DACA Lives!!!! – For Now

DACA Lives!!!! – For Now

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Everything starts from a dot” Wassily Kandinsky

In a 5-4 decision by Chief Justice Roberts, the United States Supreme Court held that the Trump Administration improperly rescinded Deferred Action for Childhood Arrivals (DACA). The Supreme Court withdrew the nationwide injunction currently in place; vacated the rescission order; and sprinkled a trail of bed crumbs to clarify how an administration may rescind an executive order. (In other words, DHS just has to follow the trail of bed crumbs and connect the dots in order to rescind the program – I apologize for the mixed metaphors but, it seems apt). The Supreme Court affirmed the District Court for the District of Columbia’s order vacating the rescission memorandum and declined to rule on the propriety of nationwide injunctions in immigration cases. For now, it is all very good news for immigrants. And psst, immigration practitioners, we are back to 2012! As I read the decision, USCIS has to accept new applications for DACA and advance parole requests. The Migration Policy Institute tweeted yesterday that they estimate that approximately 1.6 million people can benefit from this program. On a personal note, I want to say that I am in awe of the DREAMERs who had the vision to make this dream a reality.

How the Justices Ruled

It is important to understand how the justices ruled in this case. When the decision first came down, it seemed that it might be a 9-0 decision in favor of the DREAMERs (respondents). There were so many concurring opinions that at first glance it seemed possible. That fleeting thought of a 9-0 decision was not totally unreasonable, given how much deference this Court has historically shown to the Executive branch on immigration decisions; but it did not seem likely. As it turned out, it was actually a 5-4 decision in favor of the respondents.

Chief Justice Roberts wrote the majority decision and was joined by Justices Ginsburg, Breyer, and Kagan. The majority found that DHS’s rescission of DACA violated the Administrative Procedures Act (APA) and was arbitrary and capricious. However, the decision foreclosed any challenge to the rescission order under the Equal Protection Clause of the Fourteenth Amendment. Eight of the justices agreed that there was no Equal Protection violation. Justice Sotomayor concurred with the result regarding the rescission (giving us the 5-4 holding) but wrote a dissent arguing that the respondents had set forth sufficient facts to allege discriminatory animus in rescinding DACA. (In other words, the rescission of DACA may have been racially motivated). Sotomayor argued that the courts should adjudicate the issue of whether the DACA rescission order violated the Equal Protection Clause.

Justice Thomas wrote the main dissent joined by Justices Alito and Gorsuch arguing that DACA was illegal to begin with and its rescission was perfectly fine. The main dissent agreed that there was no Equal Protection argument. Justice Alito wrote a separate dissent arguing that DACA was unlawful to start with; and the rescission was a lawful exercise of prosecutorial discretion. Finally, Justice Kavanaugh wrote a separate dissent arguing that Secretary Nielsen’s subsequent memorandum gave the proper legal basis for the rescission but concurred in rejecting the Equal Protection claim. Let’s dig into the decision.

The History of DACA and What Happened to DAPA?

The History of DACA

In order to understand the 29-page decision and the additional 40 pages of dissenting and concurring opinions, it’s important to understand the history of DACA and of DACA litigation. On June 15, 2012, (yes, eight years ago) the Secretary of the Department of Homeland Security (DHS) issued the DACA memorandum. The DACA memorandum provided that DACA recipients could not be removed from the United States while they held DACA status (deferred action) and that they were eligible to apply for work permits and were entitled to Social Security and Medicare benefits (where appropriate). In order to understand the Supreme Court’s decision, it is important to understand how the Supreme Court views DACA. The Supreme Court determined that there are two aspects to DACA: deferred action (which the Court calls the forbearance of removal); and eligibility for benefits including being able to apply for a work permit and other benefits. Understanding that there are two parts to DACA is important to understanding why the rescission of DACA was arbitrary and capricious.

People who were eligible to apply for DACA had to establish the following:

  • They were under the age of 31 as of June 15, 2012 (the date of the DACA memorandum) and were fifteen years of age or older as of the date of their application;
  • They came to the United States when they were under the age of sixteen;
  • They have continuously resided in the United States since 2007;
  • They are currently students; high school graduates; obtained their GED; or are honorably discharged veterans; and,
  • They have not been convicted of any serious crimes and are not a threat to the national security or public safety.

Needless to say, the actual requirements are much more detailed. Ultimately, approximately 700,000 people applied for and received DACA. SeeMigrant Policy Institute. DACA granted these recipients deferred action for two-year periods – meaning that as long as they complied with the DACA requirements the Government would not place them in removal proceedings. It also allowed the DACA recipients to apply for work permits that were valid for two years as long as they could establish the need to work. It enabled them to pay into the Social Security system and, if necessary, receive Social Security and Medicare benefits. Needless to say, it was a controversial program. Immigrant advocates did not think it went far enough and opponents thought it went too far.

What Happened to DAPA and Extended DACA?

In November 2014, the Obama Administration announced that they were going to expand DACA. They would remove the age cap so that anyone who came to the United States when they were under the age of sixteen could qualify; they would shift the date of entry requirement from 2007 to 2010; and they would extend deferred action and work authorization from two to three years. I saw a few people who got these three-year work authorization cards and they ultimately had to return them and get the two-year cards. But I am getting ahead of myself. The Obama Administration also announced a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have extended the benefits of the DACA program to parents whose children were U.S. citizens or lawful permanent residents. The government estimated that 4.3 million people would have qualified for this program.

Before DAPA was implemented, twenty-six states led by Texas filed a lawsuit in the District Court for the Southern District of Texas arguing that expanded DACA and DAPA were illegal. They argued that the program had violated the Administrative Procedures Act (APA) notice and comment rulemaking requirements; and that it was unconstitutional under the Take Care clause. As I blog, I truly wish that I had paid more attention during my Administrative Law class. Also, it has always puzzled me as to why the Obama Administration had not enacted DACA and DAPA using the notice and comment rulemaking procedure. It seems to me that DACA and DAPA were not merely interpretive rules but, were legislative rules and were subject to notice and comment rulemaking. You can read a summary of notice and comment rule making from SCOTUSblog here. Back to DAPA, the District Court agreed with the states and entered a nationwide preliminary injunction barring the implementation of DAPA and extended DACA.

The Obama Administration appealed to the Fifth Circuit and the Fifth Circuit held that the deferred action described in DAPA and in extended DACA was more than simple nonenforcement; it would “affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Texas v. United States, 809 F.3d 134, 166 (5th Cir. 2015). The Fifth Circuit upheld the injunction on two grounds. First, the Fifth Circuit found that the DAPA memorandum was a substantive rule that was required to undergo notice and comment rulemaking. Second, the Fifth Circuit found that the APA required DAPA to be set aside because the program was manifestly contrary to the Immigration and Nationality Act which carefully provides legal designations allowing defined classes to receive benefits associated with lawful presence and to qualify for work permits. Texas v. United States, 809 F.3d at 179-181. The U.S. government appealed to the Supreme Court and the Supreme Court divided down the middle (it was after Justice Scalia’s death) and split 4 to 4, thus upholding the Fifth Circuit’s decision. United States v. Texas, 136 S.Ct. 2271 (2016). After the 2016 decision, the U.S. government and the states continued to litigate the issue until June 2017, when the Trump Administration rescinded the DAPA memorandum. In rescinding the memorandum, DHS cited to the preliminary injunction; the ongoing litigation in Texas; the fact that DAPA had never taken effect; and the fact that the new administration had different immigration enforcement priorities. And that was the end of DAPA.

DAPA is Dead – Back to DACA

With DAPA gone, DACA once again became the issue de jour. On June 29, 2017, the Attorney General of Texas joined by ten other state Attorneys General sent a letter to U.S. Attorney General Sessions threatening to file a lawsuit against the Administration unless they rescinded DACA by September 5, 2017. You can read their demand letter here. On September 4, 2017, Attorney General Sessions sent a letter to the Acting Secretary of Homeland Security, Elaine Duke, advising her that DHS should rescind DACA because it was illegal. He wrote, “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.” You can read the one-page letter here. As will become clear later, it was very important that this directive came from the Attorney General.

The next day Acting Secretary Duke rescinded DACA. You can read her memorandum here. Duke wrote that based on the Supreme Court’s and Fifth Circuit’s rulings on DAPA and the letter from the Attorney General, the DACA program should be terminated. Duke then set forth how the government would wind down DACA. She ordered that no new applications would be accepted but that DHS would consider applications for two-year renewals for those whose benefits were set to expire within six months or by March 5, 2018. All other DACA recipients’ benefits would expire without renewal. Then the lawsuits started.

Immigrant advocates filed lawsuits in California, New York, DC, and Maryland. The plaintiffs’ main claims were that the rescission was arbitrary and capricious in violation of the APA. (See, don’t you wish you had paid more attention in Administrative law?). And the rescission violated the Equal Protection clause. Three of courts ruled for the plaintiffs. Both the Northern District of California and the Eastern District of New York issued nationwide injunctions. The injunctions did not require DHS to accept new applications, but they ordered the agency to allow DACA recipients to renew their applications. Regents of University of California v. DHS, 298 F. Supp.3d 1304 (ND Cal. 2018); and, Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260 (EDNY 2018).

The DC Court took a different approach. It deferred ruling on the Equal Protection claim and granted partial summary judgment for the plaintiffs on the APA claim holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in view of DACA’s lawfulness.” NAACP v. Trump, 298 F. Supp. 3d 209, 243 (DC 2018). The DC District Court stayed its order for ninety days to permit DHS to reissue a memorandum rescinding DACA to provide a fuller explanation for the determination that the program lacked statutory and constitutional authority. NAACP, 298 F. Supp. 3d at 245.

On June 22, 2018, DHS Secretary Kirsten Nielsen issued a memorandum with an explanation for the termination of DACA. You can read her memorandum here. Nielsen’s memorandum gives the following reasons for rescission. First, she noted that the Attorney General concluded that DACA was unlawful. Second, DHS had doubts about its legality and for law enforcement reasons wanted to avoid legally questionable policies. These policy concerns were that: (1) class-based immigration relief should come from Congress; (2) DHS preferred to exercise prosecutorial discretion on a case by case basis; (3) it was important to project a message that immigration laws would be enforced against all classes and categories of noncitizens; and, (4) the asserted reliance interests of the beneficiaries did not outweigh the questionable legality of DACA.

With this new memorandum in hand, the Government asked the DC Court to revise its prior order. The DC District Court said, “umm, no”. They held that the new memorandum ‘“fail[ed] to elaborate meaningfully” on agency’s illegality rationale, [and] still did not provide an adequate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473-74 (2018) quoted in DHS v. Regents of Univ. of California, __ U.S. __, No. 18-587, slip op. at *8 (June 18, 2020). The Government appealed these three decisions to their respective circuit courts and in November 2018, while those decisions were pending, the Government filed for certiorari in the Supreme Court. The Ninth Circuit affirmed the nationwide injunction. Regents of Univ. of California v. DHS, 908 F.3d 476 (2018). The Supreme Court then granted certiorari and consolidated the three cases. But the Supreme Court’s decision closely tracks the D.C. District Court’s decisions in NAACP v. Trump.

As an aside, the District Court in Maryland found that the rescission did not violate the APA or the Equal Protection Clause, but enjoined DHS from using the information provided by the DACA recipients for enforcement purposes. Casa de Maryland v. DHS, 284 F. Supp. 3d 758 (D.Md. 2018). In 2019, the Fourth Circuit overturned the District Court’s decision holding that the DACA rescission violated the APA and that it was disingenuous to believe that DHS wouldn’t use the information on file about the DACA recipients for enforcement purposes. Casa de Maryland v. U.S. DHS, 924 F.3d 684 (4th Cir. 2019). Because this decision came down after the Supreme Court granted certiorari it was not part of the Supreme Court’s decision.

The Issues Before the Supreme Court

The Supreme Court determined that there were three issues:

  1. Are the APA claims reviewable?
  2. If the APA claims are reviewable, was the rescission of DACA arbitrary and capricious in violation of the APA? And,
  3. Did the respondents state an equal protection claim?

To cut down on the suspense, the Supreme Court held that the APA claims were reviewable; DHS’s rescission of DACA was arbitrary and capricious in violation of the APA; and the respondents failed to state an equal protection claim. Hidden in all of this litigation is that everyone agrees that DHS may rescind DACA. DHS simply did it the wrong way. They failed to dot their “i”s and cross their “t”s. To paraphrase Kandinsky, everything starts with a dot.

The APA Claims are Reviewable

The first issue that the Court addressed, was whether the decision was reviewable under the APA or was it outside of the Court’s jurisdiction? The APA establishes a basic presumption of judicial review for one who is suffering a legal wrong because of agency action or where agency action is committed to agency discretion by law. Department of Homeland Security et al. v. Regents of the University of California et al., __ U.S. __, No. 18-587, slip op. at *9-10 (June 18, 2020). To honor the presumption of review, the courts read the APA exceptions to review quite narrowly. The courts may not review an agency’s decision not to institute enforcement proceedings. Heckler v. Chaney, 470 U.S. 821 (1985). The Supreme Court held that this exception did not apply because DACA is not simply a non-enforcement policy, it is also an adjudication policy. Regents, slip op. at 10-11. The DACA recipients can apply for work authorization and are eligible for Social Security and Medicare benefits and the Government must adjudicate these applications. Because DACA is more than non-enforcement, its rescission is subject to review under the APA.

No Jurisdictional Bars to Review

Next the Court held that there were no jurisdictional bars to review. Remember that these cases first went to the District Court and were then appealed to the Circuit Courts as opposed to going straight to the Circuit Court on a petition for review. The Government argued that the courts lacked jurisdiction under 8 USC § 1252(b)(9); and 8 USC § 1252(g). The Supreme Court dismissed both challenges finding that the plaintiffs were not seeking review of a removal order.

Recession of DACA was an Arbitrary and Capricious Violation of the APA

Next, the Supreme Court addressed the issue of whether the rescission of DACA was arbitrary and capricious. Spoiler, it was. The first issue is what exactly was the agency’s rationale for rescinding DACA and where could it be found? Was it the cursory Duke memorandum or the more extensive Nielsen memorandum? The Court answered that judicial review of an agency’s action is limited to the grounds that the agency invoked when it took the action. Regents, slip op. at *13. If those grounds are inadequate the court can remand the agency to do one of two things: either give a fuller explanation of the agency’s reasoning at the time of the agency action. Or the agency can start all over again and take new action. In other words, DHS could have vacated the initial memorandum rescinding DACA and then rescinded it a second time using the proper procedure with a full explanation. In fact, the D.C. District Court in NAACP seemed surprised that DHS did not take advantage of the ninety-day continuance to vacate the rescission order and issue a new rescission order with a new memorandum in support of the rescission. NAACP, 315 F. Supp. 3d at 465.

If the agency seeks to clarify the reason for its action instead of going through the process of rescinding the action a second time, the agency may elaborate on the reason or reasons for their action; but they may not provide new reasons. Regents, slip op. at *14. “Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take a new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.” Regents, slip op. at *14-15 (internal citations omitted).

The Court held that the memoranda rescinding DACA were not sufficient. In other words, the Duke memorandum wasn’t sufficient, and they could not consider the Nielsen memorandum except as an explanation of the reasons for the Duke memorandum. The Court then went back and explained the process involved in rescinding DACA. First, the question of whether DACA is illegal is a legal determination and is a question for the Attorney General under 8 U.S.C. § 1003(a)(1). “The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8 U.S. C. § 1103(a)(1).” Regents, slip op. at *18.On September 4, 2017, Attorney General Sessions wrote a letter to Secretary Duke saying that DACA was illegal and recommended that she terminate it. The Attorney General determined that DACA had the same legal defects that the Fifth Circuit recognized in the DAPA litigation and was unlawful.

Secretary Duke followed the Attorney General’s directive, but here is where she made her fatal error in rescinding the program. Remember, the Supreme Court noted that DACA had two parts: first, it provided deferred action for its recipients so that DACA holders could not be put in removal proceedings while they had DACA; second, the recipients were eligible for governmental benefits including being able to apply for work authorization, Social Security and Medicare benefits. The Fifth Circuit’s DAPA decision emphasized that nothing in its decision required DHS to remove any noncitizen or to alter DHS’s enforcement policies. Texas, 809 F.3d at 168, cited with approvalRegents, slip op. at *20. The Secretary did not address the “forbearance” part of DACA (which provides for deferred action); she only addressed the benefits portion. Secretary Duke terminated both aspects of DACA the forbearance and the benefits without any explanation. DACA couldn’t be rescinded in full without considering a forbearance only policy. Regents, slip op. at *22.

But wait, there’s more! The failure to consider a forbearance only policy was in and of itself enough to make Duke’s decision arbitrary and capricious; but Duke also failed to address whether there was a legitimate reliance on DACA by the beneficiaries. Regents, slip op. at * 23. Here is where all of the amici briefs came into play. Do not underestimate the importance of an amicus brief. The Court held:

The consequences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including their 200,000 U.S. citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them.*.*.* (estimating that hiring and training replacements would cost employers $6.3 billion). In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years.*.*.*. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year.

Regents, slip op. at *24-25 (internal citations omitted). Secretary Duke’s wind down of the program only considered the administrative procedures that the Government would need to consider in winding down the program. She failed to consider the DACA recipients reliance interests. DHS was obligated to assess whether there were reliance interests; determine if they were significant; and weigh them against policy concerns. In other words, the wind down process could have included the authority to consider whether to extend DACA on a case by case basis. For example, it could have included a discretionary extension for people in the middle of their studies, or people getting medical treatment; instead of having hard and fast dates for the termination of status.

Equal Protection Claim

The plurality and all of the dissenters (with the exception of Justice Sotomayor) found that there was no equal protection violation. The Court held that to plead animus a plaintiff must raise a plausible inference that ““an invidious discriminatory purpose was a motivating factor” in the relevant decision.” Regents, slip op. at * 27. The respondents said that animus was evidenced by “(1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and, (3) pre- and post-election statements by President Trump.” Regents, slip op. at *27. The Court shot down each one of these grounds. They noted that because Latinos make up a large share of undocumented immigrants it is expected that they would make up an outsized share of recipients of the program. Second, there was nothing irregular about the history leading up to the September 2017 rescission memorandum; it flowed from the Fifth Circuit’s DAPA decision. Finally, Trump’s negative statements about immigrants weren’t really relevant because the relevant actors in the decision to rescind DACA were Acting Secretary Duke and Attorney General Sessions.

The Supreme Court then noted that it was affirming the DC case of NAACP v. Trump which vacated the rescission order. The Court remanded all three cases to their appropriate circuits. The Court noted that because there was no injunction in the NAACP case there was no reason to consider the propriety of the scope of a nationwide injunction. Regents, slip op. at 29, n. 7. This holding is important. Because the rescission itself is vacated, DACA in its full glory is back. Under this holding DHS should be accepting new DACA claims and should be adjudicating advance parole claims.

Justice Sotomayor’s Concurrence and Dissent

Justice Sotomayor was the fifth vote that found that the rescission was arbitrary and capricious. But she would have gone farther and allowed the plaintiffs to develop their equal protection claim. She argued that Trump’s statements created a strong perception that the DACA rescission was based on discriminatory animus. She argued that the plurality minimized the disproportionate impact of the rescission decision on Latinos after considering the point in isolation. Finally, she noted that DHS’s decision to rescind DACA was hinky. She notes that as late as June 2017, DHS insisted it remained committed to DACA even while rescinding DAPA. She thought that the plaintiffs should be able to proceed with an Equal Protection claim. Her four-page dissent should be required reading for everyone.

Justice Thomas’s Dissent Joined by Justices Gorsuch and Alito

Justice Thomas wrote the main dissent and was joined by Justices Gorsuch and Alito. He agreed with the majority that there was no equal protection claim. Justice Thomas argued that DHS created DACA without statutory authorization and without going through requisite rulemaking process. He noted that the program was unlawful from its inception. “The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.” Regents, slip op. at *2 (Thomas, J., dissenting). Justice Thomas found that DHS lacked the authority to create new categories of lawfully present noncitizens. Only Congress has that authority.

Justice Alito’s Dissent

Justice Alito joined Justice Thomas’s dissent and added his own. He agreed that DACA was unlawful from the start and that alone was sufficient to justify its termination. But, even if DACA were lawful, there was still no basis for overturning its rescission. “First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its rescission represented an exercise of that same discretion, and it would therefore be unreviewable under the Administrative Procedures Act.” Regents, slip op. at *2 (Alito, J., dissenting). Second, the rescission was not arbitrary and capricious because the Nielsen memorandum explained the reasoning behind the rescission.

Justice Kavanaugh’s Dissent

Justice Kavanaugh issued his own dissent. He argued that the Executive branch possessed the legal authority to rescind DACA. He next argued that rescission is subject to constitutional and statutory restraints. To determine whether the agency’s action was arbitrary and capricious the question was whether the agency acted within a broad zone of reasonableness and whether it reasonably considered the relevant issues and reasonably explained its decision. He found that the Nielsen memorandum met this standard. He argued that the bar for post-hoc rationalizations only applies to explanations by agency lawyers during litigation it does not apply to the official acts of decision makers.


The Supreme Court held that DHS’s rescission of DACA was arbitrary and capricious and violated the Administrative Procedures Act. Everyone – the immigrant advocates, the government, and the courts all agree that the government can rescind DACA. However, in order to rescind DACA, DHS must determine if they are going to rescind the entire program or just the benefits part of the program. Then DHS must consider the reliance interests involved and figure out how to address the DACA recipients’ reliance interests. They cannot summarily stop the program. It is not clear if the Trump Administration will choose to rescind DACA. But, for right now, DACA lives.

Department of Homeland Security et al. v. Regents of the University of California et al., __ U.S. __, No. 18-587 (June 18, 2020).

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