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

Demonstrators display American and Mexican flags while protesting the end of the Deferred Action for Childhood Arrivals (DACA) program in Chicago, Illinois, on Tuesday, Sept. 5, 2017.
Christopher Dilts | Bloomberg | Getty Images
Demonstrators display American and Mexican flags while protesting the end of the Deferred Action for Childhood Arrivals (DACA) program in Chicago, Illinois, on Tuesday, Sept. 5, 2017.

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, 2018).

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 U.S. Citizenship and Immigration Services mailbox on Oct. 5 but not picked up by a courier service until the next day.

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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.

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. And it gives each group a different path to resubmitting the application. The Trump administration is taking a more generous attitude toward immigrants whose DACA renewal applications were sitting in U.S. Citizenship and Immigration Services mailboxes as of Oct. 5, but were marked late because they weren't picked up by a courier service until Oct. 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 Oct. 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 Sept. 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 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 Oct. 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 Oct. 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 administration has 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.