Right-wing media are baselessly accusing the Department of Justice of lying to the judge in Texas overseeing the legal challenge against President Obama's immigration actions. They are claiming that a DOJ attorney made false statements in court when she indicated that applications for two new deferred-action programs were not being processed. But these right-wing media figures are wrong. These two programs are not proceeding. The federal government has renewed 100,000 applications for deferred action for immigrants eligible under a 2012 program -- a third category of applicants who are not covered in the case.
Republican officials from 26 states sued the Obama administration after the president signed a series of executive actions on immigration in November. In part, these executive actions temporarily defer deportations for two new categories of eligible undocumented immigrants, such as parents of citizens. These acts of prosecutorial discretion also immediately changed the president's original 2012 Deferred Action for Childhood Arrivals (DACA) program by extending the deferral period from two years to three, in order to bring it in line with the expiration dates for the new programs. Before the federal government could start accepting applications from immigrants eligible for the two new programs -- a modified version of DACA and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) -- a district court judge in Texas issued an injunction temporarily blocking from going into effect. The third category, under the 2012 guidelines, was not enjoined.
In accompanying court proceedings, under questioning from the judge, the DOJ confirmed that applicants for the two new categories were not yet being processed, as the judge instructed.
Right-wing media have attacked Obama's immigration action since it was announced, and have commended the Texas judge for putting it on hold, even though the legal basis for the injunction is quite shaky. Now conservative media outlets are also claiming that the administration's lawyers lied because the Department of Homeland Security approved or renewed 100,000 applications from the original 2012 DACA program between November 2014 and February 2015 and applied the deferral for three years instead of two -- even though that change was required to be immediately applied.
Conservative media figures like National Review Online's Hans von Spakovsky are arguing that these first-time approvals and renewals are scandalous because the Obama administration made “repeated assurances” to the court that it would not accept applications for the new categories until February 18, 2015. The Washington Examiner's chief political correspondent, Byron York, concluded that “the administration has misled not only Judge [Andrew] Hanen but everyone in the United States about the president's immigration action.” In support of his accusation, York supplied the following exchange from the proceedings:
“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,” [Department of Justice attorney Kathleen] 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.
But York is ignoring the fact that there were always three categories of applicants and that the DOJ attorney made it clear she was referring to the “revised DACA,” not the original version, which is not being challenged in the federal case in Texas.
Furthermore, as the DOJ explained in an advisory brief filed with the court, “the fact that [the] grants of deferred action were issued for increments of three, rather than two, years does not have any present impact on the recipients' ability to remain in the country and work” because the 2012 DACA guidelines authorize “successive two-year renewals for those eligible.” In other words, those 100,000 immigrants are still in their first year of either a three- or two-year period that would have been granted irrespective of the judge's order or the ultimate outcome of the case.