As most people know, the Department of Justice was ordered by a federal judge in Texas to suspend the expanded DACA and DAPA programs.
Unfortunately it sounds like not everyone got the memo, as several weeks after that order, some individuals who had applied to renew their DACA were issued 3-year employment authorization documents even after the February 16, 2015 injunction.
At a later hearing, the government told the judge that they were trying to fix the situation, but little has been done. Holders of these cards are using them to work, travel, and pay their taxes (and relying on their employment approvals to participate in the growing economy).
Recipients Are Being Asked to Return Their Cards
Flash forward to this week: the USCIS has asked all of those who received the three-year cards to mail them back.
While we understand the government’s position, is this request even legal?
I don’t think it is. 8 CFR 274a.14(b)(2) Governs the revocation of employment authorization documents.
Under that section, if the government wants to take away a three-year grant of employment authorization it must
“serve written notice of intent to revoke the employment authorization. The notice will cite the reasons indicating that revocation is warranted. The alien will be granted a period of fifteen days from the date of service of the notice within which to submit countervailing evidence. The decision by the district director shall be final and no appeal shall lie from the decision to revoke the authorization.”
The USCIS has not issued notices of intent to revoke or given these individuals the required 15 days to respond.
I imagine the USCIS would argue that they aren’t really revoking the authorization but are simply fixing an error. I am not certain that is what Judge Hanen ordered.
EIther way, if you were granted three years of employment authorization, there is only one way under the regulations for the government to replace that approval with a two-year grant. They must comply with 8 CFR 274a.14(b)(2).
So What Should You Do?
I’m not giving legal advice – just sharing information for educational purposes.
But if it were me, I would probably still return the card. DACA is a discretionary benefit, not a right, and refusing the request to return the card will result in the DHS revoking your DACA status. Nobody wants that.
My hunch is that none of these DACA recipients will want to make waves by calling the gotternment on its noncompliance.
Frankly, all of the DACA recipients I know are too busy working and building a life now that they can live outside of the shadows. But as the DHS is essentially on trial in Texas for not complying with regulatory structure in adopting the DAPA and extended DACA programs (which, in that case just as here, they certainly could have done) one would have thought they would be trying extra hard to comply with the law in correcting their own errors.