DACA Changes Issued By DHS

Expect more court meddling, upending the legislative process

By Andrew R. Arthur on July 30, 2020
  • On Tuesday, DHS Secretary Chad Wolf issued a memorandum amending the terms of the DACA program, pending his determination on whether to rescind it.
  • In that memo, Wolf rescinds prior DACA memos issued under Trump administration, which themselves wound-down DACA.
  • In addition, he directs DHS personnel to reject all pending and future initial requests for DACA.
  • He also directs DHS to reject all pending and future applications for advance parole, absent exceptional circumstances.
  • Finally, he shortens the period under which DACA benefits that have already been approved may be renewed from two years to one.
  • Wolf concludes that DACA, "at a minimum, presents serious policy concerns that may warrant its full rescission", including whether the department should continue a temporary program granting a reprieve from removal and other benefits to more than 500,000 aliens "through a broad, class-based deferred-action policy."
  • He similarly expresses "reservations as a matter of policy about setting out a list of detailed criteria, and maintaining a formal process, for nonenforcement."
  • Wolf acknowledges that DACA may have made sense as a plan to give Congress time to act on a more permanent status for those aliens, but notes that over the intervening eight years, Congress has not done so. Rescinding DACA may force its hand.
  • Wolf also recognizes that DACA sends "mixed messages" to foreign nationals about the willingness of the department to enforce the immigration laws, encouraging illegal immigration.
  • He notes that this latter point is an extremely salient issue as it relates to children, asserting: "It is vitally important to convey a message that discourages individuals from undertaking what can often be a perilous journey to this country with no legitimate claim to enter or remain." He posits that rescinding DACA would deter adults from bringing children with them when they enter illegally, in the hopes that they may benefit from a similar program in the future.
  • Litigation is sure to follow this interim action, and Sen. Richard Durbin (D-IL) attempted – unsuccessfully – to pass an amnesty bill through the Senate by unanimous consent after this memo was issued.
  • The Biden campaign has promised that it will reinstate the DACA program, and push for a larger amnesty for "nearly 11 million" aliens.

On Tuesday, Acting DHS Secretary Chad Wolf issued a memorandum captioned "Reconsideration of the June 15, 2012 Memorandum Entitled 'Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children'", which amends the Deferred Action for Childhood Arrivals program (DACA) pending a decision on whether to rescind it. It is the second step in unraveling the mess that program has become. I will explain the first step and Tuesday's memo below, but before I get to that, I have to explain how DACA got here:

  • On June 15, 2012, then-DHS Secretary Janet Napolitano established DACA through a memo captioned "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." That memo allowed aliens to apply for deferred action if they: had come to the United State 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 memo; 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 or 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, and subject to renewal. An alien granted DACA could receive work authorization.
  • On September 4, 2017, then-Attorney General (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." Sessions noted that the program suffered the same defects as the related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policy, which had been enjoined by the Fifth Circuit in 2015 in Texas v. United States, a decision affirmed by an equally divided Supreme Court (and later rescinded by DHS). He referenced "potentially imminent litigation" that he opined "would yield similar results with respect to DACA". Specifically, states that were involved in Texas had threatened to amend their complaint therein to include DACA.
  • On September 5, 2017, 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.
  • A number of the states involved in Texas, as a result, voluntarily dismissed their complaint.
  • In response to direction from the U.S. District Court for the District of Columbia, then-DHS Secretary Kirstjen Nielsen on June 22, 2018 issued a separate memo concurring with and declining to disturb Duke's decision. Nielsen's memorandum contained additional justifications for the rescission of DACA.
  • As I explained in May 2018, as a result of federal court injunctions, however, DACA continued to "remain in effect, and U.S. Citizenship and Immigration Services (USCIS) resumed accepting requests to renew DACA grants."
  • Seven states subsequently filed a new suit, captioned Texas v. United States, to enjoin the 2012 DACA memo. That case, like the earlier DAPA litigation, was assigned to Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas. On August 31, 2018, he found that DACA likely violates the Administrative Procedure Act (APA), but denied injunctive relief because of the states' "unreasonable delay in seeking relief." He did, however, certify his decision for review by the Court of Appeals for the Fifth Circuit.
  • On June 18, 2020, the Supreme Court issued an opinion in DHS v. Regents of the University of California. The Court held that DHS's September 2017 decision to wind down DACA was reviewable under the APA, and that the decision to do so was arbitrary and capricious, in violation of the APA.
  • On that date, Judge Hanen gave the lawyers in Texas until July 24 to brief the effect of the Supreme Court's opinion on that case.
  • On June 30, 2020, AG William Barr sent a letter to 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) "that addressed the legality of DACA and related deferred-action policies" and "any other guidance" OLC "has provided to DHS on that topic." He did so to allow DHS to consider the issue of whether DACA should be rescinded "anew", in accordance with the Supreme Court's opinion. That was the "step one" that I referenced above.
  • On July 17, 2020, Judge Paul Grimm of the U.S. District Court for the District of Maryland issued an order declaring DHS's rescission of DACA to be in violation of the APA, and restoring DACA to its status prior to the issuance of the Duke memo.

This brings us to Tuesday's memo, which Wolf issued pending his full consideration of whether DACA should be rescinded (which, as the foregoing demonstrates, would include review of a lot of judicial analysis).

Wolf therein first rescinds the earlier-issued Duke and Nielsen memos.

He next directs DHS personnel to reject pending initial DACA applications and applications for employment authorization filed in conjunction with those applications (and refund the filing fees) and to reject pending and future applications for advance parole "absent exceptional circumstances" (and again, refund the filing fees).

By way of brief background, "advance parole" is permission granted by DHS to qualified aliens who are in the United States, allowing them to return to this country after traveling abroad temporarily. It is not expressly provided for in the Immigration and Nationality Act (INA), but has been included in the regulations under DHS's parole authority in section 212(d)(5) of the INA, and even then in the most general terms: "Advance authorization. When parole is authorized for an alien who will travel to the United States without a visa, the alien shall be issued an appropriate document authorizing travel."

Wolf notes that DHS has not acted on initial DACA and employment-authorization applications, or new applications for advance parole for aliens who have DACA, since the Supreme Court issued its opinion, "in anticipation of potential policy changes." Wolf's memorandum does not, however, rescind any current DACA, employment-authorization, or advance-parole grants.

While Wolf directs DHS to adjudicate pending and future applications for renewal of DACA and employment authorization, he shortened the period for those DACA and employment-authorization renewals from two years to one.

In issuing this memo, Wolf notes that although DACA "could have been justified as a temporary measure when it was created, Congress arguably has had more than sufficient time to consider affording permanent status or immigration relief to the class of aliens covered by the policy", but has failed to do so. In so noting, he echoes the Napolitano memo, which stated: "This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights."

In that vein, and suggesting that he may put the ball back where it belongs – in Congress's court – Wolf explains that rescinding DACA (a program he described as a "stopgap measure") could prompt:

Congress to decide whether it wants to address this issue and the underlying conditions that led to a population of this size to remain in the United States in violation of our immigration laws for so long, and any other efforts to reform our immigration system in a manner that advances the national interest.

He also references the moral hazard in such a large, non-enforcement program. In particular, he asserts that he is "deeply troubled that the message communicated by non-enforcement policies like DACA may contribute to the general problem of illegal immigration in a manner that is inconsistent with DHS's law enforcement mission," particularly as it relates to children.

On the latter point, he underscores the importance of discouraging foreign nationals from undertaking what he describes (correctly, as my colleague Dan Cadman has explained) as "a perilous journey to this country with no legitimate claim to enter or remain."

While conceding that DACA would not apply to recent arrivals, Wolf contends that he is still concerned that retaining DACA would nonetheless create a risk that DHS would be sending mixed messages to foreign nationals who were considering entering illegally, in the hopes that a similar program would be instituted in the future.

It is important to note, at this juncture, that there would putatively be some aliens who be eligible for DACA who have not yet been able to apply for that program.

The youngest of those would be aliens who had been in the United States illegally for five years as of June 15, 2012 – that is, as of June 15, 2007, who had been born abroad the previous day (June 14, 2007) and immediately thereafter entered illegally. They would be 13, too young to apply for DACA. Consequently, the oldest would have entered illegally directly after their birth on July 29, 2004 (and would have turned 16 the day after the Wolf memo). Under Judge Grimm's order, aliens in the former class up to the latter would be allowed to apply for DACA at some point between now and June 13, 2023 (when they would turn 16).

And, of course there are aliens who are now over the age of 15 with pending DACA applications, which would also be rejected under the Wolf memo.

Law 360 (behind a paywall) reports, however, that the administration considers the Wolf memo to be an "intervening action", rescinding prior DHS statements that various courts (including Judge Grimm) have rejected. And, it is likely correct.

Wolf explains his decisions to reject such new initial applications, to limit DACA renewals to one year, and to deny most pending and future requests for advance parole as a balance between his (legitimate) concerns about the consequences of continuing the program and the reliance interests of DACA beneficiaries.

Such reliance was a significant point in the Supreme Court's opinion. Specifically, the Court found that DHS had erred in failing to at least consider aliens' reliance on DACA in rescinding the program. It did not, however, say that reliance would be necessarily be a dispositive issue that would prevent rescission of the program, "even if DHS ultimately concludes that the reliance interests rank as serious", as the department "may determine, in the particular context before it, that other interests and policy concerns outweigh any" such reliance interests.

Wolf explains that any asserted reliance issues would be diminished (if not eliminated) for aliens who have never been granted DACA. As noted, even the Napolitano memo that created DACA stated that it "confer[red] no substantive right" (and it contained no promises that it would continue forever), so it would be difficult for an alien who has not yet received DACA to contend that the alien "relied" on the expectation that he or she could apply for it in the future.

In addition, with respect to advance parole, Wolf contends (and not without significant reason) that the reliance of a DACA beneficiary on remaining in the United States "does not depend on the extraordinary ability to come and go from the country as they please."

Stated differently, if the point of DACA is to allow an otherwise removable alien to remain in and work in the United States, there is no reason why they should be allowed to travel abroad and return, at all – in essence, they had no right to be here to begin with, and their continued presence is a matter of administrative grace.

And, as Wolf notes:

Indeed, even after determining that DHS's prior full rescission of the policy was likely unlawful, the district courts in the previous litigation did not require DHS to consider requests for DACA from aliens who had not previously received it or to grant any requests for advance parole. Accordingly, that has been the status quo for more than two years.

Nonetheless, DACA recipients who can demonstrate "exceptional circumstances" for why they need to travel abroad (to visit an extremely ill or dying relative, for example) can still be granted advance parole.

Wolf also rejects any arguments that shortening the renewal period impinges on the reliance interests of DACA recipients.

Specifically, he notes that "even assuming that aliens with DACA have legitimate reliance interests in being able to renew at all, they have minimal if any reliance interests in the length of each renewal period, especially since a grant of DACA was and remains revocable." While acknowledging that this will force DACA recipients to pay more for another renewal if they want to remain for more than one year, he aptly notes that the fee represents processing costs to DHS for adjudicating those applications (and directs USCIS to try to pare down those costs, as well).

Finally, Wolf concludes: "Nothing in the Napolitano Memo purports to preclude me from exercising my enforcement discretion to make these changes on an interim basis while I consider whether to make more substantial changes on a permanent basis."

Indeed, up to and including the Supreme Court, reviewing courts (other than Judge Hanen) have focused on whether DHS could rescind DACA, at all – not on whether the department had the authority to shorten the terms for which renewals could be granted. And, while some of those courts have directed DHS to continue the program, again, much of the Supreme Court's decision rested upon reliance interests – which aliens who have never been granted DACA could not conceivably assert to have.

The Law 360 article makes clear that litigation to enjoin this latest memo will soon follow, and also reports that Sen. Richard Durbin (D-IL) (unsuccessfully) "attempted to push a bill offering a path to citizenship for DACA recipients" – the American Dream and Promise Act of 2019 – "through the Senate via unanimous consent." That bill passed the House of Representatives in June 2019, on a largely party-line vote (seven Republicans were in favor).

As Sen. Jim Lankford (R-OK) stated in objecting to unanimous consent:

This bill far exceeds just dealing with DACA. As this body knows very well, there were four separate votes dealing with immigration in February of 2018. At that time, three of those dealt with the issue of DACA, and none of those actually were able to get 60 votes to be able to pass.

The Trump administration was very engaged in those negotiations, and the White House itself brought a proposal to deal with DACA and multiple other issues with immigration. It failed to get 60 votes to move it in 2018, and the [Supreme] Court at that time swooped it up and said they wanted to be able to look at it.

. . . .

I will tell you, I wish the Court had not engaged in 2018 because there was a lot of engagement from the Trump administration, from the Senate, and from the House to be able to come to a point of resolution, but that has to begin again with bipartisan negotiations through a very complicated issue. [Emphasis added.]

I agree with the junior senator from Oklahoma. Perhaps courts have learned their lesson as it relates to DACA and now understand that only Congress can confer substantive rights, immigration status, and pathways to citizenship on aliens – which even then-Secretary Janet Napolitano acknowledged in creating DACA. Unfortunately, I doubt it.

Of course, it is also possible that even if a reviewing court enjoins Wolf's restrictions on pending and future DACA applications, the very fact that Wolf attempted to restrict those applications (on an interim basis, while he considers full DACA rescission) would minimize any arguments those aliens may make about reliance.

In any event, we still have to wait for step three: DHS rescission of DACA (or not). That will likely be dependent on the president's reelection. Of course, if the president is not reelected (and Republicans lose their current control of the Senate), DACA will likely become moot, as an amnesty like the American Dream and Promise Act (at a minimum) will be high on President Biden's agenda. You don't have to believe me: he has already promised it, on his website.