Did the DOJ Mislead Judge Hanen About Implementation Date for Expanded DACA?

March 5th, 2015

On Wednesday, shortly after Texas filed its brief opposing the government’s motion for a stay, the United State filed a strange “Advisory” with the court. In short, even though the government represented that no new relief would be issued under the November 20, 2014 memorandum until February 18, 2015 (two days after the preliminary injunction was issued), it turns out that the administration deferred the deportations for 100,000 aliens for a period of 3 years (the previous policy was limited to 2 years).

Out of an abundance of caution, however, Defendants wish to bring one issue to the Court’s attention. Specifically, between November 24, 2014 and the issuance of the Court’s Order, USCIS 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 EADs for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of three-year periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance. Deferred Action Guidance at 3; see also Neufeld Decl. ¶ 12 n.6 (“Pursuant to the November 20, 2014 memo issued by Secretary Johnson, as of November 24, 2014, all first-time DACA requests and requests for renewal now receive a three- year period of deferred action.”) [ECF No. 130-11].

DOJ says this may have led to “confusion.” You think?

Defendants nevertheless recognize that their identification of February 18, 2015, as the date by which USCIS planned to accept requests for deferred action under the new and expanded DACA eligibility guidelines, and their identification of March 4, 2015, as the earliest date by which USCIS would make final decisions on such expanded DACA requests, may have led to confusion about when USCIS had begun providing three-year terms of deferred action to individuals already eligible for deferred action under 2012 DACA.

What makes this late admission so stunning–after all of the briefs had been filed and the injunction was issued–is that the DOJ consistently represented that no new relief had been issued under the November 20, 2014 memorandum. On that basis, Texas and the Court proceeded under the assumption that the status quo would be maintained until February 18, 2015. Now, we see that this wasn’t the case.

In response, Texas admits it was “surprised” by this late representation:

This is surprising to Plaintiffs, as Defendants had represented on sev- eral prior occasions that USCIS would not consider requests for deferred action under that memorandum until at least February 18, 2015.

Plaintiffs find themselves hard-pressed to reconcile Defendants’ past represen- tations with Defendants’ actions as reported in their advisory.

In its brief, Texas offers a helpful timeline of all the times the DOJ made clear they would not implement any of the programs, authorized by the November 24, 2014 memorandum until February 18. In particular, on January 14, DOJ stated that “Plaintiffs will not be prejudiced” by the extension “because U.S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015.”

During oral arguments on January 15, the DOJ again repeated that none of the expanded programs would go into effect before February 18.

MS. HARTNETT: In that document [Defendants’ January 14 motion for extension of time] we reiterated that no applica- tions for the revised DACA — this is not even DAPA — revised DACA would be accepted until the 18th of Feb- ruary, and that no action would be taken on any of those ap- plications until March the 4th. …

THE COURT: But as far as you know, nothing is going to happen in the next three weeks?

MS. HARTNETT: No, Your Honor.

THE COURT: Okay. On either.

MS. HARTNETT: In terms of accepting applications or granting any up or down applications.

MS. HARTNETT: For revised DACA, just to be totally clear.

Revised DACA extended the window from 2 years to 3 years.

It was on this basis that the court ruled. As Texas explains:

This newly disclosed conduct is difficult to square with Defendants’ prior rep- resentation to the Court that “nothing is going to happen” until weeks after the pre- liminary-injunction hearing. Hr’g Tr. at 134. Likewise, Plaintiffs do not understand why Defendants do not consider their implementation of Expanded DACA to be “granting” or “entertaining requests” for deferred action under the challenged DHS Directive. After all, Original DACA provided only for two-year relief; it is only Ex- panded DACA that provided for the three-year relief that Defendants granted to 100,000 aliens. Moreover, Defendants’ advisory contains no details about how many of the aliens who received Expanded DACA relief applied for some form of DACA during the time period at issue, or the extent to which those applicants formally or informally requested or were told they would receive Expanded DACA relief.

It is really, really difficult to see how DOJ could make such representations.

The advisory also contains no details about whether Defendants and their counsel understood that USCIS was affording Expanded DACA relief, and what in- structions were given to USCIS in that regard before Defendants made representa- tions to the Court and to Plaintiffs.

The 3-year renewals were directly authorized by the November 20, 2014 memorandum. Either (a) Ms. Hartnett didn’t know about the fact that 100,000 applications were granted, (b) or she was not forthcoming with the court. If it is the former, then there is a serious breakdown in DOJ’s ability to defend this law. If it is the latter, the court should order a ruling to show cause, and give her an opportunity to explain why she made this representation. A trip back to Brownsville would be very salutary.

To pursue this, Texas asks the Court for leave to request discovery from the government concerning the extent to which they failed to comply with their representations in court.

Because the nature and extent of those actions inform remedies Plaintiffs may pursue, related to both Defendants’ past representations and to their current compliance with the prelimi- nary injunction, Plaintiffs move for early discovery focused on the subject.

What are they looking for?

At present, the record is not sufficiently developed to draw firm conclusions about the nature and extent of the actions Defendants took to implement Expanded DACA while litigating this case. The need to clarify the record in that regard, given the substantial questions raised by the difficulty of squaring Defendants’ representa- tions in this case with their newly disclosed conduct, is good cause to allow early dis- covery into that limited matter.

There is at least a substantial possibility that the facts revealed by early dis- covery would prompt Plaintiffs to pursue remedies related to Defendants’ represen- tations and actions. Plaintiffs have proceeded in this litigation based on their under- standing, from Defendants’ representations, that neither DAPA nor Expanded DACA would be implemented until February 18, 2015. Had Plaintiffs known that Defend- ants began granting Expanded DACA relief as soon as the DHS Directive was prom- ulgated, they would have explored seeking a temporary restraining order to block that implementation of the Directive. This, in turn, would have avoided any need to litigate potential remedies now. Likewise, Plaintiffs may have requested discovery from Defendants, in the context of the motion for preliminary injunction, to explore the manner in which Defendants were implementing Expanded DACA, as that might be relevant to their standing and irreparable-harm arguments. Good cause exists to authorize limited early discovery.

Any such discovery would be very useful for a future contempt hearing, as well as for the appeal.

Byron York has much more here. For full disclosure, I filed an amicus supporting Texas.