Written By Katie M. Becker
“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Arizona v. United States, 132 S.Ct. 2492, 2499 (2012).
On Tuesday, September 5, 2017, Attorney General Jefferson Sessions publically announced the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. In his public remarks, Attorney General Sessions described the DACA program as “an unconstitutional exercise of authority by the Executive Branch.” He analogized the fate of DACA with that of its extension program, Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), which was nationally enjoined in the Fifth Circuit’s 2015 decision, Texas v. U.S., 809 F.3d 134. The nationwide injunction was effectively affirmed in 2016 by the Supreme Court of the United States in a one-sentence decision, after a 4-4 split vote.
In addition, President Donald J. Trump also issued a statement stressing his administration’s views that DACA is inherently unconstitutional. He noted that “officials from [ten] state[s] are suing over the program,” pressuring the Administration “to make a decision regarding [the program’s] legality.” President Trump remarked that he had been assured by the “Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts” that “the program is unlawful and unconstitutional and cannot be successfully defended in court.” His remarks were largely informed by the outcome of the 2016 Supreme Court decision.
Following Attorney General Sessions’ and President Trump’s statements, the Acting Secretary of the Department of Homeland Security (“DHS”), Elaine Duke, issued a memo to the Department formally rescinding the June 15, 2012 Obama Administration memo that established DACA.
Deferred Action for Childhood Arrivals (DACA)
On June 15, 2012, under the Obama Administration, DHS Secretary Janet Napolitano issued a memo directing the agency to defer the initiation of removal proceedings against individuals who satisfied five criteria: (1) the individual came to the United States under the age of sixteen; (2) the individual continuously resided in the United States for at least five years prior to June 15, 2012; (3) the individual was currently enrolled in school, graduated from high school, obtained a GED certificate, or received an honorable discharge from the Armed Forces or U.S. Coast Guard; (4) the individual had not been convicted of a felony, a significant misdemeanor, or multiple misdemeanor offenses, and did not pose a threat to national security; and (5) the individual was, at the time of filing, no older than 30-years-old. Individuals who satisfied all five criteria, and passed a background check, were deemed eligible for deferred action.
Deferred action is an exercise of prosecutorial discretion, where DHS impliedly confers temporary lawful status upon eligible applicants while the agency foregoes initiating removal proceedings against them. The exercise of prosecutorial discretion is a hallmark of the American immigration system. This ability is limited to federal agency officials, and statutory restrictions protect the exercise from judicial review. Generally, this excludes the jurisdiction of courts to review an agency’s exercise of prosecutorial discretion.
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
On November 20, 2014, under the Obama Administration, DHS Secretary Jeh Johnson issued a memo announcing the expansion of the DACA program. The memo modified DACA to increase the scope of the program’s existing protected class. It also extended deferred action eligibility to a new class: the parents of children who were United States citizens or lawful permanent residents. The expansion “supplement[ed] and amend[ed]” the Napolitano memo. Like DACA, it was framed around the agency’s exercise of prosecutorial discretion.
Johnson’s memo expanded the scope of the existing DACA class in three ways: (1) it removed the 30-year-old applicant age cap; (2) it extended the renewal process to cover three years, as opposed to two years; and (3) it pushed back the arrived-in-the-United-States date from June 15, 2007, to January 1, 2010.
Significantly, DAPA also expanded deferred action eligibility to the parents of children who were United States citizens or lawful permanent residents. Individuals eligible for membership in the new class were required to satisfy six criteria: (1) the individual had to have a child who was a U.S. citizen or lawful permanent resident, as of November 20, 2014; (2) the individuals had to reside in the United States prior to January 1, 2010; (3) the individual had to be physically present in the United States, as of November 20, 2014; (4) the individual could not have lawful status; (5) the individual could not otherwise be considered a DHS enforcement priority; and (6) the individual’s application could not present any factors that would make deferred action inappropriate.
District Court for the Southern District of Texas (2015)
In 2015, Texas, and 26 other states and state officials, filed suit in the U.S. District Court for the Southern District of Texas, against the United States and the DHS, to nationally enjoin the implementation of DAPA. The court was confronted with three issues: (1) whether Plaintiffs had sufficient standing to maintain a suit in federal court; (2) whether the DHS had the power to initiate the DAPA program; and (3) whether the program itself was constitutional.
In its pleadings, Plaintiffs argued that DAPA violated the “Take Care” Clause of the Constitution, as well as the Administrative Procedure Act (“APA”). The Government argued that acts of prosecutorial discretion were not subject to the APA and that DAPA’s criteria were “merely general guidance,” entitled to exemption from APA rulemaking procedures.
The court rejected the Government’s argument and found that judicial review was available under the APA, categorizing DHS’ actions, not as a failure to initiate removal proceedings (which would be precluded from judicial review), but as the conveyance of temporary legal status on the individuals to whom it granted deferred action. Ultimately, the court found that DAPA was subject to APA rulemaking procedures, and Plaintiffs “clearly prove[d] a likelihood of success on the merits” of their claim for the purposes of granting a temporary injunction
United States Court of Appeals for the Fifth Circuit (2015)
In 2015, the Government appealed, moving for a stay of the lower court’s decision. The Fifth Circuit affirmed the judgment. Significantly, the Fifth Circuit rejected the Government’s argument that the District Court’s injunction was limited only to Texas and the 26 other states that made up the Plaintiffs’ class, confirming the nationwide injunction on the program.
Supreme Court of the United States (2016)
In a per curiam opinion, the Supreme Court affirmed the ruling of the Fifth Circuit, with a 4-4 split vote. The opinion is a single sentence, and it serves as binding authority only within the Fifth Circuit.
Congress has been unsuccessful, thus far, in offering comprehensive immigration reform. The Trump Administration continues to renew its stance on the issue, thereby forcing Congress’ hand and creating a somewhat impending political struggle that The Hill has already termed a “legislative arms race.”
Rep. Mike Coffman (R-Co.) initially introduced a “discharge petition” to force a vote on a bill which would have extended DACA permits and forced Republicans to immediately take up the issue. He later withdrew the petition after House Speaker Paul Ryan clarified the view on what would constitute “acceptable” DACA legislation.
In a show of bipartisanship, it is reported that Congressional leaders met on Wednesday, September 13, 2017, to discuss legislative options for DACA. Minority Leader Nancy Pelosi, House Speaker Ryan, Chairs of the Congressional Black, Hispanic and Asian Pacific Caucuses, the House Majority Leader and the Minority Whip were in attendance. Congress will have to overcome internal differences between their Congressional representatives in order to secure votes for a bipartisan piece of legislation.
Action in the Courts
The rescission of DACA spurred significant filings within District Courts across the country. In the Eastern District of New York, the democratic attorney generals of fifteen states and the District of Columbia jointly filed suit against the Trump Administration. The suit alleged that the Trump Administration had discriminatory motive in rescinding DACA, pointing to prejudicial statements made by the President during his presidential campaign.
A few days after that suit was filed, four more states jointly filed a separate suit. Spearheaded by California Attorney General Xavier Becerra, the suit challenged the rescission, calling it a violation of Due Process. The Department of Justice has responded to both suits, reasserting its prior arguments that DACA is unconstitutional.
A third suit was filed by former DHS Secretary Napolitano and the University of California school system.
With a fully staffed Supreme Court, and an issue ripe for review, the country will soon see if the Trump Administration’s rescission of DACA will stand, as well as whether the Fifth Circuit’s decision in U.S. v. Texas is an accurate predictor of the constitutionality of the program.
Memorandum from Janet Napolitano, Secretary of the Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).
Memorandum from Jeh Johnson, Secretary of the Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014).
Memorandum from John F. Kelly, Secretary of the Department of Homeland Security to Kevin K. McAlcenan, Acting Commissioner, U.S. Customs and Border Protection, et al., Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) (June 15, 2017).
Jefferson Sessions, Att’y General of the U.S., Att’y General Sessions Delivers Remarks on DACA (Sept. 5, 2017).
Donald Trump, President of the U.S., Statement from President Donald J. Trump (Sept. 5, 2017).
Memorandum from Elaine C. Duke, Acting Secretary of the Department of Homeland Security to James W. McCament, Acting Director, U.S. Citizenship and Immigration Services, et al., Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017).
Arizona v. United States, 132 S.Ct. 2492 (2012).
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015).
Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015).
Holman v. Obama, 2016 WL 845310 (D. Nev. 2016).
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
Texas v. United States, 809 F.3d 134 (5th Cir. 2015).
U.S. v. Texas, 136 U.S. 2271 (2016).
Immigration and Nationality Act §242(g), codified at 8 U.S.C.A §1252(g) (2012).
Kurtis A. Kemper, Department of Homeland Security’s Program of Deferred Action for Childhood Arrivals (DACA), 17 A.L.R. Fed. 3d Art. 3 (2016).
Administrative Procedures Act §553, 5 U.S.C.A. §553 (2012).
Heather Caygle, House leaders to meet on future of Dreamers, Politico (Sept. 12, 2017, 8:41 PM).
Jordain Carney, Immigration arms race begins on Capitol Hill, The Hill (Sept. 12, 2017).
Yamiche Alcindor, Action to Protect Young Immigrants Already Stumbles in Congress, The New York Times (Sept. 12, 2017).
Sarah Binder, This is why Congress will have a hard time legalizing DACA, The Washington Post (Sep. 7, 2017).
Madeline Conway, 15 states and D.C. team up to challenge Trump on Dreamers, Politico (Sept. 6, 2017).
David Siders, California files suit against Trump on DACA, Politico (Sept. 11, 2017).
Michael D. Shear, Napolitano Sues Trump to Save DACA Program She Helped Create, The New York Times (Sept. 8, 2017).
Christina Marcos, Some GOP lawmakers are battling Trump and their party on DACA, The Hill (Sept. 1, 2017).
Harry Enten and Perry Bacon, Jr., Trump’s Hardline Immigration Stance Got Him To The White House, FiveThirtyEight (Sept. 12, 2017).
Mica Rosenberg, States file lawsuit challenging Trump decision on Dreamers, Reuters (Sept. 6, 2017).