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Action for Parents of Americans and Lawful Permanent Residents (DAPA), which had been previously challenged and rescinded.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 In contrast, Acting Secretary Duke’s rescission memorandum rescinded the entirety of DACA without comment on the legality of the two-year forbearance provision.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.