Obama Admin. Admits it has Approved 100,000 Expanded DACA Applications

Last Tuesday, the Obama administration revealed that it has already begun implementing part of its new executive amnesty program despite a federal court injunction putting the programs on hold. (See FAIR Legislative Update, Feb. 18, 2015) As part of the sweeping executive actions announced in November — and scheduled to start in February — President Obama broadened the eligibility criteria of the 2012 Deferred Action for Childhood Arrivals (DACA) program by: (1) dropping the age cap, (2) moving up the date by which and alien must be present in the U.S., and (3) extending the grants of deferred action and work authorization from two to three years. (See FAIR Legislative Update, Nov. 24, 2014) After Judge Andrew Hanen issued an injunction on February 16, Department of Homeland Security (DHS) Secretary Jeh Johnson said DHS "will not accept applications for the expanded DACA program on February 18, as originally planned." (Johnson Statement, Feb. 17, 2015)

Yet, the Obama administration now acknowledges that it began approving applications under the new criteria immediately after the November 20 announcement. In a "Defendant's Advisory" dated March 3, Justice Department attorneys informed Judge Hanen that the administration has fully complied with the injunction but added "[o]ut of an abundance of caution" that "USCIS [U.S. Citizenship and Immigration Services] granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year Employment Authorization Documents for those 2012 DACA recipients who were eligible for renewal." (DOJ Defendant's Advisory, Mar. 3, 2015)(emphasis added)

The approval of 100,000 expanded DACA applications is contrary to what DOJ attorneys told Judge Hanen in court pleadings prior to the injunction. In a January 14 motion, the DOJ noted that USCIS "does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015, and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015." (See Washington Examiner, Mar. 4, 2015)(emphasis added) During questioning the next day, DOJ attorney Kathleen Hartnett explicitly told Judge Hanen that "no applications" had been granted prior to the injunction.

Now Texas Attorney General Ken Paxton, who is the lead plaintiff in the lawsuit, is demanding answers. In a motion filed March 5, Paxton requests that Judge Hanen allow limited discovery so the states can determine whether the Obama administration intentionally lied to the court. In a statement, Paxton said, "In an apparent attempt to quickly execute President Obama's unlawful, unconstitutional amnesty plan, the Obama Administration appears to have already been issuing expanded work permits, in direct contradiction to what they told a federal judge previously in this litigation." (National Review, Mar. 5, 2015) He continued, "The circumstances behind this must be investigated, and the motion we seek would help us determine to what extent the Administration might have misrepresented the facts in this case." (Id.)

The approval of 100,000 expanded DACA applications may also be a violation of Judge Hanen's injunction. Judge Hanen's injunction prohibited the administration from implementing "any and all aspects or phases of the expansions (including any and all changes)" to DACA as well as "any and all aspects or phases" of DAPA. (See also IRLI.org, Feb. 20, 2015) The injunction also noted that "the DHS' website provides February 18, 2015 as the date it will begin accepting applications under DACA's new criteria..."