IMMIGRATION: DACA as of August 31, 2018
Jack E. Urquhart© September 2, 2018
The States of Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and the governors of Mississippi and Maine sued to rescind DACA. They argue that it violates the Administrative Procedures Act (APA) and the Take Care Clause of the Constitution. See Texas v. United States of America, No. 18-CV-00068 (S. D. Tex. August 31, 2018)(Dkt. Nos. 319 & 320). The States asked for an injunction that would terminate DACA. The Court held that the Plaintiff States demonstrated the likelihood that DACA is unlawful, but denied the State’s request to enjoin DACA. The Court, then, invited the parties to expeditiously appeal its order.
Congress, the Executive, and the Courts
Current American immigration conflicts feature the power and accountability of all three branches of our Constitutional governance—the Congress, the Executive, and the Judiciary. Congress is the governmental branch assigned the power to make immigration law. The Executive Branch is assigned the power to enforce the immigration laws passed by Congress. The Judicial Branch is assigned very little authority over immigration law—even its power of judicial review is narrowly curtailed in the immigration arena.
The DACA controversy, one of many pressing immigration issues, finds its root in Congressional inaction. Congress is the branch of the government accountable for legislating a functioning, safe, and humane immigration system. All troubled by, for example, the number of “illegal immigrants” now in the United States should demand Congress find rational solutions. Congress is branch of our government constitutionally accountable for our immigration laws–successes and failures.
But our most controversial immigration issues stem from Executive proclamations—not carefully considered Congressional acts. A highly plausible—though not undisputed—explanation for this is the failure of Congress to do its job. Sensible immigration reform would reduce the justification for Executive decision-making.
Executive immigration decision-making inevitably draws the Judiciary Branch into the immigration arena. The Courts, technically without any significant immigration authority, are asked to decide whether Executive proclamations overstep the immigration authority granted the Executive Branch by Congress or the Constitution. When summoned into frays, the federal courts express essentially universal agreement that comprehensive responses to immigration conflicts are the province of Congress. Yet, the sheer number of immigration lawsuits, and the unique and important questions they involve are red flags for a failed or failing immigration system. They are an alert that Congress needs to tend to business.
2012 DACA Begins
The Deferred Action for Childhood Arrivals, DACA, was initiated June 15, 2012, by a memorandum signed by the, then, Secretary of the Department of Homeland Security (DHS), Janet Napolitano. DACA allows qualifying applicants to remain in the United States for a two-year period. Assuming all qualifications are met, successful applicants may apply for renewal every two years. Only those who meet the following criteria are eligible to apply for DACA:
The applicant must have been younger than 16 before she or he entered the United States;
The applicant must have lived continuously in the United States since at least June 15, 2007;
The applicant must have been present in the United States when the DACA memo was issued–June 15, 2012;
The applicant must have graduated high school or be in school or have been honorably discharged from the United States military;
The applicant cannot have been convicted of a felony, a serious misdemeanor, or pose any national security threat; and
The applicant must be younger than 30 when applying.
Meeting these eligibility requirements alone provides no assurance that an application will be granted. The applicant is further screened and the decision to grant or deny individual applications is at the Government’s discretion. The issue of whether DACA actually permits discretion if the applicant meets the guidelines is disputed in pending litigation.
Successful DACA applicants must apply for work permits from the Government.
If a DACA application is granted, the successful applicant cannot be deported for a two-year period, and the application can be renewed for successive two-year periods, if renewal qualifications are met. Successful applicants are eligible for some public benefits under legislation other than DACA.
2017 DACA Rescinded
September 5, 2017, DACA was rescinded by a memorandum of the, then, Acting Secretary of DHS, Elaine Duke.
2018 DACA Rescission LitigatioFn
Four federal courts have ruled on the legality of the 2017 DACA rescission. Three held the rescission illegal, and preliminarily enjoined DACA rescission. One federal court found DACA’s rescission legal.
Regents of the University of California v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018), appeal pending, No. 18-15068 (9th Cir. 2018) was the first DACA rescission court decision. The Court held that the rescission violated the Administrative Procedures Act (APA), because, rather than supported by reasoned decision-making, DACA rescission was arbitrary and capricious. The Court preliminarily enjoined DACA’s rescission.
Vidal v. Trump, 279 F. Supp. 3d 401 (E.D.N.Y. 2018), appeal pending, Vidal v. Trump, No. 18-485 (2d Cir. 2018) was the second federal court to find DACA rescission arbitrary and capricious. It preliminarily enjoined the rescission.
Casa de Maryland v. U.S. Department of Homeland Security, 284 F. Supp. 3d 758 (D. Md. 2018), appeal pending, No. 18-1522 (4th Cir. 2018) was the third federal court decision to address the DACA rescission. It held that the DACA rescission was “a carefully crafted decision supported by the Administrative Record.” Id. at 772.
NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018), appeal pending, NAACP v. Trump, No. 18-5243 (D.C. Cir.) was the fourth federal court decision on the DACA . This Court offered the Administration an opportunity to further support its DACA rescission.
2018 DACA Rescission Clarification
June 2018 the current Administration’s sixth Secretary of DHS, Kirstjen Nielsen, issued a memorandum clarifying the basis for the DACA rescission. The memo, among other points, clarified that the DACA Rescission does not rely on the conclusion that DACA is illegal. Instead, DHS thinks DACA might be illegal.
The NAACP Court, which offered the current Administration the opportunity to better support DACA rescission, found the June 2018 DHS memo did not alter the Court’s conclusion that the DACA rescission was not reasoned decision-making as required APA. Rather, it was grounded on a legal opinion. The Court wrote:
Although the [June 2018 DHS Memo] purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision.
The Court concluded:
Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do. The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.
May 7, 2018 DACA Challenged
DACA’s legality was not challenged in court until May 7, 2018. See Texas v. United States of America, No. 18-CV-00068 (S. D. Tex. August 31, 2018). This challenge came just short of 6 years after DACA began. Guided by Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (Texas I), the District Court held that DACA exceeds the agency’s statutory jurisdiction, and thus violates the APA. 5 U.S.C. § 706(2). However, the Court denied the Plaintiff State’s request for preliminary injunction, primarily based on the delay in challenging DACA. The Court wrote that DACA could have been challenged in the 2014 lawsuit brought by Texas (Texas I), enjoining related executive actions. In balancing the equities, the Court considered that DACA is the status quo. Plaintiff States, therefore, sought an injunction that would alter that status quo, and inflict immediate hardship on some Defendants.
By separate order, the Court encouraged the parties to appeal. As the Court’s opinion was interlocutory—not final and disposing of all issues, it is not normally appealable. However, the Court certified that “an immediate appeal will materially advance the termination of this case and hopefully others.” Texas v. United States, No, 18-cv-0068 (S.D. Tex. August 31, 2018)(Dkt. No. 320). The same order stays the case for 21 days, allowing any party to decide whether it will pursue an interlocutory appeal. The Interlocutory Appeal Order is notable for its candor about the potential for judicial fallibility. The challenges immigration policy presents are largely without clear-cut solutions. They raise issues that transcend partisan quibbles. The current immigration challenges will be met, if at all, by those who acknowledge the need to act expeditiously, but respect the limitations of power protected by the rule of law.
Joining the growing number of Courts that sound the same clarion call, the United States District Court for the Southern District of Texas wrote:
In Casa de Maryland, the court expressed the sentiment that the question of the eligibility of the DACA recipients to remain in the United States and continue contributing their skills and abilities to the betterment of this country is an issue crying out for a legislative solution. This Court agrees.
Immigration reform by means other than responsible Congressional legislation will forever be questionably lawful and practically insufficient.
DACA remains effective. Its rescission has been enjoined. All rescission cases are on appeal to Circuit Courts. The Texas II case held DACA unlawful, but did not enjoin it. Texas II has been certified for expeditious appeal. Uncertainty is a mild word to describe DACA’s future. Uncertainty this vast serves no one well.