A close look at the records of an obscure immigration-control agency suggest that the current Deferred Action for Childhood Arrivals (DACA) amnesty created (seemingly out of whole cloth) by the White House will be neither relatively brief nor without appeals, as currently promised.
DACA, also sometimes called the DREAM program for aliens arriving illegally before the age of 16, is supposed to last for two years and USCIS says there will be no appeals. My reaction is — well, maybe, but history suggests otherwise on both counts.
History, in this case, involves the congressionally enacted Immigration Reform and Control Act of 1986 (IRCA). It was supposed to be a one-off legalization program, never to be repeated, and a provision in the law discouraged if not banned appeals to the judiciary. The courts soon overturned that part of it.
In the case of DACA, no denied applications have surfaced and thus no one has taken any denials into the courts, so there is no news on that front yet. I am not a lawyer, but I can easily imagine an assertive and creative immigration lawyer using something like the Administrative Procedures Act, or, given a jailed unsuccessful applicant, even habeas corpus to try to revive a denied application.
The comparison may not be exact, but the historical records of the Administrative Appeals Office (AAO) of USCIS indicate that disputes arising out of the 1986 IRCA legislation were still clogging the AAO system during 2011, the last year for which we have a full set of AAO records.
I counted fully 454 cases decided by AAO in 2011, all based on lingering disputes about the exact terms of the 1986 legislation. For a full listing of these cases, see USCIS' list of cases involving Temporary Resident Status (TRS) and adjustment to Permanent Resident Status.
In bureaucratic terms, the legacy of the 1986 IRCA legislation can still be seen on AAO's organizational charts. There are, according to a USCIS document, nine branches of AAO, and Branch 7 is "responsible for appeals based on the 1986 Immigration Reform and Control Act."
There were two subsets of IRCA cases before AAO in 2011; in 383 cases applicants claimed to be eligible for the first step of IRCA, Temporary Resident Status (TRS), and in the other 71 cases, for Permanent Resident Status based on earlier grants of TRS.
Given the fact that most applicants were adults when they filed and that they had to claim that they had been in the United States in 1982 — plus the passage of 29 years since that date, all of the aliens involved are middle-aged or more. In fact, some of the cases may have been closed simply because of the death of the applicant.
How many of these cases before AAO deserved legal status? Given the numbers (and the total lack of cumulative statistics produced by AAO), I decided to get a sense of that by reviewing a sample of them.
In the 71 cases seeking permanent resident alien status (based on IRCA) I checked every tenth case, and found that all seven had been rejected by AAO.
In the 383 cases, seeking TRS (again based on IRCA) I looked at every 20th case, (a total of 19) and found that 18 of them were denied by AAO, and one remanded for further evidence. In 12 of these cases a lawyer was involved, in seven the aliens represented themselves.
In general terms, AAO found that the staff decisions had been right in 25 of the 26 cases, and may have been right in the 26th one. Why the lawyers — except for the fees involved — pressed appeals in these cases is a bit of a puzzle, as the approval rate on appeal (at least in our sample) was zero.
But this is not the first time we have found these patterns in cases taken to the AAO — as we indicated in an earlier blog there were many appeals, and never an alien victory in a set of cases dealing with diplomatic employees seeking to convert to green card status. Yet, the lawyers kept filing these sure-loser cases.
But though the cases of these non-professional diplomatic employees dragged on for years, they did not have the 29-year-longevity of the 453 IRCA amnesty cases discussed today.