This week, the Supreme Court is expected to decide whether it will review a California federal court’s temporary nationwide injunction to maintain the Deferred Action for Childhood Arrivals (DACA) program. It’s a case that has shaken the national immigration debate and put the Trump administration in a bind regarding enforcement.
Now, a federal district court in New York has issued a similar temporary nationwide injunction — changing the stakes and circumstances ahead of the court’s decision.
In both recent decisions, the courts’ reasoning is similar. Both were clear that the Trump administration may “indisputably . . . end the DACA program.” But it must offer “legally adequate reasons” for doing so.
DACA was established through a Department of Homeland Security (DHS) Memorandum during the Obama presidency. The program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work and go to school in the United States without facing the risk of deportation for two years with renewals available.
DHS rescinded DACA in September 2017 after receiving a letter from the Attorney General stating the program was unconstitutional and “has the same legal and constitutional defects that the courts recognized as to DAPA.”
The Deferred Action for Parents of Americans (DAPA) program would have granted deferred action to certain parents of U.S. citizens and lawful permanent residents. The federal Administrative Procedures Act (APA) prevents federal agencies from taking actions which are arbitrary, capricious and an abuse of discretion.
In 2015 the Fifth Circuit concluded DAPA likely was arbitrary and capricious in violation of the APA because it violated the Immigration and Nationality Act (INA). In 2016 the Supreme Court affirmed the Fifth Circuit decision 4-4.
The New York federal district court concluded the decision to rescind DACA because it was unlawful and unconstitutional was arbitrary and capricious in violation of the APA.
According to the court, “DACA is not unconstitutional simply because it was implemented by unilateral, executive action without express congressional authorization. The Executive Branch has wide discretion not to initiate or pursue specific enforcement actions.”
While the Fifth Circuit considered DAPA unlawful — because the INA prescribes the exclusive means by which aliens may obtain “lawful immigration classification from their children’s immigration status” — DACA recipients would not be receiving an immigration classification through their children.
The district court also pointed out that, if the Acting DHS Secretary really believed DACA was unconstitutional, she should have ended it immediately. Instead she “directed her subordinates to begin a phased ‘wind-down of the program,’ under which DHS would continue to renew DACA applications that were set to expire in the next six months and would honor existing DACA benefits until they expired.”
The injunction in this case has the same scope as the injunction issued by the California court. It does not apply to those who have not previously applied to receive DACA (even if they were eligible), and DACA recipients may no longer may no longer leave the United States and be automatically “paroled” back into the United States.
About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.