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April 27, 2020 HUMAN RIGHTS

Activism Leads, the Law Follows: DACA and Its Fate at the Supreme Court

by Luis Cortes Romero

The fate of over 800,000 people who were brought to the United States as children—known as Dreamers—is on uncertain ground as the U.S. Supreme Court reviews President Donald Trump’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. The Constitution and federal immigration laws afford the executive branch significant authority to set immigration enforcement priorities. This case brings to the forefront where the limits of this authority are located. But DACA brings forward more than just the legal limits of the executive branch. DACA represents the unity and activism of the youth-led movement that led to one of the biggest wins for immigrant rights in recent history.

Immigration activists outside of the Supreme Court of the United States.

Immigration activists outside of the Supreme Court of the United States.

Victoria Pickering from Flickr.

The DREAM Act Continues to Be Only a Dream

On August 1, 2001, Senators Dick Durbin (D-IL) and Orrin Hatch (R-UT) introduced to the U.S. Senate the bipartisan legislative proposal called the Development, Relief, and Education for Alien Minors Act—most commonly known as the DREAM Act. The DREAM Act would open a pathway for certain undocumented immigrants who were brought to the United States as children to apply for U.S. legal permanent residency and eventually be eligible for U.S. citizenship. American Dream Act, H.R.1751, 111th Congress (2009–10).

To be eligible for the DREAM Act, the applicant must:

  • Have proof of having arrived in the United States before age 16;
  • Have proof of residence in the United States for at least four consecutive years since their date of arrival;
  • If a male born in 1960 or later, have registered with the Selective Service;
  • Be between the ages of 12 and 35 at the time of bill enactment;
  • Have graduated from an American high school, obtained a GED, or been admitted to an institution of higher education in the United States;
  • Be of good moral character.

The DREAM Act has been just that—a dream. Congressional gridlock has stopped the DREAM Act from becoming law every time it has been introduced in Congress. However, despite its lack of progress in Congress, one thing that the DREAM Act did achieve was to provide a name to the population of immigrants who were brought to the United States as children and grew up with American hearts: Dreamers.

The Evolution of the Youth-Led Immigrant Rights Movement

In the years after Congress first became deadlocked on the Dream Act, the immigrant rights movement grew in momentum and size. In 2009 and 2010, a number of sit-ins, hunger strikes, marches, and social media campaigns were conducted by many activist organizations. Arely M. Zimmerman, A Dream Detained: Undocumented Latino Youth and the DREAM Movement, 44 NACLA Report on the Americas 14–17 (2011). On June 23, 2009, United We Dream—now the largest immigrant youth-led community in the United States—and other organizations organized 500 youths to participate in a National DREAM Act graduation in Washington, D.C., combined with 15 more ceremonies nationwide. Supra, at 14–17.

In late 2010, immigrant rights groups generated over 840,000 calls, in-person support, and emails in favor of the DREAM Act, as well as 81,000 petitions delivered to targeted Senate offices. Hinda Seif, “Unapologetic and Unafraid”: Immigrant Youth Come out from the Shadows, 2011 New Directions for Child and Adolescent Development 59–75 (2011). Dreamers also participated in protests for protection for immigrant rights despite threats of arrest, imprisonment, and deportation. In engaging in these very public activities, the Dreamers invoked a sentiment of “coming out” as undocumented, perhaps inspired by the experiences of the LGBTQ community. Natasha Rivera-SilberComing Out Undocumented in the Age of Perry. New York University Review of Law & Social Change, 37:1, 71–78 (2013).

President Obama’s Announcement of DACA

The year 2012 was pivotal for Dreamers. By 2012, President Barack Obama’s administration was well on its way to deporting more non-citizens than any other administration in U.S. history. This year marked the end of President Obama’s first term in which his administration had deported over 1.5 million people, outpacing deportations carried out by his predecessor, President George W. Bush, by nearly double during his first presidential term. Department of Homeland Security, Yearbook of Immigration Statistics. The Senate had again failed to pass the Dream Act just the year before. Karoun Demirjian, Harry Reid Reintroduces the DREAM Act, The Las Vegas Sun, May 21, 2011. This added to the already growing frustration of Congress’s inaction toward legislation that provided a pathway to citizenship for Dreamers. This restructured priorities for much of the immigrant rights movement. Aside from a pathway to citizenship, Dreamers wanted to stop the most damaging issue for families without immigration status: deportations.

  • United We Dream, along with other immigrant rights groups, outlined a strategy that was direct and simple: to shift and focus all of their resources on securing executive action to stop the deportations from President Obama. Adrian Carrasquillo, How the Immigrant Rights Movement Got Obama to Save Millions from Deportations, Buzzfeed, Nov. 22, 2014. Sit-ins, hunger strikes, and nonviolent civil disobedience continued with great vigor. Sasha Costanza-Chock, “Out of the Closets, Out of the Shadows, and Into the Streets,” Out of the Shadows, Into the Streets! 129–154 (2014). Then, with the help of the National Immigration Law Center, they publicized the president’s legal ability to reduce deportations through executive action.

On June 15, 2012, President Obama stepped out into the Rose Garden and announced his administration’s decision to stop deportations of Dreamers. Along with cessation of deportations, the Dreamers would be eligible to obtain work permits (not to be confused with work visas). Effectuating this new policy, then secretary of the Department of Homeland Security, Janet Napolitano, used her executive authority of prosecutorial discretion and issued a memorandum to Immigration and Customs Enforcement, Customs and Border Protection, and U.S. Citizenship and Immigration Services (USCIS) that prioritized the deportation of individuals with serious criminal convictions and explicitly deprioritizing Dreamers. This policy became known as Deferred Action for Childhood Arrivals, or DACA.

Individuals may request the benefits of the DACA program if they meet the following requirements:

  • Are under the age of 31 as of June 15, 2012 (at least 15 years or older at the time of application);
  • Came to the United States before the age of 16;
  • Have continuously lived in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making their requests for consideration of deferred action with USCIS;
  • Had no lawful United States status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents, (2012).

DACA was an unqualified success. The DACA program allowed over 825,000 young adults to come out from the shadows, participate in the economy, and be full members of their communities. At least 72 percent of the top 25 Fortune 500 companies employ DACA recipients— including IBM, Walmart, Apple, General Motors, Amazon, JPMorgan Chase, Home Depot, and Wells Fargo, among others—as do many other companies, including Uber and Lyft. Many Dreamers are entrepreneurs who have created companies themselves. Six percent of Dreamers (and nearly 9 percent of Dreamers age 25 years or older) started their own businesses after receiving DACA deportation deferrals. Tom K. Wong, et al., DACA Recipients’ Livelihoods, Families, and Sense of Security Are at Stake This November, Ctr. for Am. Progress, (Sept. 19, 2019). Those businesses create jobs for other U.S. residents: Each DACA business owner with full-time employees employs on average 4.5 other workers. Id. That is nearly 86,000 additional jobs that otherwise would not exist. Furthermore, polling suggests that almost 9 out of 10 Americans support the DACA program. Max Greenwood, Poll: Nearly 9 in 10 Want DACA Recipients to Stay in US, The Hill, (Jan. 18, 2018).

President Trump’s Rescission of DACA

On the campaign trail, Donald Trump vowed to undo DACA. Once in office, however, he bowed to the overwhelming popularity of DACA and said that he would treat its recipients “with heart.” Others in President Trump’s administration remain opposed to DACA and committed to end the program.

On August 24, 2017, several Trump administration officials gathered in the Roosevelt Room at the White House for a meeting about the DACA program. Jonathan Blitzer, The Trump Administration’s Plot to End DACA Faces a Supreme Court Test, The New Yorker (Nov. 10, 2019). Present were Attorney General Jeff Sessions, White House Advisor Stephen Miller, Gene Hamilton, an official at the Department of Homeland Security, the president’s Chief of Staff John Kelly, Kelly’s own Chief of Staff Kirstjen Nielsen, and the acting secretary of the Department of Homeland Security, Elaine Duke. Miller scheduled the meeting for a day when Jared Kushner, a moderate voice on immigration, was out of town. Id.

Duke had arrived at the meeting thinking that it would be a discussion about general immigration policy. Julie Hirschfeld Davis, Border Wars: Inside Trump’s Assault on Immigration (2020). Miller had not told her that the actual purpose of the meeting was to set in motion DACA’S cancelation. Id. The government’s own record of the meeting undercuts the administration’s subsequent claims that Duke received a letter from Sessions and then independently decided to end DACA after a thorough consideration of the policy. Id. Rather, the decision to end DACA was made on that day by Sessions based on the conclusion that the program was unlawful. Duke’s memorandum that terminates the program provides no actual policy reasons for ending DACA and only reiterates Sessions’s claim that DACA was unlawful. Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA), (2017).

Legal Challenges to Ending DACA and its Fate at the Supreme Court

Within days of the rescission of DACA, there were lawsuits filed across the country, including in California, New York, Maryland, and Washington, D.C., challenging the legality of the process used to end the program. Among them were lawsuits by different states, universities, and DACA recipients that represent different DACA stakeholders. Throughout the litigation, lawyers for the government have insisted that Duke, a career civil servant who had been in charge of the Department of Homeland Security for less than a month, exercised her own discretion in ending DACA and that, as a result, the courts could not review or override the decision. On January 9, 2018, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction partly blocking the termination of DACA, allowing only renewal applications to be processed, leaving out any new applicants.

After the litigation started, Duke was replaced by then Secretary Kirstjen Nielsen. On April 24, 2018, the U.S. District Court for the District of Columbia held that the Duke memorandum was subject to judicial review under the Administrative Procedure Act (APA) and that it provided insufficient justification for rescinding the DACA policy. The court invalidated the Duke memorandum that terminated DACA but issued a 90-day stay of its order to afford DHS an opportunity to provide a more detailed explanation of its reasons for rescinding the DACA policy. Nielsen issued a subsequent memorandum that provided policy rationales supporting the ending of DACA to add to the justifications for terminating the program. Kirstjen Nielsen, Memorandum from Secretary Kirstjen M. Nielsen, (2017).

The government has argued that the Nielsen memorandum cures the deficiencies that the Duke memorandum may have to keep the DACA program terminated. Lawyers challenging the rescission of DACA, however, argue that the issuance of a subsequent memorandum to justify the administration’s initial decision violates administrative law and should not be considered by the courts. The U.S. District Courts and U.S. Circuit Courts of Appeal in several circuits had continued to rule against the administration. The cases eventually found their way to the U.S. Supreme Court after the administration filed a writ of certiorari. The Court consolidated the cases as Department of Homeland Security, et al. v. Regents of the University of California et al. with the proponents of DACA now being the respondents. The U.S. Supreme Court heard oral arguments on November 12, 2019, and a decision is currently pending.

The challenges to the administration’s attempt to rescind DACA are based on three arguments. The administration first argues that the decision to end the DACA program is one that falls under the immigration enforcement authority that it is left solely to the executive and that courts cannot review the decision to end the DACA program.

Respondents argue that certainly the Constitution and federal immigration laws give the executive branch significant authority to set immigration enforcement priorities—but this authority is not absolute. The principal check on the executive’s authority in this area is procedural: As with other exercises of the government’s coercive power, the executive must comply with the APA by giving “reasoned explanation[s] . . . that can be scrutinized by courts and the interested public.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575–76 (2019). The APA demands a legitimate analysis and clear explanation of the relevant policy considerations before reversing a long-standing policy and subjecting over 800,000 individuals to deportation. This is where the administration rests its second argument.

The administration’s second argument is that it ended the DACA program because it was purportedly illegal, even if it considered DACA to be a sound policy. However, the respondents argue that the DACA policy is not illegal because the executive branch has inherent authority of using prosecutorial discretion in the immigration context, including deprioritizing the deportation of Dreamers. The respondents point to a decades-long history of presidential administrations from both political parties exercising its inherent prosecutorial discretion to permit certain categories of immigrants to remain and work in the United States. If the respondents can prove the program’s legality, then the purported reason for ending the program is invalid.

The administration’s third argument is that Nielsen had found policy reasons to end the DACA program, regardless of the program’s legality, and that her decision to end the program is not reviewable by courts because it is a decision solely within the discretion of the executive. The administration further argues that the Nielsen memorandum does not provide “new” policy rationales, but rather a more detailed explanation of Duke’s initial memorandum.

Respondents argue that the Nielsen memorandum terminating the DACA program does not satisfy the requirements of the APA. Respondents argue that the Nielsen memorandum and its policy considerations were not issued before reversing the DACA program. Respondents disagree with the administration that the Nielsen memorandum merely adds details to Duke’s initial memo. Rather, respondents argue that the Nielsen memorandum sets out new reasons at first instance and not before reversing the DACA policy, therefore violating the APA.

However, respondents argue that even if the Nielsen memorandum is considered to be a mere extension of Duke’s original memorandum, it does not provide sufficiently reasoned explanations for reversing the DACA program because there are various reliance interests that the memorandum did not take into consideration. By the same token, if canceling the program was a foregone conclusion, and Duke’s initial memorandum served as a rubber stamp, then the administration cannot claim to have acted in good faith in those policy considerations, which would also be a violation of the APA.

With new Justices Neil Gorsuch and Brett Kavanaugh on the Court, and its shift of legal ideological landscape, many observers speculate that Chief Justice Roberts will have the deciding vote in this case. Joan Biskupic, Fate of DACA Immigrants May Hang on Vote of Chief Justice Roberts, CNN (Nov. 12, 2019). The potential outcomes of the case vary widely.

For the DACA policy to be fully restored, the Court would have to agree with the various U.S. Circuit Courts of Appeals and decide that the decision to end DACA is judicially reviewable under the APA, that the DACA policy was a lawful use of Obama’s executive branch’s inherent authority of prosecutorial discretion, and that the Trump administration’s termination of the policy is in violation of the APA. In that event, the Trump administration could still end the program, but it cannot do so on the conclusion that the program is illegal. It is a cardinal principle of administrative law that the executive may not shield discretionary policy decisions from scrutiny behind erroneous claims that the law allows only one result. Rather, the administration would have to end the program by shifting its immigration prosecutorial priorities toward Dreamers—a decision that could be politically costly given the overwhelming public support of the program.

On the other hand, the Court could also permit the Trump administration to end the program. The Court could decide that the rescission, and the policy rationale given by the Department of Homeland Security for doing so, is unreviewable by the Courts, and was a decision correctly left solely to the executive branch. Although this would end the DACA program, it might provide a glimmer of hope for DACA recipients. A decision like this may ultimately allow a future administration to reinstate a new DACA program and make it difficult for opponents of the program to file lawsuits to stop it. But in the meantime, thousands of DACA recipients would lose their status and be subject to deportation. Alternatively, the Court could decide that the administration’s decision to end DACA is reviewable by the courts, but that the method in which the program was rescinded was in compliance with the APA and therefore valid.

There has been considerable speculation about how the justices will rule on this case, and DACA recipients—and their communities—await a decision from the Court that could be announced as late as June.

Although DACA’s fate is in the hands of nine justices and is undetermined as of the date this article was prepared, what is certain is that the momentum of the youth-led immigrant rights movement continues in full force to push for legal protection of immigrant families. It is a phenomenon that we have seen develop throughout our nation’s history—whether it is the women’s rights movement, the civil rights movement, or now the immigrant rights movement—there will always be activism that leads and the law that follows.

Luis Cortes Romero is the managing partner at the Immigrant Advocacy & Litigation Center in Kent, Washington; a lead attorney in Garcia et al. v. Trump, one of the consolidated cases at the U.S. Supreme Court challenging the rescission of DACA; and he is a DACA recipient, whose personal fate is tied with the other hundreds of thousands of DACA recipients who are subject to deportation if the program is rescinded.