Last week, I noted that Judge Hanen ordered DOJ to appear for a March 19 hearing to explain why it granted over 100,000 Expanded DACA Applications, when it had told the court that the November 24 memorandum would not go into effect, at the earliest, on February 19 (prior to Judge Hanen’s ruling). Today, in a supplemental filing, DOJ announced they would be seeking a stay today (which I covered here), and also offered an explanation for why it did not inform the court about these expanded DACA grants.
First, DOJ argues that the November 24 memorandum indicated that the three-year periods would go into effect immediately.
The November 24, 2014 effective date of the three-year period, including for individuals applying for DACA under the 2012 guidelines, is set forth in the Secretary’s Deferred Action Guidance, which states on page 3 that the change from two- to three-year grants would be “effective November 24, 2014.”
In other words, it is the court’s fault for not noticing this, and accepting the DOJ’s incomplete representation that they weren’t implementing the law till February. Again, here is the relevant colloquy from DAAG Hartnett:
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.
THE COURT: Okay.
MS. HARTNETT: For revised DACA, just to be totally clear.
Wouldn’t it have been appropriate to explain that the three-year grants had already being granted. Why does the “abundance of caution” only arise after the court’s decision? Even her proviso at the end, “for revised DACA” is incomplete, because as DOJ notes, the 2012 policy was for 2 years, and 2014 policy was for 3 years. It was under the expanded DACA that relief was being afforded. I don’t think this argument will fly.
Here, DOJ parses words. They explain that expanded DACA applies to the expanded class of individuals under the 2014 memorandum. Individuals who classified under the 2012 guidance would receive relief, but now at the three year mark.
Defendants also informed the Court 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.” Mot. for Extension at 3 [ECF No. 90] (emphasis in original). These and similar statements reflected that USCIS would not consider or grant DACA to the expanded class of individuals eligible under the challenged 2014 Deferred Action Guidance (hereinafter, “2014 DACA”) before these dates. The claims of irreparable harm in this case pertained to the expansion of deferred action to individuals newly eligible under 2014 DACA. Defendants’ statements thus addressed the effective dates for 2014 DACA – i.e., when a larger group of individuals would be eligible to apply for and receive DACA – not the effective date for the change in duration of deferred action grants pursuant to the unchallenged 2012 DACA, an issue that was not the subject of Defendants’ focus at the time those statements were made.
DOJ makes this fine distinction late in the game. I don’t think this is how Judge Hanen, or Texas, understood the scope of relief.
Defendants filed the March 3 Advisory to ensure that prior filings had not created inadvertent confusion about the three-year grants to 2012 DACA recipients and so that the facts were abundantly clear to the Court, as well as to provide the approximate number of three-year grants issued before the injunction.
The filing also cites the USCIS FAQs explain that all grants under the 2012 DACA would be for three years.
In addition, the “frequently asked questions” (FAQs) on USCIS’s public website regarding the 2012 DACA program stated that grants of deferred action under 2012 DACA would be issued for a term of three years following issuance of the November Guidance. See Ex. B to Neufeld Decl. at 2 (“If USCIS renews its exercise of discretion under  DACA for your case, you will receive deferred action for another three years.”).
Well, if the web site said it… I should note that a federal court has rebuked the Obama administration from changing Obamacare policy in its FAQ. This is not a wise argument.
Remarkably, DOJ suggests that because they are only in year 1 of 3, a court can later revoke the additional year.
Those individuals also are only in the first year of the deferred action period; it will be nearly two years before the third year of the grant period is even implicated.
At the end, we get a partial apology, but the government will appeal:
Defendants assure the Court that they will be ready to address fully the Court’s Order regarding the March 3 Advisory and Plaintiffs’ motion for discovery at the hearing on March 19. Defendants in no way intended to obscure the fact that DHS already was implementing the three- year duration of deferred action for individuals applying under 2012 DACA, pursuant to the Secretary’s Guidance, and submitted the March 3 Advisory to the Court to ensure clarity on that point. Defendants regret any confusion that may have resulted from their focus on the February 18, 2015 and March 4, 2015 dates in their statements to the Court. Nevertheless, because any further delay in reaching a final resolution of their stay request will compromise the significant government interests set forth in Defendants’ stay papers, including Defendants’ efforts to protect national security, public safety, and the integrity of the border, Defendants have concluded that they must now seek emergency relief in the Fifth Circuit to protect those interests.