Bending Toward Justice: Federal court orders Trump Administration to reinstate DACA

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A federal court in San Francisco issued a nationwide injunction on Tuesday night and ordered the Trump Administration to reinstate the Deferred Action for Childhood Arrivals (DACA) program as it existed on September 5, 2017. That was the date then-Acting Secretary of Homeland Security Elaine Duke issued a memorandum rescinding the DACA program.

Under the order, those immigrants who had already applied for and received protection under DACA can now renew their enrollment in the program. When she rescinded DACA, Acting Secretary Duke limited renewals only to those DACA recipients whose protections were set to expire before March 5, 2018. That group had until October 5, 2017 to file renewal applications. More than 100 DACA recipients have lost protection each day since the rescission order issued on September 5, 2017.

Unfortunately, first-time DACA applicants are not protected by the order. Nor will DACA recipients be permitted to apply for “advanced parole,” a protection that permitted DACA recipients to travel outside the U.S. and return unimpeded.

U.S. District Judge William H. Alsup issued the injunction in a series of consolidated cases brought by the Regents of the University of California; the states of California, Maine, and Maryland; the city of San Jose; Santa Clara County and the Service Employees International Union Local 521; and six DACA recipients facing the loss of their protections.

DACA dates to a June 15, 2012 memorandum by then Secretary of Homeland Security Janet Napolitano (who is now, coincidentally, the President of the Board of Regents of the University of California). In that memo, DHS announced a policy of deferred deportation action against undocumented immigrants who had been brought to the U.S. as children under the age of 15, and who had not yet turned 31. Under the policy, an application process was established. If an application was approved, it resulted in two years of DACA protection and work authorization documents.

In her rescission memo, Acting Secretary Duke wrote that DACA had to be wound down because Attorney General Jeff Sessions had concluded that the DACA program was an unconstitutional action by President Obama.

Acting Secretary Duke pointed to the fact that a federal district judge in Texas had issued a nationwide preliminary injunction to halt enforcement of two programs related to DACA; namely the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program, and an expansion of DACA that extended the protection from two years to three years, and created eligibility for undocumented immigrants who fell outside the original DACA terms.

The U.S. Court of Appeals for the Fifth Circuit affirmed that decision and the U.S. Supreme Court split 4-4, which had the effect of leaving the Fifth Circuit decision in place. The State of Texas, a plaintiff in DAPA case, threatened additional litigation over the original DACA program if DHS didn’t announce a wind down of the program by September 5, 2017.

Judge Alsup rejected the government’s claim that the Fifth Circuit decision in the DAPA case necessarily doomed the DACA program. In fact, Judge Alsup found that the Executive Branch had exercised its discretion to grant “deferred action” for groups of immigrants dating back to the Eisenhower Administration. The Obama Administration’s decision to confer deferred action on DACA recipients was well within its statutory and constitutional authority. The court wrote:

In short, what exactly is the part of DACA that oversteps the authority of the agency? Is it the granting of deferred action itself? No, deferred action has been blessed by both the Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting of deferred action via a program (as apposed to ad hoc individual grants)?No, programmatic deferred action has been in use since at least 1997, and other forms of programmatic discretionary relief date back to at least 1956. Is it granting work authorizations coextensive with the two-year period of deferred action? No, aliens receiving deferred action have been able to apply for work authorization for decades.Is it granting relief from accruing “unlawful presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for and obtain advance parole? No, once again, granting advance parole has all been in accord with pre-existing law. Is it combining all these elements into a program? No, if each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?

With the Attorney General’s “its illegal” justification eviscerated, the government’s decision to rescind DACA protection for nearly 700,000 childhood immigrants could be seen only as arbitrary, capricious, and an abuse of discretion, Judge Alsup held.

At oral argument on the preliminary injunction motion, and again in his order, Judge Alsup wrestled with the inherent unfairness of the Trump Administration’s decision to end DACA:

Through DACA, the government has invited undocumented aliens who meet threshold criteria to step forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing conditions, all in expectation of (though not a right to) continued deferred action. DACA allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA work authorizations, for example, allow recipients to join in the mainstream economy (and pay taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least, if any, threat and allows them to sign up for honest labor on the condition of continued good behavior. This has become an important program for DACA recipients and their families, for the employers who hire them, for our tax treasuries, and for our economy.

For now, fairness has prevailed. The Justice Department will undoubtedly appeal the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit and, eventually, to the U.S. Supreme Court. But unless one of those courts stays Judge Alsup’s decision, DACA has been revived for the nearly 700,000 childhood immigrants who originally received its protection.