In Judge Howell’s decision for D.D.C. rejecting Sheriff Joe Arpaio’s constitutional challenge to DAPA (see my standing post here), she rejects the claim that there is no individualized determination with respect to DACA. To support this conclusion, she cites USCIS statistics which show that 36,860 requests out of 719,746 were rejected. This amounts to about a 5% rejection rate.
Statistics provided by the defendants reflect that such case-by-case review is in operation. As of December 5, 2014, 36,860 requests for deferred action under DACA were denied and another 42,632 applicants were rejected as not eligible. Defs.’ Mem., Ex. 22 (USCIS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014)), ECF No. 13-22.
The DOJ elaborates on these numbers in FN. 23 on p. 29 of its brief.
Plaintiff baselessly dismisses this individualized determination as a “fiction.” See, e.g., Pl.’s Mot. at 4. But, as of December 5, 2014, of the 719,746 individuals who made initial requests for deferred action under DACA, 42,632 applications were rejected, 630,032 were approved, and 36,860 were denied. See DHS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014) (attached as Exhibit 22). Further, those who request DACA likely are a self-selecting group. In any event, agencies may establish frameworks for the exercise of prosecutorial discretion.
Here is the chart from exhibit 22.
One question I am researching is what to make of this strikingly low denial rate. (I am putting aside for the moment the rejected rate is for people who do not fill out the paperwork correctly, and are rejected for clerical reasons). I have a few preliminary thoughts, as I am still thinking this issue through.
First, the DAPA policy speaks in terms of discretion. As Judge Howell explained:
In addition, although the challenged deferred action programs represent a large class- based program, such breadth does not push the programs over the line from the faithful execution of the law to the unconstitutional rewriting of the law for the following reason: The programs still retain provisions for meaningful case-by-case review.13 See 2014 Guidance Memorandum at 4 (requiring that a DAPA applicant present “no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate”). This case-by-case decisionmaking reinforces the conclusion that the challenged programs amount only to the valid exercise of prosecutorial discretion and reflect the reality that “an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).
What are these “other factors” to deem a person “inappropriate”? We don’t know. The OLC memo acknowledged that the DAPA policy is silent on this front. Presumably, the discretion is vested in individual agents. But, as we learned from DACA, agents were encouraged to process as many applications as possible. (See my National Review piece on point).
Second, I think we have to keep in mind that it is the President, and not Congress who determined the threshold eligibility for DAPA. When only 5% of applicants are being denied, we are talking about 5% of those who do not meet the President’s self-imposed criteria for executive discretion. I am working on an article now that looks at grant rates for discretionary action (for example, cancellation of removal). The grant rates are very, very, very low, as Congress imposes a number of statutory “stumbling blocks,” such as proving an extreme hardship.
Third, why are even 5% denied. What factors are being presented to disqualify someone, if they meet all the other criteria. I’ve asked this question to a few immigration law experts, and I haven’t received an answer.
Stay tuned for more on this.