DACA, Dreamers, and the Limits of Prosecutorial Discretion: DHS v. Regents of the University of CaliforniaPosted: August 17, 2020
by Ilana Etkin Greenstein
On June 18, 2020, the U.S. Supreme Court issued a narrow 5-4 opinion in Department of Homeland Security et. al. v. Regents of the University of California et. al., Slip Op. No. 18-587 591 U.S. __ (2020) (“Regents”) that halted the Trump Administration’s plan, announced in September 2017, to “immediately terminate” the Deferred Action for Childhood Arrivals (“DACA”) program. The decision extended the life of an immigration policy which, since inception in 2012 under the Obama Administration, has provided more than 600,000 young undocumented immigrants with stays of deportation and the opportunity to live and work with authorization in the United States. In response to the Regents setback which left the DACA Memorandum in place, on July 28, 2020, DHS announced interim changes that pending its reconsideration of the DACA termination, DHS would continue to reject all new and pending DACA requests and associated employment authorization applications as it had been since 2017, would shorten the renewal of DACA and associated work authorization to one year, and exercise its discretion to reject applications for advance parole and to terminate or deny any deferred action requests. This article reviews Regents’ affirmation of the principles of reasoned agency decision-making and its implications for the DHS’ future actions to scale back or completely and permanently terminate DACA.
The History: Failed Legislation and the Dreamers
Beginning in 2001 with the Development, Relief, and Education for Alien Minors (“DREAM”) Act, and in the 18 years that followed, at least ten versions of legislation were introduced in Congress, including most recently in May 2019, to provide undocumented minors with a path to immigration status and citizenship. A movement of popularly known as the “Dreamers” sprang up in support. While the various versions of the Dream Act contained some key differences, each would have provided a pathway to legal immigration status for certain undocumented individuals brought to the U.S. as children. Although each bill enjoyed voter and bipartisan Congressional support—with some versions garnering as many as 48 co-sponsors in the Senate and 152 in the House—none became law.
Acts of Administrative Grace: DACA and DAPA
DACA was established on June 15, 2012 as an act of administrative grace for the Dreamers in the absence of Congressional action. The program was instituted and implemented through a DHS policy memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (“DACA Memorandum”) and issued at the direction of then-President Barack Obama. Unlike the Dream Act, DACA does not confer an immigration status or provide a pathway to citizenship, but is the exercise of prosecutorial discretion to forbear from exercising removal actions with respect to certain non-citizens between the ages of 15 and 30, who had been brought to the United States as children more than five years previously, and who had either graduated from high school or college in the U.S., earned a G.E.D., or served in the U.S. Armed Forces. DACA-eligible individuals who are granted deferred action in two-year increments are also eligible under preexisting regulations for certain attendant benefits, such the opportunity to apply for employment authorization, renewable for as long as the recipient remains eligible for DACA and the DACA Memorandum remains in effect. The valid scope of the DACA program depends on the Executive Branch’s inherent authority to exercise prosecutorial discretion within the framework of existing law.
Two years after the initial DACA memo, DHS issued a new memorandum to expand DACA eligibility by removing the age cap, extending the DACA renewal and work authorization to three-year increments, and adjusting the date-of-entry requirement from June 15, 2007 to January 1, 2010, and to create a new, related, program titled Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA Memorandum”). DAPA would have offered approximately 4.3 million undocumented parents of U.S. citizen or lawful permanent resident children the same forbearance from removal and opportunity to apply for work authorization as afforded to DACA recipients. Like the DACA Memorandum, the DAPA Memorandum expressly stated that the DAPA policy “confer[s] no substantive right, immigration status or pathway to citizenship.”
Litigation, an Administrative About-Face, and More Litigation
Before DAPA went into effect, Texas and 25 other states with Republican governors filed suit against the U.S. seeking injunctive relief from both DAPA and the DACA expansion, arguing that DAPA violates the Constitution and federal statutes. On February 16, 2015, a preliminary injunction issued barring the implementation of DAPA, which was affirmed by a three-member panel of the Fifth Circuit Court of Appeals with one dissent, and by a deadlocked 4-4 Supreme Court which left the lower court’s preliminary injunction in place. On June 15, 2017, the newly inaugurated Trump Administration rescinded the DAPA Memorandum, and the state plaintiffs voluntarily dismissed the pending litigation, terminating the hope that the case would reach the Supreme Court on the merits.
Three months later, on September 5, 2017, then-Attorney General Jefferson B. Sessions III announced that DACA conferred federal benefits that exceeded the scope of DHS’s authority. Subsequently, in 2017 and 2018, DHS issued memoranda to rescind the 2012 DACA Memorandum, with then-Acting Secretaries Elaine Duke and Kirstjen Nielsen, respectively, ordering their constituent bureaus to wind down the program.
In response, several groups of plaintiffs filed suit in federal district courts in California, New York, and the District of Columbia, arguing that DHS’s decision to rescind DACA was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”) and infringed the plaintiffs’ right to equal protection under the Fifth Amendment. The cases made their ways up through the Second, Ninth, and D.C. Circuits, respectively. While those appeals were pending, the government filed for certiorari in three of those cases—Regents (18-587), Trump v. National Ass’n for the Advancement of Colored People (18-588), and Wolf v. Batalla Vidal (18-589)—which were granted and consolidated for Supreme Court review and oral argument on November 12, 2019.
The Regents Decision: Federal Jurisdiction and the Limits of Prosecutorial Discretion
On June 20, 2020, Chief Justice John Roberts, joining the Court’s four more liberal justices, wrote the narrow Regents decision that vacated the DHS’s 2017 rescission of the DACA Memorandum. The scope of the Regents decision was limited. The Court did “not decide whether DACA or its rescission are sound policies,” did not affirm the legality of the DACA program, or order the DHS to restore and maintain the DACA policy in full force pending any agency reconsideration of the policy. Indeed, there was no dispute that the scope of DHS’ prosecutorial discretion includes the legal authority to rescind the program. Rather, the dispute was narrowly about whether the agency followed reasoned agency decisionmaking procedures in doing so, and whether the Court had jurisdiction to review the agency’s decision.
As a preliminary matter, on the threshold issue of reviewability, the Court held that neither of the jurisdiction-stripping provisions of the Immigration and Nationality Act (“INA”), 8 USC §1252(b)(9), which bars judicial review of claims arising from an “action or proceeding brought to remove an alien” from the United States, nor §1252(g), which bars review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders,” divested it of jurisdiction to review whether DHS’s termination of the DACA program was arbitrary and capricious under the Administrative Procedure Act. Slip Op. at 12.
The Court also determined that there was no plausible inference that the rescission was motivated by racial animus in violation of the Equal Protection Clause of the Fifth Amendment.
Turning to the merits, the Court considered whether DHS’s decision to rescind DACA was arbitrary and capricious or, as the government asserted, an appropriate response to the Attorney General’s determination that the DACA program violated the INA and raised important policy concerns. The Court acknowledged that “[w]hether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.” The Court also recognized that DHS has the discretion to determine how to address the DOJ’s finding of illegality and relevant policy concerns. Nonetheless, the Court held that the APA required the agency to engage in a reasoned assessment of those legal and policy issues, including potential reliance on the program, in determining whether and how to end it.
In deciding that the agency termination of DACA was arbitrary and capricious because DHS failed to provide a reasoned explanation of the scope of the agency’s prosecutorial discretion and failed to exercise that discretion in a reasonable manner, the Court distinguished between dual facets of DACA that DHS had erroneously painted with a single brush: (1) protection from deportation (forbearance) and (2) eligibility for certain attendant benefits under other preexisting regulations, including employment authorization. The Court reasoned that, although the Attorney General had determined that DACA conferred federal benefits that exceeded the scope of DHS’s authority, there was not also consideration of “whether to retain forbearance and what if anything to do about the hardship to DACA recipients” with “legitimate reliance” on the DACA program benefits. Accordingly, the agency acted arbitrarily and capriciously without explanation, in violation of the requirement for reasoned decision-making under the APA, and the rescission must be vacated:
“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about 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.”
Tomorrow and Beyond: What Does the Future Hold for the Dreamers?
While Regents was pending before the Supreme Court, a separate suit was in the federal district court in Maryland, Casa de Maryland v DHS, also challenging the DACA rescission. On July 17, 2020, the court in that case entered its order vacating the DACA rescission memo in light of the Supreme Court’s decision in Regents, and enjoining the agency from implementing or enforcing the rescission. Casa de Maryland, in other words, explicitly restores the program to its pre-September 5, 2017 status.
On July 28, 2020, however, Acting DHS Secretary Chad F. Wolf issued yet another memorandum to the three constituent bureaus charged with implementing the DACA program. The Wolf memorandum clarifies the agency’s legal and policy concerns with continuing the program, rescinds DHS’ 2017 Duke and 2018 Nielsen memoranda, and instructs that DHS shall, among other things, reject all initial DACA requests. Whether the 2020 Wolf memorandum will withstand a legal challenge remains to be seen.
So where do these developments leave the hundreds of thousands of young people who are potentially eligible for DACA benefits? For those who had applied for and been granted DACA at some point in the past, the answer is relatively clear. Under the agency’s guidance as it existed prior to Regents:
- Current DACA recipients: People who currently have DACA can apply to renew it;
- Expired DACA recipients (less than one year): People whose DACA expired one year ago or less can apply to renew it;
- Expired DACA recipients (more than one year): People whose DACA expired more than one year ago may not apply for renewal, but may make an initial DACA request.
- Terminated DACA: People whose DACA has been terminated may file an initial request.
There is, however, no guarantee that the program will remain in place in the long term. The Executive has full authority to end the DACA program; all the Supreme Court required was that it refrain from doing so in an arbitrary and capricious manner, and that it articulate a reasoned explanation for its decision. Whether individuals who had never been granted DACA, but who are arguably eligible to apply now, remains unclear. The Supreme Court and Maryland District Court orders each require DHS to maintain the program under the 2012 guidelines unless and until the agency follows correct procedures to terminate it.
Additionally, for all that Regents did to provide a respite for those who have relied on DACA, a separate case remains pending in the federal district court in the Southern District of Texas that could have even greater stakes. In Texas v. U.S. (1:18-cv-068), state attorneys general challenge the constitutionality of DACA. That case, which is before the same judge who issued the injunction barring implementation of the DAPA memorandum, was stayed pending Regents. Now, with each side claiming that Regents supports its position, Plaintiffs have sought to have their summary judgment motion heard in August 2020, while the intervening DACA recipients have sought to stay the action.
Of course, even Texas v U.S. side-steps the core issue: the millions of young people who are working, studying, serving in our armed forces, contributing to our society every day and continue to have no immigration status at all. Although certainly a welcome respite for the hundreds of thousands of young people who have been protected under the policy over the years, DACA is still nothing more than an act of administrative grace with no permanent benefits and no potential for durable relief. It is not, strictly speaking, a legal status, and confers nothing more than an impermanent limbo. It remains that Congress has the ultimate authority to decide the future of the Dreamers – to let them languish in the shadows or to provide a path to durable legal status by legislation.
 S. 1291, 107th Cong. (2001).
 S. 1291, 107th Cong. (2001); S. 1545, 108th Cong. (2003); H.R. 1648, 108th Cong. (2003); S. 2075, 109th Cong. (2005); H.R.5131, 109th Cong. (2005); S.2205, 110th Cong. (2007); H.R. 1275, 110th Cong. (2007); H.R. 5241, 111th Cong. (2010); S. 729, 111th Cong. (2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); H.R. 1468, 115th Cong. (2017); H.R. 3591, 115th Cong. (2017) H.R. 2820, 116th Cong. (2019).
 In 2010, the bill fell just five votes short of the 60 necessary to proceed in the Senate. H.R. 5241, 111th Cong. (2010); 12/18/2010.
 Slip Op. at 29.
 Slip Op. at 9.
 Slip Op. at 19.
 Slip Op. at 21.
 Slip Op. at 29.
 CASA de Maryland, et al. v. Dept. of Homeland Security, et al., 8:17-cv-02942 (D.Md.)
 In addition to precluding new initial applications, the 2020 memo limits DACA extensions and associated employment authorization to periods of one year, and precludes the agency from granting DACA recipients authorization to travel outside the United States (advance parole).
 The distinction between initial and renewal applications relates only to the documentation required for each: Initial applicants must submit documentation to establish all of the eligibility requirements; renewal applicants are not required to resubmit documentation filed with their initial applications. https://www.uscis.gov/sites/default/files/document/forms/i-821dinstr.pdf
 Because most DACA recipients must be at least fifteen years old, there are a significant number of young people who did not qualify for DACA prior to the 2017 rescission, but who are now potentially eligible to apply. The Migration Policy Institute puts this number at approximately 66,000. https://twitter.com/MigrationPolicy/status/1273662071146778624
 In 2012, just prior to DACA’s implementation, the Migration Policy Institute estimated that there were approximately 3.2 million undocumented children and young adults under the age of 24 living in the United States. https://newscenter.sdsu.edu/education/cescal-conference/files/06163-7_Data_One_Sheet.pdf
Ilana Etkin Greenstein is Senior Technical Assistance Attorney at the Immigration Justice Campaign.
by Professor Daniel Kanstroom
Goldberg, J., Haynes v. Washington, 373 U.S. 503, 515 (1963)
In Commonwealth v. Sylvain,466 Mass. 422 (2013), the SJC held that the requirements placed on criminal defense lawyers to properly advise defendants about certain immigration consequences enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010) are retroactive to 1997. The SJC, relying both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights, diverged from the U.S. Supreme Court on the retroactivity question. This very important—but rather esoteric—immigration law case may have profound implications regarding the retroactivity of recent holdings in such areas as public trial rights during jury selection and juvenile sentencing.
The SJC achieved a just outcome while reminding the legal community why retroactivity is an extraordinarily difficult jurisprudential concept and why immigration law has long been known as a subject that could “cross the eyes of a Talmudic Scholar.” The daunting complexities presented by the case derived in part from certain anachronistic late nineteenth century legal doctrines establishing “plenary power” over noncitizens seeking to enter the United States as well as those facing deportation. The Court has held that certain noncitizens seeking to enter the United States have no enforceable constitutional rights and that deportation exercised under that power was not criminal punishment. Therefore, the specific constitutional norms attendant to the criminal justice system are largely inapplicable to deportees. See Fong Yue Ting v. United States, 149 U.S. 698 (1893).
For more than a century, the constitutional implications of these doctrines and their progeny frequently (but not always) defeated claims of ineffective assistance of counsel by deportees who were badly advised (or not advised at all) by their criminal lawyers. Noncitizens have the right to appointed counsel in the criminal justice system, but they do not have such a right in deportation proceedings. Deportation has often been deemed a civil “collateral” consequence of criminal conviction. Among other implications of this categorization, criminal defense lawyers have sometimes been found to have no professional duty to advise defendants about such consequences.
In 2010, however, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), a case in which the question of ineffective assistance was squarely presented. Mr. Padilla, a long-term lawful permanent resident of the United States, had apparently been advised to plead guilty to a drug-related charge in criminal court, which—unbeknownst to him—virtually guaranteed his deportation and lifetime banishment from the United States and his family. The Court upheld his claim that his criminal defense counsel was ineffective due to this incorrect advice concerning the risk of deportation. This was in many respects a path-breaking, virtually unprecedented constitutional decision, with powerful Fifth and Sixth Amendment implications. See generally, Daniel Kanstroom, The Right To Deportation Counsel in Padilla v. Kentucky: The Challenging Construction of the Fifth-And-A-Half Amendment, 58 UCLA L. REV. 1461 (2011); see also, Daniel Kanstroom Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? 45 NEW ENGLAND L. REV. 305 (2011).
The Court, most significantly, recognized that deportation as a consequence of a criminal conviction now has such a close connection to the criminal process that it is uniquely difficult to classify it as either a “direct or a collateral consequence.” Padilla at 364. The two systems, in short, have become inextricably linked. Further, the Court recognized that “the landscape of federal immigration law has changed dramatically.” In the past there were only a “narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation.” But now, the regime contains a much-expanded class of deportable offenses and it has limited the authority of judges “to alleviate the harsh consequences of deportation.” Id. at 357. As a result of these changes, the “drastic measure” of deportation or removal, . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes. Deportation has become “an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 362 (emphasis added). From this logic, one can easily see why substantial due process protections, and also some of the more specific protections normally tied to the criminal justice system, are warranted. See generally Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARVARD LAW REVIEW 1890-1935 (June, 2000).
The question quickly arose whether the Padilla model would be retroactive. Unfortunately, Padilla itself did not address this question. In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC held that Padilla was retroactive, at least as to convictions that became final after April 1, 1997 (the effective date of relevant changes to deportation law). The SJC followed a long-standing framework derived from Teague v. Lane, 489 U.S. 288 (1989). See also, Commonwealth v. Bray, 407 Mass. 296, 300-301 (1990) (adopting Teague model). The essential question from Teague and progeny was whether the Supreme Court in Padilla had announced a “new” rule. A “new” rule, very simply put, “breaks new ground or imposes a new obligation” on the government. If so, the Padilla norms would not be retroactive. In Clarke, the SJC concluded that Padilla was not a new rule because it was merely an application of well-recognized Sixth Amendment ineffective assistance of counsel standards. See Strickland v. Washington, 466 U.S. 668 (1984); Clarke at 34-46.
So far, so good; and so far, at least moderately clear. However, things soon got murkier. In Chaidez v. U.S., 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla had in fact announced a “new” rule and therefore its holding should not be applied retroactively by federal courts. Chaidez, however, did not necessarily bind state courts. Indeed, the Supreme Court had recognized the propriety of such divergence in Danforth v. Minnesota, 552 U.S. 264 (2008) in which the Court held that Teague does not constrain the authority of state courts to give broader effect to “new” rules of criminal procedure.
In Sylvain, the SJC continued to view retroactivity differently from the Supreme Court. The SJC concluded that Padilla did not announce a “new” rule for the “simple reason that it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation.” Sylvain at 435 (citing Clarke, supra at 36, 38-39, 43; Chaidez, supra at 1114-1116 (Sotomayor, J., dissenting). Importantly, the SJC based its ruling both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights. As one excellent Practice Advisory notes, art. 12 may prove to be a broader source of rights for noncitizens than the Sixth Amendment. See CPCS, Immigration Impact Unit, Practice Advisory on the Retroactivity of Padilla in Massachusetts: Commonwealth v. Sylvain, 466 Mass. 422 (2013), October 2013.
The SJC also correctly noted that professional standards in Massachusetts have long required criminal defense lawyers to advise noncitizen clients about immigration consequences. Practitioners thus now face a certain dissonance in that criminal defendants prosecuted in federal courts who face or have faced deportation may only cite Padilla prospectively, while state court defendants in Massachusetts may use the Padilla ruling to seek to vacate convictions dating back to 1997. The practical difficulties involved in bringing such claims on behalf of deportees are still significant, however. See, e.g., Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept. 27, 2013) (invalidating regulation barring such claims), and Bolieiro v. Holder, No. 12-1807 (1st Cir. Sept. 27, 2013) (same).
Sylvain may also portend greater assertiveness by the SJC in certain other arenas where retroactive application of constitutional holdings is at issue. The SJC has now made clear that it considers a “new” rule to be such only if the result is contrary to precedent. Sylvain, at 434. This is rather narrower than the approach taken by the Supreme Court, which has used the formulation of that which was not “apparent to all reasonable jurists.” The SJC formulation could thus expand state court remedies for other violations of constitutional rights. Indeed, the Court highlighted that retroactivity in Sylvain was required by “tenets of fundamental fairness.” Sylvain at 437, citing Commonwealth v. Amirault, 424 Mass. 618, 639 (1997). It therefore seems quite possible that Sylvain could influence such pending questions as the retroactivity of rulings about mandatory life without parole sentences for juveniles—See Diatchenko v. D.A. for the Suffolk District, SJC-11453—and public trial rights during jury selection. See Commonwealth v. Alebord, SJC-11354. Retroactivity analysis will thus have to consider, in addition to precedent, such factors as the evolution of practice, reliance, and deeper normative questions of justice and fairness.
Daniel Kanstroom is a Professor of Law and Director of the International Human Rights Program at Boston College Law School. He is also the Founder of the Post-Deportation Human Rights Project.