Biden Continues DACA Program

But what next? Of 'fortifying', Judge Andrew Hanen and amnesty

By Andrew R. Arthur on January 22, 2021

On January 20, President Biden sent a memorandum to the attorney general (AG) and the secretary of DHS "preserving and fortifying" the Deferred Action for Childhood Arrivals (DACA) program. Those terms themselves are not defined, and DACA is still (despite the best efforts of the Trump administration) in effect, so it is not clear what, exactly, the memorandum intends to do. Given the fact that there is pending litigation in federal court in Texas to end the program, however, the ultimate question is: "What's next for DACA?"

Very briefly (believe it or not), on June 15, 2012, then-DHS Secretary Janet Napolitano established DACA through a memorandum captioned "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children".

Aliens were eligible for DACA if they had come to the United States before the age of 16; were under the age of 30; had resided in this country for at least five years prior to the date of that memorandum; were in school, had graduated from high school, or were honorably discharged by the armed services; and had not been convicted of certain criminal offenses and did not pose a danger to the national security.

To apply, the alien had to be at least 15 (unless already in proceedings), and a DACA grant was to be good for two years, subject to renewal. An alien granted DACA could receive work authorization.

On September 4, 2017, then-AG Jeff Sessions sent then-Acting DHS Secretary Elaine Duke a letter advising Duke that she should rescind DACA, explaining that DACA was "was an unconstitutional exercise of authority by the Executive Branch" (on grounds I will discuss below).

In response, the next day, Duke rescinded DACA, effective March 5, 2018. DACA recipients whose benefits would have expired before that date could have applied for renewal up until October 5, 2017.

On June 22, 2018, in response to direction from the U.S. District Court for the District of Columbia, then-DHS Secretary Kirstjen Nielsen issued a separate memorandum concurring with and declining to disturb Duke's decision. Nielsen's memorandum contained additional justifications for the rescission of DACA.

There were various injunctions, and DACA rescission made its way to the Supreme Court. On June 18, 2020, the Court held that DHS's September 2017 decision to wind down DACA was reviewable under the Administrative Procedure Act (APA), and that the decision to do so was arbitrary and capricious, in violation of the APA.

AG William Barr sent a letter on June 30 to then-Acting DHS Secretary Chad Wolf withdrawing both Sessions' September 4, 2017, letter to Duke as well as a November 19, 2014, opinion from DOJ's Office of Legal Counsel (OLC) on the legality of DACA, to allow DHS to consider the issue of whether DACA should be rescinded "anew", in accordance with the Supreme Court's opinion.

On July 28, Wolf issued a memorandum rescinding Duke's and Nielsen's memoranda, and directing DHS personnel to reject pending initial DACA applications and applications for employment authorization filed in conjunction with those applications, as well as pending and future applications for advance parole "absent exceptional circumstances".

On November 14, a federal district-court judge in New York issued an order invalidating Wolf's DACA restrictions on the ground that Wolf lacked the authority to serve as acting DHS secretary, and could thus not restrict DACA. The judge ordered DHS to accept first-time DACA requests and renewals, parole requests, and employment-authorization requests.

The Biden memorandum plainly leaves DACA in effect as it was under the terms of that November 14 order. What is unclear, however, is whether it goes further than that, such as shifting the residency requirement (currently, the applicant must have been residing in this country within five years of the issuance of the Napolitano memorandum, or by June 5, 2007). And what exactly does "fortify" mean?

Guidance on that point may be found in the aforementioned Texas litigation.

In 2018, the State of Texas and eight other states brought a lawsuit against the federal government, arguing that they would face irreparable harm if DACA were allowed to continue. Specifically, they asserted that they are incurring costs from providing public benefits to DACA recipients. It was the threat of that lawsuit that prompted Sessions to act to begin with.

That was not the first lawsuit that Texas and other states had brought to challenge such an Obama-era program. That state and 25 other states had challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which was similar to DACA, on comparable grounds as in the DACA suit.

A federal district-court judge enjoined DAPA in February 2015, finding that it violated the APA. The Fifth Circuit affirmed that decision in November 2015, in an opinion that was itself affirmed by an evenly divided Supreme Court in June 2016.

In the DACA case, the same judge who issued the original DAPA injunction — Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas — issued an order on August 31, 2018, finding DACA likely violates the APA. But, given the plaintiffs' "unreasonable delay in seeking relief", Judge Hanen declined to issue a preliminary injunction.

That case continued on the ultimate issue of DACA's legality, but it was stayed at the request of defendants on November 21, 2019, pending the Supreme Court's opinion, and restarted thereafter on June 18, on Texas's motion for summary judgment. Arguments were heard on the case on December 22, and it is currently pending decision.

I am not going to claim that I have read all 549 documents in that case (as of January 21), but Judge Hanen is plainly swayed to a significant degree by the states' argument. If he were to grant them summary judgment, it could well shut down DACA pending circuit court appeal, and perhaps thereafter.

The Supreme Court's decision was largely based upon the insufficiency of the reasoning for ending DACA in the Duke memorandum. The Napolitano memorandum is just three pages long, and (respectfully) does not contain any better legal reasoning for implementing DACA than the Duke memorandum did for halting it.

That reasoning is, I believe, what the president wants the AG and DHS secretary to work on in "fortifying" DACA. Again, however, the wording of Biden's memorandum is vague, and therefore the intent is not actually clear.

Which brings me to my original question: What's next on DACA? If Judge Hanen issues a decision, it will be based on the Napolitano memorandum and the DOJ guidance that underpins it. If, however, DHS and the AG bolster those documents in the interim — or even implement a new DACA program based on different reasoning before the court issues a decision — perhaps Judge Hanen will consider the new rationales.

Biden reportedly wants to grant amnesty to DACA recipients, and make them immediately eligible for green cards. If his bill passes, the Texas case would be moot. If it does not, or if Judge Hanen rules that DACA is illegal before passage, it would actually likely put Biden's amnesty proposal on a stronger footing, because the class of DACA recipients is extremely sympathetic — even Trump forecast that they would receive protection from Congress had the Supreme Court ruled the other way.

So, I can tell you where DACA is. Where is goes next, however, is up in the air.