Week 42: Administration denies new DACA applications in possible defiance of Supreme Court order

Immigration news, in context.

This is the forty-second edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture,we analyze the administration’s effort to simultaneously keep and contract DACA, and the potential legal challenges that could ensue.

  • In Under the Radar, we explain why the administration is detaining some unaccompanied migrant children in hotels along the border.

  • In Next Destination, we discuss DHS’s presence at the Portland protests and whether it will dispatch officers to other cities.

The Big Picture

The news: Despite a Supreme Court decision and a separate federal district court ruling, the administration is refusing to process new DACA applications, and is attempting to further limit the program in advance of a possible second attempt at ending it.

What’s happening?

On Tuesday, Acting Homeland Security Secretary Chad Wolf issued a memo purporting to respond to the recent Supreme Court ruling preventing the administration from terminating the DACA program. Wolf shocked observers by declaring that the department would not accept new initial DACA applications, would generally not grant advance parole (the mechanism which allows DACA recipients and others to travel internationally), and would shorten the validity period of DACA grants from two years to just one. Some called this open defiance of judicial orders, though it’s a little more complicated than that, as we’ll get into below.

Last month, after a multi-year legal process, the Supreme Court ruled that the Trump administration’s September 2017 attempt to terminate the DACA program—which grants protection from deportation and access to work and travel authorization for certain people brought to the country as children—was arbitrary and capricious, and struck it down. As we noted at the time, the ruling did not ultimately substantiate constitutional claims, consider the legality of the program itself, or even say that the government was not allowed to end DACA.

In fact, the ruling emphasized quite the opposite, that the administration certainly has the authority to terminate the program, just as it had the authority to institute it, only it did not do so in a way consistent with the Administrative Procedure Act (APA). In particular, the justices noted that the administration could have modified the program in a way that dealt with their supposed legal issues with it, and that it failed to take into account the relevant “reliance interests”—essentially the fact that DACA recipients and third parties including their family members and employers had come to depend on the program, and would be harmed by its end. By the time of the ruling, lower court judges had prevented its phasing out, but had allowed the government to stop issuing new DACA grants.

The SCOTUS case was a consolidation of three separate cases that had been challenging the termination, and the ruling variably affirmed, vacated, and reversed several lower court decisions. This is significant, because among the rulings it affirmed was the judgement in NAACP v. Trump, a case heard by the District Court for D.C., in which Judge John Bates had twice decided that the administration’s attempted termination of DACA was unlawful. In the first order, in April 2018, he ordered the government to “vacate the Department’s September 5, 2017 decision to rescind the DACA program,” though agreed to give it 90 days to return with a better explanation of DACA’s purported illegality and its need to end it.

He was unsatisfied with what they came back with—“A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do,” he wrote—and again ordered the September directive to be voided. The order was stayed while the case went before the Supreme Court, but its affirmation in theory means that things should go back to the pre-rescission status quo, i.e. a situation where new applications can occur, applicants generally qualify for advance parole, and the timeframe is two years. The day before the Wolf memo, Bates had ordered the government to detail what steps it was taking to comply with the ruling.

Separately, Judge Paul Grimm of the District Court of Maryland two weeks ago more explicitly ordered the government to return to status quo, citing the SCOTUS decision and writing that the policy was “restored to its pre-September 5, 2017 status” and that the administration and its agents were “ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law.”

Facially, it would seem like the administration is ignoring the relevant court rulings and refusing to return to its pre-rescission posture; this was especially the case pre-memo, when it was simply declining to adjudicate DACA applications without a legal basis. The tricky part now is that the memo could count as discretionary agency decision-making, which the rulings explicitly permitted. Indeed, Attorney General Bill Barr had already sent Wolf a letter rescinding the Justice Department’s prior guidance on the legality of DACA, and Wolf rescinds the DHS memos related to the September 2017 termination, at least in theory returning things to status quo.

He then frames the concurrently-announced changes to the program as a temporary step while the department evaluates a possible total rescission, and tries to address some of the procedural concerns raised in the ruling. For example, he asserts that people who have not yet received DACA definitionally cannot rely on DACA, and so no reliance interests are affected by that provision. With regards to the new one-year validity period, he somewhat perversely argues that this will actually help recipients rely on the program less, and thus make it less of a blow if it’s terminated.

How we got here

We discussed the history  of DACA in depth in a previous edition, but as a recap, the program is effectively a stopgap measure that gave certain undocumented immigrants who were brought to the U.S. as children the ability to live and work in the U.S. without fearing deportation. The Obama administration created it after the DREAM Act failed to pass in the Senate, at the urging of undocumented activists. But DACA doesn’t confer legal status, and despite its benefits, it leaves recipients in a state of limbo. The Obama administration tried to create a second program, Deferred Action for Parents of Americans (DAPA), that was ultimately struck down by the courts after conservative statues sued.

The Trump administration’s attempt to end DACA was, to put it lightly, sloppy. Former Attorney General Jeff Sessions reportedly convinced Trump to terminate it just seven months into his first term, kicking off a series of memos over the program’s legality. In a memo to former DHS secretary Elaine Duke, Sessions, using the previous decision againstDAPA as his rationale, wrote that the courts would likely find DACA illegal, so they might as well plan to terminate it preemptively. In a memo of her own, Duke agreed with Sessions’ assessment—which she was required to follow—and began working on a timeline to end DACA.

But as Chief Justice John Roberts wrote in the majority opinion in Department of Homeland Security v. Regents of the University of California, the case challenging the termination of DACA, the administration could have opted to modify the parts of DACA that Sessions worried were unlawful rather than ending the program altogether and putting hundreds of thousands of people in jeopardy. The court found that the administration violated the APA because it didn’t do its due diligence. The issue wasn’t that it didn’t have the authority to end DACA, but that the way it did attempted to do so made it clear that the goal was to end the program as quickly as possible without first considering its effect on both DACA recipients and the broader public. Since it didn’t do that, the administration’s attempt to end DACA was deemed arbitrary and capricious.

That brings us to the matter at hand. By refusing to process new applications, the administration is effectively ending part of the program through bureaucratic channels rather than ending it altogether, which would probably require it to go through a mandatory notice and comment period. The administration would have to notify the public of its attempt to end the program and legal rationale for doing so by publishing a proposed rule in the Federal Register. It would then have to give the public at least a month to comment on the proposal. After that period, the administration has to take those comments into account and respond to them. For example, if an advocacy group or DACA recipient commented that ending the program would adversely affect U.S. citizen children whose parents are DACA recipients, the administration would have to consider the comment and respond. The notice and comment period doesn’t necessarily preclude the executive branch from pushing through its desired policies, but it can lead to certain provisions being scaled back or otherwise amended. 

But the administration is for now merely considering ending DACA, and hasn’t embarked on a complete process to do so yet.

What’s next?

A big question now is whether this new memo runs afoul of the Supreme Court’s demand that DHS provide a reasoned and substantive basis for modifying or terminating the program in a way that interacts with the procedural issues it had already identified. The memo refers to these changes as interim steps while a full, APA-compliant process for terminating DACA is undertaken. However, a court could certainly disagree that these changes are entirely up to agency discretion and don’t themselves need to go through a fuller process, or that they don’t again fail to consider reliance interests. It’s almost certain that one of the plaintiffs in the existing DACA cases, or perhaps even a new group, will seek to have the changes enjoined. In that case, things would truly return to status quo, and new applications would be evaluated.

Either way, the administration appears to be plowing ahead with plans to terminate the program in a way that will ultimately clear judicial review. The president has discussed the notion of tying some kind of solution for DACA recipients to a broader immigration package, but similar initiatives haven’t made much headway before. (Trump also appears to believe that the SCOTUS decision granted him additional powers based on a flagrant misunderstanding by purported legal scholar and noted torture memo author John Yoo, but that’s a topic for another time.)

There’s the additional wild card of Wolf’s own position atop Homeland Security, which is currently the focus of Congressional inquiry and litigation on several fronts. To summarize: he has been in the acting post for well over the 210-day limit for which acting officials can serve, and there are arguments that rules governing succession for the department were violated dating back to former Secretary Nielsen’s tenure. That would make the entirety of former Acting Secretary Kevin McAleenan and Wolf’s time heading the agencies unlawful, and theoretically could void their official actions in that role, including the DACA memo. This is a bit of a long shot, but it could come into play.

Under the Radar

Administration detains unaccompanied migrant children in border hotels

Last week, the Associated Press reported that the Trump administration has been detaining some unaccompanied migrant children in hotels along the U.S.-Mexico border through a private contractor. Though a contractor, ICE has been holding the children—some of whom are just a few years old—in Hampton Inn hotels rather than transferring them to shelters operated by the Office of Refugee Resettlement in the interior of the country. Over the last week, attorneys with nonprofit organizations including the Texas Civil Rights Project have attempted to get access to the hotels to provide legal representation to the children, but they’ve been turned away. 

Typically, unaccompanied migrant children would be transferred to ORR shelters, where they’d be kept while case workers found their sponsors in the U.S. and processed their paperwork, a process that took weeks or even months. The administration has used the coronavirus pandemic as a justification to effectively shut the border to asylum seekers and other migrants, including unaccompanied children, who are supposed to have robust protections under the law. Since April, border officers have been “expelling” migrants back to Mexico without processing their cases in the U.S. It appears that officers are taking migrant children to hotels for a few days while deciding whether to transfer them to ORR or expel them back to Mexico.

Advocacy groups sued the government last week over its new policy of detaining migrant children in hotels, and the administration later said it would not expel 17 children detained at a Hampton Inn hotel in McAllen. It hasn’t, however, agreed to stop detaining children in hotels or expelling them back to Mexico.

Next Destination

DHS officers to leave Portland—eventually 

For weeks, federal officers from agencies within the Department of Homeland Security have been in Portland, where they’v arrested, tear gassed, and fired rubber bullets at protesters, all in the name of protecting a federal courthouse. Some of the officers present in Portland are part of the Border Patrol tactical unit, a small, specialized team designed to respond to cross-border crimes such as drug trafficking.  (We’ll be publishing a post explaining the legal justification for this response next week for paid subscribers.) 

Portland’s mayor and Oregon’s governor and congressional representatives repeatedly asked DHS to stand down to no avail until this week, when officials announced DHS forces would be withdrawn from Portland soon. “Starting tomorrow, all Customs and Border Protection & ICE officers will leave downtown Portland,” Oregon governor Kate Brown wrote on Twitter. Brown’s statement was simultaneously accurate and misleading. Federal officers would be leaving downtown Portland, but they wouldn’t be leaving the city entirely. Acting DHS secretary Chad Wolf clarified the officers would leave “should circumstances on the ground significantly improve,” and only after other forces were present in the city.

It’s unclear when exactly this will all happen, or whether the introduction of the Oregon state police will meaningfully change circumstances on the ground for protesters. There’s also the question of whether DHS will deploy officers to other cities, causing similar unrest. The department sent officers to Seattle last week, and officers from DHS agencies were present at protests in Washington, DC earlier this year, where they participated in the violent repression of protesters. There’s nothing stopping the administration from declaring protests in other cities a threat to public safety or federal property, potentially leading to dozens of Portlands across the country.