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Wednesday, February 1, 2023

GAO: USCIS Rarely Refers DACA Cases to ICE

USCIS may refer certain DACA cases to ICE for a possible criminal investigation if the requestor represents a potential public safety risk.

Under the Deferred Action for Childhood Arrivals (DACA) program, U.S. Citizenship and Immigration Services (USCIS) can provide temporary protection from removal for certain noncitizens who came to the United States before age 16.

DACA recipients are neither granted lawful immigration status nor put on a pathway to lawful status. Rather, they are considered to be lawfully present in the U.S. during the 2-year period of deferred action. USCIS has granted DACA to more than 800,000 noncitizens. 

In September 2017, the Department of Homeland Security (DHS) issued a memorandum rescinding DACA and directing USCIS to stop accepting initial requests, and providing a limited timeframe for accepting renewal requests. This prompted legal challenges resulting in a series of California and New York federal district court rulings throughout 2018 requiring DHS to continue accepting DACA renewal requests, but not initial requests. In June 2020, the Supreme Court held that the September 2017 rescission of DACA was invalid, thereby keeping DACA in place.

In July 2021, a federal court ruled that USCIS may not approve first-time DACA requests but temporarily permitted USCIS to continue to approve renewals of previously approved requests. And in September 2021, DHS published a notice of proposed rulemaking for DACA, which reinforces that DACA recipients should not be a priority for removal.

USCIS may refer certain DACA cases to U.S. Immigration and Customs Enforcement (ICE) for a possible criminal investigation if the requestor represents a potential public safety risk based on the individual’s criminal history or to identify fraudulent claims. 

A new Government Accountability Office (GAO) report says USCIS shared such information with enforcement agencies in rare circumstances (fewer than 900 cases) between June 2012 and June 2021. Of the 106,000 DACA requests that USCIS denied, it referred fewer than 900 cases (less than 1 percent) to ICE.

GAO’s report notes that as part of the adjudication process, USCIS officers may contact law enforcement agencies such as ICE or U.S. Customs and Border Protection (CBP), for example, to resolve questions related to a DACA requestor who is a positive match to a record in a database. USCIS officials told GAO that, generally, when their agency contacts ICE or CBP regarding a record match to a DACA requestor, the individual is already known, and USCIS is not disclosing new information. For example, they said that USCIS officers may determine through the background and security check process that a record in a database indicates that a DACA requestor is potentially associated with a criminal gang. 

USCIS officers may need additional information about the record to adjudicate a DACA request, which ICE may be able to access and provide to the adjudicating officers. In such cases, USCIS officials told GAO that USCIS would provide ICE or CBP with sufficient biographical information on the DACA requestors to confirm the individuals’ identity and obtain the information necessary to continue with adjudication. 

In addition, a record in a law enforcement database may indicate that there is an open investigation involving a DACA requestor. In such cases, USCIS officials may reach out to an investigating agency, such as ICE, to ensure that an adjudicative decision on the DACA request would not negatively affect the ongoing investigation, according to USCIS officials GAO spoke with. 

In general, ICE officials explained to GAO that USCIS has referred a small number of cases to ICE because most do not meet ICE’s acceptance criteria. Specifically, the officials said that ICE does not have the resources to investigate every referral and that its criteria for accepting referrals prioritize high-impact, complex, large-scale criminal cases, often involving large international or criminal organizations. ICE officials stated that ICE typically does not accept referrals involving a single person, unless there are aggravating factors. Such factors could include a person who poses an egregious public safety threat, such as a war criminal or a sex offender, or who has abused a position of public trust. 

USCIS and ICE officials told the government watchdog that, due to their limited resources, they generally seek to resolve lower-level fraud cases with an administrative action, such as USCIS denying the DACA request. Of the approximately 900 referrals to ICE from June 2012 through June 2021, USCIS data indicate that about 820 involved public safety concerns, and about 80 involved fraud.

GAO found that since 2012, CBP and ICE enforcement practices related to DACA recipients and individuals who might qualify for DACA have generally aligned with the Department of Homeland Security’s (DHS) immigration enforcement priorities. While DHS’s immigration enforcement priorities have varied since 2012, the department has generally not considered DACA recipients to be immigration enforcement priorities unless they met specific criteria. 

While DACA recipients are to be provided temporary protection from removal, individuals who might qualify to receive DACA but who have not yet submitted a request, or are awaiting approval, do not have such protection. However, CBP and ICE officials told the government watchdog that they have generally extended prosecutorial discretion considerations to individuals who may have potentially qualified for DACA as long as they had not engaged in activities that would disqualify them from a favorable exercise of such discretion.

Read the full report at GAO

Kylie Bielby
Kylie Bielby has more than 20 years' experience in reporting and editing a wide range of security topics, covering geopolitical and policy analysis to international and country-specific trends and events. Before joining GTSC's Homeland Security Today staff, she was an editor and contributor for Jane's, and a columnist and managing editor for security and counter-terror publications.

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