Responding to concerns about risks posed by Afghan nationals flown into the United States under the Biden administration, U.S. Citizenship and Immigration Services (USCIS) — the immigration-benefits arm of DHS — issued a policy memorandum pausing adjudications of all pending “affirmative asylum applications”, as well as other “benefits requests” filed by nationals of 19 “high-risk” countries, “pending comprehensive review”. There will also be a “re-review” of benefits granted to nationals of those countries who entered after the end of the Trump I administration. USCIS is now putting the “homeland security” into “DHS”.
Executive Order 14161
This process actually started on Inauguration Day, January 20, when President Trump issued Executive Order (EO) 14161, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats”.
Sometimes, the U.S. government knows a lot about the people who want to come here (good and bad), but usually, when foreign nationals apply for admission to the United States, it must rely on information provided by those foreign nationals’ home governments to vet those individuals.
In that EO, the president directed the department of State Justice, and Homeland Security and the Director of National Intelligence (DNI) to identify any and all countries in which that available background information was so deficient that the U.S. government couldn’t rely on it to determine who posed a risk and who didn’t.
In issuing EO 14161, the president relied on his authority in section 212(f) of the Immigration and Nationality Act (INA), which I described as Title 42’s “immigration twin” in December 2022.
Briefly, section 212(f) permits the president to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” whenever he concludes the entry of those aliens “would be detrimental to the interests of the United States”.
As the Supreme Court explained in its landmark 2018 decision in Trump v. Hawaii, in assessing the legality of executive branch travel restrictions for given aliens from certain countries, section 212(f) “exudes deference to the President in every clause” — pretty strong language from otherwise stuffy jurists.
Presidential Proclamation 10949
That statute, however, requires the president to issue a proclamation to suspend such entries, and on June 4, after that EO review process was completed and the departments had their “naughty list” in place, Trump issued Presidential Proclamation (PP) 10949, “Restricting the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats”.
In that PP, the president fully restricted the entry of nationals from 12 countries (Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen) and partially restricted the entry of nationals from seven other countries (Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela).
Policy Memorandum 602-0192
Which brings me to Policy Memorandum (PM) 602-0192, “Hold and Review of all Pending Asylum Applications and all USCIS Benefit Applications Filed by Aliens from High-Risk Countries”, issued by USCIS on December 2.
Under that PM, “pending a comprehensive review”, USCIS will: immediately pause all applications for asylum currently pending “regardless of the alien’s country of nationality”; place a hold on other pending immigration benefit requests for all aliens from countries listed in PP 10949; and “conduct a comprehensive re-review of approved benefit requests for aliens from” those PP 10949 countries “who entered the United States on or after January 20, 2021” — the start of the Biden administration.
Why is USCIS taking these steps? Because, as the PM explains, “the United States has seen what a lack of screening, vetting, and prioritizing expedient adjudications can do to the American people”.
In that vein, USCIS specifically refers to two cases involving Afghan nationals brought here under Biden: Nasir Ahmad Tawhedi, who pled guilty in June in connection with a plot to “carry out a violent terror attack on Election Day in 2024”, and Rahmanullah Lakanwal, who allegedly shot two West Virginia National Guard troops at the entrance to the Farragut West Metro station in Washington, D.C., killing one, on November 26.
As my colleague Mark Krikorian and I have recently explained, those cases and others have revealed significant deficiencies in the vetting process for immigration benefits, and it’s good that USCIS has realized that fact as well.
The USCIS Asylum Pause
The asylum pause in the PM may be confusing, so here’s some background.
Aliens can seek such humanitarian protection from either an immigration judge (IJ) or a USCIS asylum officer (AO), depending on whether they are in removal proceedings or not.
AOs adjudicate “affirmative” asylum applications filed by aliens present in the United States, regardless of status, but only if they aren’t in removal proceedings.
The only “minor” exception to that rule is for unaccompanied alien children (UACs) encountered by DHS, placed into removal proceedings, and sent to the Department of Health and Human Services for placement with “sponsors” here (usually the kid’s parent or other family member).
If those affirmative applications are denied, and the applicants are out of status or entered illegally, AOs will “refer” their applications to the immigration court by placing them into removal proceedings, during which IJs can again consider their claims as “defensive” asylum applications.
Other asylum applications filed by aliens in removal proceedings who never sought asylum from USCIS are considered “defensive”, as well.
By its terms, PM-602-192 only applies to the 1.4 million pending asylum applications at USCIS, not to the 2.424 million-plus defensive applications currently awaiting adjudication in the immigration courts.
Perhaps DOJ, which oversees those administrative courts, will follow suit, but removal proceedings contain key safeguards AO adjudications lack.
AOs adjudicate asylum claims following one-on-one “non-adversarial” interviews, at which aliens can be represented by counsel; consequently AOs must rely on the information they have at their disposal and whatever additional evidence applicants and their lawyers care to offer when making their decisions.
Removal hearings before IJs, on the other hand, are “confrontational”, in that the government is represented by an ICE attorney who can cross examine the applicant and offer evidence that undermines the alien’s claim.
In addition, if ICE determines that the IJ erred in granting asylum, the agency can appeal that decision to a reviewing body, the Board of Immigration Appeals (BIA, also in DOJ) for a second look at the claim, and ultimately to the attorney general.
There’s no administrative appeal from an erroneous AO decision, however, and no government lawyer to file one in any event.
The asylum pause in the PM could go on indefinitely, but the asylum statute, section 208 of the INA, generally requires asylum applications to be adjudicated within 180 days (not counting appeals).
That 180-day completion requirement, at section 208(d)(5)(A)(iii) of the INA, has long been aspirational, but in any event, it includes an exception for “exceptional circumstances”, which I trust all will agree applies when national security issues like those raised in the PM and in PP 10949 are on the line.
In any event, USCIS will be using that time to “conduct a thorough review on a case-by-case basis to assess benefit eligibility including whether” the alien is a known or suspected terrorist; is connected in any way to espionage or to a terrorist organization, group, or activity; or can’t establish his or her identity.
The agency will also be using that time to review its policies to ensure, as well as possible, that bad actors aren’t slipping through the bureaucratic adjudications process.
The Hold on “Pending Benefit Requests” from the 19 Countries in PP 10949
Unlike the asylum pause, which applies to all asylum applications pending before USCIS, regardless of the alien’s nationality, the hold in the PM on “pending benefit requests” before the agency only applies to the 19 countries identified in PP 10949.
That said, it covers a broader category of applications than the asylum pause — all requests for benefits that the agency is currently considering for nationals of those 19 countries, regardless of when those aliens first came to the United States.
To put that into context, the median processing time for an I-526, “Immigrant Petition by Standalone Investor”, is currently almost seven years, meaning some of those applications could have been pending for a decade or more.
If the putative beneficiary is from a country in PP 10949, though, that I-526 will likely be pending a lot longer.
A footnote, however, explains that this hold does not apply to “USCIS screening activities”, such as credible fear and reasonable fear determinations, “safe third country” findings, removals to third countries, and “threshold screenings under the Asylum Cooperative Agreements” (ACAs).
If credible- and reasonable-fear screenings were paused, those aliens would remain in ICE detention in limbo indefinitely, and were safe third country screenings, third-country removals, and ACA decisions stayed, aliens would be allowed to stay here indefinitely and possibly pose a continued risk — the exact opposite of what the PM is attempting to achieve.
As with the asylum hold, USCIS will be using the pause to identify aliens who present an espionage or terrorism risk to this country, and those who can’t prove they are who they claim to be.
Both holds will remain in place until USCIS Director Joe Edlow lifts them, with case-by-case exceptions — or until a district court judge interposes.
“Comprehensive Re-Review of Approved Benefit Requests”
Finally, the PM requires a “comprehensive re-review of” benefits already adjudicated for nationals of those 19 countries — but only if the beneficiaries “entered” after the date Joe Biden became president.
Footnote 5 explains that “entered” could include when the alien was admitted, inspected, or paroled, and for aliens who weren’t admitted, inspected, or paroled, the date they entered illegally, but the PM also carefully notes that January 20, 2021, cut-off date could be expanded to an earlier period, as well.
Depending on the case, that re-review process may include an interview or re-interview “to fully assess all national security and public safety threats along with any other related grounds of inadmissibility or ineligibility”.
Regardless, USCIS adjudicators must now skim through all those aliens’ files and access any additional information available to the agency to ensure that those aliens are who they say they are, and don’t pose a risk.
On its face, this re-review requirement is an indictment of how the agency comported itself under Biden-era leadership. But if only one terrorist or security risk is identified, it will be a worthwhile endeavor. In the interim, no aliens will apparently lose any status that they have already been granted.
A Renewed Focus on “Homeland Security”
Respectfully, immigration vetting processes have been deficient since long before USCIS was established in March 2003, and while they improved after September 11th, they still plainly didn’t stop bad actors from getting in. USCIS is in the Department of Homeland Security for a reason; it’s now redirecting its focus where Congress intended for it to direct its mission.