Thread: USCIS Guidance on DACA Renewal Requests Affected by Mail Service Issues

USCIS Guidance on DACA Renewal Requests Affected by Mail Service Issues

11/15/2017

U.S. Citizenship and Immigration Services (USCIS) has received reports that the U.S. Postal Service (USPS) has identified USPS mail service delays that affected a number of DACA renewal requests.

Because the DACA policy has been rescinded and individuals can no longer request deferred action under DACA, and in light of the mail service delays identified by USPS, Acting Secretary of Homeland Security Elaine Duke has directed USCIS to accept DACA renewal requests from individuals who resubmit their DACA renewal request with individualized proof that the request was originally mailed in a timely manner and that the cause for receipt after the Oct. 5, 2017, deadline was the result of USPS mail service error. Affected DACA requestors who do not have such proof may contact USPS, which will review the cases on an individual basis and provide a letter if appropriate. USCIS will not accept requests that do not include individualized proof that the request was originally mailed in a timely manner to be received by the October 5 deadline, and that the cause for receipt after the Oct. 5, 2017, deadline was the result of USPS mail service error.

In addition, 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. USCIS will proactively reach out to those DACA requestors to inform them that they may resubmit their DACA request. If a DACA requestor does not receive such a notification and believes that his or her DACA request was received at the designated filing location by the filing deadline, he or she may resubmit his or her DACA request with proof that the request was previously received at the designated filing location on or before the filing deadline.

Additional guidance is forthcoming.

https://www.uscis.gov/news/alerts/us...service-issues

Hundreds of immigrants will get to resubmit DACA renewals originally rejected as “late”


It’s the Trump administration’s biggest reversal on immigration policy to date.

Nov 16, 2017, 11:43am EST



Many immigrants who did everything right to reapply for one last round of protection under the Deferred Action for Childhood Arrivals program — but missed the deadline due to circumstances beyond their control — are going to get another chance after reporting by Vox and others about how unfairly the administration enforced the deadline.

The Trump administration initially claimed that 4,000 immigrants missed the October 5 deadline to apply for one last two-year extension of protections under the DACA program, which the administration announced in September would be shut down over the next six months (with an official end date of March 5, 201.

But reporting in recent days by Vox and the New York Times showed that an untold number of those applications had been mailed well in advance of the deadline — and had been delayed due to a mysterious weeks-long Postal Service slowdown, or had been dropped in a US Citizenship and Immigration Services mailbox on October 5 but not picked up by a courier service until the next day.

On Wednesday night, the Department of Homeland Security announced that those DACA recipients will be allowed to reapply for renewal.

The Trump administration isn’t guaranteeing that these applications will be approved. But it’s at least agreeing to consider applications it had previously rejected out of hand.

That could mean another two years of protection from deportation for hundreds, maybe even thousands, of immigrants. And it marks the first major reversal on immigration policy from an administration that has generally taken pride in its hardline stance.

USCIS will contact some immigrants who were affected — but others will have to contact the government themselves

The announcement, made late Wednesday night by the Department of Homeland Security and first reported by the New York Times, affects two different groups of immigrants whose DACA renewal applications were originally rejected.

Both groups will need to resubmit applications, which had been sent back to them with notices that the application had been rejected for being “untimely.” (USCIS does not keep the application fees for late applications, so immigrants who reapply won’t be getting charged twice.)

The difference between the two groups is whether the government is reaching out to immigrants to reapply, or whether immigrants will have to reach out to the government.

The Trump administration is taking a more generous attitude toward immigrants whose DACA renewal applications were sitting in US Citizenship and Immigration Services mailboxes as of October 5, but were marked late because they weren’t picked up by a courier service until October 6.

As Vox first reported Wednesday morning, this happened in at least two of the three USCIS mailboxes, and could have affected hundreds of applications. “USCIS will proactively reach out to those DACA requestors,” the administration’s new guidance says, “to inform them that they may resubmit their DACA request.”

It’s not clear exactly how that notification is going to happen, or how much time USCIS will give immigrants to resubmit their applications.

The second group of DACA recipients affected by the new announcement are immigrants whose applications arrived in USCIS mailboxes on October 6 or later, but were sent well in advance of the deadline. As the New York Times first reported last week, some applications were stuck in a weeks-long mysterious Postal Service slowdown.

The scope of the slowdown is still unknown, but Vox reported Wednesday that it affected immigrants in more states than were originally reported — and that it affected applications sent as early as September 11.

Immigrants whose applications arrived late due to the mail slowdown will not be contacted by the government to reapply. They’ll 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. (It’s not yet clear exactly what proof the government will accept; immigrants who sent their applications by certified mail, and therefore were able to track their packages through the system, will have more evidence available than others.)

DHS’s reversal probably doesn’t cover all the applications that were received late. But it’s probable that it covers a substantial portion of them.

And even if not all of the immigrants who are eligible end up reapplying, or if all resubmitted applications are ultimately approved, it’s all but certain that the reversal will result in some immigrants getting two more years of protections instead of losing them imminently.

The biggest immigration reversal of the Trump administration to date

The Trump administration didn’t have to do this.

When DHS was first told about the Postal Service slowdown, and when it was first told about the cases where applications in the mailbox on October 5 had been rejected, it refused to reconsider the applications.

There isn’t any law or policy that forces the government to reconsider applications that are rejected for reasons outside the applicant’s control. USCIS has discretion in cases like this.

It’s just that generally, the government does use that discretion to accept applications that arrive at the office a day late because they’ve been sitting in the mailbox overnight.

And from the perspective of immigration advocates, the Postal Service slowdown wasn’t that different from Hurricane Maria — both caused applications to arrive late through no fault of the immigrants’ own — but the government accepted late applications affected by Maria, and not those affected by the slowdown.

Except that now, it will.

This is extremely unusual. The government doesn’t usually reject a bunch of applications and then change its mind and allow people to reapply. And the Trump administration, in particular, doesn’t usually reverse its position in order to give unauthorized immigrants a pass.

In its first 10 months, the Trump administration’s policy impact has been felt more on immigration than on any other issue. And in nearly every case, the administration has taken the most restrictive possible approach: granting relief to immigrants (legal and unauthorized) only where it has no choice but to do so.

Indeed, administration officials all but brag about the change in approach. They see it as a restoration of the “rule of law.” And they don’t generally buckle in the face of public criticism.

But this time, something appears to have led them to change their minds and give immigrants one more chance.

This reversal could affect the progressive effort to sue the administration into keeping the DACA program. Some of those lawsuits — such as the one filed in New York that first revealed the overnight mailbox problem — hinge on the idea that the administration is shutting down the program in a capricious manner. It’s possible that this second-thought generosity will make it easier for the feds to argue they aren’t being capricious; it’s also possible, on the other hand, that they’ll have more trouble claiming that DACA shutdown was a well-thought-through and deliberate process.

Legislatively, it’s possible that some members of Congress will feel less urgency in passing a bill to address the status of DACA recipients as quickly as possible. But even though fewer people are likely to lose their protections in the coming weeks and months because of DHS’s reversal, thousands still will.

At least 18,000 immigrants are going to lose their DACA protections because they didn’t apply for renewal in time at all (possibly because they didn’t know about the October 5 deadline, which was announced only a month in advance, and which immigrants weren’t informed by the government about). At least some of the 4,000 late applications probably aren’t eligible to be reconsidered. And of course, it’s not at all clear how stingy USCIS will be in actually approving DACA renewal applications on the merits.

President Donald Trump has said nothing will happen to DACA recipients for six months, but his administrationhas guaranteed that thousands of them will lose protections before March 5. That’s still true, even after the reversal on late applications. But now the administration is taking a less aggressive stance toward stripping DACA recipients of the protections they currently have. And it’s no longer using “the rule of law” to penalize immigrants who, when applying for one last DACA renewal, did all the right things.

https://www.vox.com/policy-and-polit...ewal-late-mail

The Trump administration rejected 4,000 “late” DACA renewals. Some were sitting in its mailbox at the deadline.

Nov 16, 2017, 10:13am EST



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.

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.


A letter explaining a two-year grant of deferred action under the DACA program. Aric Crabb/Bay Area News Group/TNS via Getty Images

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.


A new and improved colorful outdoor version of Post Office mail boxes are seen outside the Centerville, Virginia, US Post Office September 26, 2013. PAUL J. RICHARDS/AFP/Getty Images

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.


A partial record of the application mailed by lawyer Susanne Susany from Pittsburgh on September 11. Via Susanne Susany

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

ust 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.

https://www.vox.com/policy-and-polit...-lockbox-uscis

But reporting in recent days by Vox and the New York Times showed that an untold number of those applications had been mailed well in advance of the deadline — and had been delayed due to a mysterious weeks-long Postal Service slowdown, or had been dropped in a US Citizenship and Immigration Services mailbox on October 5 but not picked up by a courier service until the next day.

Hmm, how convenient.