USCIS Should Overhaul Adjudication Principles to Promote Equality, Diversity and Rights

Law professor Jill Family blogged in the Yale Journal on Regulation today that the Biden Administration should  “strengthen internal administrative law,” and adopt guiding principles for USCIS adjudication.” The Trump Administration violated the rule of law left and right, impacting immigrants nationwide, including my clients. Professor Family urges the White House to explore and adopt “guiding principles” to avoid a repeat of what transpired at USCIS under Trump. Some of her suggestions include proposals that seem like common sense and most of my clients presume are existing operating principles, but sadly, are not. She suggests that USCIS should formalize principles like: predictable, transparent adjudication standards, fidelity to law, and equal treatment. USCIS should exercise discretion in ways that “promote clarity, predictability, equal treatment and human rights.” This last component, exercise of discretion to promote equal treatment and human rights is relevant to asylum adjudication, but also to affirmative applications like marriage-based adjustment of status (green card cases), and naturalization where the applicant has to prove good moral character.

Agency guidelines and regulations could use an extensive audit to increase the possibility that policies can be brought into greater alignment with these principles. As one example, many of my clients pursue USCIS applications for green cards based on marriage to a US citizen. The USCIS guidelines for determining whether a marriage is based on love and not for a green card, or “bonafide,” are classist, heteronormative, culturally biased, and seem to have come from a 1950s version of the United States - the one Trump wanted to bring us back to as far as equality and rights. It is always deeply frustrating to have to ask my clients to jump through hoops that are contrary to their identities in order to prove that they really are in love. Even if USCIS just reconfigured those standards and principles, the Agency would better recognize the wonderful diversity of our families, our values, and move towards becoming the kind of democracy the nation should strive to become.