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The business community shows support for DACA. BAL provides analysis on how immigration filing fees will impact U.S. companies. And why it may be a good idea for some U.S. residents to think about applying for citizenship.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The business community shows support for Dreamers. The Biden administration announces additional H-2B visas. And more on the role immigration could play in the development of AI in the United States.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
Nearly six months after the U.S. Supreme Court ruled that the Trump administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program was unlawful, the government refused to comply with the ruling, sending Dreamers back to court to enforce it.
On Dec. 4, a federal court in New York ordered the government to fully reinstate DACA to its Obama-era terms. Three days later, the Department of Homeland Security announced it would comply with the order and begin to accept first-time DACA requests and restore other terms of the program it had taken away, such as “advance parole,” which allows Dreamers to travel abroad and return to the U.S., thereby opening a narrow pathway for permanent residence for a small class of Dreamers. Meanwhile, President-elect Joe Biden has promised to reinstate DACA on his first day in office, to work toward a permanent legislative fix and provide a pathway to citizenship for undocumented immigrants.
Despite these indisputable victories, here’s why it’s too early to celebrate. An existential threat to DACA looms in the form of a pending lawsuit in Texas federal court that directly grapples with whether the original DACA program is lawful in the first place—a question no court has addressed (although three dissenting Supreme Court Justices characterized DACA as “unlawful from its inception”).
The Texas court’s history with DACA-related litigation does not bode well for Dreamers: In 2015, Judge Andrew S. Hanen blocked the Obama administration from introducing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, an expansion of DACA that shielded undocumented parents of U.S. citizens and green card holders from deportation. The decision only narrowly survived appeal, when the Fifth Circuit Court of Appeals agreed and an eight-member Supreme Court (following the death of Antonin Scalia) split evenly, leaving in place the injunction on DAPA. The expanded program never took effect.
After President Trump took office, his Acting Secretary of Homeland Security issued a September 2017 memorandum rescinding the DACA program. But the rescission was immediately challenged and a judge in California ordered the administration to maintain the program. Additional injunctions followed, requiring the government to continue to accept renewal applications. In response, Texas and other conservative states filed a new complaint in the Texas court, this time seeking to dismantle DACA as “unlawful.” In August 2018, Judge Hanen ruled that DACA “violates the substantive provisions of the Administrative Procedure Act,” but somewhat surprisingly left DACA in place.
Questioning why the states did not challenge DACA itself in their original 2014 suit against DAPA, he noted the potential for significant hardship to the estimated 800,000 Dreamers, and concluded that a temporary injunction would not repair an “egg [that] has [already] been scrambled.” Importantly, however, Judge Hanen also said that “DACA and DAPA are basically identical, and there is no legal ground for striking DAPA that wouldn’t apply to DACA.” The states are now asking the court to declare that DACA is unlawful and order its termination. A hearing took place Tuesday, Dec. 22.
The stakes could not be higher for Dreamers. Judge Hanen has already signaled that DACA is likely to suffer the same fate as DAPA and could ultimately strike down the program. But after astute advocacy by Dreamers’ attorneys at today’s hearing—in particular focusing on nuanced conceptions about prosecutorial discretion, employment authorization, and potential legal remedies flowing from his decision—Judge Hanen’s task just got more complicated. Moreover, Texas and the other plaintiff states are requesting that the judge stay his decision for a two-year period, during which no additional applications or renewals would be entertained. If the case winds up in the Supreme Court, it will be a different and more hostile forum with the addition of Justice Amy Coney Barrett, who, as a judge on the Seventh Circuit Court of Appeals, authored a 40-page dissent siding with the Trump administration on the controversial pubic charge rule.
Of course, the battle will continue—and with renewed vigor under a new administration that has promised to “reinstate” DACA and protect Dreamers. All sides agree that only Congress can provide a permanent solution for Dreamers, and it remains to be seen whether legislative relief will be possible in the current hyper-partisan environment.” Meanwhile, despite overwhelming public support for DACA and repeated public advocacy by U.S. businesses urging the government to keep the program in place, Dreamers continue to live a nightmare of uncertainty.
This article was originally published in the California Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
In 2012, the Secretary of Homeland Security under President Obama issued a memorandum that instituted the Deferred Action for Childhood Arrivals (DACA) program. DACA allowed undocumented immigrants who came to the United States as children and met certain eligibility criteria to (1) request a period of “deferred action” from the government and (2) apply for authorization to work in the U.S. Though a grant of DACA represents the government’s decision not to take action to remove a person from the U.S., it does not impart any legal immigrant or nonimmigrant status. DACA benefits are generally valid for two years from the date of issuance.
More than 835,000 “Dreamers” have been granted relief under DACA since the program was established. As of March 2022, there are an estimated 611,270 active DACA beneficiaries in the U.S.
DACA has been the target of multiple lawsuits, including a federal lawsuit in Texas where a judge ruled in 2021 that the Obama administration did not follow proper administrative procedures in creating the program. President Joe Biden issued a memorandum upon taking office directing the Secretary of Homeland Security to take action to “preserve and fortify” DACA. The Department of Homeland Security (DHS) issued a proposed DACA regulation in September 2021 that drew more than 16,000 comments from the public, most of them in support. DHS published the final regulation in August 2022.
Yes. In October 2022, the U.S. Court of Appeals for the Fifth Circuit upheld the 2021 ruling that the 2012 DACA memorandum was unlawful. However, the court also directed the lower court to consider the legality of the 2022 final regulation. The appellate court urged the district court move forward “as expeditiously as possible.”
The Fifth Circuit left in place a partial stay that allows DHS to adjudicate renewal requests for DACA and employment authorization under DACA. DHS is also adjudicating advance parole requests for existing DACA recipients. Under court order, it cannot adjudicate first-time DACA requests at this time. Given the uncertainty around the litigation, current DACA beneficiaries are encouraged to file to renew their DACA and work authorization as early as possible.
No. In 2020, the Supreme Court ruled that the Trump administration did not follow proper administrative procedures when it attempted to end DACA. It has not ruled on the legality of DACA itself.
Only Congress has authority to provide a permanent solution for Dreamers that offers legal status in the U.S., and stakeholders have been encouraging lawmakers for years to find a bipartisan solution. It is impossible to predict at this time whether Congress will pass a law that grants some form of relief from removal to DACA beneficiaries.
FAQ current as of Sept. 1, 2022. Please check the Recent Developments section for the latest information.
By Martin Robles-Avila
The Supreme Court will hear arguments on Nov. 12 about whether the Trump administration acted lawfully when it terminated Deferred Action for Childhood Arrivals, the Obama-era program that has benefited roughly 700,000 Dreamers. Courts have kept DACA on life support and have required the government to continue accepting renewal applications while the case proceeds.
Will the Supreme Court resuscitate DACA or deliver the coup de grace? The outcome hinges on a federal law called the Administrative Procedure Act. Passed in 1946, the APA requires all federal agencies, including the Department of Homeland Security, to follow certain steps when promulgating rules and regulations. Since Congress is the branch of government authorized to make laws, these agencies, which are extensions of the executive branch, are only authorized to pass rules needed to implement those laws.
Because the APA limits how agencies implement rules and policies, it is often used to challenge immigration decisions, such as denials of visa petitions, and is the reason for many of the Trump administration’s losses in court. Several ongoing lawsuits invoke the APA to challenge policies such as the elimination of Temporary Protected Status, restrictions on asylum eligibility, the public charge rule, and the Optional Practical Training (OPT) program.
In what is known as notice-and-comment rulemaking, federal agencies must publish proposed rules in the Federal Register and allow the public to comment before they become final. Courts may invalidate rules deemed “arbitrary and capricious,” as they often do when they deem the agency’s stated reasons insufficient. This is why lower courts blocked DACA from termination. Importantly, no court has said that DACA cannot be rescinded—only that the process must result from reasoned decision-making. Exceptions to the notice-and-comment requirement exist, but courts tend to take a hard look at them.
A twist in the case is that President Obama introduced DACA through executive action without a notice-and-comment period. (Another lawsuit is challenging the legality of DACA.1) DHS will argue that if Obama had the authority to create DACA, Trump has the power to undo it, also without notice-and-comment, or as Trump has tweeted: “how can [Obama] have the right to sign and I don’t have the right to ‘unsigned’ [sic].” They will also argue that DHS’s decision to wind down DACA is not judicially reviewable at all, which is the other issue the Supreme Court has agreed to consider.
DACA advocates will counter that the government must follow the APA’s requirements even when repealing a rule crafted by a prior administration, and that the government never acknowledged “the devastating consequences of the rescission on the hundreds of thousands of DACA participants and the countless other stakeholders who have come to rely on the policy.”2 This “wholesale disregard” of the impact on DACA beneficiaries, “their families, their employers, and their communities renders the decision to rescind DACA arbitrary and capricious decision making.”
Dreamers represent a sympathetic population making substantial economic and educational contributions. Their fate depends on how nine justices, two appointed by Trump, interpret this septuagenarian law, whose full title is an “Act to improve the administration of justice by prescribing fair administrative procedures.” Of course, fairness is in the eye of the beholder—and difficult to adjudicate. A decision is expected by June.
Martin R. Robles-Avila is Senior Counsel in the San Francisco office of Berry Appleman & Leiden LLP.
1 Texas v. Nielsen, U.S. District Court for the Southern District of Texas, 1:18-CV-00068, in which seven states challenge the legality of the introduction of DACA, remains pending.
2 DHS v. Regents of the University of California et al., No. 18-587, Brief of Regents of the University of California, et al., In Opposition to the Petition for Writ of Certiorari to the United States Supreme Court, https://www.supremecourt.gov/DocketPDF/18/18-587/76442/20181217133718115_18-587%20Regents%20Brief%20in%20Opposition.pdf.