UPDATE: On the night of Wednesday, November 15, in the wake of reporting from Vox and other publications, the Trump administration announced it would allow immigrants whose applications for DACA renewal were sent before the deadline, but were left in USCIS mailboxes overnight on October 5 or were affected by the United States Postal Service slowdown, to reapply. More information on the reversal can be found here. This article has been updated where appropriate to reflect the policy change.
It’s beginning to look like a lot of immigrants were initially denied one last renewal of their deportation protections under the Deferred Action for Childhood Arrivals program — even though they made good-faith efforts to file their paperwork.
But after public outcry, the Trump administration is giving many of those immigrants a second chance.
A mysterious mail slowdown, which the New York Times reported on on November 10, initially appeared to have affected at least 74 DACA recipients in the New York City area and Chicago. But the problem may have been much bigger than that.
The plaintiffs in a lawsuit against the Trump administration (in a motion filed on November 14 in the Eastern District of New York and shared with Vox) alleged that many more DACA renewal applications did arrive in a United States Citizenship and Immigration Services (USCIS) mailbox on October 5 — and were rejected as late anyway.
That allegation was confirmed by USCIS on the night of November 15, after this story was originally published. As a result, the government is now promising to reach out to the immigrants whose applications were sitting in mailboxes at the deadline, and tell them to reapply.
In interviews with the plaintiffs and with other immigration lawyers, Vox has confirmed at least 20 cases, at two of the three mailboxes that USCIS used to accept DACA applications, where applications were placed in the mailbox in the late afternoon or evening of October 5 but marked as “received” on October 6.
The scale of the problem indicates there are likely to be dozens or hundreds more, and that applications sitting in the mailbox on October 5 could represent a substantial portion of the 4,000 DACA renewal applications the government says it received late.
That means that many of the 4,000 will likely benefit from the government’s November 15th reversal (which also gives a second chance to immigrants whose applications were received after October 6 due to the mail slowdown).
Furthermore, the plaintiffs — led by the advocacy groups Make the Road New York and the National Immigration Law Center, as well as lawyers and law students from Yale Law School — allege that some applications that USCIS had received earlier were rejected for reasons the plaintiffs in the lawsuit argue are “arbitrary.” One applicant, the lawsuit alleges, got her renewal application rejected because a USCIS employee misread the date on her check.
“A lot of people would have thought, ‘If I get them to them on the address they give me, by the day they say I should send it by, that’s enough,’” says Kate Voigt, the associate director for government relations of the American Immigration Lawyers Association. But it wasn’t. The discrepancy, the plaintiffs in the lawsuit argue, constitutes a violation of the Fifth Amendment’s right of due process.
The claims in the lawsuit, and those made by the other lawyers Vox has talked to, raise concerns that USCIS is being stricter than usual with DACA renewals — and perhaps arbitrarily denying them.
It definitely makes it clear that many DACA recipients, who President Donald Trump has claimed would be safe until March 5, are at risk of losing their protections from deportation and work permits before that, despite having done everything the government asked them to in October. Thanks to DHS’ reversal, though, they will have one more chance.
The Trump administration counted some applications that were in its mailbox by the deadline as “late”
Many of the 690,000 immigrants who had DACA protections as of the end of the program weren’t eligible to renew their protections at all. Only immigrants who were set to lose their work permits before March 5, 2018 — the “deadline” Trump used to try to press Congress to permanently address DACA recipients — were eligible to apply for one last two-year renewal of their work permit and deportation protections.
Those applications had to be received by USCIS — not postmarked — by October 5, only a month after the Trump administration announced it was ending the program.
USCIS has announced that 132,000 immigrants got their applications in on time. In an October 18 deposition for a lawsuit over the end of DACA (filed in the Eastern District of New York by a coalition of advocacy groups), a USCIS official added that another 4,000 applications came in late — and were being rejected accordingly.
But it turns out that the Trump administration’s definition of “late” included some applications that had arrived in its mailbox by the deadline.
When an immigrant sends an application to USCIS, she’s actually sending it to be processed at one of a few service centers around the country — depending on what specifically she’s applying for, and where she lives. But if she mails the application, she’s not actually sending it directly to the service center. She’s sending it to a PO box — a “lockbox” — whose contents are then picked up by employees of the Department of the Treasury and delivered to USCIS employees.
In most cases, the complicated process isn’t a problem because the application is considered on time as long as it’s postmarked by the deadline. The Trump administration decided that DACA renewals would have to be received by the deadline — and put out several statements to that effect.
The question is what counts as “received.”
Evidence indicates that the Trump administration only accepted applications that had been delivered to it from the USCIS “lockbox” by the afternoon of October 5. Applications that arrived in the “lockbox” as of 5:23 pm on the 5th — as documented by certified mail receipts — were picked up on October 6, and rejected.
The motion in the lawsuit, filed Tuesday, alleges that the upshot of this is that USCIS decided that “not all applications received by October 5, 2017 would be accepted” — that there was a deadline of a particular time of day on October 5 — without actually telling applicants what time that was.
Make the Road New York, an advocacy group and plaintiff in the lawsuit, has identified nine applicants who fell into the deadline gap, including one woman whose DACA protections are about to expire on November 24 because her application was delivered to the Chicago lockbox at 6:01 pm on October 5.
Susanne Susany, a Pittsburgh lawyer, has a certified mail printout showing that her client’s application “arrived at [the] unit” at 5:23 pm on October 5 and was available for pickup as of 5:41 pm, but wasn’t picked up until 3:30 pm on October 6.
The American Immigration Lawyers Association has identified about “10 to 15” more applications that fell into the gap after being left overnight at the Dallas lockbox. The fact that this happened at multiple service centers indicates that USCIS staff might have been instructed by leadership not to accept any applications they saw after the deadline, regardless of when they’d come to the lockbox.
Steve Blando, a spokesperson for USCIS, says that “according to USCIS regulations, a request is considered received by USCIS as of the actual date of receipt at the location (the lockbox) for filing such request.” But that actually refers to when the courier service receives the applications from the lockbox — not when the applications are received at the lockbox. “The courier service picks up twice daily with a morning run, and Express mail items are picked up during an afternoon run; both runs are considered ‘received’ that day,” Blando told Vox.
That doesn’t mean the government couldn’t decide to count applications dropped in the lockbox by the evening of the deadline as “received” in time. “In my experience,” says Voigt, even if the formal receipt of the application was officially dated the next day, USCIS would change it “if we brought it to their attention that it was actually delivered to the PO box the day before.”
“If it has been proven delivered to the USCIS address by the deadline, you’re good,” says immigration lawyer Greg Siskind about his experience in other types of cases.
Even if the application is originally rejected, Voigt and other lawyers say, there’s usually an opportunity for the applicant to prove it was submitted on time. Federal law even provides for those opportunities in some cases. (For example, applications for asylum can be considered even if they arrive after the one-year anniversary of an immigrant’s arrival in the US, as long as the immigrant can prove they were postmarked by that date.)
The fundamental problem, Voigt says, is that “obviously, the applicant does not know the pickup time that USCIS sets. There’s no way they would know what time they would have to have their application to the PO box by.”
“It’s extremely unfair to the applicants who have no control over when USCIS picks up their things,” says Amy Taylor, the legal director of Make the Road New York.
The government now appears to have acknowledged that its treatment of DACA applications was unusual. In its November 16 statement, after this story was first published, it admitted that “USCIS had discovered certain cases in which the DACA requests were received at the designated filing location (e.g., at the applicable P.O. Box) by the filing deadline, but were rejected.” DHS has promised to “proactively contact” immigrants who were affected, and invite them to reapply.
A mail delay could have affected many more applications than first thought
What’s particularly frustrating to many of those immigrants is that their applications weren’t sent at the last minute. They were sent days or weeks in advance. (One applicant cited in the lawsuit mailed in her application on September 14, three weeks before the deadline.) The only reason that some applications arrived at the Chicago lockbox after 6 pm on October 5 to begin with is that they’d been derailed by a “slowdown” at the United States Postal Service’s Chicago processing center.
It’s impossible to know how many applications were doomed by the Postal Service. But it’s entirely possible that the answer is in the hundreds.
On Friday, the New York Times’s Liz Robbins reported that more than 50 DACA recipients had been victimized by the mail slowdown in New York City and Chicago. But applications were coming into USCIS’s Chicago service center — and, therefore, being routed through the Chicago postal center — from all over the US. Immigrants in 28 states were told to send their DACA renewal applications to Chicago; immigrants from those states, which included everywhere from North Carolina to Colorado, accounted for more than a third (38 percent) of the people who got initial DACA grants while the program was in effect.
Advocates are still trying to get a sense of the scope of the mail snafu. But Vox has confirmed that the mail delay affected immigrants in at least two more states.
In Pittsburgh, Susanne Susany mailed her client’s application on September 11. She thought everything was fine until the end of October, when the whole package was returned to her.
She discovered (via checking the certified-mail tracking page) that the application was in transit to Chicago as of 9:16 am on September 15, but didn’t officially arrive at the facility until 3:38 pm on October 3. (The delays reported in New York and Chicago followed a similar pattern.) It then took two more days to get to the lockbox, by which time it was too late.
When Susany called the Postal Service to complain, she says, they shrugged, “We’re sorry, but we don’t guarantee the day it will arrive.”
Another application, according to Claudia Castaneda-Flamenco of the Nevada advocacy group PLAN, was sent from Reno on September 28 but didn’t get to the lockbox until October 17.
It’s not clear whether the USCIS official’s statement on October 18 that there were 4,000 late applications included applications that had been received only the day before. (USCIS did not respond to a request to clarify this by press time.) If it didn’t, the Nevada case opens the possibility that thousands more applications were received late than the government has yet acknowledged, and that many of those may have been sent on time.
The Postal Service has taken full responsibility for the delays. But advocates and immigration lawyers argue that the problem could have been prevented if USCIS had agreed to accept all applications postmarked by October 5, as the agency often does.
The Department of Homeland Security had at least some flexibility in accepting late applications. In his October 18 deposition, the USCIS official said that six late applications had been accepted because Hurricane Maria had caused them to be delayed.
When it came to the Postal Service’s man-made disaster, though, DHS is showing much less flexibility — even though applicants had no share of the blame.
The Trump administration’s DACA wind-down is not as generous as the president has sometimes claimed
Just having an application in on time doesn’t guarantee that the application will be approved.
Most DACA recipients whose applications were picked up by USCIS by October 5 haven’t heard back about their ultimate fates yet. But the administration’s conduct so far hasn’t suggested it’s going to be particularly lenient in extending DACA recipients’ protections through late 2019 or early 2020, rather than allowing them to expire over the next few months.
This, too, might not be because of anything the applicant herself did.
A New York DACA recipient, represented in the Make the Road New York lawsuit, received a rejection on October 4 — with a note explaining that the application had been rejected because the date on the check she’d sent was “not current.” Her lawyers eventually figured out that the clerk who’d processed the application had read the “2017” on the check as “2012.” By the time they had resent the application with a new check (just to be sure), it was rejected for being too late.
The government has a lot of discretion when it comes to DACA. (Ironically, this is why the Obama administration argued the program was constitutional, while conservatives like Sessions argued that it was really a rubber stamp.) But the advocates suing the administration are arguing that that power has to have some limits when it comes to disrupting peoples’ lives — that the government has to show more due process than it’s showing right now.
But even if the Trump administration can use its discretion to be as stingy as possible in granting renewals of DACA status, it’s still a choice they’re making. And that choice isn’t consistent with the message from Trump administration officials — including the president himself and Homeland Security secretary nominee Kirstjen Nielsen — that the White House had to end DACA for legal reasons, but deliberately delayed its end for six months to give Congress a chance to pass a “permanent solution.”
If the Trump administration really designed the end of DACA to postpone the end of the program for six months for as many immigrants as possible, it is doing a terrible job.