A Closer Look at Biden’s Nominee for USCIS Director

Expect more executive amnesties

By Robert Law on June 17, 2021

On April 12, President Biden nominated Ur Jaddou to become the director of U.S. Citizenship and Immigration Services (USCIS). According to the White House statement announcing Jaddou’s nomination, the president describes her as having “two decades of experience in immigration law, policy, and administration. Most recently, she was the Director of DHS Watch, a project of America’s Voice, where she shined a light on immigration policies and administration that failed to adhere to basic principles of good governance, transparency, and accountability.” Among her experience, Jaddou served as the Obama administration’s chief counsel for USCIS from June 2014 to January 2017, a political position that does not require Senate confirmation.

On May 26, the Senate Judiciary committee held a confirmation hearing that included a panel of five nominees, including Jaddou. While several Republican senators complained about the packed nomination panel, Chairman Durbin responded that Republicans similarly held confirmation hearings with multiple nominees on a single panel when they were in the majority and President Trump was in the White House. With limited questioning time and multiple nominees, nothing particularly newsworthy was extracted from senators of either political party about Jaddou.

As is customary, senators have the opportunity to submit written follow-up questions to nominees, formally known as Questions for the Record (QFR). Jaddou’s responses are now available and shed light on her interpretation of immigration law and how she will run USCIS, if confirmed. While most Republicans (Ranking Member Grassley, Blackburn, Cotton, Cruz, Hawley, Lee, and Tillis) on the committee submitted QFRs, none of the Democrats opted to do so.

A key question raised in the QFRs by several Republican senators was Jaddou’s view of parole authority. Section 212(d)(5) of the Immigration and Nationality Act (INA) permits the Department of Homeland Security (DHS) secretary to parole an alien “into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Notwithstanding the plain language of this statutory language, the Clinton administration created a legal fiction known as “parole in place”, or the ability to bestow parole onto an illegal alien already in the country as opposed to paroling an inadmissible alien into the country temporarily. Combined with section 245(a) of the INA making an alien who has been “inspected and admitted or paroled” eligible to adjust status to lawful permanent resident, “parole in place” could be used to launder an alien’s unlawful presence, enabling the alien to acquire a green card and a path to U.S. citizenship.

Jaddou’s view of “parole in place” in particular takes on added significance because then-presidential candidate and current Vice President Kamala Harris campaigned on an expansive use of “parole in place”. As the Center repeatedly warned in the summer of 2020, a Biden-Harris administration could implement a massive amnesty without congressional action through “parole in place”. Ranking Member Grassley provided Jaddou with Harris’s immigration "roadmap" and asked for her legal opinion. In response, Jaddou punted, writing that “the proposal does not contain sufficient detail for me to opine on its legality, or on whether I would support such a proposal.”

Reading between the lines, it is clear to me that Jaddou supports the concept and application of “parole in place”. If she didn’t, you would expect her to say as much, like her straightforward “Yes” in response to a question about whether USCIS has the authority to issue a notice to appear (NTA). This all but ensures that, if confirmed, some level of executive amnesty will take place during Jaddou’s tenure at USCIS. Being noncommittal about the Harris proposal is tactical, to provide the greatest level of flexibility to scope out the “parole in place” executive amnesty.

By comparison, Jaddou was very direct about her general view of parole authority. During the confirmation hearing, Ranking Member Grassley expressed concerns that various categorical parole programs implemented by USCIS during Jaddou’s tenure as chief counsel violate the statutory requirement that parole is granted “only on a case-by-case basis”. In a QFR, Grassley asked Jaddou to defend the legality of categorical parole. In response, Jaddou said it is her “understanding of the law that the parole authority granted to the Secretary of Homeland Security by Congress is broad.” (Emphasis added.) She subsequently provided identical responses to other Republican senators who raised questions about categorical parole running afoul of the plain language of INA 212(d)(5).

Jaddou was similarly clear in her support of a categorical application of deferred action. In response to Sen. Tillis’s question about the legality of Deferred Action for Childhood Arrivals (DACA), Jaddou wrote, “Though the decision to initiate DACA was made in 2012 prior to my tenure, I agree that DACA is a permissible exercise of discretion by the Secretary of Homeland Security.” And she told Sen. Lee, “If confirmed, I look forward to working with USCIS personnel and Administration officials, including the Secretary, to continue administering the DACA policy consistent with court orders.”

On legal immigration, several Republican senators sought clarification on Jaddou’s view of the public charge ground of inadmissibility and, specifically, her criticism of the regulation issued by the Trump administration. During her testimony, Jaddou said that “The public charge provision was only meant as the exception, not the rule.” This was an unusual response because its application would essentially flip the burden of proof from the alien to the government. When given the opportunity to clarify through a written QFR response, Jaddou demurred, merely restating that she defines public charge consistent with the Clinton-era definition that preceded the Trump-era regulation.

Confusingly, she defended her criticism of the Trump regulation in a response to Sen. Cruz by claiming it “imposed ... unprecedented wealth, health, age and other restrictions on legal immigration.” This response is inconsistent with section 212(a)(4)(B) of the INA, which requires DHS to consider the following mandatory factors in the public charge inadmissibility determination: age; health; family status; assets, resources, and financial status; and education and skills. It is also incorrect to classify the Trump rule as a “wealth test” because an alien can be poor, or not wealthy, and still not be a public charge. Instead, the public charge rule is a self-sufficiency test, meaning does the alien live within his or her means, whatever that level is. Self-sufficiency is a hallmark of U.S. immigration law and the Trump rule adhered to that premise.

Finally, Jaddou’s views on the fees that USCIS charges for various immigration benefits is of interest. This is particularly relevant now because USCIS is 96 percent funded by fees and continues to suffer financially from the Covid-19 global shutdown last year that nearly resulted in two-thirds of USCIS staff being furloughed. USCIS is structured as a fee-funded agency because Congress rightly decided that American taxpayers should not be on the hook to pay for our legal immigration system; instead those who choose to participate in it should carry the financial burden. Accordingly, USCIS is obligated to set its fees for each benefit type to recover the full cost of adjudication and adjust those fees every two years.

The Obama administration only published one fee rule (fiscal years 2016-2017) over its eight years, meaning that the levels set under the Bush administration were charged for the majority of Obama’s tenure. As the cost of adjudication rose combined with the Obama administration’s expansive use of fee waivers and exemptions, the agency was losing money by the time the Trump administration began its own fee rule. As Sen. Lee noted in a QFR, the annual forgone revenue due to fee waivers and exemptions ballooned from $613 million in FY 2016/2017 to $1.5 billion in FY2019/2020. USCIS, under the Trump administration, attempted to end most fee waivers and exemptions and to increase fees to levels that properly covered the cost of adjudication, but that final rule was blocked by a federal district judge.

Without explicitly saying so, Jaddou’s responses indicate that she supports expansive application of fee waivers and charging more for certain immigration benefits in order to subsidize applicants for other benefits by charging less than the true cost of adjudication. She hints at this philosophy by writing, “As a general principle, the processing of applications by U.S. federal agencies should not be limited to the wealthy.” On the issue of whether it is appropriate to overcharge certain benefit seekers to provide discounts for others, Jaddou responded, “It is my understanding that USCIS sets its fees under the authority of section 286 of the Immigration and Nationality Act, generally a broad authority that does not proscribe specific fees for any service rendered by USCIS.”

In sum, if confirmed, Jaddou appears poised to run USCIS similarly to how former directors Mayorkas and Rodriquez did during the Obama administration. This includes an expansive use of parole and deferred action authority to give work permits and protection from removal to large categories of illegal aliens. Similarly, agency policies will be based on favoring certain political allies and ethnic groups. Jaddou’s Judiciary Committee confirmation vote was scheduled for today (June 17), but has been temporarily postponed. If she passes the committee, which is majority-Democrat, her nomination then goes before the full Senate, where she will need at least 51 votes (including the vice president's in case of a tie) to be confirmed.