Mark A Ivener, A Law Corporation

Senate Holds Hearing on Obama Administration’s Executive Actions

The U.S. Senate Committee on the Judiciary held a hearing on July 21, 2015, “Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims.” The hearing followed the White House’s announcement on July 15, 2015, of progress on the Obama administration’s executive actions on immigration and next steps, as part of an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.

Those testifying at the hearing included U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez; Grace Huang, Public Policy Coordinator, Washington State Coalition Against Domestic Violence; J. Thomas Manger, Chief of Police, Montgomery County (Maryland) Police Department; Sarah Saldaña, Assistant Secretary, U.S. Immigration and Customs Enforcement; and others. Judiciary Committee members Charles Grassley (R-IA) and Patrick Leahy (D-VT) submitted statements.

In his opening statement, Sen. Grassley said that the Obama administration, “in too many cases, has turned a blind eye to enforcement, even releasing thousands of criminals at its own discretion, many of whom have gone on to commit serious crimes, including murder.” He also said that the administration has granted deferred action “to criminal aliens who have committed heinous crimes after receiving this relief from deportation.” Sen. Grassley noted that he has written to Homeland Security Secretary Jeh Johnson about four specific cases in which such individuals received Deferred Action for Childhood Arrivals (DACA). “One of those beneficiaries was a known gang member when he applied and received DACA, then went on to kill four people in North Carolina. Another DACA recipient used his work authorization to gain employment at a popular youth camp in California, where he was recently arrested for child molestation, and distribution of child pornography. I am still waiting for responses on some of these cases,” Sen. Grassley said.

Sen. Leahy noted that immigrants are statistically less likely than individuals born in the United States to commit crimes, and said crimes by certain people “should not be used as an excuse for demonizing an entire community.” He also noted that the Obama administration “has committed unprecedented resources to enforcement efforts at the border and in the interior,” spending nearly $18.5 billion per year on enforcement, “which exceeds all other federal criminal law enforcement spending combined.” The Obama administration, he noted, has removed more individuals than any other administration.

Mr. Rodriguez summarized key executive actions on immigration issues, including DACA. He noted, among other things, that through the end of March 2015, USCIS had received 1,175,689 DACA requests, and rejected and returned more than 71,000 at the outset. Of the 1,104,594 DACA requests accepted by USCIS for consideration, 748,789 were initial requests and 355,805 were renewal requests. Of the initial requests, USCIS approved 664,607 and denied 43,375; 40,807 remained pending as of the hearing date. Of the renewal requests, USCIS approved 243,872 and denied 414; 111,519 remained pending as of the hearing date. Mr. Rodriguez noted that denials may occur when a DACA requestor does not meet the continuous residence or education guidelines, is deemed to pose a threat to national security or public safety, or is otherwise deemed not to warrant deferred action based on a case-by-case review of each application.

He noted that these figures “do not illustrate the human face of DACA.” He noted, for example, the situation of twin sisters who were born in Mexico. Their mother brought them to the United States when they were five years old. The sisters therefore spent most of their childhood in the United States, but did not know if they could ever go to college because they were undocumented. They received DACA and went on to graduate from high school with honors and are now attending a prestigious college. They have said they are committed to working hard so they can give back to the university and the nation. Mr. Rodriguez said they are two of many examples of young people who are now able to fully contribute to their communities and to the nation because they can “finally emerge from the shadows, and give back to the community.” He noted that DACA is part of a greater effort to ensure that valuable and limited enforcement resources “are spent wisely and focused on those individuals who are a danger to national security or a risk to public safety” rather than on people such as the twin sisters he described.

Mr. Rodriguez also noted that when the district court issued a preliminary injunction in Texas v. United States, USCIS ceased preparations to implement the new DACA eligibility guidelines and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). USCIS also took immediate steps intended to ensure that the agency ceased issuing three-year (rather than two-year) periods of deferred action and work authorization to DACA recipients processed under the 2012 memorandum (a change that had begun, as directed by the memorandum, on November 24, 2014). He noted that between November 24, 2014, and the date of the injunction, USCIS granted approximately 108,000 three-year employment authorization documents (EADs) to renewal and initial requestors who were granted deferred action under the 2012 DACA guidelines. He said that the vast majority of these requests were filed before issuance of the 10 memoranda on November 20, 2014, announcing the executive actions. He said the large number of requests and decisions during this period reflected the natural cycle of DACA renewals, as the initial two-year periods of deferred action and work authorization were expiring for those persons who were granted DACA during the initial months after its launch in 2012.

He acknowledged that USCIS failed to prevent the release of approximately 2,000 three-year EADs for individuals eligible for 2012 DACA once the agency’s initial February 17 freeze on all EADs was lifted, and thereafter erroneously issued a small number of three-year EADs due to “manual errors.” In addition, he said, USCIS re-mailed some three-year EADs (approximately 500) that had initially been mailed before the injunction, were returned by the U.S. Postal Service as undeliverable, and were re-mailed by USCIS after the injunction.

Mr. Rodriguez said that as the director of USCIS, “I accept full responsibility for these mistakes.” He noted that the Secretary of Homeland Security has asked the DHS Office of Inspector General (OIG) to investigate the circumstances of the issuance of the approximately 2000 three-year EADs after the issuance of the preliminary injunction order. “USCIS fully supports this investigation, and like Secretary Johnson, I have notified agency leadership and relevant staff components directing full and expedited cooperation with the OIG,” he said.

He also said that USCIS has implemented corrective measures, including the conversion of all the validity periods of deferred action and employment authorization to two years, and that the agency is issuing new two-year EADs for each of the 2,000 erroneously issued three-year EADs, as well as those approximately 500 returned as undeliverable. USCIS notified those individuals who received the now-invalid three-year EADs that their deferred action and employment authorization would be terminated on July 31, 2015, if those individuals did not comply with the requirements for returning the invalid EADs. Additionally, Mr. Rodriguez directed the agency to take additional precautions, “including the modification of USCIS computer systems and additional quality control measures to further minimize the potential for manual error that could lead to unintended issuance of three-year EADs, instead of two years, in future DACA cases,” he said.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.