By Adam Cox, Marty Lederman and Cristina Rodriguez

Cross-posted from Balkinization

One month ago, on September 5, the Acting Secretary of Homeland Security, Elaine Duke, rescinded a June 2012 memorandum issued by her predecessor, Secretary Janet Napolitano, which had established the Deferred Action for Childhood Arrivals program, commonly known as “DACA.”  DACA was a program that enabled the so-called “DREAMers” to apply for temporary relief from removal and authorization to work in the United States.

Although the Duke memorandum announced that the “DACA program should be terminated,” it also declared that the Department will “execute a wind-down of the [DACA] program” and, in particular, “will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters.”  That “window” has widely (but not entirely accurately) been characterized as “extending” DACA for six months, until March 5, 2018, during which time Congress might consider whether to enact legislation to protect DREAMers and possibly even afford them legal authority to remain in the United States.  (We’ll have more to say toward the end of this post about how to understand the DHS “wind down” and the so-called six-month “window.”)

President Trump reportedly has begun discussions with congressional Democrats about a possible legislative proposal.  It’s not yet clear, however, what such legislation would look like or what its prospects for enactment might be.  On September 5, Trump tweeted that if Congress does not “legalize DACA” by March, he “will revisit this issue.”  As we explain below, however, his Attorney General and DHS have announced that there is no legal authority for DACA, a conclusion that complicates any “revisiting” of the issue, to say the least (see Part V below).

In the meantime, several sets of plaintiffs have filed lawsuits challenging the legality of DHS’s DACA rescission.  Most notably, New York and fifteen other states, and the District of Columbia, filed suit in the Eastern District of New York; and the Regents of the University of California filed suit in the Northern District of California, together with former DHS Secretary Napolitano, who is now President of the University of California.  More recently, similar suits have been filed by the States of California, Maine, Maryland and Minnesota; the NAACP; and a half-dozen individuals who are currently protected by DACA.

There are many confusions and misconceptions about what DACA is (or was); about the effects of DHS’s “rescission, and what the legal basis might be for that rescission; about what happens during the so-called six-month “window”; about the prospects that Trump might reverse course in March; and about the current litigation challenging DHS’s rescission.  In this post, we try to offer some specificity and clarification with respect to these matters.  A caveat is in order, however:  On some of these matters, our assessment is merely a best guess.  Because the Administration has not been entirely forthcoming about all of the details of its latest actions, or the legal basis on which it acted, the answers to some of the questions remain unclear or unsettled.

An outline of the questions we address in this post:

I.  What Did DACA Do?           

A.  Decreased Likelihood of Removal           

B.  Work Authorization           

C.  Social Security and Medicare Benefits

II.  Why and How did the Trump DHS Rescind the DACA Program?

III.  What Are the Effects of DHS’s DACA Rescission?           

A.  Social Security/Medicare Benefits           

B.  Work Authorization

C.  Constraining ICE’s Discretion to Remove DREAMers

IV.  How Do the “Wind-Down” and the Six-Month “Window” Work?                       

A.  Who’s Covered?

B.  What’s the Effect of “Wind-Down” Deferred Action (i.e., after September 5, 2017)?

C.  What’s DHS’s Legal Justification for Continued Work Authorization After September 5, 2017?           

V.  Can the Administration Revive DACA After March 5, 2018, as President Trump Has Insinuated It Might?

VI.  What Are the Prospects for the Litigation Challenging the DACA Rescission?

I.  What Did DACA Do?

In order to understand the effect of the Trump Administration’s “rescission” of DACA, it’s essential to understand what the DHS DACA program was—that is to say, what it did for the protected class of non-citizens, often referred to as the “DREAMers.”
DACA was an initiative, announced by DHS Secretary Napolitano in 2012, to provide what the agency refers to as “deferred action” to persons who were in the United States without authorization but who satisfied six criteria:

(i) they were under 16 years old when they came to the United States;

(ii) they had continuously resided in the United States for a least five years preceding June 15, 2012;

(iii) they were present in the United States on June 15, 2012;

(iv) they were in school, had graduated from high school, had obtained a general education development certificate, or had been honorably discharged from the U.S. Coast Guard or Armed Forces;

(v) they had not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and did not pose a threat to national security or public safety; and

(vi) they were not yet 31 years old.

In order to apply for deferred action under DACA, an individual was required to submit evidence to DHS that she satisfied each of these criteria.  Satisfaction of the criteria did not guarantee that DHS would approve such a person for deferred action—DHS reserved its “unreviewable discretion” to deny the application—but the agency afforded deferred action to the vast majority of applicants, about 800,000 in total.

DREAMers are hardly the only group of non-citizens who have been afforded such “deferred action.”  For many decades, DHS (and the INS before it) has granted that status to many other categories of persons, too, including many who were not authorized to be present in the United States (i.e., who are here unlawfully).  In recent years, the agency has typically granted deferred action for renewable two-year terms. 

OK, but what does it mean, as a practical matter, for DHS to grant a DREAMer—or anyone else— “deferred action”?  It is widely, but mistakenly, assumed that “deferred action” prohibits DHS from removing (or deporting) someone who would otherwise be removable, or that deferred action gives its recipient the legal right to remain in the country and not be arrested or detained by DHS for removal purposes.  (The New York lawsuit, for example, alleges that “DACA grantees are granted the right not to be arrested or detained based solely on their immigration status during the time period their deferred action is in effect.”  To the same (mistaken) effect, see paragraph 82 of the California complaint and paragraph 27 of the Garcia complaint.)

That common assumption is wrong in two important respects.  On the one hand, the government is unlikely to remove the vast majority of DREAMers even in the absence of deferred action.  DHS has only enough resources to remove a tiny fraction of the more than eleven million individuals who are not lawfully in the United States.  Moreover, although the Trump administration surely cares less than the last about the real or perceived equities of DREAMers, it’s unlikely that anyadministration would invest resources in deliberately targeting DREAMers, in particular, for deportation:  there is a broad consensus that they are low enforcement priorities. 

On the other hand, a grant of deferred action does not guarantee that DHS will not remove its recipient from the United States, nor does it confer upon that individual the legal right or authority to remain in the country:  As the 2012 Napolitano memo specifies, deferred action “confers no substantive right.”  The Obama DHS also publicly warned that “[t]his policy may be modified, superseded, or rescinded at any time without notice.”  Thus, as the Solicitor General explained to the Supreme Court in the recent United States v. Texas case, which also involved a program of deferred action, “[e]ven with deferred action . . . , [covered] aliens lack lawful status, are actually present in violation of law, are subject to enforcement at the government’s discretion, and gain no defense to removal.”

To be sure, as a practical matter conferral of “deferred action” may be understood as a sort of unenforceable promise or commitment by the government.  That explains why DACA recipients have relied, in planning their lives, on both the deferral of their removal and the authorization to work they have been granted.  The outrage sparked by the removal or threatened removal of a recipient of DACA is thus understandable.  That outrage, however, is based principally on moral and political foundations, not legal guarantees.

So if that’s what DACA (and deferred action more broadly) does not do, what, exactly, does it accomplish?  There are three principal things that follow from “deferred action” as a matter of federal law and practice, the second of which—work authorization—is by far the most important:

A.  Decreased Likelihood of Removal  

As we note above, even without deferred action, DHS is very unlikely to remove any particular DREAMer from the United States, even though there have been anecdotal accounts of such cases across administrations.  The DACA program, however, took two steps to make that prospect even more unlikely.  First, Secretary Napolitano expanded access to deferred action by establishing a formal, affirmative system, with clearly publicized qualifications, under which DREAMers could apply for deferred action.  (The application process was deliberately housed in the benefits-focused arm of DHS, rather than the enforcement arm.)  Second, Napolitano’s 2012 memo specifically designated deferred action aliens as “low priority individuals” for removal and—most importantly—instructed officials at the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) to “immediately exercise their [prosecutorial] discretion, on an individual basis, in order to prevent [such] low priority individuals from being placed into removal proceedings or removed from the United States.”  This directive, combined with the documents that DHS provided to DACA recipients, offered greater practical assurance that DREAMers would not be removed, even if they came into contact with such immigration officials—in large part by facilitating the Secretary’s ability to superintend the discretion exercised by line-level enforcement agents.

B.  Work Authorization

This is the big-ticket item.  As Marty explained in several posts concerning the 2015-16 litigation involving the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program (DAPA)—culminating in this post (which links to the others)—the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(a), generally makes it unlawful to hire or employ an “unauthorized alien.”  That statute in turn defines “unauthorized alien” to mean an alien who is neither lawfully admitted for permanent residence nor “authorized to be . . . employed by this chapter or by the Attorney General.”  Id. § 1324a(h)(3).  This provision of IRCA thus expressly provides that the Attorney General—now the Secretary of DHS, by virtue of a later statutory substitution—may “authorize[]” aliens to be eligible for employment, even in cases where the statute itself does not directly authorize them to be employed; and when the Secretary does so, such Secretary-designated aliens are not “unauthorized aliens” who are subject to IRCA’s hiring prohibition.  

Since Congress enacted IRCA in 1986, the Attorney General and (later) the DHS Secretary have designated dozens of types of aliens as “authorized to be . . . employed” under specified conditions—most or all of which are listed and described in 8 C.F.R. 274a.  Most importantly for DACA purposes, in 1987 the Reagan Administration promulgated a regulation (see current subsection 274a(c)(14)) providing that any “alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority,” may obtain work authorization if the person “establishes an economic necessity for employment.”  This rule survived extensive notice and comment review during the Reagan administration despite sharp challenges; Congress has been aware of it for many years; and for several decades after 1987, no one challenged it in court.  (See the detailed account of this regulation in Part II of the Argument in this amicus brief on behalf of former immigration officials, on which Marty worked.)

Thus, for three decades (indeed, even before 1986), the INA regulations have provided that employers may hire “deferred action” noncitizens if those individuals demonstrate to DHS an economic need to work .  This decision by the Reagan INS—to promulgate a formal rule that “deferred action” aliens can be part of the lawful and above-board national workforce—made good sense.  After all, individuals whose removal was deferred, and who would therefore likely be in the nation for an extended period, would be a drain on society—and certainly on family members, friends, or charity—if they did not work.  And if they instead decided to work without agency authorization, it could only be for an employer willing to hire them unlawfully, in which case their employment would be more likely to depress wages, evade taxation, and otherwise create exploitative labor conditions.  Accordingly, as the Solicitor General put it in one of his briefs in the DAPA case, work authorization for deferred action aliens, who are unlikely to leave the United States in the near future, “allows individuals to leave the shadow economy and work on the books to provide for their families, thereby reducing exploitation and distortion in our labor markets.”

In sum, then, once a DREAMer (or anyone else) is granted “deferred action,” she becomes eligible for work authorization, which makes it lawful for an employer to hire her.  This is the most important incident of DACA.

C.  Social Security and Medicare Benefits

Federal regulations dating back to the Clinton administration have also regarded recipients of deferred action to be eligible for certain Social Security benefits. 

A 1996 statute, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), prohibits aliens from receiving most federal benefits unless they are “qualified”—a narrowly defined term that excludes many noncitizens in the U.S., including those afforded deferred action.  8 U.S.C. §§ 1611(a), 1641(b).  Congress created an express exception to this limitation, however, for one type of benefit:  Title II Social Security benefits are available even to non-“qualified” aliens if they are “lawfully present in the United States as determined by the Attorney General.” 

Eleven days after Congress enacted the PRWORA, Attorney General Reno promulgated a regulation as an interim rule, with request for comments, in which she determined that several different categories of aliens were deemed “lawfully present in the United States” solely for purposes of receiving Title II Social Security benefits.  Those categories of individuals included some who were not legally authorized to be in the United States, namely, persons “under Deferred Enforced Departure (DED) pursuant to a decision made by the President,” and persons afforded deferred-action status.  See 8 C.F.R. § 1.3(a)(4)(v), (vi).  No one objected to this rule.  Moreover, in 1997 Congress amended section 1611 to cover Medicare and Railroad Retirement benefits, in addition to Title II Social Security benefits, which might suggest congressional acquiescence, even if the original claim of statutory authorization was questionable. 

Thus, for the past 20+ years, individuals with “deferred action,” including but not limited to DACA “DREAMers,” have been eligible to receive Title II Social Security benefits, Medicare benefits, and Railroad Retirement benefits. In other words, this feature of DACA, like work authorization, was not an invention of the Obama administration, but rather the consequence of pre-existing regulations governing deferred action.^[1]

II.  Why and How did the Trump DHS Rescind the DACA Program?

Importantly, Acting Secretary Duke did not offer any policy justification for rescinding the Napolitano DACA memo:  She did not conclude, for example, that DACA is a waste of resources or that the employment of DREAMers is harmful to the economy.  Nor did she embrace Attorney General Sessions’ views, stated in his press conference on September 5, that DACA has “contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences” and “denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”  To the contrary, her DHS officials testified to the Senate just this week that the DREAMers are a benefit to the country.

Instead, Acting Secretary Duke justified her action solely on the ground that Attorney General Sessions had informed her (in a September 4 letter) of his conclusion that DACA was not authorized by law.  According to Sessions, Secretary Napolitano’s DACA policy was:

effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.  Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.^[2]

Before discussing the substance of Sessions’s conclusion about statutory authorization (or the lack thereof) and how it might inform the implications of the DACA rescission, it is worth pausing to note three other things about this crucial passage from his letter to DHS.

First, Sessions’ claim that Congress has “repeated[ly] reject[ed]” proposed legislation “that would have accomplished a similar result” as DACA is disingenuous, at best.  Sessions presumably is referring to the DREAM Act, which Congress has never “rejected”—indeed, the House approved it in 2010, and it has never come to a full vote in the Senate.  (A majority of Senators approved a version of it in 2007, but a filibuster prevented a merits vote then, too.) 

What’s more, even if Congress had expressly “rejected” the DREAM Act—a significant misreading of the legislative history, in our view—it is deeply misleading to say that the DREAM Act “would have accomplished a similar result” as DACA.  DACA and the DREAM Act are two entirely different kinds of legal acts.  As two of us have emphasized, the former (DACA) reflects the exercise of contingent, discretionary executive powers as delegated or ratified by existing statutes, whereas the latter would permanently alter the legal status of the population it would reach.  The legislation would go much further than DACA—it would offer DREAMers the legal right to remain in the country, and a path to lawful permanent residence and then citizenship.  DACA, by contrast, simply defers their removal and triggers eligibility under the regulations described above.  As far as we know, Congress has never even considered, let alone rejected, any legislation that would do no more than codify DACA. 

Second, Sessions’s assertion that DACA is an “unconstitutional exercise of authority by the Executive Branch” is a mere rhetorical (and tendentious) flourish, without substance.  As Marty has explained in several posts (see, e.g., the first three points of this post, and this post), the Obama Administration did not assert the authority to implement DACA or DAPA “unilaterally,” i.e., without statutory authorization (let alone in defiance of the law).  And as Adam and Cristina have argued, such a decision about the particular circumstances under which to enforce the law is the exercise of a common executive function that all Attorneys General, Sessions included, have exercised in numerous contexts.  The gist of the dispute here, especially concerning work authorization, has been whether the existing immigration laws authorize DHS’s actions (as Secretary Napolitano concluded), or do not authorize them (as AG Sessions apparently has concluded).  That is an ordinary, every-day dispute about statutory interpretation.

Third, in concluding that DACA is unlawful, AG Sessions upends or calls into question elaborate, pre-existing DOJ legal positions.  The official position of the United States, as expressed by DOJ in many briefs—including a pair filed by the Solicitor General in the Supreme Court (see here and here)—had long been that the INA authorizes not only DACA, but the broader DAPA program, as well.  The Office of Legal Counsel also issued a memorandum in 2014 elaborating its conclusion that DAPA was legally authorized, and in so doing noted that it had concluded previously that DACA was lawful.

It is not unprecedented or illegitimate, of course, for a new Attorney General to reverse the views of the United States on a question of statutory or even constitutional interpretation.  And although we do not think there is much merit to the legal claims against DACA (or DAPA, for that matter), we recognize that current DOJ officials might sincerely disagree.  Even so, such reversals of government position are rare, for obvious institutional reasons, and there is (or least there once was) a fairly high burden of persuasion on those who would propose such a reversal, especially when it would require a repudiation of lengthy and detailed explanations that DOJ has publicly offered, including to the Supreme Court, in support of its previous views. 

In this case, however, public reporting on the Trump rescission offers no indication whether the Acting Solicitor General concluded that the briefs previously filed in the Supreme Court by the Office of the Solicitor General (OSG) were wrong—or even whether the OSG and OLC were consulted for their views.  Moreover, regardless of the internal process, we should expect an extraordinary reversal by DOJ would be accompanied by at least some detailed, public explanation as to why the Department’s previous legal analysis was mistaken.  But there is none.  From Sessions’ letter, a reader would never know that he is, in one unelaborated sentence, rejecting years of legal analysis issued by his own department.  Whatever the merits of his legal views, such insouciant neglect to deal with the Department’s longstanding, formal views is troubling, to say the least.

III.  What Are the Effects of DHS’s DACA Rescission?

Neither the Sessions letter nor the DHS announcement identified or explained the practical effects of rescinding the Napolitano memo.  We can surmise, however, what the Attorney General had in mind—and how DHS will implement its rescission—from a September 5, 2017, DHS “Frequently Asked Questions” (FAQ) release, and from an amicus brief that Sessions himself joined last year in the DAPA case, United States v. Texas, when he was still a Senator. 

The upshot is that once a DREAMer no longer has “deferred action,” she will not enjoy any of the three advantages of DACA detailed above.  Moreover, even DREAMers who continue to have “deferred action” status during the so-called “wind-down” period might no longer receive associated benefits such as Social Security payments, and they will also be subject to a greater risk of removal than they were before September 5.  It will, however, be lawful for employers to hire them until their deferred action expires.

A.  Social Security/Medicare Benefits

Let’s start with the least significant of the three incidents of DACA.  As mentioned above, and as elaborated in this post, the government’s 1996 interpretation of PRWORA to include “deferred action” aliens as eligible for Social Security benefits (and, later, Medicare benefits) is certainly open to question (or it was in 1996, anyway).  The answer to Question 6 of DHS’s new “Frequently Asked Questions” memorandum suggests that perhaps DHS has overturned—or is in the process of overturning—that 1996 interpretation.  The answer to Question 6 states that “[r]ecipients of DACA are currently unlawfully present in the U.S.”—a potentially very significant conclusion, because under PRWORA an alien must be “lawfully present” in order to receive Social Security and Medicare benefits.

Any change of this sort in the government’s view about who is “lawfully present” for purposes of PRWORA presumably would apply not only to those who are no longer eligible for deferred action, but even to persons who have already been granted “deferred action” under DACA but whose DACA status has not yet expired (in light of the wind-down period).  DHS apparently will no longer regard these persons as being “lawfully present” and therefore eligible for Social Security benefits.  And if that’s the case, then the President would have been mistaken when he tweeted that “[f]or all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about—No action!”  At a minimum, DACA recipients will need to “worry” about losing eligibility for these particular federal benefits.^[3]  Even more significant, if DHS reverses its earlier interpretation of PRWORA, that might well mean that all aliens with deferred action—not only DREAMers—will no longer be eligible for Social Security and Medicare benefits.

B.  Work Authorization

As we explained above, this is the most important aspect of DACA.  Therefore it is likewise the most significant aspect of DHS’s rescission.  Indeed, when the Attorney General informed DHS that the Obama Administration’s policy (purportedly) lacked statutory authority, it was almost certainly work authorization that he had foremost in mind.  In his amicus brief in United States v. Texas, then-Senator Jeff Sessions (together with 42 other Republican Senators) argued principally that IRCA does not afford the Secretary the power to authorize employers to hire the persons who received deferred action under the DAPA program.  Sessions’s amicus brief did not specifically address whether there would be a similar absence of power with respect to the DREAMers, but its logic suggests that DHS cannot authorize employers to hire that large class of individuals, either. 

It’s therefore fair to assume, at least absent further clarification from DOJ, that Sessions, as Attorney General, is now adopting on behalf of the United States the views about work authorization that appeared in his amicus brief in the Texas case.  If so, that would mean a repudiation of the considered views of the Solicitor General in the Texas case (see pp. 50-60 of the government’s opening brief and Section IV-C of the SG’s reply brief).

If we’re right about that, it means that the principal effect of “rescinding” DACA will be a dramatic impact on the presence of DREAMers in the workforce (or in the legal workforce, anyway).  To be sure, as long as some DREAMers continue to have deferred action for a limited “wind-down” period, employers may keep them on the payroll.  But once they no longer have deferred-action status—and are therefore stripped of the Employment Authorization Documents (EADs) that ordinarily come with deferred action status—employers who wish to comply with the law will have no choice but to fire (and refuse to hire) them.  Indeed, for reasons we identify in a footnote, the Attorney General’s apparent new interpretation of the IRCA work authorization provision might have a profound impact on the prospects for employment of many other categories of noncitizens, as well, in addition to the DREAMers.^[4]

C.  Constraining ICE’s Discretion to Remove DREAMers

Recall that the third, and most well-known, incident of deferred action for DREAMers is that Secretary Napolitano directed ICE officers to “exercise their [prosecutorial] discretion, on an individual basis, in order to prevent [these] low priority individuals from being placed into removal proceedings or removed from the United States.” 

In his amicus brief in the Texas DAPA case, then-Senator Sessions did not argue that DHS lacks authority to exercise such enforcement discretion to de-prioritize the removal of certain classes of aliens, such as the DREAMers or would-be DAPA recipients.  To the contrary, Sessions’s brief indicated that DHS does have the authority “to prioritize the deportation of certain aliens” and to “simply . . . leave individual aliens alone.”  We would be very surprised if Attorney General Sessions has now reached a contrary view.  Given that, it is not clear why it would have been unlawful for Secretary Napolitano to have directed ICE officers to “exercise their [prosecutorial] discretion” in a particular way, as she did in the 2012 DACA memo. Certainly, neither Sessions nor DHS has offered any legal reason why that directive should now be rescinded.  Nevertheless, that appears to be what DHS has now done.

As we explained above, the rescission of the Napolitano memo does notmean that DHS will remove most DREAMers from the United States.  The vast majority of DREAMers were not targeted for removal before DACA, and there is no indication that they will now be targeted.  They will, however, live in much greater fear of being removed—even while some of them continue to have “deferred action” status—because, after rescission of the Napolitano memo, there will no longer be any instruction to ICE officers to “exercise their [prosecutorial] discretion, on an individual basis, in order to prevent [such] low priority individuals from being placed into removal proceedings or removed from the United States.”  Nor, once their current DACA grants expire, will they have papers attesting to their low-priority-for-removal status.  Indeed, the Acting ICE Director testified in a House hearing in June that “every immigrant in the country without papers . . . should be uncomfortable.  You should look over your shoulder.  And you need to be worried.”  Living under the shadow of this increased prospect of removal obviously will have a profound impact on the ways in which many DREAMers conduct their lives, even if most of them remain in the United States for many years to come.

It’s also possible the risk of removal under the new Trump policy may be heightened still further, if ICE and USCIS (the DHS component that oversaw DACA) begin cooperating in a way they have not done to date.  Under the Napolitano policy, DREAMers themselves were required to convey information about their status and whereabouts to USCIS when they applied for deferred action.  If ICE were to obtain that information, it might use it as a basis for identifying targets for removal or to demonstrate that the individuals are not lawfully in the United States and thus can be removed.

Under the Obama administration, this risk was remote.  Before September 5, a DHS FAQ on DACA informed recipients (Q19) that:

Information provided in [a DACA] request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA).  Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. 

This was not quite a legal commitment that DHS would never use the deferred-action information it obtained from DACA applicants for removal purposes:  The QFR specifically stated that “[t]his policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”  Nevertheless, as Secretary Jeh Johnson explained in a December 2016 letter to Representative Judy Chu, the agency’s longstanding practice has been not to use such information “submitted by people seeking deferred action . . . for immigration enforcement purposes except where it is independently determined that a case involves a national security or public safety threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law.” 

Accordingly, until now it has certainly been reasonable for DACA applicants to submit potentially compromising information to DHS without concern that it would be shared with ICE and used against them—an expectation without which many of them likely would not have applied for deferred action in the first instance.

The Trump DHS, however, has now amended the assurance in its FAQ to read as follows (Q7):

Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). 

The new FAQ no longer contains the previous assurance that “[i]ndividuals whose cases are deferred pursuant to DACA will not be referred to ICE.”  Moreover, the assurance that information provided to USCIS in DACA requests will not be provided to ICE and CBP for the purposes of removal proceedings is now qualified by the adverb “proactively.”  The effect of that qualifier is unclear, but it could well mean that if ICE now asks USCIS for someone’s DACA application information, USCIS might turn it over to ICE in response.  If so, such an egregious bait-and-switch would compound the fear generated by the administration’s rescission announcement, promises of a wind-down and a legislative push notwithstanding.

IV.  How Do the “Wind-Down” and the Six-Month “Window” Work?

In announcing the rescission of DACA, Acting Secretary Duke wrote that DHS will “execute a wind-down of the [DACA] program,” and that “[r]ecognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters.”  DHS has been somewhat unclear, however, about how this “wind-down” and "window" will work. 

There are at least three major questions associated with the wind-down:  Who is covered?  Will “deferred action” during the wind-down come with all of the advantages that it had before September 5?  And what’s the legal justification for permitting the employment of DREAMers after September 5, now that the Attorney General has concluded that the statute does not authorize the Secretary to grant employers permission to employ the DREAMers?

A.  Who’s Covered?

DHS is distinguishing among at least four categories of DREAMers for “wind-down” purposes:

1.  A DREAMer who had not yet ever applied for deferred action by September 5 is out of luck:  According to Duke, DHS “[w]ill reject all DACA initial requests and associated applications for Employment Authorization Documents filed after [September 5].”

2.  A DREAMer who had applied for an initial period of deferred action before September 5 might receive it:  DHS “[w]ill adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of [September 5].”

3.  A DREAMer who was already (i.e., on September 5) in “deferred action” status for a period that ends before March 5, 2018 might have that status renewed by DHS for one additional period if she has applied for renewal by today, October 5, 2017.  DHS has not yet publicly clarified what the length of these renewed terms will be—whether they will be for the traditional two-year duration, or expire on March 5, 2018.  We have been informed, however, that DHS has confirmed to at least some renewal applicants that the term of renewed deferred action will be the traditional, full two years.  If that is correct, it would mean, for example, that an individual who receives a renewal in March 2018 would be in deferred action status until March 2020.  After their designated periods of renewal expire--either before March 5, for DREAMers who did not apply by today or whose applications for renewal are rejected, or sometime after March 5, for DREAMers who obtain the one renewal term--these DREAMers will no longer enjoy deferred action and the authority to be lawfully hired, unless the law changes in the interim.

4.  A DREAMer who was already (i.e., on September 5) in “deferred action” status for a period that ends after March 5, 2018 will remain in that status, typically with work authorization, for the duration of the previously designated two-year period. DHS has said that it “[w]ill not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.”  Thus, for example, a DACA beneficiary granted two years of deferred action in August 2017 would remain in deferred action status until August 2019.  Once their current periods of deferred action expire, however, these DREAMers will no longer enjoy deferred action and the authority to be lawfully hired (unless the law changes in the interim).  By most rough estimates, the term of deferred action will expire for approximately 1000 DREAMers each day (that is, approximately 30,000 DREAMers every month) after March 5.

B.  What’s the Effect of “Wind-Down” Deferred Action (i.e., after September 5, 2017)?

For DREAMers whose deferred action has continued beyond September 5, will there be any changes in how they are treated while they enjoy such status?

Yes.  As explained above, it appears that one of the three primary advantages of deferred action—eligibility for Social Security and Medicare benefits—will no longer be available for DREAMers with deferred action (and perhaps not for other deferred action recipients, either).  (This change will mostly be felt years from now, when DREAMers would have been eligible to receive such benefits.) 

Moreover, there is at least a slightly greater risk than there was before September 5 that ICE will remove such DREAMers from the United States, even during their period of “deferred action,” because, as noted above, there is no longer a directive from the Secretary to ICE officers to “exercise their [prosecutorial] discretion, on an individual basis, in order to prevent [such] low priority individuals from being placed into removal proceedings or removed from the United States.” 

On the other hand, it will remain lawful to employ most DREAMers—those who have “establishe[d] an economic necessity for employment” and received an Employment Authorization Document from DHS—until their deferred action expires:  That’s the most consequential sense in which DHS is implementing a “wind down” period.

C.  What’s DHS’s Legal Justification for Continued Work Authorization After September 5, 2017

As explained above, the Attorney General apparently has concluded, consistent with the rationale of his Supreme Court amicus brief as a Senator in U.S. v. Texas, that there is no statutory authority for the Secretary to grant work authorization to DREAMers.  If there is no such legal authority, however, then from where would Secretary derive her power to authorize employers to hire and employ such DREAMers during the relevant “wind-down” periods?

Who knows?  Such short-term, interim work authorization would, from all that appears thus far, be inconsistent with the Attorney General’s legal conclusion—which is itself the justification for refusing to confer work authorization more broadly.  Perhaps DHS thinks it has some sort of equitable authority—certainly not express in IRCA—to continue “transitional” work authorization.  Some DREAMers, however, might be afforded authorization that lasts into 2020.  And it is difficult to see why, if the Secretary has that authority, she does not also have the authority to permit employers to hire DREAMers more broadly, and to renew those authorizations more than once, as the DACA program itself allowed.

V.  Can the Administration Revive DACA After March 5, 2018, as President Trump Has Insinuated It Might?

On September 5, President Trump tweeted that if Congress does not “legalize DACA” by March, he “will revisit this issue.”  But, again, the Attorney General has now announced that, in his view, there is no legal authority for such a program (especially for its attendant work authorizations).  Of course, it’s always possible the President doesn’t share, care about, or understand his officials’ views about what the law allows—and it’s even possible that he might overrule his Attorney General’s legal conclusions.  Unless and until the Department of Justice does yet another about-face, however, and revives its commitment to the legal arguments it tendered until a few weeks ago, it’s hard to see how DHS could “revisit” the issue of whether to implement DACA if Congress fails to amend the law.

VI.  What Are the Prospects for the Litigation Challenging the DACA Rescission?

The new lawsuits challenging the rescission of DACA raise several different claims.  For example, they allege that the rescission violates the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution because it was motivated by anti-Mexican animus.  They also allege that the Administrative Procedure Act required the rescission to be effected through notice-and-comment rulemaking.  In addition, they allege that, if and when ICE uses information from DACA applications to justify removals, it will violate the due process rights of the removed DREAMers.

For various reasons, we have doubts about whether these legal theories will be fruitful.  (See William Funk’s summary for a concise overview of some of the suits and the legal obstacles to some of the claims.)  Some of the suits, however, include another theory that we think might be more successful.  As the complaint in the Cal Regents suit puts it (paragraph 56):  “The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are based on the legally incorrect premise that DACA is unlawful.”  See also paragraph 283 of theNew York complaint and paragraph 176 of the Garcia complaint.

As we explained above, DHS has justified the rescission of DACA only on the ground that the AG has concluded there is no legal authority for it.  If the courts find that Sessions is correct—that there’s no authority for DACA—then presumably the challenges to the rescission will fail.  If, however, the courts find that Sessions is wrong as a legal matter—that DOJ’s previous view was correct that deferred action and the attendant work authorization are lawful—then that will eliminate the sole predicate offered by DHS for its rescission.  There is some precedent suggesting that such a judicial conclusion would render DHS’s decision arbitrary and/or capricious, in violation of the APA.  See, e.g., Safe Air For Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (“We have held EPA’s conclusion that the preexisting SIP did not ban field burning legally erroneous. Because that flawed premise is fundamental to EPA’s determination that it did not contravene [the Clean Air Act], EPA’s outcome on those statutory interpretation questions is “arbitrary, capricious, or otherwise not in accordance with law” for the purposes of our review.”).  It might at first seem incongruous to deem “arbitrary” a decision based upon a good-faith understanding of the law that the courts ultimately do not share.  But if the courts were to reject Sessions’s legal views, then the DACA rescission as currently presented would lack any stated DHS rationale, and its continuation would be arbitrary.^[5]

Note, however, that a declaration by the courts that the rescission was arbitrary and/or capricious would not mean that DHS could not rescind DACA. Neither the Constitution nor the INA requires a program such as DACA.  It has been a discretionary policy based on judgments about how to allocate scarce enforcement resources and how to exercise the Secretary’s work-authorization power.  Therefore DHS thus could, for example, rescind DACA based upon the Secretary’s view that it is an unwise or counterproductive policy.  As noted above, however, DHS officials have testified that the DREAMers are a benefit to the nation.  And the President has publicly cajoled Congress to legislate protections for DREAMers.  Accordingly, if the courts were to reject Sessions’ reading of the statute, and remand the matter to DHS for further consideration, DHS would have no choice but to forthrightly assess the dramatic and harmful consequences of DACA rescission on the merits.  In that event, Acting Secretary Duke could rescind DACA only if she were to change her current view and conclude that the policy is substantively harmful or unwise; she could no longer hide behind what we believe to be dubious constitutional and statutory arguments about the scope of the agency’s authority.  “The law made us do it” would no longer suffice.


[1] Perhaps the biggest stumbling block the government faced when defending the DAPA program in the Texas litigation, including during oral arguments at the Supreme Court, was that the DHS DAPA memo stated that recipients “for a specified period of time [were] permitted to be lawfully present in the United States.”  This language likely reflected the administration’s intent to bring DAPA recipients, like all others with “deferred action,” under the terms of the 1996 Reno regulation for purposes of Social Security benefits.  The consequence of that statement, however, was to make it possible for opponents of DAPA to (inaccurately) characterize the administration as attempting to give unauthorized immigrants the legal right to remain in the United States—something only Congress can do.

[2] Sessions also noted that the State plaintiffs in the Texas litigation challenging DAPA had threatened to amend their lawsuit to include a challenge to DACA, as well, and that because DACA allegedly “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.”  Of course, Sessions was correct that that litigation would in all likelihood not have ended well for the federal government, given that the Attorney General himself was now taking sides with Texas and arguing that DACA is unauthorized and even unconstitutional.

[3] Current DACA recipients also will lose one other advantage that some of them have enjoyed.  Under the statute and its regulations, the DHS Secretary “may” grant advance “parole” to immigrants “for urgent humanitarian reasons or significant public benefit”—which is, in effect, permission for a non-citizen, who does not have a valid immigrant visa, to re-enter the United States after traveling abroad.  This discretionary benefit is not tied to “deferred action” status and thus—unlike work authorization and Social Security benefits—does not depend upon a conferral of such status.  Even so, as the Solicitor General explained to the Court in the Texas case, “DHS has been permissive in authorizing travel by DACA recipients via advance parole.”  The Answer to Question 11 of DHS’s new “Frequently Asked Questions” memorandum, however, says that “[e]ffective September 5, 2017, USCIS will no longer approve any new Form I-131 applications for advance parole under standards associated with the DACA program.”  This change of policy presumably cannot be explained by the argument that there is a lack of statutory authorization—DHS is simply changing its mind and now choosing not to exercise its advance parole authority with respect to DACA grantees.

[4] It’s possible—we do not yet know—that the Attorney General has adopted Texas’s argument in the DAPA case that the work authorization provision of IRCA (8 U.S.C. § 1324a(h)(3)) permits the Secretary to grant such authorization only to categories of aliens that Congress has specifically identified, elsewhere in the Immigration and Nationality Act, as eligible or potentially eligible for work authorization.  If so, such a reading would have implications that sweep far beyond DACA.  As Marty discussed in an April 2016 post, the Secretary and the Attorney General have for decades provided work authorization to many categories of aliens who Congress has not affirmatively identified as eligible to be hired.  See, e.g., 8 C.F.R. §§ 274a.12(a)(6), (9), (11), (c)(3), (5)-(7), (9)-(11), (14), (16)- (17), (21), and (25).  As Solicitor General Verrilli stressed in the Texas oral argument, reversing this long-held legal view of the INA would mean that many millions of aliens who have been authorized to work over the past 30 years pursuant to these provisions would no longer be able to work lawfully.  The amicus brief that Sessions joined tried to distinguish some such categories from DAPA, on the ground that they purportedly involved “narrowly tailored groups of aliens who lacked lawful status, but had a clear path to obtaining this status or were otherwise in compliance with the immigration laws until an unexpected, external event.”  As Marty explained, however, IRCA itself does not draw or suggest such distinctions with respect to the Secretary’s work-authorization authority. And, in any event, it is not obvious whether DACA work authorizations can be persuasively distinguished, on that or other grounds, from several other historical categories of work authorization that have reached beyond what the statute expressly sanctions.

[5] In a recent letter to the court in one of the pending challenges to the DACA rescission, DOJ wrote that "[e]ven if the traditional arbitrary-and-capricious standard was applicable,  . . . the Secretary’s decision was entirely rational, given (among other things) the substantial litigation risk that Defendants faced in the Southern District of Texas if the policy continued."  That “litigation risk,” however, cannot fairly be seen as a distinct and independent reason for DHS’s DACA rescission—particularly not, as here, where the “risk” is in large measure a function of the fact that the U.S. Attorney General is now siding with the plaintiffs and agreeing that DACA lacks any statutory basis (see footnote 2, above).  If DOJ were willing to defend the legality of DACA, in accord with the longstanding views of the United States—and the views of the work authorization statute that have been codified in regulations since the Reagan Administration—there’s no reason to think that DHS would rescind the policy, anyway, merely because of the speculative risk that courts might ultimately reject the government’s legal arguments.

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