Labor & Employment Law Daily A reprieve for Dreamers: DACA rescission was arbitrary and capricious
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Monday, June 22, 2020

A reprieve for Dreamers: DACA rescission was arbitrary and capricious

By Lisa Milam, J.D.

A divided Supreme Court vacated the Trump administration’s rescission of the Deferred Action for Childhood Arrivals program.

In a fractured, complex decision, the U.S. Supreme Court has held that the Trump administration violated the Administrative Procedure Act when it revoked the Obama-era Deferred Action for Childhood Arrivals (DACA) relief program. “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,’” wrote Chief Justice Roberts for the majority. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” The Court tackled a trio of cases challenging the Department of Homeland Security’s June 2017 action to end DACA, providing a striking victory for the 700,000 “Dreamers” who have availed themselves of the program’s protections, and for the employers that hired them (Department of Homeland Security v. Regents of the University of California, June 18, 2020, Roberts, J.).

DACA. The DACA program, implemented by DHS in 2012, offered temporary protections to individuals brought to the United States as children by parents who came to the country unlawfully. It permitted these individuals, commonly called “Dreamers,” to apply for a two-year forbearance of removal from the country. In addition, Dreamers became eligible for work authorization during the period of deferred action (pursuant to INS regulations issued prior to DACA’s creation). Moreover, DACA recipients, being deemed “lawfully present” in the United States, also became eligible for Social Security and Medicare benefits. Some 700,000 individuals became Dreamers.

But when the Obama administration expanded DACA and implemented the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program for the parents of DACA recipients, a coalition of 26 states challenged the agency action under the APA and Immigration and Nationality Act (INA). A federal court in Texas enjoined implementation, and the Fifth Circuit affirmed this nationwide preliminary injunction.

Rescinded. Five years later, under a Trump administration with diametrically opposed immigration policy views, then-Attorney General Jeff Sessions advised DHS that DACA was unlawful and should be rescinded, and DHS terminated the program, professing to be bound by the attorney general’s determination. Numerous legal challenges to the rescission ensued. The Supreme Court heard oral argument on November 12, 2019, taking up three consolidated cases (only one of which had gone to a final judgment before a circuit court of appeals): DHS v. Regents of the University of California (18-587); Trump v. NAACP (18-588); and Nielsen v. Vidal (18-589).

At issue was whether the decision to rescind DACA was reviewable under the APA; if so, whether that decision was arbitrary and capricious under the ADA; and whether the rescission violated Equal Protection.

Reviewable. The High Court held that DACA’s rescission is subject to review, rejecting the government’s contention that the agency action was an unreviewable exercise of enforcement discretion. (The Court also rejected the government’s assertion that two specific jurisdictional provisions of the INA deprive courts of jurisdiction.) At bottom, the Court concluded that DACA was not a mere passive non-enforcement policy. Rather, the original DACA memorandum created a program for conferring affirmative immigration relief. The creation of that deferral program, and its rescission, is an “action [that] provides a focus for judicial review.” The program also afforded tangible additional benefits above and beyond merely deferring immigration enforcement—benefits that courts would be called upon to protect, the Court noted, underscoring a conclusion that DACA and its rescission were, indeed, reviewable.

Arbitrary and capricious. The decision memorandum rescinding DACA, issued by acting DHS secretary Elaine Duke, succinctly pointed to 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 largely the same reason. In one of several court challenges to the rescission, the federal court in the District of Columbia found that DHS had failed to adequately explain the reasons for the rescission and invited the agency to flesh out its rationale.

But the additional reasoning, provided by DHS Secretary Kirstjen M. Nielsen now at the agency’s helm, came nine months after the fact and set forth additional reasons not stated by her predecessor, in a breach of administrative procedure. Noting that its review must be limited to the reasons given by the agency at the time it implemented its action, the Court declined to consider Nielsen’s additional “post hoc rationalizations,” setting up a dispute with Justice Kavanaugh on this important question of administrative procedure.

Agency discretion to continue forbearance. Looking solely to the acting DHS secretary’s earlier rescission memorandum, the Court found she failed to give full consideration to the “important aspects of the problem before the agency.” While it was true she was bound by the attorney general’s conclusion that DACA was illegal, the attorney general had “neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy.” As such, the secretary had considerable discretionary authority to continue DACA’s removal forbearance policy while eliminating the benefits eligibility provision, but she did not do so, and she did not explain why. In failing to consider the option to retain the deferred action piece of the DACA program (which was the centerpiece of the policy, after all), she “failed to supply the requisite ‘reasoned analysis’” the APA demands.

Reliance interests. Also problematic: The acting secretary additionally failed to consider the “legitimate reliance” on the DACA memorandum implementing the deferred removal policy. “DHS has flexibility in addressing any reliance interests and could have considered various accommodations,” said the Court. “While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious.”

No substantive rights. The government argued there were no “legally cognizable reliance interests” to consider because the DACA memorandum expressly provided that it “conferred no substantive rights” and only offered benefits in two-year increments. (This was the gist of Justice Thomas’ lead dissent, too—who simply argued that DACA was illegal, “so any actions under DACA are themselves illegal.”) Yet neither the government nor the dissent supported this contention with legal authority that these limitations automatically preclude any reliance on the program’s provisions. “These disclaimers are surely pertinent in considering the strength of any reliance interests,” the majority reasoned, “but that consideration must be undertaken by the agency in the first instance, subject to normal APA review.”

Failure to consider issues. For their part, those challenging DACA’s rescission (and their amici) had much to say about the reliance interests at stake, noting Dreamers had enrolled in college programs, launched careers and businesses, started families and purchased homes in reliance on the DACA program. Their reliance, moreover, “radiate[d] outward” to their own families, schools, and “employers who have invested time and money in training them.” These considerations were not dispositive; rather, it was for DHS to weigh them against other policy concerns. “Making that difficult decision was the agency’s job, but the agency failed to do it.”

“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Equal protection challenge. The equal protection challenge to DACA rescission was premised on an argument that the Trump administration was motivated by unlawful animus when it “ended a program that disproportionately benefits certain ethnic groups.” As evidence, opponents of the rescission pointed to the “unusual history behind the rescission” (of which the plurality was unconvinced) and statements made by President Trump, both before and after the 2016 election, which were waved off as “unilluminating,” remote in time, and unrelated.

The most salient argument, for equal protection purposes, was that the rescission had a disparate impact on Latinos from Mexico (who comprise 78% of the Dreamer population). As Justice Roberts observed for the plurality, because “Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.”

Justice Sotomayor did not join Justice Roberts and her colleagues in the majority on the equal protection portion of the decision—which is of most relevance, perhaps, to employment law. In her view, “the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation.” In a concurring opinion, she noted, “I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier,” and she rejected what she saw as the premature disposal of these claims without opportunity for factual development on remand.

Indeed, some commentators on today’s decision went further; they were quick to note the distressing implications of the plurality’s reasoning for disparate impact law generally and for the use of stray or non-contemporaneous remarks to prove discrimination.

Thomas dissents. Justice Thomas, in a lengthy dissent joined in part by Justices Alito and Gorsuch, chastised the Obama DHS for “taking matters into its own hands,” without statutory authority, after dozens of legislative measures to extend protection to Dreamers failed in Congress. “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” Simply put, Obama’s action was unlawful, in the dissent’s view, and the subsequent administration’s decision to rescind that unlawful action is “per se lawful.” Thomas found it “especially perverse” that the majority took issue with the procedural irregularities in rescinding DACA when he contended its enactment was itself procedurally unsound.

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. He would remand with instructions to resolve the nationwide injunctions.

DACA still in play. In his dissent, Justice Kavanaugh emphasized that “all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress.” Moreover, as Chief Justice Roberts wrote, “We do not decide whether DACA or its rescission are sound policies.” The majority merely found that DHS’ course of action in eliminating the program was arbitrary and capricious.

The takeaway, then, is that DACA’s underlying substantive protections are still very much in play. “The appropriate recourse,” per the Chief Justice, is “to remand to DHS so that it may reconsider the problem anew.”

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