DACA highlights pitfalls of legalization schemes

We hear a lot about the need for a legalization program. For instance, the White House posted an article on the economic benefits of extending permanent resident status to undocumented immigrants. But we don’t hear much about how a legalization program would be implemented.

Implementation should include measures to overcome the fear undocumented immigrants have of submitting an application to DHS that acknowledges unlawful status and provides the information needed to locate them — and it should include measures to make it more difficult to obtain legalization with fraudulent applications.

These measures are necessary to ensure that the program will legalize as many qualified immigrants as possible and reduce the number of fraudulent legalizations.

The Deferred Action for Childhood Arrivals (DACA) program provides an example of a temporary legalization program that has not succeeded in addressing either of those problems.

Sharing information 

In a letter dated June 4, 2020, House Judiciary Chairman Jerrold Nadler (D-N.Y.) and the Chair of the Immigration and Naturalization Subcommittee Zoe Lofgren (D-Calif.) asked the Government Accountability Office (GAO) to investigate the ability of immigration enforcement agencies to obtain personal information about DACA participants.

They said that when the Obama administration established the DACA program in 2012, it assured DACA applicants that USCIS would only share their personal information with ICE and CBP under limited circumstances — and “hundreds of thousands of young Americans relying on this assurance came forward to apply for deferred action.”

Although there was a promise of confidentiality in 2012, it was an empty one. DHS retained the ability to use the information for enforcement purposes without prior notice.

The federal courts eventually got involved, and a circuit court found that DACA applicants “could not reasonably believe that the information they provided as part of their DACA application would never be used for immigration enforcement purposes.”

Sharing information with enforcement agencies 

GAO issued its report a few weeks ago. It found that USCIS contacts ICE or CBP to resolve questions related to a DACA applicant. In such cases, it will provide sufficient biographical information to confirm the applicant’s identity and obtain the information being sought.

Also, an application may be referred to ICE if it presents (1) confirmed or suspected fraud or (2) criminality that raises concerns that an individual may pose an egregious threat to public safety.

Referrals, however, are quite uncommon. Since 2012, USCIS has denied 106,000 DACA applications, and fewer than 900 of those cases were referred to ICE.

Fraud 

When USCIS finds that an applicant has committed fraud in connection with a DACA request, it may initiate removal proceedings with the issuance of a notice to appear (NTA). It also may ask ICE to do a fraud investigation before deciding whether to initiate removal proceedings.

But according to the GAO, USCIS typically only refers fraud cases to ICE that involve a conspiracy or large-scale fraud scheme; the corruption of a government employee; and particularly egregious cases, such as those involving human trafficking.

And it rarely issues an NTA.

According to the report, USCIS only issued 134 NTAs related to DACA from June 2012 through June 2021. Moreover, the vast majority of those cases were connected to a single, major fraud scheme in fiscal 2018. 

In other words, USCIS is not doing much to deter fraudulent applications, and this can be a major problem with legalization programs.

For example, the legalization program for farm workers that the Immigration Reform and Control Act of 1986 (IRCA) established was expected to provide legalization to approximately 250,000 undocumented farm workers, but more than 1.3 million people were legalized under the program. Federal officials and immigration experts estimated that there were between 250,000 and 650,000 fraudulent farm worker legalization applications, but the immigration service did not have the funding needed to prosecute individual applicants.

The author of that program, Sen. Charles E. Schumer (D-N.Y.), acknowledged to the New York Times that “in retrospect the program seemed ‘too open’ and susceptible of fraud.”

It would be a serious mistake to even consider a legalization program that does not include a plan to address these problems.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.