Vox: “Hundreds of immigrants will get to resubmit DACA renewals originally rejected as ‘late’”

by Joseph McKeown

The Department of Homeland Security (DHS) announced last week that they will allow DACA recipients who missed the October 5 deadline either because of delays with the US Postal Service or the failure of a courier to pick up the applications from a US Citizenship and Immigration Services (USCIS) mailbox, to reapply for their extensions. This is crucial for these applicants since the Deferred Action for Childhood Arrivals (DACA) program will be ending on March 5, 2018, and the deadline to apply for one last two-year extension of DACA protections was October 5, 2017. The government says that approximately 4,000 individuals failed to meet the October 5 deadline to renew their DACA protections, and initially chose to reject many of these applications that were late due to no fault of the sender. USCIS reversed their decision not to accept the late DACA applications after they “identified USPS mail service delays that affected a number of DACA renewal requests” as well as “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.”

The DHS announcement affects two different groups of DACA applications that were initially rejected. The first group pertains to applications that were sitting in USCIS mailboxes on the date the applications were due, but were not picked up by a courier until October 6. USCIS will contact these applicants about re-filing. It is not clear how USCIS will be contacting these DACA applicants or how much time they will be given to resubmit their applications, though the agency has promised to issue more guidance. The second group of DACA applications includes those applications initially rejected because they arrived late as a result of mysterious delays by the US Postal Service. Some applications, for example, sent as early as September 11, did not arrive at the mailbox until October 6.  These applicants will not be contacted by the agency to re-file. Instead, these DACA applicants will have to show the government “individualized proof that the request was originally mailed in a timely manner” and that the reason it arrived late was because of the Postal Service delays. USCIS has not clarified what type of evidence will be accepted by the agency, but those who sent their applications by certified mail and were able to track their packages will have more evidence to offer than those who did not.

Attorneys and DACA recipients have shared many stories of the delays. Allison Baker, a lawyer for the Legal Aid Society in New York, sent her client’s application to renew his DACA status on September 14 using certified mail. Baker tracked the package, which showed that it had arrived in Chicago on September 16 and was on its way to USCIS; however, the package then began circling Chicago in a strange holding pattern and from September 17 to September 19, it showed it was “in transit to destination.” The package disappeared until October 4 and was then once again showing that it was “on its way.” The package arrived on October 6, a day past the deadline, and her client’s application was therefore rejected. Linda Bennett-Rodriguez, an attorney at the Empire Justice Center in White Plains, New York, submitted two applications for her sibling clients. The younger brother’s application was sent on September 21 and accepted on September 25; however, the older brother’s application, which was submitted on September 12, remained in transit for weeks, not reaching Chicago until October 3 and it did not show delivery until October 6. “It was probably my worst day as an attorney,” Bennett-Rodriguez tells the New York Times. “I knew the importance and I knew we filed with enough time.”

David A. Partenheimer, a spokesman for the Postal Service, said they were to blame for these mysterious delivery delays, citing “an unintentional temporary mail processing delay in the Chicago area.” Partenheimer tells the New York Times that the issue had been resolved and they were investigating the cause and that they would work with USCIS “concerning any potential issues this may cause for the affected individuals.” Steve Blando, a spokesman for USCIS, affirms that the agency is “committed to working with the USPS to understand and address the USPS error that occurred and delayed the mail.”  

While USCIS did not explain why the agency reversed their decision, some believe that the reversal was related to the lawsuits the Trump administration are facing over the end of the DACA program. The decision to reverse and accept these rejected applications may make it easier for the government to argue that they are not being capricious, one of the charges in the lawsuit. While, of course, there is no guarantee that these late applications once re-filed will be approved, many, like Representative Luis V. Gutierrez of Illinois, strongly believe that these young immigrants should not be penalized for circumstances that they had no control over, especially if they submitted their applications with ample time.  “Because somebody else did not do their job correctly we are taking innocent young immigrants and making them deportable,” he says. “That is unacceptable.” While many are obviously grateful for the decision to accept some of these late applications, Kate Voigt, the associate director of government relations for the American Immigration Lawyers Association, tells the New York Times: “We will be watching these cases very closely to see how USCIS treats them and makes sure that the agency accepts them.”