In an order issued on January 9, 2018, Judge William Alsup ordered the Trump administration to continue the Deferred Action for Childhood Arrivals (DACA) program on a nationwide basis on the same terms as the program was in effect on September 5, 2017, with three caveats: the Department of Homeland Security (DHS) did not have to process new applications from applicants who did not already have DACA; that DHS did not have to grant advance parole to DACA recipients; and that DHS "may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application."
Some background: On September 4, 2017, Attorney General Jeff Sessions sent a letter to Elaine Duke, then-Acting Secretary of Homeland Security, advising her to rescind DACA on the grounds that it had been "an unconstitutional exercise of authority by the Executive Branch." In a speech given in connection with that letter, the Attorney General stated:
Our collective wisdom is that the policy is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)] program, which was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit [in Texas v. U.S. ].
The Fifth Circuit specifically concluded that DACA had not been implemented in a fashion that allowed sufficient discretion, and that DAPA was "foreclosed by Congress's careful plan."
In other words, it was inconsistent with the Constitution's separation of powers. That decision was affirmed by the Supreme Court by an equally divided vote.
If we were to keep the Obama Administration's executive amnesty policy, the likeliest outcome is that it would be enjoined just as was DAPA. The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program.
The next day, Duke issued a memorandum rescinding the June 15, 2012, memorandum establishing DACA, and winding down the program. Specifically, Duke indicated that DHS would adjudicate all pending DACA initial requests, as well as renewal requests filed on or before October 5, 2017, by DACA recipients whose benefits would expire on or before March 5, 2018.
In that memorandum, Duke stated:
The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA "was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch." The letter further stated that because DACA "has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA."
Thereafter, five related class-action lawsuits were filed in the United States District Court for the Northern District of California, which were considered by Judge Alsup.
In his decision, Judge Alsup denied the government's motion to dismiss, in which they argued (among other things) that "the decision to rescind DACA was a discretionary act barred from judicial review under the" Administrative Procedures Act (APA), and that section 242(g) of the Immigration and Nationality Act (INA) barred judicial review of its action.
Notably, section 242(g) of the INA states:
Exclusive Jurisdiction.-Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.
As Judge Alsup noted in his order:
One of the key enforcement tools under the INA is removal, i.e., deportation. In turn, "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." As an initial matter, in any given case, immigration officials "must decide whether it makes sense to pursue removal at all." At each stage of the removal process, they have "discretion to abandon the endeavor."
Beginning as early as 1975, one way to exercise this discretion became "deferred action." By deferred action, immigration officials could postpone, seemingly indefinitely, the removal of individuals unlawfully present in the United States "for humanitarian reasons or simply for [the Executive's] own convenience." Immigration officials could also grant parole, temporary protected status, deferred enforced departure, or extended voluntary departure.
The judge determined that this provision of the INA did not bar judicial review of the rescission of DACA. Plainly, however, the rescission of DACA is a condition precedent to the commencement of removal proceedings against any recipient of that deferred action. It is unclear how, if deferred action is simply the postponement of "removal of individuals unlawfully present in the United States", the rescission of that action would itself be subject to judicial review under section 242(g) of the INA.
He did find that that the interests of Maine and Minnesota were "'so marginally related" to the purposes implicit in the INA that it cannot reasonably be assumed that Congress intended to permit the suit," and so dismissed their APA claims, with leave to amend.
In any event, Judge Alsup concluded that DHS's rescission of DACA "was 'not in accordance with law' because it was based on the flawed legal premise that the agency lacked authority to implement DACA," and therefore was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the APA, in essence second guessing Attorney General Sessions' conclusions in his September 4, 2017, letter.
In his decision, Judge Alsup stated:
The Supreme Court has recognized the authority of DHS to grant relief from removal, and has specifically recognized deferred action as a way to exercise that discretion — "for humanitarian reasons or simply for [the Executive's] own convenience." Notably, our court of appeals has said that "the exercise of prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by the INA."
In extending programmatic deferred action to DACA enrollees, the agency acted within the scope of this long and recognized practice. In the exercise of its enforcement discretion and policy-making, the agency simply found that DACA enrollees represented low priority cases for removal and instituted DACA to manage that population while it redirected its resources elsewhere. Even for enrollees approved under the program, DHS expressly retained the authority to terminate their deferred action at any time, in the agency's discretion. DACA provided no guarantee against removal. [Emphasis added.]
He found, nonetheless that "[w]here, however, an agency abruptly changes course and terminates a program on which so many people rely, the APA requires 'a more detailed justification,'" than given by the Attorney General and DHS, concluding that the plaintiffs were likely to suffer "irreparable harm" absent an injunction. Specifically, he stated:
Before DACA, Individual Plaintiffs, brought to America as children, faced a tough set of life and career choices turning on the comparative probabilities of being deported versus remaining here. DACA gave them a more tolerable set of choices, including joining the mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and associated hardship.
With due respect to Judge Alsup, the "associated hardship" that DACA beneficiaries would face at the expiration of that program, a loss of employment authorization and potential removal from the United States, is the consequence intended by the INA for aliens unlawfully present in the United States after a lawful entry or who had entered illegally.
Further, and it is unclear why, if DHS "expressly retained the authority to terminate" DACA for any of its beneficiaries "at any time", it could not have done so without any justification whatsoever, or without the "winding down" period allowed by then-Acting Secretary Duke. In addition, even assuming that DACA beneficiaries had an expectation that their status would continue during the period for which they were granted that status, it is unclear why they would have an expectation that it would continue beyond the expiration of that status.
Judge Alsup certified for review certain issues decided in his order, including "whether (or not) the rescission of DACA is unreviewable as committed to agency discretion or by reason of" section 242(g) of the INA, "whether (or not) plaintiffs have standing", and the other issues raised by the government in its motion to dismiss. It should be noted that in a 5-4 decision, the Supreme Court temporarily stayed a prior order by the judge in the matter "requiring the government to turn over more documents" related to its decision to rescind DACA.
Judge Alsup's order places congressional interest in providing a more regularized status for DACA beneficiaries on a different timeframe. So long as that order remains in effect, DACA beneficiaries may continue to receive the benefits of that status indefinitely. The effect of that order on any such legislation, however, remains to be seen.