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Legislative Update: 8/23/2016

August 23, 2016
FAIR Legislative Update

President Obama’s DACA Amnesty at the Four-Year Mark

This month marks four years since President Obama circumvented Congress and administratively implemented his executive amnesty program known as Deferred Action for Childhood Arrivals (DACA). Under the guise of “prosecutorial discretion” and limited resources, President Obama announced the DACA amnesty program while seeking reelection in 2012. (See FAIR Legislative Update, June 19, 2012) At the time, he justified his unilateral action because “Congress refused to act to reform our broken immigration system.” (Id.) However, DACA is nearly identical to the DREAM Act amnesty legislation that Congress has repeatedly rejected, including in 2010. (Id.)

 

Thus, on June 15, 2012, then Department of Homeland Security (DHS) Secretary Janet Napolitano announced that DHS would circumvent Congress and administratively implement the DREAM Act by granting “deferred action” and work authorization to an entire class of illegal aliens. (Id.) Despite being sold as a temporary program, U.S. Citizenship and Immigration Services (USCIS)—the arm of DHS responsible for processing DACA applications—has approved approximately 90 percent of initial DACA applications and nearly all renewals. This rubber stamping of applications (which began in August 2012) and renewals (since August 2014) underscores the fact that there is nothing “temporary” about DACA.

FAIR’s Government Relations team provides the following analysis of DACA’s implementation through executive fiat, the number of illegal aliens who have benefited, and the Obama administration’s attempts to expand the program.

Eligibility Requirements

DACA is available for aliens who:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching their 16th birthday;
  • Are at least 15 years old to request DACA;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Number of Illegal Aliens Eligible:

A recent Migration Policy Institute (MPI) analysis of 2014 U.S. Census Bureau Data determined that there are 1.7 million illegal aliens who are potentially eligible for DACA. (Migration Policy Institute Issue Brief, August 2016) It is estimated that the “DACA beneficiaries” represent about 12 percent of the total illegal alien population. (Pew Hispanic Center, Aug. 14, 2012) In 2016, MPI determined that 1.3 million aliens were immediately eligible for DACA. (Migration Policy Institute Issue Brief, August 2016) This number includes the illegal aliens who met all the requirements during the 2012 DACA rollout as well as about 250,000 aliens who had aged into eligibility since its launch. (Id.) MPI also found that there are 398,000 additional aliens that are potentially eligible for DACA if they are able to satisfy the education requirement. (Id.) Under DACA guidelines, the educational requirement is loosely defined and can be satisfied by enrollment in an “education, literacy, or career training program.” (See USCIS Consideration of Deferred Action for Childhood Arrivals)

Application Statistics

Between 2012 and March 31, 2016 (the latest date for available data), USCIS accepted 819,512 DACA applications out of the estimated 1.4 million that were immediately eligible to apply. (See USCIS Report, Mar. 31, 2016) USCIS approved 728,285 applications—nearly 89 percent. (Id.) Only 57,268 DACA applications were denied, about seven percent. (Id.) The remaining four percent, 33,959 applications, are still pending. (Id.) Importantly, the Obama administration refuses to say whether it subsequently took enforcement actions against the illegal aliens whose DACA applications were denied.

The nearly wholesale approval of DACA applications demonstrates that the program is not “enforcement guidelines,” but rather a complete re-write of our immigration laws. Indeed, the extraordinarily high approval rate indicates that USCIS employees lacked true authority to independently review and deny DACA applications on a case-by-case basis. Along those lines, the Obama administration took numerous steps to ensure that as many illegal aliens as possible would receive DACA. First, USCIS guides DACA applicants on how to navigate the application process including providing them a “to-do” checklist. (See FAIR Legislative Update, Nov. 26, 2012) The guidance even includes reminders to make sure all forms are properly signed, the correct filing fee is paid, and that no field is left blank. (See USCIS Consideration of Deferred Action for Childhood Arrivals) Finally, the administration provides a second “bite at the apple” for the aliens whose applications are denied. While the USCIS website acknowledges that there is no appeals process for illegal aliens denied DACA status because the agency will not “review discretionary decisions,” illegal aliens are told they can re-apply for the program if they feel their denial was based on an “evidentiary deficiency” rather than an inability to meet the base criteria. (Id.)

States with the Most DACA Recipients

According to MPI’s analysis of USCIS data, the top five states by DACA participation are:

California

  • Immediately and potentially eligible aliens: 499,000
  • Applications accepted by USCIS: 231,000
  • Application rate using immediately and potentially eligible aliens: 46%

Texas

  • Immediately and potentially eligible aliens: 234,000
  • Applications accepted by USCIS: 231,000
  • Application rate using immediately and potentially eligible aliens: 57%

New York

  • Immediately and potentially eligible aliens: 97,000
  • Applications accepted by USCIS: 43,000
  • Application rate using immediately and potentially eligible aliens: 44%

Florida

  • Immediately and potentially eligible aliens: 92,000
  • Applications accepted by USCIS: 35,000
  • Application rate using immediately and potentially eligible aliens: 38%

Illinois

  • Immediately and potentially eligible aliens: 86,000           
  • Applications accepted by USCIS: 44,000
  • Application rate using immediately and potentially eligible aliens: 51%

DACA Recipients’ Country of Origin

Additionally, MPI’s analysis determined that the top five countries of origin by DACA participation are:

Mexico

  • Immediately and potentially eligible aliens: 1,136,000                     
  • Applications accepted by USCIS: 634,000
  • Application rate using immediately and potentially eligible aliens: 56%

Guatemala

  • Immediately and potentially eligible aliens: 93,000                           
  • Applications accepted by USCIS: 22,000
  • Application rate using immediately and potentially eligible aliens: 24%

El Salvador

  • Immediately and potentially eligible aliens: 54,000           
  • Applications accepted by USCIS: 31,000
  • Application rate using immediately and potentially eligible aliens: 58%

Honduras

  • Immediately and potentially eligible aliens: 38,000                           
  • Applications accepted by USCIS: 20,000
  • Application rate using immediately and potentially eligible aliens: 54%

South Korea

  • Immediately and potentially eligible aliens: 50,000                           
  • Applications accepted by USCIS: 7,000
  • Application rate using immediately and potentially eligible aliens: 15%

DACA Renewal Process

In establishing DACA’s renewal process in June 2014, DHS released a revised application form (now to be used for both initial and renewal applications) and instructions that change the education requirement of the administrative amnesty program. (See Form I-821D; Form I-821D Instructions) While initial applicants are required to demonstrate that they are enrolled in some form of “educational” program –including vocational training or even an English language course –at the time of applying, renewal applicants are not required to demonstrate that they have successfully completed, or are still even enrolled, in any such program. (See Form I-821D at p. 4) Instead, renewal applicants only need to show that they (1) did not depart the U.S. after August 15, 2012 without advance parole; (2) continuously resided in the U.S. since submitting the DACA request; and (3) have not been convicted of a felony, a “significant misdemeanor,” or three or more misdemeanors, and do not pose a national security threat. (Form I-821D Instructions at p. 2)

The weakening of the education requirement was confirmed by senior USCIS officials on a “stakeholder” call shortly after the announcement of the renewal process. During the call, which included DHS Deputy Secretary Alejandro Mayorkas, these officials stated that proof of graduation or continued enrollment is not required for renewal applications and advised listeners not to provide evidence that the renewal applicant failed to complete the education program listed on the original DACA application. (FAIR Legislative Update, June 11, 2014)

The renewal process also essentially makes DACA a three-year — instead of a two-year — deferment from deportation program. Specifically, the new application form makes clear that DACA recipients can apply for renewal up to one-year after the expiration of their current deferment with no consequence. (Form I-821D Instructions at p. 1) Rather, USCIS simply “encourages” DACA renewal applicants to reapply for the program within 120 days of expiration, but does not expressly require them to do so. (Id.)

According to the most recent USCIS data available, 580,847 DACA recipients have been eligible to file for renewal. (See USCIS Report, Mar. 31, 2016) USCIS has accepted 539,008 renewal requests from these recipients – a rate of nearly 93%. (Id.)

DACA Recipients Accessing Federal Benefits

While so-called DREAMers were unlikely to be deported under the President’s lax enforcement “priorities,” DACA grants a reprieve from deportation, provides work authorization for two years, and makes certain illegal alien minors eligible for some taxpayer benefits. Specifically, aliens with deferred action are considered “lawfully present” (as opposed to having lawful status) which makes them eligible for many benefits even though they are still illegal aliens. 

Importantly, DACA recipients are eligible for a Social Security Number (SSN), despite being illegal aliens and having “temporary” status. With a SSN, DACA aliens are potentially eligible for Medicare and Social Security benefits. (See FAIR Legislative Update, Mar. 24, 2015) SSNs also make aliens eligible for the Earned Income Tax Credit. (Id.) Once eligible for the EITC, U.S. tax law allows a person to amend their tax returns for the past three years – even if that person was ineligible during those years.  (See FAIR Legislative Update, Apr. 19, 2016)

Additionally, DACA recipients are immediately eligible for unemployment benefits. Although unemployment insurance  is administered by the states, it is based upon the Federal Unemployment Tax Act (FUTA), which provides eligibility for those who are “lawfully present.” (See FAIR Report, Nov. 17, 2014) And, being “lawfully present” also makes DACA eligible for a driver’s license provided they show proof of identity and age, and meet state residence requirements.

DACA as a Pathway to Citizenship

In his Rose Garden announcement of DACA, President Obama made it crystal clear that DACA “was not amnesty, was not immunity, was not a pathway to citizenship.” (Rose Garden Remarks, June 15, 2012) Yet, ever since Congress rejected mass amnesty legislation, the Obama administration and its allies have been working behind the scenes to help DACA apply for advance parole.

Advance parole is an administratively created tool that allows an illegal alien to leave the U.S. with a promise of being “paroled” back into the U.S. upon return. (See FAIR Legislative Update, Feb. 23, 2016) 

Granting parole is significant, because it allows aliens to circumvent provisions in the law that would normally bar their admission. (Id.) Generally, aliens who have been residing in the country illegally long term cannot simply return to the country if they leave. (Id.) However, when an alien enters the country through parole, it wipes away their previous illegal entry that bars their admissibility. (Id.) Moreover, paroled aliens who are immediate relatives of U.S. citizens are generally eligible to apply for a green card and citizenship. Not surprisingly, the Obama administration has expanded the grounds of advance parole to include “educational” and “employment” purposes to significantly expand the number of illegal aliens eligible to exploit advance parole and be put on a path to citizenship. (See FAIR Legislative Update, July 26, 2016)

USCIS recently admitted that DACA illegal aliens are being put on a path to citizenship. (Id.) Specifically, USCIS sent a letter to Sens. Chuck Grassley (R-IA) and Mike Lee (R-UT) that revealed that 2,994 DACA have “been approved for adjustment of status” — likely receiving legal permanent resident (green card) status — after further exploiting our immigration laws by being granted “advance parole.” (Id.)  It is very likely that DACA recipients who wind up on a path to citizenship by exploiting advance parole will increase significantly before the end of Obama’s presidency. (Id.) Given the extremely high approval rate of DACA applications, it is likely that USCIS is rubber stamping advance parole and adjustment of status approvals for those who know to take advantage of the process. (Id.)

DACA Expansion

On November 20, 2014, DHS Secretary Jeh Johnson released ten immigration policy memoranda (the “Johnson Memos”) that unilaterally changed U.S. immigration law by executive fiat. (FAIR Johnson Memos Anniversary Issue Brief, Nov. 20, 2015) Through one of the Johnson Memos, the Obama administration sought to expand DACA to cover an estimated additional 270,000 illegal aliens. (Id.) This would be accomplished by eliminating the age requirement and changing the date-of-entry requirement from June 15, 2007 to January 1, 2010. (Id.) The Johnson Memos also extend the length of deferred action granted from two-year increments to three-year terms, which applies to new applications and renewals submitted November 24th, 2014 or later. (Id.) And, as with the original DACA program, DHS will grant work authorization to DACA beneficiaries. (See FAIR Legislative Update, Nov. 24, 2014)

USCIS originally planned to start accepting applications for expanded DACA in February 2015. However, several days before applications could be submitted, Judge Andrew Hanen of the Federal District Court in Brownsville, Texas, issued an injunction that temporarily halted the implementation of DAPA and expanded DACA. (SeeFAIR’s U.S. v. Texas Resource Page) In response, the administration took the case to the United States Court of Appeals for the Fifth Circuit, which upheld Judge Hanen’s injunction in November 2015. (Id.) The case then reached the Supreme Court, which dealt the administration its fifth legal defeat defending DAPA and expanded DACA. (Id.)  The high court’s 4-4 split vote meant that the Fifth Circuit’s injunction stays in place while the case returns to Judge Hanen to be litigated on the merits. (Id.) Accordingly, the President is prohibited from issuing work authorization to the estimated 5 million illegal aliens who would qualify for DAPA and expanded DACA. (Id.) 

Outlook

Because President Obama implemented the DACA program through executive action and it is not codified, the future for recipients remains somewhat uncertain, subject to the outcome of the upcoming presidential election.

Regarding the programs themselves, Democratic nominee Hillary Clinton has said that if elected, she would “continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families.” (See FAIR’s Election 2016 Resource Page) She also pledged to “introduce comprehensive immigration reform legislation with a path to citizenship within [her] first 100 days in office.” (Id.) While his positions on immigration have shifted dramatically at times, GOP nominee Donald Trump has maintained that he would rescind both DAPA and DACA (original and expanded) upon taking office. (Id.) 

Sanctuary City Releases Accused Child Rapist

Public outrage is spreading after an illegal alien released as a result of Philadelphia’s sanctuary policy was subsequently arrested for raping a child under the age of thirteen. (Breitbart, Aug. 4, 2016) The suspect, 45-year-old Ramon Aguirre-Ochoa, is a previously deported criminal alien who was released by Philadelphia law enforcement agents early last year despite federal immigration officials lodging a detainer against him. (Id.)

Aguirre-Ochoa was previously in Philadelphia law enforcement custody for a domestic aggravated assault charge. (Philly Voice, Aug. 10, 2016) At that time, U.S. Immigration and Customs Enforcement (ICE) agents issued a detainer against him, requesting that Philadelphia Police notify the agency of his pending release so ICE could obtain custody of him. (Id.) The Philadelphia Police, however, were forced to ignore ICE’s request for cooperation because of the city’s sanctuary policy, resulting in Aguirre-Ochoa’s release in January 2015. (Id.) He is now charged with involuntary deviate sexual intercourse, unlawful contact with a minor, unlawful restraint, false imprisonment, indecent assault on a person less than 13, indecent exposure, and simple assault. (Breitbart, Aug. 4, 2016)

Despite the Obama administration’s lenient policies, Ramon Aguirre-Ochoa fell squarely within the federal government’s restrictive enforcement priorities. Under the Obama administration’s guidelines, federal agents may only issue a detainer request for an alien with a criminal conviction who has already been determined to be a threat “to national security, border security, and public safety,” including any alien “engaged in or suspected of terrorism or espionage.” (DHS Immigration Detainer Form; DHS Request for Notification Form)

As ICE explained in its press release, “As a prior deportee, Aguirre-Ochoa was slated to have his removal order reinstated and be removed in 2015 after local criminal charges stemming from March 2014, against him were dismissed. At that time, Aguirre-Ochoa was released from local custody when Philadelphia authorities failed to honor an ICE detainer. He remained at large until his most recent arrest.” (Breitbart, Aug. 4, 2016)

The child-rape case caught the attention of Pennsylvania Senator Pat Toomey (R), who has since urged Philadelphia Mayor Jim Kenney (D) to repeal the city’s sanctuary policy. (Philly Voice, Aug. 10, 2016) “This is one of the most heinous crimes that is possible to commit — committed against a young child,” Senator Toomey said during a press conference. (Id.) “It should not have been possible — and it would not have been possible — but for the fact that Philadelphia is a sanctuary city.” (Id.)

Despite this tragedy, Mayor Kenney is unlikely to rescind the policy. Mayor Kenney issued Philadelphia’s sanctuary policy by executive order in January 2016, shortly after being sworn into office. (FAIR Legislative Update, Jan. 18, 2016) The executive order prohibits law enforcement from complying with a detainer unless the criminal alien has already been convicted of a first or second degree felony and the detainer is accompanied by a judicial warrant. Under Mayor Kenney’s order, very few, if any, criminal aliens will be transferred to federal authorities.