By Anna Blanch Rabe
In the last few days, there have been a number of stories with sensational headlines about the deportation risk to active duty military members or their family members like “Trump moves to Deport Military Spouses, Trump Order Drops Protection for Deployed Military,” and “Military Families could face new risk of deportation under Trump rules.”
Let’s be clear: Immigrant military spouses are not being rounded up or specifically targeted for deportation; the new DHS memos cancelling Parole in Place (PIP) do not impact the family of deployed military in a way that is more significant than they impact all other family members of active duty, Reservist, or National Guard service members; and this is not a “new risk” of deportation. Rather, it is a risk of long-term (and even) permanent separation in order to seek permanent residency or citizenship. (Read more about PIP here.)
But none of the above means that the cancellation of PIP is not a serious matter that will negatively impact a significant number of military-connected immigrants.
What is happening with Parole in Place?
In short, the memos released by Secretary Kelly of the Department of Homeland Security, specifically “Enforcement of the Immigration Laws to Serve the National Interest” do not specifically mention PIP, but it does say that with the exception of the DACA and Deferred Action for Parents of Americans executive orders, “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby immediately rescinded.”
Despite numerous requests, DHS and Secretary John Kelly have been unwilling to comment on the status of PIP beyond the memos. This lack of clarification by DHS and the seeming lack of will to alleviate the fears of military families is, frankly, unconscionable.
What does this really mean?
Over the last week, I have spent hours emailing and talking with attorneys who have military family member clients who are in the midst of, or considering applying for, the PIP process. I have also received a significant number of messages and emails from military family members who are confused about what they feel is contradictory information both in the media and Department of Homeland Security (DHS), of which USCIS is a part.
One attorney reported that they were told by officials at a USCIS office in Spokane that they were still accepting applications for PIP and that they have received no memo to the contrary.
The problem is that while it is true that USCIS officers have not received an explicit memo stating that PIP has been canceled, to say so is not the whole story. By superseding the memo of 2013 which outlined a PIP policy and gave a standardized approach to granting it, including clarity to how applications were handled and reviewed and a process for how the discretion was to be exercised, military families and their attorneys face substantial uncertainty.
USCIS (as part of DHS) agency will continue to maintain discretion to consider parole, deferred action, and PIP requests. From its beginnings in 2007 under the George W. Bush administration and prior to the 2013 memo coming into effect, DHS (including USCIS) officials had the authority to exercise discretion to grant parole on a case-by-case basis. This leads to reasonable and understandable uncertainty about what will happen to a PIP application, both for those who were submitted well before this January and those that will be submitted in the coming months.
Prior to 2013, undocumented military family members found themselves spending years apart, risked being denied because of the USCIS officer they encountered or risked being deported because they were too fearful of attempting to apply for PIP. (For example, an undocumented military spouse from Bullhead City drew media attention in 2012. A sheriff’s deputy stopped the woman in northern Arizona for making an illegal turn and turned her over to immigration authorities for possible deportation. She was later released after immigration authorities determined she was married to a soldier on active duty in Germany.)
A number of attorneys who requested their identities not be disclosed have shared that their client applicants for PIP have had their interviews proceed since the announcement of the new memos canceling the PIP policy memo but have been informed that additional background checks and as yet undetermined additional information will be required. They were explicitly told that it is unclear when their applications will be decided upon.
If you are in either situation — waiting on a PIP application to be processed or considering filing – seek the advice of an immigrant specialist attorney. This is a complicated area of immigration law. They will — depending on your situation — formally request USCIS exercise their discretion in granting PIP.
USCIS officers have the discretionary authority to grant “parole” since 2007 but rarely did so prior to 2013. This meant undocumented military family members risked deportation whether or not they applied for PIP. If they returned to their country of origin, they risked being barred from coming back to the US for up to 10 years. Applying for waivers to avoid the 10-year ban is possible, but it can take many months. It follows, too, that officers may deny requests from PIP applicants because they are either too scared or unwilling to exercise their discretionary authority, or because they don’t understand that they still have that authority following the memo’s repeal.
As a final point, strangely of encouragement – it is perhaps a good thing that Secretary Kelly and others are aware that by superseding the PIP policy, they risk the ire of the military community and its supporters. This is perhaps also the reason why hyperbolic headlines are so concerning and perhaps have a place in raising awareness of the real risks to undocumented military family members. Speaking in calm tones and information (like I am attempting to do here and my previous article on immigrant military spouses) may not make it go viral, but if you are an immigrant family member or an active duty member with immigrant family members, the aim is that you have more information than you had about the current status of Parole in Place.
Anna Blanch Rabe, founder of Anna Blanch Rabe & Associates, is a military spouse, an attorney (currently non-practicing), and an immigrant. Her company works with Social Enterprises, socially-responsible businesses, educational institutions, and non-profit organizations to effectively execute strategic narrative initiatives to develop community capacity, attract talent, and reach new customers. Connect with Anna through Facebook, & Twitter.