Employment Law Daily Some challenges to Trump administration’s DACA policy trimmed for lack of standing
Wednesday, November 15, 2017

Some challenges to Trump administration’s DACA policy trimmed for lack of standing

By Lorene D. Park, J.D.

In two lawsuits challenging the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants who entered the United States as children, the failure to provide adequate notice to DACA recipients of new deadlines for renewal, and the change in policy concerning the use of DACA application information for immigration enforcement purposes, a federal district court in New York granted in part the defendants’ motion to dismiss for lack of subject matter jurisdiction. The state plaintiffs lacked Article III standing with respect to due process and equitable estoppel arguments concerning the information-use policy. None of the plaintiffs demonstrated that they had standing to assert claims of inadequate notice. The court reserved until a later date any ruling on the defendants’ motion to dismiss for failure to state a claim (Vidal v. Duke, November 9, 2017, Garaufis, N.).

Deferred action. Because, as a practical fact, the Department of Homeland Security (DHS) cannot deport, each year, more than four percent of the 11.3 million removable individuals present in the U.S. (as of 2014), the Executive Branch has significant discretion in prioritizing removal. In 2012, the Obama administration created the DACA program by issuing a memo stating that DHS would consider according deferred action to certain undocumented immigrants who entered the United States as children.

The 2012 DACA Memo directed CBP, USCIS, and ICE to consider exercising discretion as to individuals without lawful immigration status who: (1) were younger than 16 when they entered; (2) had been continuously in the country for at least the five years leading up to June 15, 2012; (3) were currently in school, had graduated from high school or obtained GEDs, or were honorably discharged veterans; (4) had not been convicted of felonies, significant misdemeanors, or multiple misdemeanors, and did not “otherwise pose[] a threat to national security or public safety;” and (5) were not above the age of 30. Individuals who were granted relief were shielded from removal and eligible to apply for work authorization, subject to renewal every two years. The 2012 DACA memo made clear that it conferred “no substantive right, immigration status or pathway to citizenship.” In 2014, the Obama administration announced a new deferred action program for the parents of U.S. citizens and lawful permanent residents (DAPA). The 2014 DAPA Memo also expanded the DACA program to include more individuals and to extend the term of benefits from two to three years.

Injunction in Texas litigation. Thereafter, 26 states sued in a federal court in Texas, claiming the DAPA program violated the Administrative Procedure Act (APA) and Taking Care Clause of the U.S. Constitution. The court found the states had standing and were likely to succeed on the merits of their APA claim that the 2014 DAPA Memo was a “substantive rule” and was invalid without having gone through notice-and-comment, and their claim that the memo was contrary to the Immigration and Nationality Act (INA). The court issued a nationwide injunction that was upheld on appeal by a divided Fifth Circuit and affirmed by an equally divided Supreme Court.

Trump has DACA, DAPA rescinded. The Trump administration changed direction. Then-DHS Secretary John F. Kelly issued a June 2017 memo rescinding the DAPA program and DACA expansion based on “the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities.” That memo did not rescind the original DACA program or revoke the three-year deferred action and work authorization issued between the DACA Expansion and the Southern District of Texas’s issuance of a preliminary injunction. The Texas Attorney General then wrote Attorney General Jeff Sessions, demanding the 2012 DACA Memo be rescinded and Sessions suggested as much to Acting DHS Secretary Elaine Duke.

The administration rescinded DACA on September 5, 2017, in a memo that provided for a phased “wind down” rather than outright termination. It would consider applications for deferred action that were received as of September 5, and would “adjudicate” requests for renewal and work authorization from current beneficiaries whose benefits would expire soon. Existing grants of deferred action and work authorization would stay in effect for the remainder of the “validity periods,” though DHS retained the authority to deny deferred action when it deemed appropriate.

Lawsuits challenging rescission. The plaintiffs in these suits challenged the decision to rescind the DACA program and other actions taken by the defendants concerning that decision. One suit was brought by an individual who was notified that he received deferred action and work authorization for three years but then had his authorization revoked and replaced with a two-year permit. Nonprofit Make the Road New York (MRNY) was later added as a plaintiff in that suit. The second suit was filed by 15 states and the District of Columbia, challenging the rescission of DACA and the use of DACA applicants’ information for immigration enforcement.

Constitutional claims. The plaintiffs claimed the DACA rescission was motivated by improper considerations (discrimination against Latinos and, in particular, Mexicans) and therefore violated equal-protection principles incorporated in the Fifth Amendment Due Process Clause. They also claimed the defendants violated the Fifth Amendment’s Due Process Clause by failing to provide DACA recipients with adequate notice of the decision to rescind the program. Before the DACA rescission memo, DHS advised DACA recipients to submit renewal applications “as soon as possible,” and, in particular, 120-150 days before expiration. But after the September 5 rescission memo issued, the defendants did not alert DACA recipients who were eligible for renewal that they only had until October 5 to renew. DHS also allegedly violated due process by backtracking on its representation that information from DACA applications would not be used for immigration enforcement except in limited circumstances. The plaintiffs further argued that the doctrine of equitable estoppel barred DHS from changing its policy.

APA claims. According to the plaintiffs, the decision to end the DACA program under the APA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” and the implementation of the rescission memo constituted a substantive “rule” that had to go through notice and comment.

Regulatory Flexibility Act. The plaintiffs claimed that the defendants violated the RFA by issuing the DACA rescission memo without analyzing the rescission’s impact on “small entities,” including MRNY, which was added as a plaintiff in the individual’s suit, and the state plaintiffs, which claim they and their “small governmental jurisdictions, nonprofits, and businesses, and their residents” were harmed by the failure to conduct such a regulatory impact analysis.

Motion to dismiss. Following discovery disputes and the court’s refusal to vacate a privilege log requirement or to exempt the Department of Justice from the requirement, the Second Circuit issued a stay of discovery and record supplementation, pending a mandamus petition by the defendants, but deferred ruling until the district court decided jurisdiction and justiciability. The district court directed the parties to file supplemental briefs and the defendants filed a motion to dismiss, arguing that the court lacked jurisdiction to hear the cases and that the plaintiffs failed to state a claim on which relief should be granted.

Granting the motion in part, the court found that it lacked subject matter jurisdiction over the Due Process Clause claims concerning the notice of the rescission and the state plaintiffs’ claims that the information-use policy change violated the Due Process Clause and was barred by equitable estoppel. The motion was otherwise denied as to jurisdictional issues. The court deferred ruling on the motion to dismiss for failure to state a claim.

DACA rescission not exempt from judicial review under APA. The defendants claimed that the cases were non-justiciable because the decision to end the DACA program was committed to DHS’s exclusive discretion by law. Disagreeing, the court noted that there is a presumption that agency action is subject to judicial review and that the exception in APA Section 701(a)(2) for agency action that is committed to agency discretion is “a very narrow exception” for rare instances where “statutes are drawn in such broad terms that in a given case there is no law to apply.” Here, there was law to apply, including under the APA and RFA with respect to the plaintiffs’ procedural APA and RFA claims. Also, in deciding to rescind the DACA program, the defendants expressly and exclusively relied on a legal determination that the program was unlawful, which the court could review in light of other sources, including the INA and other statutes. Thus, there was “law to apply” here allowing for meaningful judicial review.

Also rejected was the defendants’ prosecutorial discretion argument that the rescission decision was “an exercise of enforcement discretion.” The plaintiffs did not challenge the agency’s failure to prosecute and the defendants’ decision did not seem motivated by a “complicated balancing of a number of factors which are peculiarly within [the ageny’s] expertise.” Nor was this a case analogous to the types of decisions (enforcement or non-enforcement decisions) that courts have recognized as presumptively exempt from review. The court further explained that APA Section 701(a)(2) did not preclude judicial review of the plaintiffs’ constitutional claims.

Furthermore, deference that might be afforded to the Executive Branch on immigration matters did not counsel a different result. The defendants’ stated rationale for rescinding the DACA program was wholly based on U.S. constitutional and administrative law, not sensitive law-enforcement intelligence or foreign policy, and vague speculation that judicial review might somehow implicate foreign policy was not enough to preclude judicial review.

No INA jurisdictional bar. Though INA Section 1252(g) limits judicial review of certain actions “by or on behalf of any alien arising from” certain deportation proceedings, the court found that this provision had no bearing here because the cases did not arise from one of the three enumerated actions by immigration authorities that trigger application of the statute. For one thing, the defendants’ termination of the DACA program did not, by itself, commence any proceedings or execute removal orders against any alien. Nor were the plaintiffs challenging any current removal proceedings; instead they brought a broad, programmatic challenges to decisions to end the DACA program, to provide limited notice, and to change the information-use policy. Also, by its terms, Section 1252(g) did not apply to claims by MRNY or the state plaintiffs because they were not suing “on behalf of any alien” but were suing to vindicate their own rights.

Article III standing. The defendants did not contest the individual plaintiff’s or MRNY’s standing to challenge the rescission of the DACA program and, as to the information-use policy, the court found that the threat of removal based on information provided to DHS was sufficiently imminent to constitute injury in fact for purposes of standing to assert that claim. However, these plaintiffs lacked standing to assert the due process claim based on insufficient notice because there was no allegation that they missed a deadline or suffered other adverse effects from the lack of individualized notices. MRNY’s allegation that it was unable to reach four DACA recipients to inform them that they need to “renew now” was not enough to show that these individuals failed to timely apply for renewal, much less that such failure was “fairly traceable” to the defendants’ actions.

Noting that rules of standing are “somewhat different when a state is a plaintiff,” the court found that the states had standing to challenge the DACA rescission and the procedures by which that decision was made, based on the decision’s impact on the states’ “proprietary interests.” They “amply alleged and documented that the rescission of DACA would harm the states’ proprietary interests as employers and in the operation of state-run colleges and universities.” Moreover, the defendants offered no convincing reason why states have standing to challenge the DACA program as was done in the Texas suit, but not to challenge the decision to end that program.

That said, the states lacked standing to bring the notice and information-use claims. They did not identify proprietary interests that have been or will be harmed by the failure to provide DACA recipients with “adequate notice” of the procedures and timeline for renewing DACA status. Nor did the states identify a proprietary interest harmed by the changes to DHS’s information-use policy. They claimed the change would facilitate deportation of DACA applicants but did not allege a cognizable harm to the states’ interests from the removal of undocumented residents.

Furthermore, states can bring claims parens patriae to vindicate “quasi-sovereign” interests in protecting state residents from the harmful effects of discrimination, but that did not establish standing on the notice and information-use claims here because there was no assertion that inadequate notice or the facilitation of removing undocumented immigrants harmed the health or well-being of state residents.

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