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Peter Margulies, July 19, 2021
"On July 16, U.S. District Judge Andrew S. Hanen of the Southern District of Texas ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful because it exceeds the power that Congress had delegated to the executive branch. The ruling echoed decisions during the Obama administration by Judge Hanen and the U.S. Court of Appeals for the Fifth Circuit, which reached a similar conclusion about President Obama's larger Deferred Action for Parents of Americans (DAPA) program (in 2016, the Supreme Court upheld the Fifth Circuit's DAPA decision in a 4-4 tie following Justice Antonin Scalia's passing). For procedural reasons that Judge Hanen spelled out in his latest opinion, his ruling will not immediately affect current DACA recipients, although it will bar approval of new applications. In addition, as Judge Hanen remarked, the government will have an opportunity to put DACA on a firmer legal footing through a new regulation that is currently in the drafting stage.
As a quick review, it's important to note that DACA has two elements, as Chief Justice John Roberts explained in his opinion for the Supreme Court in Department of Homeland Security v. Regents of the University of California. In Regents, which I analyzed here, the Supreme Court held that President Trump's Department of Homeland Security (DHS) had not adequately articulated the reasons for its attempt to rescind DACA. The Obama administration had initiated DACA to help the "Dreamers": foreign nationals who entered the United States as children, accompanying parents who entered the country unlawfully. Analyzing the program, Roberts described DACA as providing a reprieve from removal—which he referred to in his Regents opinion as "forbearance”—and the opportunity to seek a work permit, which he referred to as an immigration "benefit."
While it offers forbearance and a valuable immigration benefit, DACA does not confer a legal status, per se—only Congress can establish forms of legal status under the Immigration and Nationality Act (INA). Those forms of status confer legal permission to remain in the United States on a range of foreign nationals, including nonimmigrants, such as tourists and students, and immigrants, such as 1) close family members of U.S. citizens and lawful permanent residents and 2) persons approved for skilled jobs that U.S. citizens and lawful permanent residents are not interested in filling. Persons granted asylum due to fear of persecution also receive a legal status and a chance to become lawful permanent residents and eventually U.S. citizens.
DACA does not entail a formal legal status in this sense, and its recipients typically do not qualify for legal status through the paths described. Moreover, at any time, immigration officials can rescind DACA's twin components of forbearance and benefits. However, the government reasons for rescission must meet the "reasoned decisionmaking" test of the Administrative Procedure Act, as the Trump administration found out in Regents.
This discussion of agency discretion raises an important preliminary matter that Judge Hanen discussed in his opinion and may hold a key for DACA's future: the absence of a formally enacted rule or regulation implementing DACA under the Administrative Procedure Act. The Administrative Procedure Act distinguishes between formal regulations and informal policy guidance. A regulation represents an agency's most deliberate consideration of its responsibilities under the statute that gives the agency power. Promulgating a regulation requires several procedural steps. An agency must first draft a proposed rule, along with a legal rationale for that rule. Then the agency must solicit input from stakeholders, through the Administrative Procedure Act's "notice and comment" process. After the agency has received comments, it issues a final rule, describing and justifying any changes it has in response to stakeholders' comments. Once the agency has issued its final rule, that rule is subject to judicial review. Courts can overturn the rule if it exceeds the agency's power under the statute or if the rule is "arbitrary and capricious," meaning that it lacks a coherent policy rationale or fails to explain changes from existing policies or regulations.
If a regulation successfully navigates this procedural gauntlet, that regulation limits the discretion of agency officials. Officials cannot reach a decision that is inconsistent with the rule. In contrast, policy guidance from an agency is a more informal step that leaves more room for officials to exercise discretion. Policy guidance may list several factors for officials to consider but cannot mandate a particular result. Agencies often prefer to issue guidance, rather than regulations, because guidance does not require the elaborate procedural steps, such as notice and comment from stakeholders, that the Administrative Procedure Act requires of formal regulations.
In his decision, Judge Hanen found that DHS should have implemented DACA as a regulation under the Administrative Procedure Act. Hanen found that officials had little discretion under DACA: They had to approve applications that met the program's requirements, such as entry as a child before the applicant's 16th birthday, continuous residence since 2007, age under 31 as of 2012 and no significant criminal record. Judge Hanen pointed to studies showing that virtually all applicants who met these requirements were approved and that only a tiny percentage of DACA grants have been revoked once issues arose. Finding that this track record lacked evidence of the discretion that undergirds policy guidance, Judge Hanen found that DACA amounted to a substantive rule that should have undergone the rigorous procedures set out for regulations under the Administrative Procedure Act.
In earlier submissions to Judge Hanen, DHS already indicated that it planned to draft a formal regulation implementing DACA. That regulation would proceed through the Administrative Procedure Act's procedural mechanism. The rest of Judge Hanen's ruling was substantive guidance to DHS, flagging areas where DACA in its current form conflicted with the INA's overall framework.
The core of Judge Hanen's substantive ruling was his analysis that the scale of the DACA program—which includes approximately 700,000 current recipients, with several hundred thousand more noncitizens potentially eligible for DACA's benefits—is not in keeping with the INA's carefully crafted framework of forms of legal status and limited exceptions. For large groups of noncitizens such as DACA recipients who lack any reasonable pathway to a legal status, the INA does not expressly delegate to DHS power to confer DACA's bundling of forbearance and benefits. The INA's express provisions for deferred action are reserved for small groups such as applicants for U and T visas, granted to victims of crime and trafficking, respectively, who cooperate with law enforcement. In addition, the statute expressly grants eligibility for a work permit to asylum applicants. But the statutory foundations for such groups are much firmer than the support for DACA.
Under established principles of administrative law, when Congress erects a detailed and comprehensive framework, an executive agency implementing that framework lacks the power to take actions that could undermine that structure, unless Congress has expressly delegated that power to the agency. DACA recipients fall under none of the express provisions for deferred action in the INA. Hanen viewed this textual gap, together with Congress's repeated failure to pass the "Dream Act" for the noncitizens aided by DACA, as a signal that deferred action for the entire cohort of "Dreamers" undermines the INA's framework and is therefore unlawful. Citing an article of mine in the Florida Law Review on DACA (see page 56 of the opinion), Hanen found that one of two justifications covered most earlier legal justifications of deferred action. Either deferred action assisted noncitizens who had a clear path to a formal legal status—acting as a "bridge" to that status in Josh Blackman's phrase—or it involved small groups. DACA recipients did not fulfill either of these criteria.
Following a distinction made by Roberts in Regents and developed more fully by Justices Clarence Thomas and Brett Kavanaugh in their dissents in that case, Hanen acknowledged that DACA's provision for work permits creates the most powerful tension with the statutory scheme. Hanen acknowledged that the government had prosecutorial discretion to decline to initiate removal proceedings. However, coupling that forbearance with eligibility for a work permit provided noncitizens with the key building blocks of legal status, even though DACA recipients had no path to obtaining that status under the statute. The Obama administration, in a memo issued by then-Secretary of Homeland Security Janet Napolitano, had sought to justify all of DACA using a prosecutorial discretion rationale. Hanen found that justification insufficient, since it did not adequately support the work-permit component of the program.
While Hanen’s opinion follows established principles of administrative law and statutory interpretation in most respects, it is flawed in its failure to address an important residual source of discretion: DHS's ability, recognized by the Supreme Court in Reno v. American-Arab Anti-Discrimination Committee, to grant deferred action on the basis of exceptional hardship, including youth, old age or infirmity. Immigration scholar Shoba Sivaprasad Wadhia of Penn State has written most authoritatively about the contours of this hardship-based discretion. In my judgment, the plight of childhood arrivals, who often lack any knowledge of or support in their countries of origin, fits within this hardship-based category.
The government may choose to explore such hardship-based discretion further in the rulemaking it has embarked on regarding DACA. To accommodate that rulemaking, which will provide a fuller justification for the DACA program, Hanen stayed his injunction as it applied to current DACA recipients and renewals of DACA benefits. Hanen also allowed DHS to continue to receive new applications, although he barred new grants for now.
In its rulemaking, according to Hanen, the government could consider the economic benefits that DACA conferred on U.S. citizens, entities and institutions, including institutions of higher learning, corporations and the U.S. military—benefits that Roberts had earlier cited in Regents. The government would also do well to consider the diplomatic and foreign policy consequences of revoking DACA's benefits. For example, ending the program might lead other countries whose nationals were affected to put diplomatic pressure on the United States. The disruptions caused in other countries by the need to absorb hundreds of thousands of young people with minimal ties to those countries could strain U.S. foreign policy. In addition, if the U.S. government used prosecutorial discretion to decline to remove current DACA recipients, the presence of a substantial group of persons within the country whom the government chose not to remove could be problematic for both that group and U.S. persons and entities with relationships with that group. As the Supreme Court noted in Plyler v. Doe, lingering presence in the United States without the ability to gain an education or earn a livelihood could create social and economic problems that executive action can resolve. The claim for executive discretion is all the more compelling in addressing the plight of persons like the DACA recipients who—as minors—lacked a voice in their parents' initial decision to enter the United States.
In conjunction with its rulemaking, the government may choose to appeal Hanen's ruling, as President Biden has vowed to do. However, courts further up the ladder, including ultimately the Supreme Court, may choose to leave Hanen's decision and remedies in place until the government's rulemaking on DACA is final. That process—which under the Administrative Procedure Act would include notice of a proposed rule, comments by interested parties, and issuance of a final rule—could take up to two years to complete. In the meantime, unless Congress acts to codify DACA's benefits, recipients will be uncertain about their future."