September 15, 2023

The Immorality of DACA’s “Illegality”

[Cross-post from Aoki Center Blog]

By Raquel E. Aldana

Two thousand and one marked the introduction of the first DREAMER legislation in the U.S. Congress. Over the next two decades, at least a dozen versions of bills would be introduced to attempt to regularize the status of DREAMERS, a term that describes around two million persons in irregular immigration status brought to the United States as children. Despite consistent and broad support for DREAMER legislation, the closest Congress came to passing the legislation was in 2010 when it passed the House but fell just five votes short of the 60 needed to proceed in the Senate.

Few other stories of failed legislation in recent U.S. history exemplify the perils of congressional dysfunction like the fate of Dreamers in the U.S. Congress. One significant peril has been the human toll on millions of deserving young people who are American except by birth. Another is the strain on U.S. democracy when its elected leaders refuse to take moral action to rectify wrongs even in the face of strong public support for them to do so. [1]

In 2012, the Obama Administration’s imperfect response to this congressional moral failure came in the form of a Department of Homeland Security [DHS] Memorandum that created DACA (Deferred Action for Early Childhood Arrivals). DACA provided respite from deportation to certain DREAMERS who qualified under the program’s guidelines, an estimated 1.7 million. Ultimately, fewer applied but the numbers reached as high as 814,000 by 2018, and 578,680were still active by March 2023.

DHS relied on its prosecutorial discretion powers to issue DACA. It also employed rational pragmatism and humanity to grant worth authorization to DACA recipients. Without work authorization, DACA recipients would be expected to live in the shadows of U.S. society, not only in despair but also exploitable. It is worth noting that at its discretion, and for humanitarian reasons, DHS grants work authorization to foreign nationals awaiting adjudication of their immigration status or who are under temporary forms of protections in recognition that protection from deportation, even when temporary, without an ability to work, is no protection at all.

Now, Judge Andrew Hanen seizes on DACA’s longevity and its accompanying work authorization, to declare it illegal. To be exact, Judge Hanen, with the Fifth Circuit’s blessing, first found the 2012 DHS Memorandum creating DACA illegal at its tenth anniversary. The same year, in 2021, the Biden administration attempted to “preserve and fortify” DACA’s legality by enacting a formal rule. But to Judge Hanen, the rule may have fixed the irregularities of how DACA came to be (adopted without notice and comment) but did not address what he, and the Fifth Circuit, consider DACA’s substantive flaws. Then on September 13, 2013, Judge Hanen declared  the new Biden rule similarly illegal, leaving the ultimate fate of DACA in the hands of the Fifth Circuit and likely the U.S. Supreme Court. What, exactly, is said to be illegal about DACA? According to Judge Hanen and the Fifth Circuit, DACA violates the Administrative Procedures Act [APA] and the Take Care clause of the U.S. Constitution because its issuance exceeds DHS’s statutory authority under the Immigration and Nationality Act. The Fifth Circuit must now decide whether it agrees with Judge Hanen that the new DACA rule, just like the 2012 Memorandum, exceeds DHS’s statutory authority. Ultimately, the issue is likely to end up before the U.S. Supreme Court, which will be an arbiter of yet another issue with potentially dire consequences for the lives of millions in this country.

One saving grace of this unfortunate litigation saga is that Judge Hanen and the Fifth Circuit, while enjoining new DACA applications after finding the program unlawful, have spared current DACA recipients from losing their vested status, at least until the issue is adjudicated definitively on the merits. This is significant to the well-being and livelihood of over half a million current DACA holders who have relied on this status to build careers, gain professions, secure better pay, have families, acquire properties, and open businesses. Ideally, this recognition, at least for this group, could also have legal significance. It mattered to the U.S. Supreme Court in 2020, at least, when it halted the Trump administration’s attempt to rescind DACA without a fair process. It should also matter when the Fifth Circuit or ultimately the Court interprets the Immigration and Nationality Act’s permissiveness to allow DHS’s issuance of DACA. Here, a Chevron deference that is informed by the principle of lenity should govern statutory interpretation. It is also not arbitrary and capricious, the APA’s substantive standard for agency action, for DHS to confer employment authorization for humanitarian and pragmatic reasons to those over whom it has exercised the discretion not to deport.

Of course, Congress can end the litigation by rendering it moot if and when it passes DREAMER legislation, or broader comprehensive immigration reform. Both the House and the Senate have current bipartisan bills protective of DACA recipients Congress consider for adoption quickly. As well, broader pieces of comprehensive immigration reform proposals have been on the table and ripe for consideration.  Meanwhile, it is hopeful that at some point as many as 22 states joined to support DACA in the litigation before the Fifth Circuit, in contrast to the 9 states that are seeking to end it. States as well have an important role to play in supporting DACA and all undocumented residents, but especially the hundreds of thousands of unDACAmented youth impacted by this litigation. This Higher ED Immigration Portal highlights examples of several state innovation to support DACA students. Institutions of higher learning can be creative in how to support access and affordability to universities and colleges. Civil society has a crucial role to play to push for reform and engage with the issue. The time is now. Sí se puede!