When President Obama announced his sweeping unilateral executive action on immigration last November, administration officials stressed that the new edict would not take effect immediately. One part of the president's action — changes to DACA, or Deferred Action for Childhood Arrivals, to extend the period in which illegal immigrants are protected from deportation to three years from its present two years, and also to extend work permits for the same time — was scheduled to go into effect Feb. 18, 2015, three months after the president's announcement. The other part of the president's action — the newly-created DAPA, or Deferred Action for Parents of Americans and Lawful Permanent Residents — would go into effect six months after Obama's edict.
The day after Obama's Nov. 20 announcement, the United States Citizenship and Immigration Service published notice that it "expects to begin accepting requests for the Expanded DACA program on Feb. 18, 2015; and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in mid-to-late May 2015." The dates were set.
The administration's schedule shaped the schedule of those challenging the president's action. On Feb. 16, federal judge Andrew Hanen issued an order stopping the program, noting in his opinion that "the DHS' website provides February 18, 2015 as the date it will begin accepting applications under DACA's new criteria, and mid-to-late May for DAPA applications." Hanen barred the administration from implementing "any and all aspects or phases of the expansions (including any and all changes)" to DACA and also "any and all aspects or phases" of DAPA.
So everyone involved knew the score. Changes to DACA, which had been scheduled to start Feb. 18, were on hold. DAPA was also on hold. And everyone assumed those dates to be accurate. But now, the administration is telling a different story.
In a "Defendants' Advisory" filed with Hanen's court late Tuesday, the Justice Department notified the judge that it has already implemented significant parts of the Expanded DACA program, and indeed that it has already granted expanded DACA protections and work permits to "approximately 100,000" people.
In the advisory, which began by claiming the administration has followed Hanen's order to temporarily stop the implementation of the program, Justice Department lawyers added this:
Out of an abundance of caution, however, Defendants wish to bring one issue to the Court's attention. Specifically, between November 24, 2014 and the issuance of the Court's Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year Employment Authorization Documents for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of three-year periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance…Defendants nevertheless recognize that their identification of February 18, 2015, as the date by which USCIS planned to accept requests for deferred action under the new and expanded DACA eligibility guidelines, and their identification of March 4, 2015, as the earliest date by which USCIS would make final decisions on such expanded DACA requests, may have led to confusion about when USCIS had begun providing three-year terms of deferred action to individuals already eligible for deferred action under 2012 DACA.
Led to confusion? That's an understatement. It also led to the conclusion that the administration has misled not only Judge Hanen but everyone in the United States about the president's immigration action.
The Justice Department lawyers claimed it was all a misunderstanding. The Feb. 18 start date, they argued, did not apply to people who were already enrolled in DACA whose protection against deportation would be extended by Obama's new order. So they immediately began extending those people from two years to three years, and extending their work permits for the same time.
The "November Guidance" to which the Justice Department lawyers referred was a memo issued Nov. 20, the same day as the president's action, by Homeland Security Secretary Jeh Johnson, addressed to the head of U.S. Citizenship and Immigration Services. Explaining the changes to come, Johnson noted this:
The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years.
Despite all the administration talk about a three-month period to begin the new policy, Johnson simply declared the DACA changes effective last November 24. On the basis of his memo, administration officials gave expanded DACA protections to those 100,000 people — a breakneck pace, apparently pursued to get as many changes in place before legal challenges could catch up.
Yet in court, administration lawyers claimed that Obama's changes wouldn't take effect until Feb. 18. In a motion filed Jan. 14, the Justice Department asked for a two week extension of the deadline to file a brief. "Plaintiffs will not be prejudiced by the two-week extension sought in this Motion," the administration argued, "because U.S. Citizenship and Immigration Services (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." Even as the government lawyers wrote those words, the administration was racing to grant immediate extended status to as many illegal immigrants as possible.
The day after filing the motion, Jan. 15, Justice Department lawyer Kathleen Hartnett appeared in Hanen's court to emphasize that there was no problem delaying things for a while because the administration wasn't implementing the president's changes.
"In that [motion] we reiterated that no applications for the revised DACA — this is not even DAPA — revised DACA would be accepted until the 18th of February," Hartnett told the judge, "and that no action would be taken on any of those applications until March the 4th."
A moment later, just to be sure, Hanen said to Hartnett, "But as far as you know, nothing is going to happen in the next three weeks?"
"No, your honor," Hartnett said.
"OK," Hanen answered. "On either?"
"In terms of accepting applications or granting any up-or-down applications," Hartnett said.
"OK," said Hanen.
"For revised DACA, just to be totally clear," Hartnett said.
Hartnett did not mention the 100,000 illegal immigrants to whom the administration had already rushed to grant longer protections and work permits under the president's order.
In its fess-up advisory to the court Tuesday night, Justice Department lawyers said the administration has now stopped granting three-year deferred status to anyone — even though it maintains it had the authority to do so all along. But the Justice Department said it will not undo what it has already done for the 100,000 illegal immigrants already covered.
Instead, the administration lawyers said they filed the advisory to avoid "any potential confusion" in court that might have arisen from the administration's own "statements about when grants of DACA under the revised eligibility guidelines would begin taking place."
The question is not whether anyone in court — much less the public at large — was confused by the administration's statements. The question is whether they were explicitly deceived.