Supreme Court Upholds DACA – Case Analysis - Department of Homeland Security V. Regents of the University of California

On June 18, 2020, the U.S. Supreme Court ruled that the U.S. Department of Homeland Security’s (DHS) decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was illegal and in violation of federal law. We will break down the legal language of the Supreme Court decision and discuss what that means for DACA now. For more information as it develops, stay tuned to our blog.

DACA Before the Supreme Court Case

In short, DACA came about in 2012 by way of an Obama Administration’s DHS memorandum announcing unauthorized immigrants who arrived in the United States as children to obtain work authorization, certain benefits, and protection from deportation. Applicants had to demonstrate a high school education or equivalent, no serious criminal history, and that they deserved the benefit “on discretion.”

About 700,000 undocumented immigrants now have DACA. In 2014, the Obama Administration’s DHS issued DAPA, or Deferred Action for Parents of Americans, to help undocumented adults who were the parents of U.S. citizen children. A federal court in Texas later struck DAPA down as unlawful.

In June 2017, under the Trump Administration, DHS formally rescinded DAPA by way of a legal memorandum. In September of 2017, then Acting Secretary of Homeland Security Elaine C. Duke terminated DACA, stating that no new applications would be accepted. Secretary Duke stated that those with existing DACA benefits would be able to keep them until they expired. She acted on then Attorney General Jeff Session’s advice that DACA and DAPA shared the same legal flaws.

Several DACA recipients and pro-DACA entities filed lawsuits against the Trump Administration and DHS under what is known as the Administrative Procedure Act (APA), as well as the “Due Process Clause” of the Fifth Amendment of the U.S. Constitution. The pro-DACA advocates won in several federal court cases nationwide and DHS appealed. After a round of appeals at federal appellate courts, the case made its way to the U.S. Supreme Court.

Administrative Law and Immigration – When Can DHS’s Actions Be Reviewed in Court?

DHS is a federal agency that falls under the Executive Branch. The President of the United States and his or her cabinet have direct authority over federal agencies. Examples of some federal agencies include the EPA, the IRS, and the FBI. Even federal agencies have certain checks and balances, as stated by statute, regulation, and case law.

The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.

Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (2015) If the grounds for an agency’s decision are inadequate, the agency may either (1) offer a fuller explanation that complies with procedural requirements under the APA, or (2) take a new agency action to deal with the issue.

The APA directs that agency actions be “set aside” if they are “arbitrary” or “capricious.” (See Title 5, U.S. Code, §706(2)(A).) Under this narrow standard of review, courts may assess whether an agency’s decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. The APA establishes a “basic presumption of judicial review for one suffering legal wrong because of agency action.” (See Title 5, U.S. Code, § 702.) That presumption can be rebutted by the agency if it shows that the relevant law prevents court review, or that the agency action is committed to the agency’s sole discretion by law.

Agency discretion was at issue in the DACA Supreme Court case. For the reasons you will see below, the Supreme Court felt that DHS abused that discretion, holding that DHS’s DACA rescission was arbitrary and capricious.

DACA and the APA

In the Supreme Court decision, the majority opinion reasoned that the DACA memorandum in 2012 directed USCIS to establish an application process for DACA benefits. USCIS solicited applications from eligible aliens, instituted a review process, and sent formal notices to applicants as to whether or not they would be given benefits. The court believed that this equated to an “adjudications process,” just like a green card case or a naturalization case.

DACA created a program for conferring affirmative immigration relief, again, much like a green card or grant of U.S. citizenship. Specifically, DACA conferred work authorization, a social security number, and “deferred action” from removal, or in other words, a restriction by DHS from the agency deporting the DACA holder. According to the Supreme Court, rescinding DACA, therefore, was an action that allowed for judicial review under the APA, since the agency was taking away benefits once available to applicants.

With that first issue of whether it could even look into the matter addressed, the Supreme Court then analyzed the arguments on both sides. Remember what we mentioned above: when an agency’s actions are inadequate by law, the agency may either offer a better explanation of its action at the time it took its action, or it may take a new agency action to deal with the issue. Secretary of Homeland Security Kirstjen Nielsen decided to use DHS’s reasoning at the time it rescinded DACA, rather than offer new DHS action on DACA. In other words, Trump’s DHS decided to argue that its actions were justified, rather than implement a new rule or policy (action) rescinding DACA. By doing so, DHS channeled itself into justifying its own actions at the time former Secretary Duke was in that position. Explanations “after the fact,” the court said, cannot justify the agency’s decision, and that was what DHS tried doing.

In the majority opinion, Chief Justice Roberts wrote that: “Acting Secretary Duke rested the recission on the conclusion that DACA is unlawful. Period.” The court was not convinced that DHS’s justifications for rescinding DACA complied with the APA and federal law.

Secretary Nielson then offered a new explanation for Secretary Duke’s explanations, which clearly is improper under the law, as discussed above. Secretary Duke chose to terminate the program without much justification or explanation with respect to what we call “deferred action” from deportation, and what the Supreme Court calls “forbearance,” or the decision of DHS to not deport DACA recipients.

Secretary Duke offered an explanation as to cutting DACA benefits, such as work authorization, driver’s licensing, and access to some government benefits, among others. However, Secretary Duke did not offer rationale as to deferral of removal, or “forbearance” of deportation. She said that terminating DACA was justified based on her explanation regarding benefits, much like then-Attorney General Sessions stated to her.

That is ultimately what the Supreme Court disagreed with: justifying ending DACA because of some of the benefits it gives, but not justifying the end of DACA based on the deferred action from deportation benefit. This was an “incomplete” explanation. Even DHS admitted in its arguments that deferral from deportation was “especially justified” for DACA recipients. Duke’s decision to rescind DACA, ignoring the need to fully rationalize rescinding DACA, was “arbitrary and capricious.” That, therefore, made DHS’s actions unlawful.

Now What? Some DACA FAQs After the Case

So then, now what? Can we start filing new DACA cases again? Can DACA holders apply for other immigration benefits? What about DAPA? The Supreme Court decision came down on the morning of Thursday June 18, 2020. As of the time of this writing, DHS had only put out a statement saying that they disagreed with the decision. The court was clear that whether or not DACA is legal is a determination for the U.S. Attorney General, not the Supreme Court. Finding of legality (or illegality) involves policy choices, potentially, and those choices are left to DHS and the Attorney General.

Nonetheless, here are a few answers to some possible questions.

I have DACA now. Can I renew my DACA?

• If you have DACA now, you can renew. DACA renewals have been available even after DHS rescinded the benefit.

I had DACA before, but I did not renew it. Can I apply?

• Yes, actually. You may be able to file a “new initial” DACA application if you previously held DACA before but had it terminated or it expired. Of course, we always advice you to consult an immigration attorney to see whether filing for DACA is right for you.

I never applied for DACA, can I apply now

• This is the big question. On its face, it looks like applicants should be able to file new DACA applications. However, at this time, we are still waiting for DHS (specifically, USCIS) to issue guidance on how to file.

I have a deportation court case, or I have a pending case with USCIS. If I think I qualify for DACA, can I try now?

• Maybe Take a look at the above point. We are still waiting for DHS to issue guidance on how to file. This is definitely a question for an immigration attorney, in our opinion.

If I qualify for DACA but never applied before, what should I do now?

• Start gathering the evidence you need to get a new DACA application approved, including proof that you have been in the United States from 2012 to as far back as you can go and proof of your high school education or GED. Our office walks clients through the entire DACA application process

Can I travel on my DACA?

• Another big question. In the past, we would advise DACA holders of the opportunity to travel outside the United States temporarily on what is known as “Advance Parole.” Not only does this allow the DACA holder to visit another country for humanitarian or business purposes, but it also may help the individual gain more permanent status in the future! Talk to us about that possibility.

What about DAPA? Can undocumented parents get benefits now?

• Unfortunately, the Supreme Court decision did not say anything on DAPA.

Does the decision expand DACA or add anything to it?

• Unfortunately, no. For instance, DACA is still not a direct path to permanent residency or U.S. citizenship.

Is DACA here for good?

• No! Seasoned immigration attorneys, including our law firm, believe the Trump Administration will try finding another way of terminating and ending DACA benefits, even after this Supreme Court decision.

If you or a loved one are interested in hearing more about DACA, call Ibrahim Law Office, an immigration law firm, to schedule an appointment in-person, by phone, or by video today!