Supreme Court Revives DACA at Least Temporarily Under the APA

This morning, a divided Supreme Court issued a decision affecting the current status of DACA.   DHS v. Regents of the Univ. of Calif.,  No. 18-587 (6-18-20).  There is much to like and much to concern both opponents and supporters of DACA.   In short, the Court found that, although the DHS could clearly do what it wanted to do and probably for the reasons it gave – eliminate all aspects of the DACA program --  the DHS was arbitrary and capricious in how it did so by seemingly not understanding or considering any of its options or discussing how it would affect the affected recipients. The Court did not reject or give much consideration to the underlying rationale – that certain aspects of the DACA program were unlawful.    A slightly different majority of the Court also rejected equal protection objections to the DHS’s elimination of DACA.


According to the Court’s decision, DACA began in 2012, provided benefits in two-year periods, and was expanded two years later when DHS also announced a similar program for parents – called DAPA.  Several states filed suit in Texas and were successful in preliminarily enjoining the DAPA program and the DACA expansion.   Both DACA and DAPA programs involved two salient aspects:  1) an enforcement deferral of removal from the country and 2) eligibility for various benefits, such as social security, Medicare, work authorizations, etc.   The “core” of DAPA suit attacked the eligibility aspect as violating applicable immigration statutes by making the recipients eligible for benefits and not the enforcement deferral aspect.  Following the 2016 election, DHS rescinded the DAPA program due to legal uncertainty, enforcement priorities and the fact it had never commenced.  While that litigation was still pending, in 2017, the Attorney General then advised the DHS that DACA suffered from the same legal defects as DAPA and likely would be found unlawful as well.  Accordingly, the DHS announced that the entire DACA program would be terminated as being unlawful and no new applications would be accepted, although DHS did permit certain aspects to continue, including some renewals.  When litigation commenced, the trial court asked the DHS to elaborate on its decision or to issue a new and more extensive decision.  DHS offered new rationale (preference for legislation and public confidence in a program of legal uncertainty), but declined to issue a new decision.

The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may.  The dispute is instead primarily about the procedure the agency followed in doing so.

               . . . .

           We do not decide whether DACA or its rescission are sound policies.  “The wisdom” of those decisions “is none of our concern.”  . . .  We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.  That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.  The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.

The Court’s majority (Roberts, Kagan, Ginsburg, Breyer, and Sotomayor) concluded that the DHS decision to rescind DACA was reviewable under the Administrative Procedures Act.  DACA is not simply a non-enforcement policy; it established procedures and made recipients eligible for benefits:

DACA is not simply a non-enforcement policy.  For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid.  Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria.  App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance.  These proceedings are effectively “adjudicat[ions].”  Id., at 117a.  And the result of these adjudications—DHS’s decision to “grant deferred action,”  . . .—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,”  . . .  In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.”  . . . .. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare.   . . . .  Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.”

Surprisingly, the majority refused to address the merits of the DHS decision:  that DACA was unlawful.   This was because the DHS enabling statute refers all questions of law to the Attorney General:

The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.”

None of the plaintiffs addressed this issue.  “Nor did they discuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking the Attorney General’s legal conclusion.”  Accordingly, the Court refused to address whether DACA was unlawful or not.


Instead, the majority concluded that it was unclear from the DHS’s decision if it understood that the Attorney General’s binding legal advice about the unlawfulness of the DACA program was focused on the eligibility issues addressed in the DAPA litigation or realized that DHS had more discretion about the enforcement deferral aspects of the DACA program.  In other words, DHS could have decided to eliminate the eligibility of DACA recipients to work and receive benefits, but still deferred removal proceedings.  

Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.  But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.

Acting Secretary Duke plainly exercised such discretionary authority in winding down the program.  . . . Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid. But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off.

But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. . . . .

               . . . .

In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy.  Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” . . . . . But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.

The Court analogized this situation to an earlier case involving airbags and seatbelts, when the NHTSA previously allowed either seatbelts or airbags, and then rescinded the entire regulation (after realizing that the manufacturers’ preference for seatbelts alone was insufficient) without considering whether airbags alone would be sufficient.

While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits.  Id., at 47. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Ibid.  Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy,  (emphasis added).

Considering the great effect that the decision would have on the economy and lives of the people involved, as well as their citizen children, etc., the Court found the decision to be arbitrary and capricious, notwithstanding the fact that the DHS could immediately make the same decision and was not obligated to consider every issue to result from the decision.

The Government acknowledges that “[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists, however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.”  Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.  (emphasis added).

            . . . .

But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits.  Duke “entirely failed to consider [that] important aspect of the problem.” (emphasis added)

That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. . . . When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” . . . “It would be arbitrary and capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did. (emphasis added).

 . . . . . In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and provided benefits only in two-year increments.  . . . .But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review.  There was no such consideration in the Duke Memorandum.

The Court observed all of the reliance interests and disruption that would be caused to the recipients, their families, their employers and the economy.  Nonetheless, it conceded that DHS need not consider or satisfy all of those issues.

These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum.  Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight.  And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider.  DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests.  Making that difficult decision was the agency’s job, but the agency failed to do it. DHS has considerable flexibility in carrying out its responsibility.  The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” (emphasis added)

               . . .

           To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51.  Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.”  . . .   But, because DHS was “not writing on a blank slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.

               . . .

           The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination.  See ante, at 20.  But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests.  Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.

A different majority (Ginsburg, Breyer, Alito, Thomas, Kagan and Kavanaugh) rejected the equal protection challenge to the DHS decision.   The Court refused to address how to frame the issue because the allegations were completely insufficient.

           [R]espondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.  . . . .

None of these points, either singly or in concert, establishes a plausible equal protection claim.  First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.  . . . .Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

Second, there is nothing irregular about the history leading up to the September 2017 rescission.   . . .The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.”  908 F. 3d, at 519. It was a natural response to a newly identified problem.

Finally, the cited statements [by the President] are unilluminating.  The relevant actors were most directly Acting Secretary Duke and the Attorney General.  As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue.  Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Upholds Mandatory E-Verify Required by Arizona

This morning, the Supreme Court upheld a controversial Arizona law which requires employers operating in the state – as part of its business licensing law – to comply with the federal 1986 Immigration Reform and Control Act and to utilize the federal E-Verify program to confirm the eligibility of employees to legally work in the United States. Chamber of Commerce of the United States v. Whiting, No. 09-115 (2011). The Chamber of Commerce and civil rights groups had united to oppose the Arizona law, which they contended violated Congressional supremacy to govern immigration and was both explicitly and implicitly preempted. However, the District Court, the Ninth Circuit and the Supreme Court each concluded that the ICRA had left an explicit exception for states to regulate the hiring of immigrants through business licensing laws and that the Arizona statute paralleled the federal statute in its requirements in order to avoid any conflict with federal law.

Prior to the 1986 passage of the IRCA, the Supreme Court had held that immigration control was a federal power, but the states still had the authority under their sovereign policing powers to prohibit the knowing employment of individuals not entitled to reside or work in their state. However, the IRCA explicitly preempts states from imposing any civil or criminal sanctions upon employers for hiring unauthorized aliens, except through licensing and other similar laws. 8 U. S. C. §1324a(h)(2). The "Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. The law also requires that all Arizona employers use a federal electronic verification system [i.e., E- verify] to confirm that the workers they employ are legally authorized workers."

The challenged Arizona statute required the state attorney general or county attorney, upon receipt of a complaint, to verify with the federal government the work eligibility status of the challenged employee. Only the federal government could determine work eligibility, not local government. In addition, every employer is required to utilize e-verify upon hiring a new employee. Further, good faith compliance with the I-9 requirements of the IRCA and the e-verify system create an affirmative defense for the employer. Once unauthorized aliens are identified, the statute requires the local government to notify ICE or local police and to bring an enforcement action against the employer. The first violation of the statute can result in a suspension of the employer's business license, an order to terminate all unauthorized aliens, and quarterly reporting requirements. A second violation can lead to revocation of the employer's business license.

The Court easily dismissed the argument that the Arizona statute was not a licensing scheme and that the federal exemption was limited to licensing of migrant workers. The Court also rejected the argument that the Arizona statute conflicted with the federal IRCA because the Arizona statute incorporated IRCA definitions and standards and explicitly provided that determinations of work authorization were to be made exclusively by the federal government. Only when the federal government confirms that the individual is an unauthorized alien can the state government prove its burden that the individual is not authorized to work in Arizona. Finally, the Court rejected the argument that the state law upset the balance struck by the IRCA to avoid over-burdening employers and discouraging employment discrimination. The Arizona law did not impose any material additional burdens on employers and state law already prohibited national origin discrimination.

In 1996, Congress authorized the creation of the pilot e-verify program, but precluded making it mandatory outside the federal government. (However, federal contractors are required to utilize it pursuant to a 2008 Executive Order). Employers who verify the employment eligibility of newly hired employees establish a rebuttable presumption that they have complied with the IRCA. There is no provision in the 1996 enabling statute precluding states from making mandatory the use of e-verify. Indeed, when the 2008 Executive Order was challenged by government contractors and the Chamber of Commerce, the federal government pointed out that its use was already mandatory in Arizona and a few other states. Since that time, the federal government has expanded the e-verify program and encouraged its use. Indeed, the United States, in its amicus brief, disputed that the e-verify system could not handle the use by all employers in all 50 states. The United States also disputed any challenge to the accuracy of the e-verify system.

IRCA expressly reserves to the States the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws. In exercising that authority, Arizona has taken the route least likely to cause tension with federal law. It uses the Federal Government's own definition of "unauthorized alien," it relies solely on the Federal Government's own determination of who is an unauthorized alien, and it requires Arizona employers to use the Federal Government's own system for checking employee status. If even this gives rise to impermissible conflicts with federal law, then there really s no way for the State to implement licensing sanctions, contrary to the express terms of the savings clause.

In light of this decision, it can be expected that additional states will adopt their own version of the Arizona statute. This decision does not resolve the additional challenges to other provisions of Arizona's immigration control laws which are still working their way through the courts.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney

USCIS Agrees with Chamber of Commerce to Delay Mandatory E-Verify Implementation For Federal Contractors Until February 20, 2009

As summarized here on December 9, 2008, the federal government published its final regulation in November which will require many federal contractors and subcontractors to begin using the e-verify program to confirm the employment eligibility of many existing and newly-hired employees as federal service and construction contracts and solicitations are issued or amended after January 15, 2009 (i.e., this Friday). In other words, federal agencies have been directed to insert a new clause into procurement contracts and solicitations requiring contractors and subcontractors to enroll and utilize the e-verify program. This regulation implements Executive Order 12989 which was amended in June 2008.

The U.S. Chamber of Commerce filed a federal lawsuit in December 2008 seeking to invalidate the new federal regulation. In the meantime, on Friday, January 9, 2009, the Chamber of Commerce announced that USCIS had agreed in the interim to delay mandatory implementation of the e-verify system for federal contractors until February 20, 2009. (This information is similarly, but less overtly, confirmed on the USCIS website). Contractors remain free to utilize the e-verify system and USCIS points out that more than 100,000 employers have registered for the program. In response to the Chamber’s protests about e-verify, USCIS contends that e-verify is not mandatory because employers are not mandated to become federal contractors.

Insomniacs can read the Chamber’s full press release at http://www.uschamber.com/press/releases/2009/january/090109_everify.htm and confirm USCIS’s agreement to the postponement at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.