"deferring the Dream" an Analysis of Daca-related Litigation and Legislation

• Jurisdiction: United States,Federal
• Citation: Vol. 3 No. 2
• Publication year: 2021
• topic: Administrative Law,Constitutional Law,Immigration Law,Ongoing or Prospective Litigation,Upcoming Legislation

"Deferring the Dream" An Analysis of DACA-Related Litigation and Legislation

Paúl A. Pirela ^*

Abstract: This paper discusses the present state of DACA-related litigation and legislation. Specifically, after a brief history of the DACA program, it discusses the holding and prospective effects of DHS v. Regents, the Supreme Court's decision on the rescission of the DACA program as it relates to the issue of reliance in the third section. Then the paper briefly discusses the two most significant cases post-Regents cases involving DACA and relevant considerations for the ongoing Texas II case. Lastly, this paper discusses the U.S. Citizenship Act of 2021 and the American Dream and Promise Act of 2021 and their proposed solutions to the Dreamers' dilemma.

Introduction

No matter what side of the political aisle one stands on, the last couple of years have made evident how much immigration law and policy can impact and affect the lives of many people. The effects of policies such the separation of families, the "remain in Mexico" program, and the pandemic-related restrictions on international travel have been frequent in news cycles and have caught the attention of many Americans. However, there is one particular group of immigrants who has long pleaded for the attention of the president, Congress, and the federal courts to little avail: the Dreamers.

This term has been used for the last two decades to describe those individuals who were brought to this country as underage children, many of whom have attended school, graduated from universities, made valuable contributions to the United States, and only know this country as their home. Some of these individuals have also taken advantage of the Deferred Action for Childhood Arrivals (DACA) program to obtain, among other benefits, a temporary permission to remain in the United States and to chase the American dream of providing a better life for themselves and their families. However, because of the way they were brought into the country and the looming end of this program, they live in a state of precariousness as to their futures in the United States.

This paper discusses the present state of DACA-related litigation and legislation. Specifically, after a brief history of the DACA program, it discusses the holding and prospective effects of the Supreme Court's decision

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on the rescission of the DACA program as it relates to the issue of reliance in the third section. Then it briefly discusses the two most significant post-Regents cases involving DACA and relevant considerations from the Texas II case. Lastly, this paper discusses the U.S. Citizenship Act of 2021 and the American Dream and Promise Act of 2021 and their proposed solutions to the Dreamers' dilemma.

Background of the DACA Program

The Obama administration announced the implementation of the DACA program on June 15, 2012, through then-Secretary of the Department of Homeland Security Janet Napolitano. ¹ As an exercise of DHS's prosecutorial discretion, this program was intended to provide a humanitarian solution for "Dreamers," that is, "certain young people who were brought to this country as children and know only this country as home." ² The memorandum recognized that "[a]s a general matter, these individuals lacked the intent to violate the law" and, therefore, proposed the program as a way to focus the department's enforcement efforts on higher-priority cases. ³

The DACA program allows these individuals, who are otherwise removable under Immigration and Nationality Act (INA) § 237, to apply for deferral of deportation and work permits, for renewable two-year terms if they meet the following criteria:

■ They came to the United States before their 16th birthday;
■ They were present and continuously resided in the United States since June 15, 2007;
■ They had no lawful status on June 15, 2012;
■ They are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
■ They have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
■ They were under 31 years of age as of June 15, 2012. ⁴

This program has had wide-ranging positive effects and has enabled "almost 800,000 eligible young adults to work lawfully, attend school, and plan their lives without the constant threat of deportation—usually to an unfamiliar country." ⁵ U.S. Citizenship and Immigration Services (USCIS) reports that as of the end of 2020 there were approximately 636,390 active DACA recipients. ⁶ However, the program has also drawn extensive criticism and has been enmeshed in litigation since its onset. ⁷

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The Effects of Department of Homeland Security v. Regents of the University of California on the Future of the DACA Program

The DACA program was last before the Supreme Court during its 2019 term in DHS v. Regents of Univ. of Cal. ⁸ That case involved a suit following the recission of the DACA program under the Trump administration.

In short, then-Attorney General Jefferson B. Sessions sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, advising that DHS "should rescind" the DACA program on September 4, 2017. ⁹ In that letter, the attorney general cited to a Fifth Circuit opinion (and the Supreme Court's affirmance thereof) ¹⁰ in concluding that DACA shared the "same legal . . . defects that the courts recognized as to DAPA" (the Deferred Action for Parents of Americans program) ¹¹ and was "likely" to meet a similar fate. ¹² The attorney general also urged DHS to "consider an orderly and efficient wind-down process" for the program. ¹³ The next day, Secretary Duke acted on the attorney general's advice and terminated DACA. ¹⁴

Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within six months. ¹⁵ For other DACA recipients who had previously issued grants of deferred action and work authorization, their benefits "would not be revoked but would expire on their own terms, with no prospect for renewal." ¹⁶

As the Chief Justice points out, the issue in that case was "not whether DHS may rescind DACA," as "[a]ll parties agree[d] that it may." ¹⁷ Notably, the decision did not touch on the constitutionality of the DACA program nor its recission but instead focused on the question of "whether the agency complied with the procedural requirement that it provide a reasoned explanation for [the DACA recission]." ¹⁸ Specifically, the issues before the court were: (1) whether the claims were reviewable under the Administrative Procedure Act (APA); (2) if so, whether the rescission was arbitrary and capricious in violation of the APA; and (3) whether the plaintiffs stated an equal protection claim. ¹⁹

As to the issue of reviewability, DHS argued that because DACA constituted a "general non-enforcement policy," the decision to rescind it belonged to a limited category of unreviewable actions that are committed to agency discretion. ²⁰ This category, DHS asserted, includes "an agency's decision not to institute enforcement proceedings[.]" ²¹ The majority of the Court, however, rejected this argument by correctly noting that the DACA memorandum did not create a mere nonenforcement policy, but proceedings for the adjudication of affirmative immigration benefits. ²² Namely, these benefits include deferred deportation, nonaccrual of unlawful presence, the issuance of work permits, and eligibility for Social Security and Medicare. ²³ The majority held that "access to these types of benefits is an interest courts often are called upon to protect," thus making the decision reviewable. ²⁴

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Turning to the merits of the case, the Court explained that it must look only toward the explanation provided by the agency at the time of the rescission. ²⁵ That explanation was found in Acting Secretary Duke's memorandum. The Court observed:

"Taking into consideration" the Fifth Circuit's conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General's conclusion that DACA was unlawful for the same reason, [Duke] concluded—without elaboration—that the "DACA program should be terminated." ²⁶

The Court held that this explanation was insufficient for a total recission of the DACA program. In doing so, it focused its attention on only one of respondents' arguments, namely, whether Acting Secretary Duke failed to consider important aspects of the problem before her. ²⁷ The Court explained that DACA stands on two pillars: forbearance from removal and the granting of eligibility for other benefits (work permit, Social Security, Medicare, etc.). The decision to rescind DACA was found to be arbitrary and capricious because it did not consider the possibility of letting the forbearance of removal benefit stand, while rescinding the other associated benefits. ²⁸ Moreover, the Fifth Circuit decision to terminate DAPA did nothing to require "the Secretary to remove any alien or to alter the Secretary's class-based enforcement priorities. In other words, the Secretary's forbearance authority was unimpaired." ²⁹

Importantly, the Court did not stop there. It held that Duke "failed to address whether there was 'legitimate reliance' on the DACA Memorandum." ³⁰ DHS (and the Thomas dissent) argued that it was not required to consider the reliance of DACA recipients because they allegedly have no "legally cognizable reliance interests" in the continuance of the program, since the DACA memorandum stated that the program "conferred no substantive rights" and provided benefits only in two-year increments. ³¹ However, the Court notes that DHS failed to support its proposition that reliance is...