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USCIS Statement on Supreme Court DACA Decision

June 26, 2020

Author: Chandler R. Finley

U.S. Citizenship and Immigration Services (USCIS) Deputy Director for Policy Joseph Edlow, on June 19, 2020, issued the following statement on the Supreme Court Decision on the Deferred Action for Childhood Arrivals (DACA) program:

"Today’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program. DACA was created through an Executive Branch memorandum after President Obama said repeatedly that it was illegal for him to do so unilaterally and despite the fact that Congress affirmatively rejected the proposal on multiple occasions. The constitutionality of this de facto amnesty program created by the Obama administration has been widely questioned since its inception. The fact remains that under DACA, hundreds of thousands of illegal aliens continue to remain in our country in violation of the laws passed by Congress and to take jobs Americans need now more than ever. Ultimately, DACA is not a long-term solution for anyone, and if Congress wants to provide a permanent solution for these illegal aliens it needs to step in to reform our immigration laws and prove that the cornerstone of our democracy is that presidents cannot legislate with a ‘pen and a phone.’”

The USCIS clearly indicated above that it will not follow the U.S. Supreme Court Decision; however, the USCIS, as an executive branch agency of the Department of Homeland Security (DHS), lacks constitutional authority to state the U.S. Supreme Court Decision “has no basis in law” and it does not intend to follow the U.S. Supreme Court Decision.

The Decision written by Chief Justice John Roberts Jr. held, first, that “DHS’s rescission decision [to cancel DACA] is reviewable under the Administrative Procedure Act (APA) and is within the Supreme Court’s jurisdiction,” which was important because DHS was arguing that its decision to carry out executive agency actions was not reviewable by the Supreme Court. Second, the Court held that “DHS’s decision to rescind DACA was arbitrary and capricious under the APA,” because the DHS issued the order to rescind DACA without first following administrative procedures that require a public record weighing the benefits to the United States versus the negative impact on the 700,000 DACA recipients, and that the DHS could not now “nine months later … elaborate on the agency’s original reasons. …”

The Court ruled that DHS’s attempt to cover its administrative failure consists primarily of impermissible “post hoc rationalization.” In other words, the DHS cannot reason its way out now as to why it decided to cancel DACA without first going back and reopening its prior decision in order to reassess on the record the agency’s rationalization to cancel DACA.

The Court further reprimanded the DHS Secretary, holding the APA “rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply convenient litigation positions, and facilitating orderly review.” The Court refused to allow the “DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation.”

The Court further admonished the Secretary of DHS: “Although [Secretary of DHS] was bound by the Attorney General’s determination that DACA was illegal, deciding how best to address that determination involved important policy choices reserved for DHS.” The Court held that treating the Attorney General’s conclusion regarding the illegality of benefits only as sufficient to rescind DACA benefits and forbearance entirely without explanation was an error, and that omission renders the DHS’s decision arbitrary and capricious. The agency’s failure to consider the existence and strengths of any reliance interests, and weigh them against competing policy concerns also was arbitrary and capricious. Department of Homeland Security v. Regents of the University of California, 591 U.S.___(June 18, 2020).

The USCIS concludes that it will not follow the U.S. Supreme Court’s Decision, but will instead delay any agency action on DACA until the U.S. Congress acts to reform the immigration laws, and warns the President not to “legislate with a pen and a phone,” as DACA was created through Executive Order. The agency also may follow the inherent directions of the U.S. Supreme Court, and still reassess its policies and consider the existence of strengths of any reliance interests on DACA, and weigh them against competing policy concerns and re-issue its rescission order of DACA, without being arbitrary and capricious.

USCIS is authorized to continue processing DACA program benefits, and DACA law remains in full force and effect as to work permits and travel documents issued to date, and for purposes of employment verification on Form I-9 and for other benefits such as attending college, especially in California, which is where the case started.

However, President Trump’s Proclamation on June 22, 2020, Section 5: “prevents certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States from obtaining eligibility to work in the United States.” This section will cause many work permits to be denied since many DACA and other temporary protective status (TPS) aliens have prior removal orders or “arrests, charges, or convictions.” This section, however, should be challenged for those who have been arrested and then had all charges dropped, but their arrests or charges without a conviction still stand for “a criminal offense.”

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