How USCIS Has Tilted DACA Decision-Making

By David North, October 15, 2012

Sen. Chuck Grassley (R-Iowa) and Rep. Lamar Smith (R-Texas), the ranking GOP member of the Senate Judiciary Committee and the Chairman of the House Judiciary Committee, respectively, have uncovered an outrageous, but not entirely surprising, feature of the way in which the Deferred Action for Childhood Arrivals (DACA) amnesty program is being carried out.

DACA is the amnesty program for almost two million DREAM Act beneficiaries that was recently started by the Obama administration by means of a two-and-a-half page memo and accompanying press release, thereby avoiding the public notice and comment that substantial programs like this would normally require, and without any action by Congress.

There can be five basic decision/review patterns (in any kind of application process, public or private) that, by their very nature, range from strongly discouraging approvals of applications to strongly encouraging approvals, as charted in the table below. USCIS has chosen a pattern for DACA that most strongly encourages approvals and, for reasons to be discussed later, strongly discourages staff-level denials.

As background, Grassley and Smith recently wrote to Homeland Security Secretary Janet Napolitano calling for more openness and more data on the DACA amnesty program: They attached to that letter an internal USCIS e-mail (from Barbara Velarde, the number-two official in the USCIS Service Centers operation) that said, in part:

We have been requested to hold any DACA denials prior to issuance and communicate the pending denial through HQSCOP [headquarters, Service Center Operations] so we can alert the front office [that of USCIS Director Mayorkas]. Please make sure that this is communicated to the field. We [have] indicated that all denials (except abandonment denials) require supervisory review during the early stages of DACA. However, at this time, and until further notice, please make sure that ALL denials are held. ...

You can imagine the likely thought process of an adjudicator, probably a lowly GS-9, sitting in a cubicle in a USCIS Service Center in California or Nebraska, when faced with the send-all-the-denial-cases-to-Washington directive. While the adjudicator has usually worked out his or her relationships with the line supervisor — they both are in one of USCIS's four regional centers — the prospect of having a denial, with the adjudicator's signature on it, sent to Washington for further review, potentially by the office of the director, must be troublesome for the guy at the bottom of the pyramid.

A likely outcome for anyone in that situation, unless that person was about to leave the agency, would be to try to figure out some way to approve the application, rather than to be recorded, on high, as opposing what appears to be the agency policy. Some adjudicators would resist this tendency, but many would succumb.

Five basic patterns for the decision-and-review process could be seen as these:

Approach Inherent Tilt Pattern Example
A. All approvals must be reviewed by headquarters Strong tilt against approvals Loans of more than a million dollars in a small bank
B. All approvals must be reviewed by first-line supervisors Some tilt against approvals Routine insurance settlements
C. No decisions are reviewed unless there is an appeal by one of the parties No tilt in any direction Most court cases
D. All denials must be approved by a first-line supervisor Tilt toward approvals Many government decisions
E. All denials must be reviewed by headquarters Strong tilt toward approvals DACA

There is another set of approaches, in which the question of review is not based on the approval/denial variable, but on something else, such as age or dollar volume. Such systems do not carry with them the inherent biases that are present when the review process is based on the nature of the underlying decision.

In short, the very structure of a bureaucratic process, as outlined above, can tilt the whole process one way or another, without the agency leadership saying a single word, either verbally or in writing, about how it wants decisions to be made.

And USCIS, when it comes to DACA, has opted for Approach E.