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Can You Be Deported If You're Terminally Ill?

United States VISA in a european passport with stamps.
By Christopher Coble, Esq. on September 05, 2019

Under what's known as the medical deferred action program, severely ill undocumented immigrants are able to request that their deportation proceedings be delayed while they receive potentially life-saving treatment. Or, at least, they were able to until last month, when U.S. Citizenship & Immigration Services quietly announced it would no longer consider deferred action for medical reasons.

But amid a public backlash that included accusations that "Donald Trump is literally deporting kids with cancer," immigration officials changed course somewhat, saying they would reopen deferred action cases that were pending on August 7, when the agency ended the program. So, what does that mean for medical deferrals going forward?

Program Pending

"USCIS will complete the caseload that was pending on August 7," the department noted on its website. "As USCIS' deferred action caseload is reduced, the career employees who decide such cases will be more available to address other types of legal immigration applications on a more efficient basis." Immigration officials were also careful to point out that immigrants whose requests were denied prior to August 7 were not targeted for deportation.

However, applicants whose requests were pending on August 7 allegedly received notices last month telling them that USCIS offices "no longer consider deferred action requests" and advising them to leave the country within 33 days. Now, under the new guidance:

[T]he Department of Homeland Security will make case-by-case, discretionary decisions based on the totality of the evidence and circumstances. Such cases will be decided based on the discretion of career USCIS employees, including but not limited to considerations similar to the Department of State’s consideration of B-2 visas when such visas are requested for medical purposes. Deferred action does not grant an alien lawful immigration status, nor does it excuse any past or future periods of unlawful presence.

Where to Turn?

That may mean a sigh of relief for those who had already requested a medical deferred action, but what about those who may fall ill in the future? Last week, USCIS said U.S. Immigration and Customs Enforcement (ICE) would now be handling those requests, but it didn't appear that ICE got the message.

"There is no program at ICE that's going to take over that function," an ICE official told Boston's WBUR. "ICE is not going to implement any sort of a program or procedure or policy to take over that function. We'd like USCIS to clarify what they mean, and we're working collaboratively to get them to be a little more forthcoming about it."

It is yet another kind of legal limbo for undocumented immigrants, who were also advised by the Trump administration last month they may need to choose between accepting public benefits and possible U.S. citizenship. If you have questions about navigating medical deferred action program, contact an experienced immigration attorney today.

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