President Trump’s termination of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program has drawn mixed reactions. Although the lawfulness of the program is very doubtful, public support for a DACA amnesty appears to be widespread, based in part on the public perception that “Dreamers” have committed no crime other than illegal entry.
In fact, it is likely that many if not most DACA applicants who held regular jobs had committed the crime of perjury, by providing their employers with a stolen or fake Social Security Number (SSN) for tax reporting purposes. The Social Security Administration (SSA) has estimated that 3 out of every 4 illegal aliens possess an SSN that belongs to somebody else.
When U.S. Citizen and Immigration Services (USCIS) began accepting DACA applications on Aug. 15, 2012, applicants were required to complete a standard work authorization form that required applicants to “include all [Social Security] numbers [they] have ever used.” In other words, many DACA applicants would have been obliged to confess in writing that they had committed a felony.
However, as soon as this potential disincentive to apply for DACA was brought to the administration’s attention, USCIS rushed out a statement that they were “not interested” in identifying individual violations of “some federal law in an employment relationship,” and they amended their DACA website to limit the reporting of SSNs by DACA applicants to those “officially issued to you by the Social Security Administration.”
Word of this de facto amnesty for Social Security fraud quickly spread, one example being the following notice from the National Immigration Law Center: “Are you (or your clients) waiting to apply for DACA because you’ve used an SSN that was not yours? Or is your employer afraid to provide you with employment records out of fear of immigration enforcement? Helpful new guidance from USCIS may answer your questions!”
At the time, DACA supporters might have argued that Social Security fraud by Dreamers, while a crime, did not directly harm any American citizen. What they may not have known, because it was concealed, was that on Aug. 23, 2012, just eight days after DACA commenced, the administration ordered the Social Security Administration (SSA) to suspend its decades-old practice of notifying employees by mail if the name and SSN under which their wages were being reported by their employers did not match the name and SSN in the SSA’s own records.
Many SSN “mismatches” are due to identity fraud, which means that many Dreamers were at risk of receiving mismatch letters from the SSA. Since awareness that they had been “flagged” as identity thieves might well have dissuaded them from disclosing their whereabouts in a DACA application, suspension of the SSA program was a logical add-on to the other actions taken by the administration to prevent fear of identity-theft prosecution from depressing DACA applications.
However, many “mismatches” are due, not to fraud, but to inadvertent errors in the tax-reporting forms that the worker supplied to the employer or the employer supplied to the SSA. (A very common error is the use of a married name by a female worker who did not notify the SSA of her name change.) Mismatch letters were therefor a vital tool for protecting the Social Security benefits of U.S. citizens and other lawful workers. If the worker was unaware of the mismatch and had no opportunity to correct the error, he or she would receive no Social Security benefits on account of the reported wages.
According to SSA, over a five-year period in the 1990s, approximately 1.7 million workers responded to mismatch letters and had missing wages reinstated to their accounts. That statistic affords a conservative estimate of the number of U.S. citizens who likely lost credit for Social Security wages in the more than five years since DACA was initiated and the mismatch program suspended.
Although the SSA’s mismatch program was suspended on Aug. 23, 2012, the suspension was not made public until more than four years later, on Sept. 16, 2016, as the Obama administration drew to a close. Even then, the fact of the suspension was buried in a footnote to an SSA Records Maintenance notice and, until now, was virtually unknown outside the SSA. Evidently, the Obama administration was not keen to advertise its decision to risk the loss of Social Security benefits for millions of American workers rather than risk dissuading a few hundred thousand Dreamers from applying for DACA.
• Jan Ting is professor of Law at Temple University.
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