USCIS Approves Some DACA Requests in Violation of Court Order

Agency claims “human error” but has a history of such mistakes

By Robert Law on July 30, 2021

On Friday July 16, federal district judge Andrew Hanen issued a ruling that President Obama’s executive amnesty program known as Deferred Action for Childhood Arrivals, or DACA, is illegal. This long-overdue verdict came more than nine years after Obama’s Department of Homeland Security (DHS) secretary Janet Napolitano unilaterally created this work permit program for illegal aliens modeled after the oft-failed DREAM Act through a three-page memorandum.

In striking down DACA, Judge Hanen wrote, “The decision to award deferred action, with all of the associated benefits of DACA status, is outside the purview of prosecutorial discretion.” He continued, “While the law certainly grants some discretionary authority to the agency, it does not extend to include the power to institute a program that gives deferred action and lawful presence, and in turn, work authorization and multiple other benefits to 1.5 million individuals who are in the country illegally.” (Judge Hanen used 1.5 million as a midpoint estimate of the potential DACA population from competing estimates of expert witnesses.) Hanen additionally found that DACA harms the economic interests of American workers because the executive amnesty program “congests the workforce”, a finding similar to what advocates of reduced levels of immigration and adherence to the rule of law have said for years. Hanen also rejected the Biden administration’s claim that DACA is merely an exercise of discretion, writing, “DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.”

While Hanen allowed active DACA recipients to keep their work permits for now, essentially punting that issue for another day, he was very clear that the executive amnesty program was otherwise shut down. Specifically, Judge Hanen (1) ordered DHS to cease approving new DACA applications to new applicants who never before had DACA before the date of his order (July 16, 2021); (2) permitted DHS to continue to accept initial and renewal requests; (3) permitted DHS to approve DACA renewals for pre-existing beneficiaries; and (4) required DHS to post on its website by Monday, July 19 that a U.S. District Court has found DACA to be illegal. So while USCIS could accept initial DACA requests filed after the injunction, the agency was prohibited from acting on those requests.

While USCIS did update the website on Monday, July 19, it appears the agency has violated the most important part of Judge Hanen’s injunction—not approving new DACA requests. As first reported by Stephen Dinan of the Washington Times, USCIS acting director Tracy Renaud admitted in a July 27 filing with the court that the agency failed to adhere to Judge Hanen’s order. In her attestation, Renaud claimed that on July 16 USCIS stopped scheduling biometrics collection appointments for initial DACA requestors and on July 16-17 updated the electronic system “to prevent adjudicators from being able to process DACA initial requests for adjudication.” Over that weekend, USCIS allegedly engaged in a “messaging campaign” to inform illegal aliens to not show up for the biometrics collection appointments they had previously scheduled between July 19 and August 6, 2021.

This messaging campaign failed and apparently most of the 9,800 illegal aliens seeking DACA showed for a biometrics collection appointment. This alone is a major shortfall for the agency because it deprived aliens seeking lawful immigration benefits the opportunity to have their biometrics collected at a time the agency has historic backlogs on numerous benefit types. The agency also admits to Judge Hanen that 52 illegal aliens seeking DACA had their biometrics collected, a move Renaud chalks up to “human error”, though she fails to clarify if the error is at the staff or leadership level.

But the injunction violations do not stop there. At the bottom of the third page of her five-page declaration, Renaud reveals that on Monday, July 19, the agency discovered that nine illegal aliens were approved for DACA over the weekend immediately after Judge Hanen’s late Friday afternoon (July 16) ruling. Renaud blames a technical error in the electronic system for initial cases being sent to adjudicators in violation of the injunction.

The timing of the approval of these DACA requests is eyebrow-raising, given that these requests were acted on over the weekend. Based on my experience as the USCIS policy chief during the Trump administration, it is highly unusual and atypical for an adjudicator to work on cases outside of standard business hours. Renaud tells the court that on Monday, July 19, USCIS was able to “immediately intervene” on one case before the illegal alien received any notification from the agency. She claims that the work permits were stopped before being mailed out but that the other eight illegal aliens did receive some form of notice from USCIS that they are approved for DACA. USCIS has reportedly sent notification to these eight illegal aliens that their DACA is void, but did not appear to require the illegal aliens to return the DACA approval notices. Armed with a written approval, it would not be surprising for one of these illegal aliens to avail him or herself of certain benefits not otherwise eligible for.

If all of this sounds familiar, that’s because USCIS made a similar “mistake” during the Obama administration. Back in 2015, the Obama administration sought to expand DACA, including lengthening the deportation reprieve and work permit validity from two years to three years. Judge Hanen happened to also preside over that case and ordered an injunction blocking the DACA expansion as well as the creation of another, larger, executive amnesty program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Despite the clear language of that injunction, it came to light that the Obama administration “accidentally” sent out three-year work permits to 100,000 illegal alien DACA recipients.

Renaud’s declaration, signed under penalty of perjury, does not disclose who approved the nine DACA requests in violation of Judge Hanen’s order. Given the weekend work, was it done by a rogue career official supportive of the illegal program or were political appointees involved, either approving the cases themselves or ordering career officials to do so? When it comes to DACA and the “get to yes” mentality of the Obama and Biden administrations, the “errors” only seem to go in one direction.