, it has implemented a policy of “prosecutorial discretion,” which means that although ICE has the ability to deport/remove people with certain immigration violations, it is now prioritizing criminals and other people who pose a danger to society, but have the discretion to “leave alone” (for now) people who have minor removable offenses. Even people with final orders of removal can sometimes obtain prosecutorial discretion, with ICE agreeing to reopen cases, enabling the person to adjust status in the US. So, it seems that ICE is showing leniency, and looking for ways for people to remain in the US, which is to be commended.

Recently, USCIS’ Headquarters in Washington D.C. put out a policy memorandum, reminding USCIS officers of their role or function, as being the “benefits” agency. For example, in connection with interviews, officers are reminded that, “the purpose of the interview is to obtain the correct information in order to make the correct adjudication of the case, not to prove a particular point or to find a reason to deny the benefits sought.” The memo further reminds adjudicators that they are “duty bound to develop the facts, favorable as well as unfavorable, with equal fairness to the subject [the applicant] and to the interest of the government.” In other words, their focus should not be on finding a reason to deny a case.

Along the same lines, in 1980, the Legacy INS’s Regional Commissioner also put out a memo about the “attitudes toward our clientele and adjudications decision making.” That old memo also reminded adjudicators that, “The decision maker in adjudicating applications and petitions should not attitudinally approach the process, either consciously or unconsciously, in an adversary manner or looking for a reason to deny. Rather, we should all, with our broad knowledge of law and policy, approach them attitudinally, in a friendly professional manner, looking for a way to approve them.”

I want to be clear that adjudicators are dedicated and professional, and if a person is not entitled to (or eligible for) the benefit that he or she is seeking, then the person should of course be denied that benefit. In fact, USCIS cannot, and should not, approve a case if the alien is not legally eligible or entitled. But these memos still point out that the USCIS’ function, focus, and approach to cases should not be “enforcement,” or looking for ways to “deny” a case. Rather, USCIS’ function, especially when it involves the exercise of discretion, is to look for ways to approve cases, and deny cases only if “we cannot approve” them.

Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories,” endorsements and reenactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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