Texas v. U.S. Update: DHS Identifies 500 More Three-Year Employment Authorizations That Were Accidentally Mailed After Injunction

July 9th, 2015

This is the case that doesn’t end. On Tuesday, Judge Hanen threatened to drag DHS Secretary Jeh Johnson to Brownsville if the government does not rectify nearly 2,000 three-year employment authorizations issued after the injunction. Today, DHS filed another advisory, indicating that it discovered an additional 500 three-year employment authorizations that were issued after the injunction. You have to read it to believe it.

Finally, as part of its ongoing efforts to keep the Court promptly apprised of developments, Defendants file this Advisory to inform the Court of information that recently came to the attention of counsel for the Government regarding a relatively small number of three-year EADs that were approved and issued by the Department of Homeland Security (DHS) prior to the Court’s entry of its preliminary injunction, were mailed to the intended recipients prior to the injunction, returned by the Postal Service as undeliverable, but which were then re- mailed after the Court’s injunction. Defendants will also update the Court on this issue as part of the July 31, 2015 status report.

According to DHS’s currently available information, a small percentage of three-year EADs approved, issued, and mailed prior to the injunction – approximately 500 of the EADs approved and issued – were then returned as undeliverable and subsequently re-mailed to an updated address after the Court’s entry of its injunction. These were EADs provided to individuals who qualified for 2012 DACA. Government counsel has been advised that these cards were re-mailed pursuant to standard USCIS mail processing procedures by a mailing contractor. Defendants are continuing to examine the circumstances leading to the re-mailings, but are filing this Advisory now to ensure that the Court is promptly apprised of this information. DHS is taking immediate steps to address the issue. DHS is undertaking an expedited process of corrective action for the approximately 500 three-year EADs re-mailed after the injunction. All such three-year EADs will be converted to two-year EADs, and DHS will expeditiously seek the return of the three-year EADs that were re-mailed – as it is doing for the approximately 2,000 individuals addressed in the Government’s May 7, 2015 advisory.

Let me put this in perspective. Before the judge’s injunction, DHS stated on the record that it would not issue any three-year expanded DACA work authorizations. It turns out, DHS actually sent many of these, notwithstanding its representation to the court. After the injunction, DHS was no longer able to send out any three-year authorizations. It turns out that they mailed 2,000 after the injunction. Now, we learn that 500 were mailed before the injunction, they were returned to sender, and re-mailed after the injunction.


And what about the 2,000 outstanding work authorizations? They are waiting for the recipients to mail them back.

The Government recognizes the import of the Court’s concerns regarding the progress of the Government’s efforts relating to the approximately 2,000 post-injunction issuances. In addition to other measures that are underway, the three-year DACA grants and EAD cards have been invalidated for all of these individuals and changed to two years; the SAVE database that states use to verify eligibility for driver’s licenses and other state benefits has been updated to reflect the two-year authorizations for all of these individuals; and USCIS has now sent two rounds of individualized letters demanding the return of the three-year EAD cards and warning recipients that a failure to return the card could affect their deferred action and employment authorization. The Government has already secured return of nearly 1200 of these three-year EADs. We are now executing additional steps to secure return of the remaining three-year EADs.

Hopefully those eight-hundred outstanding licenses are not in sanctuary cities, where federal immigration officials have no authorities.

Judge Hanen may actually blow a gasket here. As I noted earlier this week, I don’t think Judge Hanen’s order to demand Secretary Johnson appear is appropriate, but DHS has shown a serious disregard for the court’s order, and in general gross incompetence. The “too big to fail” or “governmental incompetence” excuse doesn’t fly here.

There is no indication that they are seeking mandamus yet. The parties will file a joint status report on July 31, which will hopefully “rectify” the situation. Don’t count on it.