On February 14, 2024, President Biden issued an order to direct the deferral of removal of certain Palestinians using “deferred enforced departure”. Aliens who have been granted DED are protected from removal from the United States while their DED is active and may receive employment authorization documents (EADs) from U.S. Citizenship and Immigration Services (USCIS).
President Biden indicated that he authorized DED to address the deteriorating humanitarian conditions in the Palestinian territories, primarily in Gaza, following Hamas’ October 7, 2023, attack on Israel and Israel’s ensuing military response. DED provides similar benefits to aliens who are removable from the United States as deferred action or Temporary Protected Status (TPS). DED, however, is not authorized by Congress through the enactment of any existing law or even by the U.S. Department of Homeland Security’s inherent authority to exercise prosecutorial discretion. Rather, DED was created as an offshoot of the president’s foreign affairs powers under Article II of the U.S. Constitution.
Because DED is derived solely from the president’s foreign affairs powers and has no statutory basis, it is not considered to be an immigration benefit or to provide any lawful immigration status to aliens who may be covered by it. There are also no procedural requirements or legal thresholds that must be met for the president to issue, renew, or extend the protection.
That also means that while USCIS is tasked with processing EAD applications (Form I-765) for aliens covered by DED, the agency does not require prospective DED beneficiaries to fill out any form or application for DED coverage.
The lack of an application for DED is significant because not all Palestinians are eligible to be covered by DED. President Biden explicitly restricted DED eligibility from those who:
- Have either voluntarily returned to the Palestinian territories after the date of the memorandum or do not continuously reside in the United States following the date of President Biden’s memorandum;
- Are inadmissible or deportable under the Immigration and Nationality Act (INA) on security or unlawful activity related grounds or those who have been convicted of any felony or two or more misdemeanors committed in the United States, or would be barred from receiving asylum (regardless of whether they apply for asylum) under section 208(b)(2)(A) of the INA;
- Are subject to extradition; or
- Whose presence in the United States the secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety or the secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.
While these bars to eligibility are intended to alleviate national security concerns surrounding the creation of a presidential order permitting those who are either unlawfully residing in the United States or are soon to fall out of status to continue to live and work in this country despite their unlawful presence, there appears to be no process in place at USCIS to confirm that an DED-based work authorization applicant is not subject to one of the bars to DED.
USCIS states that an alien is eligible for an EAD based on DED if:
- The alien is Palestinian;
- Was present in the United States on February 14, 2024;
- Has continuously resided in the United States since February 14, 2024; and
- Is otherwise eligible for DED.
In order to establish the first requirement (that the alien is Palestinian), USCIS accepts documents such as a Palestinian Authority passport or identification card; a birth certificate or birth extract verified or issued by a recognized governmental authority; or an identification or travel document issued by a third country, the United Nations, its specialized agencies and related organizations, or the International Committee of the Red Cross indicating the holder is a Palestinian.
To establish that the alien seeking a DED-based EAD was present in the United States on February 14, 2024, and has continuously resided in the United States (the second and third requirements), USCIS accepts a variety of documents, including but not limited to: passports; Form I-94, Arrival-Departure Record; employment records; bank books with dated transactions; affidavits; attestation of residence by churches, unions, or other organizations; money order receipts; correspondence between the applicant and others; rent receipts; and other documents. (Many of these documents are easy to forge, but that is a discussion for another day.)
Nothing appears to be required, however, to demonstrate to USCIS that a DED-based EAD applicant is not, in fact, barred from DED. DHS regulations do give the agency the authority to collect, use, and store biometric information from applicants and petitioners. USCIS, however, does not require Palestinian DED applicants to submit biometrics as a part of the work authorization application. USCIS’s website indicates that USCIS may notify an applicant if the agency decides it wants a particular applicant to submit biometrics.
Often, when an alien files an application, petition, or other benefit request, USCIS schedules a biometric services appointment to collect photographs and/or fingerprints of the applicant. The agency is then able to run the applicant’s fingerprints against the Treasury Enforcement Communications System (TECS), the principal system used by officers at the border to assist with screening and determinations regarding admissibility of arriving aliens.
USCIS may also send the biometrics to the U.S. Federal Bureau of Investigation (FBI) for a criminal background check using an automated biometrics identification system called IDENT. IDENT is used to check biometric identifiers (i.e., fingerprints/photographs) against other databases. While this system has the ability to yield useful information relevant to immigration benefits eligibility, CIS reporting explains that, “Because the FBI does not consider USCIS a criminal justice agency, the information that USCIS receives from the FBI is either incomplete or inadequate compared to what is provided to ICE and CBP on the same alien.”
Still, if USCIS is not requiring DED-based EAD applicants to submit biometrics, does not provide (and therefore does not adjudicate) DED applications, and does not interview DED-based EAD applicants to uncover fraud -- what exactly is USCIS doing to ensure that DED-based EAD applicants are, in fact, eligible for DED in the first place? And to clarify, that means what is USCIS doing to ensure that it is not handing out EADs to Palestinians:
- Who are inadmissible or deportable because of terrorism, national security, or criminal activity-related grounds;
- Who have ordered, incited, assisted, or otherwise participated in the persecution of any person on account of their race, religion, nationality, membership in a particular social group, or political opinion;
- Who have been convicted of particularly serious crimes;
- For whom there are reasonable grounds for regarding the alien as a danger to the security of the United States;
- Who have been “firmly resettled” in a third country (a country other than the United States or Israel) prior to arriving the United States;
- Whose presence presents “a danger to public safety”; or
- Whose presence poses “serious adverse foreign policy consequences for the United States”.
Given the serious national security concerns that are inherent to these types of immigration policies, USCIS needs to have a better answer.