By Norman Siegel and Matthew Sunday
On January 9, 2018, Judge William Alsup of the federal district court for the Northern District of California enjoined (i.e., stopped) the administration’s recession of the Deferred Action for Childhood Arrivals (DACA) program.
DACA allowed persons who entered the U.S. as children permission to work and pay taxes, return to the U.S. following departure, and stay in the U.S. without accruing unlawful presence. In September 2017, Attorney General Jeff Sessions, citing the threat of potential litigation concerning DACA and claiming that DACA was unconstitutional, directed the Acting Secretary of the Department of Homeland Security, Elaine Duke, to rescind DACA.
The court held:
Plaintiffs have shown a likelihood of success on their claim that the recession was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law. Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and capricious. (p. 29 of The Regents of the University of California et al. v. U.S. Department of Homeland Security et al.)
Deferred action, though originating in the executive discretion, has become a fixture in legal amendments to the Immigration and Nationality Act and elsewhere. The court concluded that deferred action was well within the authority of the immigration agencies (e.g. U.S. Citizenship and Immigration Services [USCIS]). While a similar program – Deferred Action for Parents of Americans (DAPA) – has been found unconstitutional in the Fifth Circuit, the district court for the Northern District of California held that the same reasoning did not apply to DACA. The court thus found the argument that DACA was ended due to “litigation risk” to be pre-textual.
The court entered a nationwide injunction, but allowed the Defendants to take an interlocutory appeal to the Ninth Circuit Court of Appeals. However, the injunction is not a complete stop to the recession of DACA. The court ordered that USCIS need not accept new DACA applications from new applicants, and that advance parole – i.e. the permission granted to DACA recipients to travel abroad and re-enter – need not be continued.
On January 11, 2018, the Department of Justice announced that “it will ask the Supreme Court to immediately review” Judge Alsup’s decision. (See Justice Department Seeks Review of Ruling in Favor of DACA, NY Times, January 17, 2018, p. A12). Nonetheless, on January 13, 2018, USCIS resumed processing of DACA renewal applications until further notice. So stay tuned, and let’s see what SCOTUS does.