NOI 5: Public Charge Update: Why Don’t Kids With Cancer Get to Stay in the U.S.?

Today we address how the impact of the principles underlying hardline public charge policies impact immigrants who are sick and protected under deferred action.

Jacob Tingen: Hello and welcome to Nation of Immigrants. We’re on episode five. I’m very excited to be talking to you about different immigration issues, and it’s just so amazing how much has come up in just the last week or so. That gives me a chance to share with you some perspectives on what’s going on, so, in the very first episode, we talked about a new public charge rule and its impact on different families and potential immigrant petitions.

Jacob Tingen: Today, I’m going to keep talking about public charge because I think the thinking underlying that public charge decision is also influencing our topic today, which is why are we deporting children with cancer and other chronic illnesses and also other immigrants as well, so welcome to Nation of Immigrants. Let’s get this thing rolling.

Speaker 2: You’re listening to Nation of Immigrants…

President Obama: America is a nation of immigrants.

Speaker 2: … a podcast about US immigration law, with your host, Jacob Tingen.

Jacob Tingen: Okay. Let’s talk about what’s happening. I have been checking the news pretty frequently about different immigration topics, and the headline that caught my eye today was about medical deferred action, which a lot of people don’t understand deferred action generally, so I’m going to talk about that topic first, what deferred action is, how people get it, and then we’ll talk about this public charge policy. We’ll just recap that from the first episode, and then we’ll show how they’re interrelated today.

Jacob Tingen: The headline that caught my eyes, there were a couple of them, “After receiving denial letters, immigrants fear end of medical deferral program,” and then then here’s another fun headline, “ICE took over a program that shields sick immigrants from deportation. Here’s how that’s going,” so when you see things like that, you just know that it won’t be going well, unfortunately, but let’s talk about medical deferral program and what that means.

Jacob Tingen: This is one of the things that bugs me when I see different news reporters talk about immigration. They’ll say medical deferral program. There is no such program. There is, however, deferred action, and, here, let me show you one of… the bible of immigration law, one of the many thick books that we use. This is the Kurzban’s Immigration Law Sourcebook, and so, when I saw this medical deferral program, I was like, “What are they getting at?”

Jacob Tingen: What they’re actually getting at is the same old deferred action process that has been used for years and years and years in the United States, and, again, we also talked about this in our prosecutorial discretion episode where, basically, immigration will decide who they’re going to prosecute for immigration violations and who they’re not going to prosecute for immigration violations.

Jacob Tingen: Deferred action is this process. It was an informal process. There’s no form. There’s no filing fee, but it was a little known process where an immigrant, probably represented by an attorney, would submit a letter to their local USCIS field office, to the deputy director, and request deferred action, and in their request for deferred action, they would outline five different factors that would influence, “Hey, this is why I should be granted deferred action,” and so those reasons would extend from positive versus negative discretionary factors, so, again, it goes to this idea of prosecutorial discretion. You would list things, for example, a chronic illness or a diagnosis of an illness.

Jacob Tingen: Now, I know that I also shared in a recent episode about a case that we had where a young girl was diagnosed with a life-threatening condition and was not granted prosecutorial discretion in the immigration court in her removal proceedings.

Jacob Tingen: Deferred action traditionally has been this process where someone could affirmatively request deferred action from USCIS, basically, requesting the agency to defer action in their case, to not take action, to exercise their prosecutorial discretion and hold off on deporting them, on removing them from the country for good reasons, and they’d outline those reasons, and like I said, there’s a list of five factors that people would look at, and among them are a medical condition that, otherwise, would lead to my death or an immigrant’s death.

Jacob Tingen: When these news reports talk about medical deferral program, they’re talking about deferred action, something that has always existed and that medical factors were one of those factors that were considered, so what’s happening… and the reason we’re talking today about this issue is that families recently this week began to receive notices from USCIS saying, hi, we’re only making deferred action, deferrals of deportation for… I think it’s just for people related to members of the military and a couple of other situations, but medical deferred action is no longer being considered at all, and then, later, USCIS updated and said, “It’s being considered, but we’re not considering it. You’ll have to take that up with ICE directly, not with the USCIS.” ICE is the agency that actually supports people.

Jacob Tingen: What’s interesting is that, while not a formal process existed for requesting deferred action in the past, you could dig around and look up, “Okay, I need to mail a letter to the deputy director.” In this change of policy and who’s in charge of granting deferred action, I haven’t been able to find who you’re supposed to mail a letter to or who you’re supposed to ask for deferred action, so that makes it a lot more difficult to figure out what you’re even supposed to do if you’re dying from cancer and somebody wants to deport you.

Jacob Tingen: Anyway, this week, families began to receive a letter from USCIS that was kindly worried and said, “You need to leave in 33 days. You don’t have lawful presence, and we’re not deferring action in your case anymore. You will be placed in removal proceedings if you’re not gone in 33 days,” and what’s interesting is that many of these people who had received deferred action received it because of a medical condition, so there are literally children and… Like I said, we’ve dealt with a case where we asked for prosecutorial discretion with a child who had a doctor’s letter that said, “This child will die if removed from the United States.”

Jacob Tingen: Now, this is happening to a large group of people, many of whom are children, and so that is the question of the day. Why are we deporting children with medical conditions where they can’t get treatment outside of the United States? I think the reason why is that it comes back to this public charge reasoning that we talked about in the first episode, the idea that an immigrant is here receiving medical services, they’re a public charge. They’re a drain in our economy. They’re a drain in our resources. These people shouldn’t be here because they are a public charge. They are too poor to contribute to our society or they’re too sick to contribute to our society.

Jacob Tingen: I don’t think that’s who the United States of America wants to be. I don’t think that anyone listening to this feels like that’s great. I do understand that, everybody, medical bills are complicated and there are strong feelings about who should pay for medical care. Many of these immigrants who apply for deferred action typically show that they can pay for it or receive some kind of charitable program where they’re not paying for the entire bills. Many times, these people who are placed in this kind of deferred action receive the opportunity to apply for work authorization so they can support themselves, so that it can cover some of these medical bills, and yet the reasoning underlying all of this is why should we protect these people? They can’t take care of themselves.

Jacob Tingen: In the words of Ken Cuccinelli, give me your tired and weary and those who can stand on their own two feet. That’s the reasoning that’s being used, and, for me, that’s not good reasoning. The public charge grounds of inadmissibility and the reasoning underlying those kinds of enforcement priorities are not what the US is about, so, the next time somebody asks should we build a wall or why don’t people get in line, you can respond with why are we deporting children with cancer?”

Jacob Tingen: That’s it for Nation of Immigrants today.

Speaker 2: Thank you for listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Speaker 2: Subscribe to the podcast on iTunes. Watch the live stream on YouTube and Facebook or visit to learn more.

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