By Adam Cox, Marty Lederman and Cristina Rodriguez
One month ago, on September 5, the
Acting Secretary of Homeland Security, Elaine Duke, rescinded
a June
2012 memorandum issued by her predecessor, Secretary Janet Napolitano,
which had established the Deferred Action for Childhood Arrivals program,
commonly known as “DACA.” DACA was a
program that enabled the so-called “DREAMers” to apply for temporary relief
from removal and authorization to work in the United States.
Although the Duke
memorandum announced that the “DACA program should be terminated,” it also declared
that the Department will “execute a wind-down of the [DACA] program” and, in
particular, “will provide a limited window in which it will adjudicate certain
requests for DACA and associated applications meeting certain parameters.” That “window” has widely (but not entirely
accurately) been characterized as “extending” DACA for six months, until March
5, 2018, during which time Congress might consider whether to enact legislation
to protect DREAMers and possibly even afford them legal authority to remain in
the United States. (We’ll have more to
say toward the end of this post about how to understand the DHS “wind down” and
the so-called six-month “window.”)
President Trump reportedly has
begun discussions with congressional Democrats about a possible legislative
proposal. It’s not yet clear, however,
what such legislation would look like or what its prospects for enactment might
be. On September 5, Trump tweeted
that if Congress does not “legalize
DACA” by March, he “will revisit this issue.”
As we explain below, however, his Attorney General and DHS have
announced that there is no legal authority for DACA, a conclusion that complicates
any “revisiting” of the issue, to say the least (see Part V below).
In the meantime, several sets of
plaintiffs have filed lawsuits challenging the legality of DHS’s DACA
rescission. Most notably, New York and
fifteen other states, and the District of Columbia, filed suit
in the Eastern District of New York; and the Regents of the University of
California filed suit
in the Northern District of California, together with former DHS Secretary
Napolitano, who is now President of the University of California. More recently, similar suits have been filed
by the
States of California, Maine, Maryland and Minnesota; the
NAACP; and a
half-dozen individuals who are currently protected by DACA.
There are many confusions and
misconceptions about what DACA is (or was); about the effects of DHS’s “rescission" and what the legal basis might be for that rescission; about what happens
during the so-called six-month “window”; about the prospects that Trump might
reverse course in March; and about the current litigation challenging DHS’s
rescission. In this post, we try to
offer some specificity and clarification with respect to these matters. A caveat is in order, however: On some of these matters, our assessment is
merely a best guess. Because the
Administration has not been entirely forthcoming about all of the details of
its latest actions, or the legal basis on which it acted, the answers to some
of the questions remain unclear or unsettled.
An outline of the questions we
address in this post:
I.
What Did DACA Do?
A. Decreased Likelihood of Removal
B. Work Authorization
C. Social Security and Medicare Benefits
II.
Why and How did the Trump DHS Rescind the DACA Program?
III.
What Are the Effects of DHS’s DACA Rescission?
A. Social Security/Medicare Benefits
B. Work Authorization
C. Constraining
ICE’s Discretion to Remove DREAMers
IV.
How Do the “Wind-Down” and the Six-Month “Window” Work?
A. Who’s
Covered?
B. What’s the Effect of
“Wind-Down” Deferred Action (i.e., after September 5, 2017)?
C. What’s DHS’s Legal
Justification for Continued Work Authorization After September 5, 2017?
V.
Can the Administration Revive DACA After March 5, 2018, as President
Trump Has Insinuated It Might?
VI.
What Are the Prospects for the Litigation Challenging the DACA
Rescission?
In order to understand the effect
of the Trump Administration’s “rescission” of DACA, it’s essential to
understand what the DHS DACA program was—that is to say, what it did for the
protected class of non-citizens, often referred to as the “DREAMers.”
DACA was an initiative, announced
by DHS Secretary Napolitano in 2012, to provide what the agency refers to as
“deferred action” to persons who were in the United States without
authorization but who satisfied six criteria:
(i) they were under 16 years old
when they came to the United States;
(ii) they had continuously resided
in the United States for a least five years preceding June 15, 2012;
(iii) they were present in the
United States on June 15, 2012;
(iv) they were in school, had
graduated from high school, had obtained a general education development
certificate, or had been honorably discharged from the U.S. Coast Guard or
Armed Forces;
(v) they had not been convicted of
a felony offense, a significant misdemeanor offense, or multiple misdemeanor
offenses, and did not pose a threat to national security or public safety; and
(vi) they were not yet 31 years
old.
In order to apply for deferred action under DACA, an individual
was required to submit evidence to DHS that she satisfied each of these criteria.
Satisfaction of the criteria did not guarantee that DHS would approve such a
person for deferred action—DHS reserved its “unreviewable discretion” to deny
the application—but the agency afforded deferred action to the vast majority of
applicants, about 800,000 in total.
DREAMers are hardly the only group
of non-citizens who have been afforded such “deferred action.” For many decades, DHS (and the INS before it)
has granted that status to many other categories of persons, too, including
many who were not authorized to be present in the United States (i.e., who are
here unlawfully). In recent years, the
agency has typically granted deferred action for renewable two-year terms.
OK, but what does it mean, as a
practical matter, for DHS to grant a DREAMer—or anyone else— “deferred
action”? It is widely, but mistakenly,
assumed that “deferred action” prohibits DHS from removing (or deporting)
someone who would otherwise be removable, or that deferred action gives its
recipient the legal right to remain in the country and not be arrested or
detained by DHS for removal purposes.
(The New York lawsuit,
for example, alleges that “DACA grantees are granted the right not to be
arrested or detained based solely on their immigration status during the time
period their deferred action is in effect.”
To the same (mistaken) effect, see paragraph 82 of the California
complaint and paragraph 27 of the
Garcia complaint.)
That common assumption is wrong in
two important respects. On the one hand,
the government is unlikely to remove the vast majority of DREAMers even in the absence of deferred action. DHS has only enough resources to remove a tiny
fraction of the more than eleven million individuals who are not lawfully in
the United States. Moreover, although
the Trump administration surely cares less than the last about the real or
perceived equities of DREAMers, it’s unlikely that any administration would invest resources in deliberately targeting
DREAMers, in particular, for deportation:
there is a broad consensus that they are low enforcement priorities.
On the other hand, a grant of
deferred action does not guarantee that DHS will not remove its recipient
from the United States, nor does it confer upon that individual the legal right
or authority to remain in the country:
As the 2012 Napolitano memo specifies, deferred action “confers no
substantive right.” The Obama DHS also
publicly warned
that “[t]his policy may be modified, superseded, or rescinded at any time
without notice.” Thus, as the Solicitor
General explained
to the Supreme Court in the recent United
States v. Texas case, which also involved a program of deferred action, “[e]ven
with deferred action . . . , [covered] aliens lack lawful status, are actually present in violation of law,
are subject to enforcement at the government’s discretion, and gain no defense
to removal.”
To be sure, as a practical matter
conferral of “deferred action” may be understood as a sort of unenforceable promise
or commitment by the government. That
explains why DACA recipients have relied, in planning their lives, on both the
deferral of their removal and the authorization to work they have been granted.
The outrage sparked by the removal or
threatened removal of a recipient of DACA is thus understandable. That outrage, however, is based principally on
moral and political foundations, not legal guarantees.
So if that’s what DACA (and
deferred action more broadly) does not do,
what, exactly, does it accomplish? There
are three principal things that follow from “deferred action” as a matter of
federal law and practice, the second of which—work authorization—is by far the
most important:
A. Decreased
Likelihood of Removal
As we note above, even without
deferred action, DHS is very unlikely to remove any particular DREAMer from the
United States, even though there have been anecdotal accounts of such cases
across administrations. The DACA program,
however, took two steps to make that prospect even more unlikely. First, Secretary Napolitano expanded access to
deferred action by establishing a formal, affirmative system, with clearly
publicized qualifications, under which DREAMers could apply for deferred
action. (The application process was deliberately
housed in the benefits-focused arm of DHS, rather than the enforcement arm.) Second, Napolitano’s 2012 memo specifically
designated deferred action aliens as “low priority individuals” for removal and—most
importantly—instructed officials at the U.S. Immigration and Customs
Enforcement (ICE) and U.S. Customs and Border Protection (CBP) to “immediately
exercise their [prosecutorial] discretion, on an individual basis, in order to
prevent [such] low priority individuals from being placed into removal
proceedings or removed from the United States.” This directive, combined with the documents that
DHS provided to DACA recipients, offered greater practical assurance that DREAMers
would not be removed, even if they came into contact with such immigration
officials—in large part by facilitating the Secretary’s ability to superintend
the discretion exercised by line-level enforcement agents.
B. Work
Authorization
This is the big-ticket item. As Marty explained in several posts
concerning the 2015-16 litigation involving the “Deferred Action for Parents of
Americans and Lawful Permanent Residents” program (DAPA)—culminating in this
post (which links to the others)—the Immigration Reform and Control Act of
1986 (IRCA), 8 U.S.C. § 1324a(a), generally makes it unlawful to hire or employ
an “unauthorized alien.” That statute in
turn defines “unauthorized alien” to mean an alien who is
neither lawfully admitted for permanent residence nor “authorized to be . .
. employed by this chapter or by the Attorney General.”
Id. § 1324a(h)(3). This provision of IRCA thus expressly provides
that the Attorney General—now the Secretary of DHS, by virtue of a later
statutory substitution—may “authorize[]” aliens to be eligible for employment,
even in cases where the statute itself does not directly authorize them to be
employed; and when the Secretary does so, such Secretary-designated aliens are
not “unauthorized aliens” who are subject to IRCA’s hiring prohibition.
Since Congress enacted IRCA in
1986, the Attorney General and (later) the DHS Secretary have designated dozens of types of aliens
as “authorized to be . . . employed” under specified conditions—most or all of
which are listed and described in 8 C.F.R. 274a.
Most importantly for DACA purposes, in 1987 the Reagan Administration
promulgated a regulation (see current subsection 274a(c)(14)) providing
that any “alien who has been granted
deferred action, an act of administrative convenience to the government
which gives some cases lower priority,” may obtain work authorization if the
person “establishes an economic necessity for employment.” This rule survived extensive notice and
comment review during the Reagan administration despite sharp challenges;
Congress has been aware of it for many years; and for several decades after
1987, no one challenged it in court. (See the detailed account of
this regulation in Part II of the Argument in this
amicus brief on behalf of former immigration officials, on which Marty
worked.)
Thus, for three decades (indeed,
even before 1986), the INA regulations have provided that employers may hire
“deferred action” noncitizens if those individuals demonstrate to DHS an
economic need to work . This decision by
the Reagan INS—to promulgate a formal rule that “deferred action” aliens can be
part of the lawful and above-board national workforce—made good sense.
After all, individuals whose removal was deferred, and who would
therefore likely be in the nation for an extended period, would be a drain on
society—and certainly on family members, friends, or charity—if they did not
work. And if they instead decided to work without agency authorization, it could only be for an employer
willing to hire them unlawfully, in which case their employment would be more
likely to depress wages, evade taxation, and otherwise create exploitative
labor conditions. Accordingly, as the Solicitor General put it in one of
his briefs in the DAPA case, work authorization for deferred action aliens, who
are unlikely to leave the United States in the near future, “allows individuals
to leave the shadow economy and work on the books to provide for their
families, thereby reducing exploitation and distortion in our labor markets.”
In sum, then, once a DREAMer (or
anyone else) is granted “deferred action,” she becomes eligible for work authorization,
which makes it lawful for an employer to hire her. This
is the most important incident of DACA.
C. Social
Security and Medicare Benefits
Federal regulations dating back to
the Clinton administration have also regarded recipients of deferred action to
be eligible for certain Social Security benefits.
A 1996 statute, the Personal
Responsibility and Work Opportunity Reconciliation Act (PRWORA), prohibits
aliens from receiving most federal benefits unless they are “qualified”—a
narrowly defined term that excludes many noncitizens in the U.S., including
those afforded deferred action. 8 U.S.C. §§ 1611(a),
1641(b). Congress created an express exception to this limitation,
however, for one type of benefit: Title II Social Security benefits are available even to non-“qualified”
aliens if they are “lawfully
present in the United States as determined by the Attorney General.”
Eleven days after Congress enacted the PRWORA, Attorney General
Reno promulgated
a regulation as an interim rule, with request for comments, in which she
determined that several different categories of aliens were deemed “lawfully
present in the United States” solely for purposes of receiving
Title II Social Security benefits. Those categories of individuals
included some who were not legally authorized to be in the
United States, namely, persons “under Deferred Enforced Departure (DED)
pursuant to a decision made by the President,” and persons afforded
deferred-action status. See 8 C.F.R. § 1.3(a)(4)(v),
(vi). No one objected to this rule. Moreover, in 1997 Congress amended section
1611 to cover Medicare and Railroad Retirement benefits, in addition to Title
II Social Security benefits, which might
suggest congressional acquiescence, even if the original claim of statutory
authorization was questionable.
Thus, for the past 20+ years,
individuals with “deferred action,” including but not limited to DACA
“DREAMers,” have been eligible to receive Title II Social Security benefits,
Medicare benefits, and Railroad Retirement benefits. In other words, this
feature of DACA, like work authorization, was not an invention of the Obama
administration, but rather the consequence of pre-existing regulations
governing deferred action.[1]
II. Why and How did the Trump DHS
Rescind the DACA Program?
Importantly, Acting Secretary Duke
did not offer any policy justification for rescinding the Napolitano DACA memo: She did not conclude, for example, that DACA is
a waste of resources or that the employment of DREAMers is harmful to the
economy. Nor did she embrace Attorney
General Sessions’ views, stated in his press
conference on September 5, that DACA has “contributed to a surge of
unaccompanied minors on the southern border that yielded terrible humanitarian
consequences” and “denied jobs to hundreds of thousands of Americans by
allowing those same jobs to go to illegal aliens.” To the contrary, her DHS officials testified
to the Senate just this week that the DREAMers are a benefit to the
country.
Instead, Acting Secretary Duke
justified her action solely on the ground that Attorney General Sessions had
informed her (in a September
4 letter) of his conclusion that DACA was not authorized by law. According
to Sessions, Secretary Napolitano’s DACA policy 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.[2]
Before
discussing the substance of Sessions’s conclusion about statutory authorization
(or the lack thereof) and how it might inform the implications of the DACA
rescission, it is worth pausing to note three other things about this crucial passage
from his
letter to DHS.
First,
Sessions’ claim that Congress has “repeated[ly] reject[ed]” proposed legislation
“that would have accomplished a similar result” as DACA is disingenuous, at
best. Sessions presumably is referring
to the DREAM
Act, which Congress has never “rejected”—indeed, the House approved it in 2010, and it has never
come to a full vote in the Senate. (A
majority of Senators approved a version of it in 2007, but a filibuster
prevented a merits vote then, too.)
What’s more, even if Congress had
expressly “rejected” the DREAM Act—a significant misreading of the legislative
history, in our view—it is deeply misleading to say that the DREAM Act “would
have accomplished a similar result” as DACA.
DACA and the DREAM Act are two entirely different kinds of legal
acts. As two
of us have emphasized, the former (DACA) reflects the exercise of
contingent, discretionary executive powers as delegated or ratified by existing
statutes, whereas the latter would permanently alter the legal status of the
population it would reach. The
legislation would go much further
than DACA—it would offer DREAMers the legal right to remain in the country, and
a path to lawful permanent residence and then citizenship. DACA, by contrast, simply defers their removal
and triggers eligibility under the regulations described above. As far as we know, Congress has never even
considered, let alone rejected, any legislation that would do no more than
codify DACA.
Second,
Sessions’s assertion that DACA is an “unconstitutional
exercise of authority by the Executive Branch” is a mere rhetorical (and
tendentious) flourish, without substance.
As Marty has explained in several posts (see, e.g., the first three
points of this
post, and this
post), the Obama Administration did not assert the authority to implement
DACA or DAPA “unilaterally,” i.e., without statutory authorization (let alone
in defiance of the law). And as Adam and
Cristina have
argued, such a decision about the particular circumstances under which to
enforce the law is the exercise of a common executive function that all
Attorneys General, Sessions included, have exercised in numerous contexts. The gist of the dispute here, especially
concerning work authorization, has been whether the existing immigration laws
authorize DHS’s actions (as Secretary Napolitano concluded), or do not
authorize them (as AG Sessions apparently has concluded). That is an ordinary, every-day dispute about
statutory interpretation.
Third,
in concluding that DACA is unlawful, AG Sessions upends or calls into question
elaborate, pre-existing DOJ legal positions.
The official position of the United States, as expressed by DOJ in many
briefs—including a pair filed by the Solicitor General in the Supreme Court
(see here
and here)—had
long been that the INA authorizes not only DACA, but the broader DAPA program,
as well. The Office of Legal Counsel
also issued a memorandum
in 2014 elaborating its conclusion that DAPA was legally authorized, and in so
doing noted that it had concluded previously that DACA was lawful.
It is not unprecedented or
illegitimate, of course, for a new Attorney General to reverse the views of the
United States on a question of statutory or even constitutional interpretation.
And although we do not think there is
much merit to the legal claims against DACA (or DAPA, for that matter), we
recognize that current DOJ officials might sincerely disagree. Even so, such reversals of government
position are rare, for obvious institutional reasons, and there is (or least
there once was) a fairly high burden of persuasion on those who would propose
such a reversal, especially when it would require a repudiation of lengthy and
detailed explanations that DOJ has publicly offered, including to the Supreme
Court, in support of its previous views.
In this case, however, public
reporting on the Trump rescission offers no indication whether the Acting
Solicitor General concluded that the briefs previously filed in the Supreme
Court by the Office of the Solicitor General (OSG) were wrong—or even whether
the OSG and OLC were consulted for their views. Moreover, regardless of the internal process,
we should expect an extraordinary reversal by DOJ would be accompanied by at
least some detailed, public
explanation as to why the Department’s previous legal analysis was
mistaken. But there is none. From Sessions’ letter, a reader would never
know that he is, in one unelaborated sentence, rejecting years of legal
analysis issued by his own department.
Whatever the merits of his legal views, such insouciant neglect to deal
with the Department’s longstanding, formal views is troubling, to say the least.
III. What Are the Effects of
DHS’s DACA Rescission?
Neither the Sessions letter nor the
DHS announcement identified or explained the practical effects of rescinding
the Napolitano memo. We can surmise,
however, what the Attorney General had in mind—and how DHS will implement its
rescission—from a September
5, 2017, DHS “Frequently Asked Questions” (FAQ) release, and from an
amicus brief that Sessions himself joined last year in the DAPA case, United States v. Texas, when he was still a Senator.
The upshot is that once a DREAMer
no longer has “deferred action,” she will not enjoy any of the three advantages of DACA detailed above. Moreover, even DREAMers who continue to have
“deferred action” status during the so-called “wind-down” period might no
longer receive associated benefits such as Social Security payments, and they
will also be subject to a greater risk of removal than they were before
September 5. It will, however, be lawful
for employers to hire them until their deferred action expires.
A. Social
Security/Medicare Benefits
Let’s start with the least
significant of the three incidents of DACA. As
mentioned above, and as elaborated in this
post, the government’s 1996 interpretation of PRWORA to include “deferred
action” aliens as eligible for Social Security benefits (and, later, Medicare
benefits) is certainly open to question (or it was in 1996, anyway). The answer to Question 6 of DHS’s new “Frequently
Asked Questions” memorandum suggests that perhaps DHS has overturned—or is in the process of overturning—that
1996 interpretation. The answer to
Question 6 states that “[r]ecipients of DACA are currently unlawfully present
in the U.S.”—a potentially very significant conclusion, because under PRWORA an
alien must be “lawfully present” in order to receive Social Security and
Medicare benefits.
Any change of this sort in the
government’s view about who is “lawfully present” for purposes of PRWORA presumably
would apply not only to those who are no longer eligible for deferred action,
but even to persons who have already been
granted “deferred action” under DACA but whose DACA status has not yet
expired (in light of the wind-down period).
DHS apparently will no longer regard these persons as being “lawfully
present” and therefore eligible for Social Security benefits. And
if that’s the case, then the President would have been mistaken when he tweeted
that “[f]or all of those (DACA) that are concerned about your status during the
6 month period, you have nothing to worry about—No action!” At a
minimum, DACA recipients will need to “worry” about losing eligibility for these
particular federal benefits.[3] Even more significant, if DHS reverses its
earlier interpretation of PRWORA, that might well mean that all aliens with deferred action—not only
DREAMers—will no longer be eligible for Social Security and Medicare benefits.
B. Work Authorization
As we explained above, this is the
most important aspect of DACA. Therefore
it is likewise the most significant aspect of DHS’s rescission. Indeed, when the Attorney General informed
DHS that the Obama Administration’s policy (purportedly) lacked statutory
authority, it was almost certainly work authorization that he had foremost in
mind. In his amicus
brief in United States v. Texas, then-Senator Jeff Sessions (together with 42 other
Republican Senators) argued principally that IRCA does not afford the Secretary
the power to authorize employers to hire the persons who received deferred
action under the DAPA program.
Sessions’s amicus brief did not specifically address whether there would
be a similar absence of power with respect to the DREAMers, but its logic
suggests that DHS cannot authorize employers to hire that large class of
individuals, either.
It’s therefore fair to assume, at
least absent further clarification from DOJ, that Sessions, as Attorney
General, is now adopting on behalf of the
United States the views about work authorization that appeared in his
amicus brief in the Texas case. If so, that would mean a repudiation of the
considered views of the Solicitor General in the Texas case (see pp. 50-60 of the government’s opening
brief and Section IV-C of the SG’s reply
brief).
If we’re right about that, it means
that the principal effect of “rescinding” DACA will be a dramatic impact on the
presence of DREAMers in the workforce (or in the legal workforce, anyway). To be sure, as long as some DREAMers continue
to have deferred action for a limited “wind-down” period, employers may keep
them on the payroll. But once they no
longer have deferred-action status—and are therefore stripped of the Employment
Authorization Documents (EADs) that ordinarily come with deferred action status—employers
who wish to comply with the law will have no choice but to fire (and refuse to
hire) them. Indeed, for reasons we
identify in a footnote, the Attorney General’s apparent new interpretation of
the IRCA work authorization provision might have a profound impact on the
prospects for employment of many other categories of noncitizens, as well, in
addition to the DREAMers.[4]
C. Constraining ICE’s
Discretion to Remove DREAMers
Recall that the third, and most
well-known, incident of deferred action for DREAMers is that Secretary Napolitano
directed ICE officers to “exercise their [prosecutorial] discretion, on an
individual basis, in order to prevent [these] low priority individuals from
being placed into removal proceedings or removed from the United States.”
In his amicus brief in the Texas DAPA case, then-Senator Sessions
did not argue that DHS lacks
authority to exercise such enforcement discretion to de-prioritize the removal
of certain classes of aliens, such as the DREAMers or would-be DAPA
recipients. To the contrary, Sessions’s
brief indicated that DHS does have
the authority “to prioritize the deportation of certain aliens” and to “simply
. . . leave individual aliens alone.” We
would be very surprised if Attorney General Sessions has now reached a contrary
view. Given that, it is not clear why it
would have been unlawful for Secretary Napolitano to have directed ICE officers
to “exercise their [prosecutorial] discretion” in a particular way, as she did
in the 2012 DACA memo. Certainly, neither Sessions nor DHS has offered any
legal reason why that directive should now be rescinded. Nevertheless, that appears to be what DHS has
now done.
As we explained above, the
rescission of the Napolitano memo does not
mean that DHS will remove most DREAMers from the United States. The vast majority of DREAMers were not
targeted for removal before DACA, and there is no indication that they will now
be targeted. They will, however, live in
much greater fear of being
removed—even while some of them continue to have “deferred action” status—because,
after rescission of the Napolitano memo, there will no longer be any
instruction to ICE officers to “exercise their [prosecutorial] discretion, on
an individual basis, in order to prevent [such] low priority individuals from
being placed into removal proceedings or removed from the United States.” Nor, once their current DACA grants expire,
will they have papers attesting to their low-priority-for-removal status. Indeed, the Acting ICE Director testified
in a House hearing in June that “every immigrant in the country without
papers . . . should be uncomfortable.
You should look over your shoulder.
And you need to be worried.”
Living under the shadow of this increased prospect of removal obviously will have a profound impact on the
ways in which many DREAMers conduct their lives, even if most of them remain in
the United States for many years to come.
It’s also possible the risk of
removal under the new Trump policy may be heightened still further, if ICE and
USCIS (the DHS component that oversaw DACA) begin cooperating in a way they
have not done to date. Under the
Napolitano policy, DREAMers themselves were required to convey information
about their status and whereabouts to USCIS when they applied for deferred
action. If ICE were to obtain that
information, it might use it as a basis for identifying targets for removal or
to demonstrate that the individuals are not lawfully in the United States and
thus can be removed.
Under the Obama administration,
this risk was remote. Before September
5, a DHS FAQ on DACA informed recipients (Q19) that:
Information provided in [a DACA]
request is protected from disclosure to ICE and CBP for the
purpose of immigration enforcement proceedings unless the requestor meets the
criteria for the issuance of a Notice To Appear or a referral to ICE under the
criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose
cases are deferred pursuant to DACA will not be referred to ICE.
This was not quite a legal commitment that DHS would never
use the deferred-action information it obtained from DACA applicants for
removal purposes: The QFR specifically
stated that “[t]his policy, which may be modified, superseded, or rescinded at
any time without notice, is not intended to, does not, and may not be relied
upon to create any right or benefit, substantive or procedural, enforceable by
law by any party in any administrative, civil, or criminal matter.” Nevertheless, as Secretary Jeh Johnson explained
in a December 2016 letter
to Representative Judy Chu, the agency’s longstanding practice has been not to use such information “submitted
by people seeking deferred action . . . for immigration enforcement purposes
except where it is independently determined that a case involves a national
security or public safety threat, criminal activity, fraud, or limited other
circumstances where issuance of a notice to appear is required by law.”
Accordingly, until now it has
certainly been reasonable for DACA applicants to submit potentially
compromising information to DHS without concern that it would be shared with
ICE and used against them—an expectation without which many of them likely
would not have applied for deferred action in the first instance.
The Trump DHS, however, has now
amended the assurance in its FAQ to
read as follows (Q7):
Information provided to USCIS in
DACA requests will not be proactively provided to ICE and CBP for
the purpose of immigration enforcement proceedings, unless the requestor meets
the criteria for the issuance of a Notice To Appear or a referral to ICE under
the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA).
The new FAQ no longer contains the previous assurance that
“[i]ndividuals whose cases are deferred pursuant to DACA will not be referred
to ICE.” Moreover, the assurance that
information provided to USCIS in DACA requests will not be provided to ICE and
CBP for the purposes of removal proceedings is now qualified by the adverb
“proactively.” The effect of that
qualifier is unclear, but it could well mean that if ICE now asks USCIS for someone’s DACA
application information, USCIS might turn it over to ICE in response. If so, such an egregious bait-and-switch would
compound the fear generated by the administration’s rescission announcement,
promises of a wind-down and a legislative push notwithstanding.
IV. How Do the “Wind-Down” and
the Six-Month “Window” Work?
In announcing
the rescission of DACA, Acting Secretary Duke wrote that DHS will “execute a
wind-down of the [DACA] program,” and that “[r]ecognizing the complexities
associated with winding down the program, the Department will provide a limited
window in which it will adjudicate certain requests for DACA and associated
applications meeting certain parameters.”
DHS has been somewhat unclear, however, about how this “wind-down” and "window" will
work.
There are at least three major
questions associated with the wind-down:
Who is covered? Will “deferred
action” during the wind-down come with all of the advantages that it had before
September 5? And what’s the legal
justification for permitting the employment of DREAMers after September 5, now
that the Attorney General has concluded that the statute does not authorize the
Secretary to grant employers permission to employ the DREAMers?
A.
Who’s Covered?
DHS is distinguishing among at
least four categories of DREAMers for “wind-down” purposes:
1.
A DREAMer who had not yet ever applied for deferred action by September
5 is out of luck: According to Duke, DHS
“[w]ill reject all DACA initial requests and associated applications for
Employment Authorization Documents filed after [September 5].”
2.
A DREAMer who had applied for an initial
period of deferred action before September 5 might receive it: DHS
“[w]ill adjudicate—on an individual, case-by-case basis—properly filed pending
DACA initial requests and associated applications for Employment Authorization
Documents that have been accepted by the Department as of [September 5].”
3. A DREAMer who was already (i.e., on September
5) in “deferred action” status for a
period that ends before March 5, 2018
might have that status renewed by DHS for one additional period if she has applied for renewal by today,
October 5, 2017. DHS has not yet publicly
clarified what the length of these renewed terms will be—whether they will be
for the traditional two-year duration, or expire on March 5, 2018. We have been informed, however, that DHS has
confirmed to at least some renewal applicants that the term of renewed deferred
action will be the traditional, full two years.
If that is correct, it would mean, for example, that an individual who
receives a renewal in March 2018 would be in deferred action status until March
2020. After their designated periods of
renewal expire--either before March 5, for DREAMers who did not apply by today or whose applications for renewal are rejected, or sometime after March 5, for DREAMers who obtain the one renewal term--these DREAMers will no longer enjoy deferred action and the
authority to be lawfully hired, unless the law changes in the interim.
4.
A DREAMer who was already (i.e., on September 5) in “deferred action”
status for a period that ends after
March 5, 2018 will remain in that status, typically with work
authorization, for the duration of the previously designated two-year period.
DHS has said that it “[w]ill not terminate the grants of previously issued
deferred action or revoke Employment Authorization Documents solely based on
the directives in this memorandum for the remaining duration of their validity
periods.” Thus, for example, a DACA beneficiary
granted two years of deferred action in August 2017 would remain in deferred
action status until August 2019. Once
their current periods of deferred action expire, however, these DREAMers will
no longer enjoy deferred action and the authority to be lawfully hired (unless
the law changes in the interim). By most rough estimates, the term of
deferred action will expire for approximately 1000 DREAMers each day (that is, approximately
30,000 DREAMers every month) after March 5.
B. What’s the Effect of
“Wind-Down” Deferred Action (i.e., after September 5, 2017)?
For
DREAMers whose deferred action has continued beyond September 5, will there be
any changes in how they are treated while they enjoy such status?
Yes. As explained above, it appears that one of
the three primary advantages of deferred action—eligibility for Social Security
and Medicare benefits—will no longer be available for DREAMers with deferred
action (and perhaps not for other deferred action recipients, either). (This change will mostly be felt years from
now, when DREAMers would have been eligible to receive such benefits.)
Moreover, there is at least a
slightly greater risk than there was before September 5 that ICE will remove
such DREAMers from the United States, even during their period of “deferred
action,” because, as noted above, there is no longer a directive from the
Secretary to ICE officers to “exercise their [prosecutorial] discretion, on an
individual basis, in order to prevent [such] low priority individuals from
being placed into removal proceedings or removed from the United States.”
On the other hand, it will remain
lawful to employ most DREAMers—those who have “establishe[d] an economic
necessity for employment” and received an Employment Authorization Document
from DHS—until their deferred action expires:
That’s the most consequential sense in which DHS is implementing a “wind
down” period.
C. What’s DHS’s Legal
Justification for Continued Work Authorization After September 5, 2017?
As
explained above, the Attorney General apparently has concluded, consistent with
the rationale of his Supreme Court amicus brief as a Senator in U.S. v. Texas, that there is no
statutory authority for the Secretary to grant work authorization to
DREAMers. If there is no such legal authority, however, then from where would
Secretary derive her power to authorize employers to hire and employ such
DREAMers during the relevant “wind-down” periods?
Who knows? Such short-term, interim work authorization
would, from all that appears thus far, be inconsistent with the Attorney
General’s legal conclusion—which is itself the justification for refusing to
confer work authorization more broadly. Perhaps
DHS thinks it has some sort of equitable authority—certainly not express in IRCA—to
continue “transitional” work authorization.
Some DREAMers, however, might be afforded authorization that lasts into
2020. And it is difficult to see why, if
the Secretary has that authority, she
does not also have the authority to permit employers to hire DREAMers more
broadly, and to renew those authorizations more than once, as the DACA program
itself allowed.
V. Can the Administration Revive
DACA After March 5, 2018, as President Trump Has Insinuated It Might?
On September 5, President Trump tweeted
that if Congress does not “legalize
DACA” by March, he “will revisit this issue.”
But, again, the Attorney General has now announced that, in his view,
there is no legal authority for such a program (especially for its attendant
work authorizations). Of course, it’s
always possible the President doesn’t share, care about, or understand his
officials’ views about what the law allows—and it’s even possible that he might
overrule his Attorney General’s legal conclusions. Unless and until the Department of Justice
does yet another about-face, however, and revives its commitment to the legal
arguments it tendered until a few weeks ago, it’s hard to see how DHS could
“revisit” the issue of whether to implement DACA if Congress fails to amend the
law.
VI. What Are the Prospects for
the Litigation Challenging the DACA Rescission?
The new
lawsuits challenging the rescission of DACA raise several different
claims. For example, they allege that
the rescission violates the equal protection component of the Due Process
Clause of the Fifth Amendment to the Constitution because it was motivated by
anti-Mexican animus. They also allege
that the Administrative Procedure Act required the rescission to be effected
through notice-and-comment rulemaking.
In addition, they allege that, if and when ICE uses information from
DACA applications to justify removals, it will violate the due process rights
of the removed DREAMers.
For various
reasons, we have doubts about whether these legal theories will be fruitful. (See William Funk’s summary for a concise overview of some of
the suits and the legal obstacles to some of the claims.) Some of the suits, however, include another
theory that we think might be more successful.
As the complaint
in the Cal Regents suit puts it (paragraph 56):
“The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse
of discretion, and not in accordance with law because, among other things, they
are based on the legally incorrect premise that DACA is unlawful.” See also paragraph 283 of the New York complaint
and paragraph 176 of the Garcia complaint.
As we
explained above, DHS has justified the rescission of DACA only on the ground that the AG has concluded there is no legal
authority for it. If the courts find
that Sessions is correct—that there’s no authority for DACA—then presumably the
challenges to the rescission will fail.
If, however, the courts find that Sessions is wrong as a legal matter—that
DOJ’s previous view was correct that deferred action and the attendant work
authorization are lawful—then that will eliminate the sole predicate offered by
DHS for its rescission. There is some
precedent suggesting that such a judicial conclusion would render DHS’s
decision arbitrary and/or capricious, in violation of the APA. See,
e.g., Safe Air For Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007)
(“We have held EPA’s conclusion that the preexisting SIP did not ban field
burning legally erroneous. Because that flawed premise is fundamental to EPA’s
determination that it did not contravene [the Clean Air Act], EPA’s outcome on
those statutory interpretation questions is “arbitrary, capricious, or
otherwise not in accordance with law” for the purposes of our review.”). It might at first seem incongruous to deem “arbitrary”
a decision based upon a good-faith understanding of the law that the courts
ultimately do not share. But if the
courts were to reject Sessions’s legal views, then the DACA rescission as
currently presented would lack any stated DHS rationale, and its continuation
would be arbitrary.[5]
Note,
however, that a declaration by the courts that the rescission was arbitrary
and/or capricious would not mean that
DHS could not rescind DACA. Neither the Constitution nor the INA requires a
program such as DACA. It has been a
discretionary policy based on judgments about how to allocate scarce
enforcement resources and how to exercise the Secretary’s work-authorization
power. Therefore DHS thus could, for
example, rescind DACA based upon the Secretary’s view that it is an unwise or
counterproductive policy. As noted
above, however, DHS officials have testified that the DREAMers are a benefit to
the nation. And the President has
publicly cajoled Congress to legislate protections for DREAMers. Accordingly, if the courts were to reject
Sessions’ reading of the statute, and remand the matter to DHS for further
consideration, DHS would have no choice but to forthrightly assess the dramatic
and harmful consequences of DACA rescission on the merits. In that event, Acting Secretary Duke could
rescind DACA only if she were to change her current view and conclude that the
policy is substantively harmful or unwise; she could no longer hide behind what
we believe to be dubious constitutional and statutory arguments about the scope
of the agency’s authority. “The law made
us do it” would no longer suffice.
[1] Perhaps the biggest stumbling block the government faced
when defending the DAPA program in the Texas
litigation, including during oral arguments at the Supreme Court, was that
the DHS DAPA memo stated that recipients “for a specified period of time
[were] permitted to be lawfully present in the United States.” This language likely reflected the
administration’s intent to bring DAPA recipients, like all others with
“deferred action,” under the terms of the 1996 Reno regulation for purposes of
Social Security benefits. The
consequence of that statement, however, was to make it possible for opponents
of DAPA to (inaccurately) characterize the administration as attempting to give
unauthorized immigrants the legal right to remain in the United States—something only Congress can do.
[2]
Sessions also noted that the State plaintiffs in the Texas litigation challenging DAPA had threatened to amend their
lawsuit to include a challenge to DACA, as well, and that because DACA
allegedly “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.”
Of course, Sessions was correct that that litigation would in all
likelihood not have ended well for the federal government, given that the
Attorney General himself was now taking sides with Texas and arguing that DACA
is unauthorized and even unconstitutional.
[3] Current
DACA recipients also will lose one other advantage that some of them have
enjoyed. Under the statute and its
regulations, the DHS Secretary “may” grant advance “parole” to immigrants “for
urgent humanitarian reasons or significant public benefit”—which is, in effect,
permission for a non-citizen, who does not have a valid immigrant visa, to
re-enter the United States after traveling abroad. This discretionary benefit is not tied to “deferred action” status and
thus—unlike work authorization and Social Security benefits—does not depend
upon a conferral of such status. Even
so, as the Solicitor General explained to the Court in the Texas case, “DHS has been permissive in authorizing travel by DACA
recipients via advance parole.” The
Answer to Question 11 of DHS’s new “Frequently
Asked Questions” memorandum, however, says that “[e]ffective
September 5, 2017, USCIS will no longer approve any new Form I-131 applications
for advance parole under standards associated with the DACA program.” This change of policy presumably cannot be
explained by the argument that there is a lack of statutory authorization—DHS
is simply changing its mind and now choosing not to exercise its advance parole
authority with respect to DACA grantees.
[4]
It’s possible—we do not yet know—that the Attorney General has adopted Texas’s argument
in the DAPA case that the work authorization provision of IRCA (8 U.S.C. §
1324a(h)(3)) permits the Secretary to grant such authorization only to
categories of aliens that Congress has specifically identified, elsewhere in
the Immigration and Nationality Act, as eligible or potentially eligible for
work authorization. If so, such a reading would have implications
that sweep far beyond DACA. As Marty
discussed in
an April 2016 post, the Secretary and the Attorney General have for decades
provided work authorization to many categories of aliens who Congress has not
affirmatively identified as eligible to be hired. See, e.g., 8 C.F.R. §§
274a.12(a)(6), (9), (11), (c)(3), (5)-(7), (9)-(11), (14), (16)- (17), (21),
and (25). As Solicitor General Verrilli stressed in the Texas oral argument, reversing this
long-held legal view of the INA would mean that many millions of
aliens who have been authorized to work over the past 30 years pursuant to
these provisions would no longer be able to work lawfully. The amicus
brief that Sessions joined tried to distinguish some such categories from
DAPA, on the ground that they purportedly involved “narrowly tailored groups of
aliens who lacked lawful status, but had a clear path to obtaining this status
or were otherwise in compliance with the immigration laws until an unexpected,
external event.” As
Marty explained, however, IRCA itself does not draw or suggest such
distinctions with respect to the Secretary’s work-authorization authority. And,
in any event, it is not obvious whether DACA work authorizations can be
persuasively distinguished, on that or other grounds, from several other
historical categories of work authorization that have reached beyond what the
statute expressly sanctions.
[5] In
a recent letter to the court in one of the pending challenges to the DACA
rescission, DOJ wrote that "[e]ven if the traditional
arbitrary-and-capricious standard was applicable, . . . the Secretary’s
decision was entirely rational, given (among other things) the substantial
litigation risk that Defendants faced in the Southern District of Texas if the
policy continued." That “litigation
risk,” however, cannot fairly be seen as a distinct and independent reason for
DHS’s DACA rescission—particularly not, as here, where the “risk” is in large
measure a function of the fact that the U.S. Attorney General is now siding
with the plaintiffs and agreeing that DACA lacks any statutory basis (see
footnote 2, above). If DOJ were willing
to defend the legality of DACA, in accord with the longstanding views of the
United States—and the views of the work authorization statute that have been
codified in regulations since the Reagan Administration—there’s no reason to
think that DHS would rescind the policy, anyway, merely because of the
speculative risk that courts might ultimately reject the government’s legal
arguments.