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DACA’s Uncertain Future Following Recent United States Supreme Court Decision

In Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 207 L. Ed. 2d 353 (2020) the United Supreme Court held that the Department of Homeland Security’s decision to rescind Deferred Action for Childhood Arrivals (DACA) violated the Administrative Procedure Act as arbitrary and capricious.  However, the case did not rule on the specific merits of DACA, but instead focused on DHS’s decision to rescind DACA as applied to the Administrative Procedure Act.  The case also left open the possibility that the government could issue a new rescission with better rationale.

By way of review, DACA is an immigration relief program implemented via executive order on June 15, 2012 by President Barack Obama.  It provides certain unauthorized or undocumented immigrants who arrive to the United States under the age of sixteen two modes of relief:  (1) It allows those individuals the right to apply for a two-year forbearance of removal; and (2) It allows those who are granted relief under DACA to apply for work authorization and various federal benefits.

On September 5, 2017, the Attorney General issued a letter advising DHS to rescind DACA.  As noted in Regents, Acting DHS Secretary Duke issued a memorandum rescinding the policy.

In its holding in Regents, the Court noted that Acting Secretary Duke’s rescission memorandum failed to provide a reasoned analysis on the need to rescind the entirety of DACA, including the two-year forbearance and the provision providing for work authorization and federal benefits.

Specifically, the Court acknowledged that Acting Secretary Duke’s rescission memorandum was bound by the Attorney General’s determination that DACA was illegal.  However, the Attorney General’s letter also concluded that the legal defects in DACA mirrored those defects seen in a related policy – also issued by way of executive order – known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which had been previously challenged and rescinded.

In determining the rationale for the legality of DACA, the Court took note of the Fifth Circuit’s opinion on DAPA, which held that DAPA violated the Immigration and Nationality Act (INA) because it unlawfully extended eligibility for benefits to a class of undocumented immigrants in the INA.  Importantly, the Fifth Circuit distinguished the benefits provision of DAPA with the two-year forbearance provision.  In contrast, Acting Secretary Duke’s rescission memorandum rescinded the entirety of DACA without comment on the legality of the two-year forbearance provision.

The Court also noted that Acting Secretary Duke failed to address whether there was a legitimate reliance on the initial DACA memorandum.  As to DHS Secretary Nielson’s subsequent memorandum, issued nine months later, the Court held the memorandum was a post-hoc rationalization and should not be relied upon by DHS.  The Court noted that a new decision is required before DHS could consider any new reasoning.

The decision in Regents is significant in that it blocks the current rescission memorandum.  However, the decision did not outright claim that the rescission of DACA was unlawful, but instead noted that DHS did not provide adequate reasoning to rescind DACA in its entirety, and was not allowed to consider Secretary Nielson’s reasoning subsequent to the rescission.   This leaves DHS open to implement a new rescission of all or part of DACA with more robust reasoning.  While the Court’s holding seems to indicate that the two-year forbearance provision of DACA should be upheld, it allows DHS to rescind both the benefits and forbearance portions if it can provide adequate justification to do so.

In fact, on July 28, 2020 Acting DHS Secretary Wolf issued a memorandum to DHS’s U.S Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS), directing the agencies to reject all initial DACA requests submitted by applicants who have never before received DACA, and limit the forbearance period to one year.  The memorandum also noted that advance parole for travel outside the United States should only be granted for urgent humanitarian reasons or significant public benefit.  This benefit is entirely discretionary on the part of the agencies.

USCIS then issued its own update, affirming that all new DACA requests will be rejected, that all subsequent renewals will be limited to one year, and that all requests received more than 150 days before the specific applicant’s expiration of DACA will be rejected (they advised that any requests be filed between 150 and 120 days before the applicant’s current grant of DACA expires).  USCIS also echoed DHS’s provision regarding advance parole for travel outside the United States.

It is important to note that Acting Secretary Wolf’s memorandum is preliminary in nature, pending his full reconsideration of DACA, and again leaves open the possibility that DACA will be rescinded either in whole or in part in the future.  Included in the memorandum were several reasons that could warrant the full rescission of DACA.  These are as follows: (1) Congress has had sufficient time to consider affording permanent status or relief to DACA recipients, has not taken such action, and may be spurned to take such action if DACA were rescinded; (2) Setting out a list of detailed criteria and maintaining a formal process for discretionary non-enforcement may inhibit individualized consideration; (3) In allowing for deferred action, DHS may be “sending mixed messages” concerning their ability to consistently enforce immigration laws; and (4) Retaining a deferred action provision would hamper DHS’s efforts discourage unlawful immigration involving children.

Regardless of the justifications of the July 28, 2020 memorandum, DACA’s future is still uncertain.  The decision in Regents leaves open the possibility of a full or partial rescission, and DHS has already closed the door on new applications for those not already receiving deferred action.  DACA’s forbearance period has also been cut in half, meaning that applicants will need to go through the application process again every year.  Until this issue is addressed by Congress, the ability for over 800,000 recipients to remain in this country is equally uncertain.

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Bostock v. Clayton County and the Further Protection it Provides New Jersey Employees

On June 15, 2020, the Supreme Court of the United States held that in Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 2017 L. Ed. 2d (2020), an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The majority opinion was authored by Justice Neil Gorsuch, a dissenting opinion was authored by Justice Samuel Alito, which Justice Clarence Thomas joined, and a separate dissenting opinion was authored by Justice Brett Kavanaugh.

Gerald Bostock, a gay man, began working for Clayton County, Georgia as a child welfare services coordinator in 2003. Fast forward a decade to 2013, Bostock began participating in a gay recreational softball league. Bostock received criticism for his participation in this league, including hateful remarks about Bostock’s sexual orientation during a meeting where Bostock’s supervisor was present. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed and shortly thereafter Bostock was terminated for “conduct unbecoming of its employees.” In addition to Bostock, two other cases were at play. One in which a man was fired for mentioning he was gay and the other where a transgender woman now wished to live and work as a woman. They were both consolidated under this decision and after years of battling through our court system, Gerald Bostock reached the Supreme Court in what would result in one of the most impactful decisions thus far in our country’s history.

Without having to delve into various dictionaries or biology text books from the past centuries defining the term “sex”, the opinion boiled down to this:

“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

In other words, since females would not be fired for being attracted to men, then why could men be fired for being attracted to men? In the same vein, if somebody was born a male and then transitioned at some point to being female or vice versa, neither alone would be discriminated against for simply being male or female, rather they are discriminated against for the transition. What both of these hypotheticals have in common, and how the majority sees it, is that they hinge on simply being male or female. The Court held that gender plays the main role in each scenario no matter whether you’re gay, born male then transitioned, born female then transitioned, especially as sex is protected under the Civil Rights Act of 1964. This decision has an obvious impact on the various states who yet have protections for gay/transgender employees. However, how does this decision impact those states that already had these protections, including our beloved state of New Jersey?

In 1991, New Jersey amended the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1, to bar employers from discriminating against their employees for being gay or lesbian. Years later in 2006, New Jersey once more amended LAD to bar employers from discriminating against their employees for their gender expression.

On the surface it seems that Bostock has no impact on the employees of New Jersey, but in reality many New Jersey employees still remained unprotected from sexual orientation and gender expression discrimination even after the amendments made to LAD. Those who remained unprotected were mainly workers employed in New Jersey by multistate companies. Some of these companies would have their employees sign agreements binding them to the laws of the state where their company is headquartered, or where the “never center” is located as held in Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 175 L. Ed. 2d 1029 (2010). These binding agreements can still exist and apply to other areas of law, but now gay and transgender employees have this extra Federal protection of Bostock. Additionally, Bostock now protects federal contractors, who operate in New Jersey and were not covered by LAD.

It is difficult to say how this holding will impact other areas of the law where discrimination based on sex and sexual orientation is prohibited, such as in education, health care, housing, etc., but for now, all employees of our home state of New Jersey may continue to work without fear of being terminated because of who they love or how they identify.

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Capehart Scatchard Shareholder Serves As Panelist On The Role Of Attorneys In Recognizing And Reacting To Racism

On November 5, 2020, Capehart Scatchard Shareholder, Ashley T. Mollenthiel Fiore, Esq., served as a panelist for a CLE entitled, “Good Intentions Aren’t Good Enough, Part One.”  The remote panel discussion was presented by the Burlington County Bar Association’s Committees on Professionalism and Diversity, Inclusion & Leadership.  Shareholder, Sanmathi (Sanu) Dev, Esq., serves as Co-Chair of the Bar Association’s Committee on Diversity, Inclusion & Leadership.

Part One of the three-part CLE series focused on laying down the burden of division and candidly discussing the role of attorneys in recognizing and reacting to racism.  Ms. Mollenthiel Fiore engaged in a roundtable discussion on racism, its prevention, and the role of attorneys to respect cultural experiences, promote cultural diversity of perspectives, and aid in the general resolution of conflict going forward.

Ms. Fiore focuses her practice in the representation of employers, self-insured companies, and insurance carriers in workers’ compensation defense matters. Prior to joining Capehart Scatchard, she served as a Law Clerk to The Honorable Francis J. Orlando, Assignment Judge Civil Division.  Ms. Fiore also serves on Capehart Scatchard’s Diversity & Inclusion Committee.