Letter to The Honorable Janet Napolitano, Secretary Department of Homeland Security

Letter

By:  Chuck Grassley Lamar Smith
Date: Oct. 5, 2012
Location: Washington, DC

Senate Judiciary Committee Ranking Member Chuck Grassley and House Judiciary Committee Chairman Lamar Smith are concerned that Citizenship and Immigration Service adjudicators are being pressured to "Get to Yes" when processing Deferred Action for Childhood Arrival applications.

In a letter to Department of Homeland Security Secretary Janet Napolitano, Grassley and Smith question how, in such a large number of applications, there haven't been any denials and less than a dozen applications required additional evidence before being approved.

"These figures call into question the policies in place for adjudicators who process DACA applications. Are officers being instructed to approve, or pressured to "get to a yes'? Is there guidance to officers that RFEs (Requests for Evidence) not be issued, or to be issued only in extremely rare circumstances?" Grassley and Smith wrote to Napolitano.

Grassley and Smith wrote that their concerns are amplified because of an internal policy requiring adjudicators who process Deferred Action for Childhood Arrival applications to send any possible denials to their supervisors, which causes pause for adjudicators who may believe that a denial or Request for Evidence is warranted. This policy falls in line with findings from a Department of Homeland Security Inspector General report that found too often the quality of the application played second fiddle to approval of more applications.

"Clearly, such a policy warns adjudicators against denying or issuing an RFE, even if it is warranted...The signal being sent to adjudicators who process DACA applicants is clear: if they do not approve an application for DACA, then it will be reviewed by headquarters. Their decisions will be scrutinized until they get to a yes," Grassley and Smith wrote.

October 5, 2012

The Honorable Janet Napolitano
Secretary
Department of Homeland Security
Washington, DC 20528

Dear Secretary Napolitano:

Since President Obama's June 15 announcement of the Deferred Action for Childhood Arrivals (DACA) directive, we have sent you several letters in an attempt to fulfill our constitutional obligation to conduct oversight of the Executive Branch. Your Department has not responded to our requests, contrary to the President's pledge to be transparent and forthcoming.

On September 20, we wrote to you requesting that the Department maintain and publish basic statistics on the DACA program, and provide such data to us on a weekly basis. On September 12, we learned that U.S. Citizenship and Immigration Service (USCIS) had received nearly 87,000 applications. Of those, fewer than a dozen Requests for Evidence (RFEs) were issued. Strikingly, not one application had been denied.

These figures call into question the policies in place for adjudicators who process DACA applications. Are officers being instructed to approve, or pressured to "get to a yes"? Is there guidance to officers that RFEs not be issued, or to be issued only in extremely rare circumstances?

Needless to say, we were shocked to learn that there is, in fact, a policy requiring adjudicators who process DACA applications to send any Notice of Intent to Deny (NOID) or RFE up their chain of command. The attached series of emails, which was sent by the Chief of Service Center Operations, instructs USCIS adjudicators "to hold RFEs and denials," saying all such cases must be sent to the Front Office for supervisory review.

According to the emails, while the denials and RFEs require supervisory review, adjudicators are told they "can adjudicate approvals through to completion." Clearly, such a policy warns adjudicators against denying or issuing an RFE, even if it is warranted. An adjudicator is more likely to approve, bypassing further review, avoiding scrutiny by their management, and maintaining a positive personnel record.

This is consistent with findings by the Department of Homeland Security Inspector General that adjudicators agreed that "production expectations are too high." The IG also noted that "approval of a case takes significantly less time and effort than any of the other actions. ISOs who feel pressed for time or behind in their work, and wish to meet production goals, might opt to approve a marginal case and move on to the next file."

An RFE also serves a useful purpose. It "allows the individual who seeks the benefit to provide further proof of entitlement." According to the IG, "Many ISOs said that USCIS leans too heavily toward limiting RFEs and increasing approvals."

The signal being sent to adjudicators who process DACA applicants is clear: if they do not approve an application for DACA, then it will be reviewed by headquarters. Their decisions will be scrutinized until they get to a yes. This is unacceptable and must be rectified immediately so that adjudicators have the autonomy and authority to do what they are trained to do and to follow the letter of the law. We ask that you rescind the policy and to ensure that personnel action against adjudicators in the field will not be tolerated if denials or RFEs are issued.

Finally, the series of emails also direct USCIS service centers to provide data on a daily basis. Specifically, it states that "the front office wants to know on a daily basis the breakdown of approvals, FREs, NOIDS and denials." We ask that, in addition to the data we requested on September 20, you provide us the daily statistics reported by the service centers to headquarters, as required by the attached series of emails. Additionally, because not one application has been denied, we request that your Department provide us with a report on how many denials and RFEs were sent to headquarters but subsequently overturned.

We look forward to your immediate response in this matter.

Sincerely,

Charles E. Grassley
Lamar Smith