Who’s paying for the DACA program?

A flurry of speculation preceded the president’s congressional address this week over whether he’d commit to some sort mass amnesty for young adult “dreamers.” Although he never did mention it (here’s why we think he didn’t), the DACA program, which began covering “dreamers” in 2012, apparently continues to be processing applications. But if the Trump administration is going to let it go on, shouldn’t he at least stop subsidizing DACA applicants?

Ever since the DACA amnesty program was announced by presidential decree, DHS has told Congress that no funds are being taken from other sections of the agency to pay for DACA application-processing. They claimed the young adult-applicants are being charged fully and fairly for this service, however, details were always sparse and never consistent. The reason’s obvious. If they admit they’re moving around resources to process applications, as analysts believe, they’d have to admit that other agency services, like legal immigration applications, are being backlogged.

{mosads}This is important for two reasons. One, diverting resources from, say, immediate-family petitions, and increasing their backlogs would not only be an admission that the agency’s de-prioritizing these and other lawful groups, it would also provide those groups with the legal standing needed to sue the agency and challenge DACA itself.

Two, there is a federal law on the books that says ‘fees charged by agencies have to be fair.’ This, of course, isn’t happening vis-à-vis these other lawful groups if they’re actually subsidizing DACA applicants.

That same law, as well as OMB guidance, says that fees must be ‘properly based on the actual costs to the Government and the value of the service provided.’ Although this law and guidance are not strict, hitting lawful applicants with inflated costs does much to render them meaningless.   

It’s likely because of this that the Obama DHS routinely obstructed congressional inquiries into this issue. Numerous times the Senate Judiciary Committee asked the agency what the actual costs were for taxpayers of application processing. First, they were told that the agency didn’t know or that they had “not calculated the exact dollar cost of adjudicating” the DACA forms. Then they were told, they might know or that they’ve at least “tracked and recorded the additional or marginal costs of administering the DACA initiative” and “will continue to track the costs.” Obviously, if they’ve calculated the “additional or marginal” costs, they’ve also calculated what it costs to adjudicate a DACA application.

Elsewhere, DHS has stated that the cost of adjudication is covered by other fees connected to the DACA application; namely, the fees for work permits and biometric-collection services i.e. fingerprints. They’ve stated that these fees, $380 and $85, respectively, are actually in excess of their true costs and that it is this excess that’s covering DACA adjudication costs.

With regards to work-permit fees specifically, they’ve stated that 42 dollars has been added on to cover its share of subsidizing DACA applicants. But elsewhere, they’ve stated that the 42 dollars reflects two separate considerations, neither of which are connected to DACA processing; namely, 9 dollars going to subsidize the cost of naturalization applications and 33 dollars to pay for “other policy decisions”, which they’ve stated to mean, “the cost of fee waivers and exemptions, workload that does not generate revenue, and policy decisions to hold certain immigration fees lower than the total cost identified by the [cost management] model.” But as the Senate Judiciary has previously stated, if the fees charged for work permits pay entirely for those other services and are already accounted for, there can be nothing left to pay for DACA.

Further, this extra 42-dollar amount was based off a schedule of fees set in a 2010 DHS rulemaking. But this, of course, is 2 years before DACA came into existence.

Also, the DACA application form was modeled after the Temporary Protected Status (TPS) application form—the filing number for the latter is I-821, the former is I-821D. The TPS fee is statutorily set at 50 dollars. But, according to complaints made by some DHS officials, this fee does not cover the application costs. Considering then, that the TPS and DACA application processes are nearly identical, the cost for DACA we should assume is more than 42 dollars.

If the President does not intend to rescind DACA anytime soon, despite its clear unlawfulness, then why don’t we at least start charging a true cost-recovery fee. This would ensure that the program at least pays for itself and doesn’t require DHS to steal from lawfully present aliens applying for other immigration benefits.

Ian M. Smith is investigative associate at the Immigration Reform Law Institute.

The views expressed by this author are their own and are not the views of The Hill.