Monday, November 18, 2019
RELIANCE INTERESTS AND FUTURE DACA LITIGATION by Geoffrey A. Hoffman*
During the recent oral argument before the Supreme Court, strong reliance interests were raised on the part of DACA recipients. The questioning on reliance was initiated by Justice Gorsuch, raising the issue with the Solicitor General, who conceded that in his estimation there were “limited” reliance interests. See Tr. at 20. He then argued that such reliance allegedly could be “mitigated” by the “wind-down,” ignoring the precipitous and unprincipled nature of the attempted rescission. The government then downplayed and attempted to argue against reliance due to the 2-year period for which all DACA recipients initially are granted, ignoring the subsequent and unlimited renewal periods for which the program is designed. The reliance interest discussion is raised throughout the oral argument, by Justices Breyer, Kagan, Kavanaugh and Roberts. Justice Kagan made the important point in reminding the parties that President Trump himself famously, paradoxically assured DACA recipients they were “safe.” Tr. at 30.
What was left out of the oral argument was the fact that DACA recipients, even before they applied for DACA had relied on the written representations made to them by the federal government. These representations were not merely made verbally or just at the very inception of the program in 2012. Instead, the representations, it is important to note, are made in writing each and every time a person applies to renew.
The instructions to the DACA form known as I-821D contain the following language: “Information provided in this request is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ 2011 Notice to Appear guidance (www.uscis.gov/NTA).” (Emphasis added).
The privacy clause of form 821D further provides, “The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request itself, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.” (Emphasis added). There is a further proviso that “The above information sharing clause covers family members and guardians, in addition to the requestor.” (Emphasis added). The government will point to limiting language in the privacy clause, as a way to try to insulate themselves from future litigation. The clause concludes that it should not be interpreted to create any “right or benefit” that would be “enforceable at law.” 
This privacy clause mirrors the official USCIS FAQs (now archived) which were the touchstone for practitioners advising DACA recipients and were part and parcel of the discussions at the White House during the initial meetings of community leaders with government officials back in the summer of 2012. 
The importance of the form’s instructions and the reliance interests created by them cannot be overstated. This is due to the rule enshrined in the federal regulations themselves that instructions in the forms used by immigrants necessarily are incorporated into the regulations themselves. See 8 CFR 103.2 (stating that “Every form, benefit request, or other document must be submitted to DHS and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary. The form's instructions are hereby incorporated into the regulations requiring its submission.” (Emphasis added).
If the instructions to form I-821D (DACA application) have the “force of law,” as regulations do, how can the Trump administration lawfully take that information and use it against DACA recipients to deport them even assuming arguendo the program were to be lawfully rescinded?
t would be against the very regulations in force at the time the DACA recipients applied for the benefit. A violation of the government’s own regulations that are in force at the time of the violation, as we know, is a per se violation of Due Process. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (“procedures required by law include an agency's own regulations and internal operating procedures, even for substantive decisions committed to discretion.”
I point out these further thoughts because I don’t think enough was made of this point during oral argument. The government also has not considered that there will be a lot of further litigation in the future even if the Supreme Court were somehow to allow the rescission to go forward. I don’t think that will happen. As several of the Justices noted, reliance interests were not adequately considered by the Administration before moving forward on rescission and whatever reasons proffered as justification for the rescission were inaccurate or ill-considered.
INA 242(g) does not help the government’s cause. It provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” The claim on the part of a class of DACA recipients in future litigation would not be based on rejecting the government’s authority to “commence proceedings” or otherwise adjudicate cases, but rather relate to the improper information-sharing expressly prohibited by the language in the form’s instructions.
Therefore, due to these instructions on form I-821D, every DACA recipient should now be protected, ipso facto, from deportation because they were granted DACA and any information provided as part of their DACA applications cannot be shared with ICE and used to deport them.
This basic tenet of administrative law is that the government cannot now share information which it deemed and promised would not be shared for enforcement purposes except under very limited circumstances, such as where fraud or misrepresentations are found. Although equitable estoppel is usually not allowed against the government, see e.g., INS v. Pangilinan, 486 U.S. 875 (1988), the Supreme Court in several cases has expressly declined to determine whether the government would be estopped where a case involved serious “affirmative misconduct” - such as would apply here if information were shared - by agency officials. See, e.g., Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984); INS v. Miranda, 459 U.S. 14 (1982).
The attempted limiting language in form I-821D is unpersuasive in light of the fact that the information-sharing prohibition in the privacy clause has the force of law as part of the government’s own federal regulations. Moreover, the limitation on liability clause on the part of the federal government in form I-821D, attempting to insulate itself from actions “at law,” will do nothing to prevent future DACA plaintiffs from making equitable arguments.
 Despite this limiting language, there is no question DACA plaintiffs reasonably relied on the instructions’ privacy clause to protect them from deportation. Moreover, it should not be possible for the government to rely in future litigation on such a limitation were the Supreme Court in the present case to reject the government’s present claim of wholesale nonreviewability. The Supreme Court (in my opinion) will wholly reject the government’s claim to unfettered discretion. If it does so, then in future litigation the government will likewise not be permitted to hide behind a similar claim of “nonreviewability” under a different guise. Finally, as in contract law, a limitation of liability is unenforceable if found unconscionable, which finding would certainly apply here.
 While I focus here on the reliance interests created by the form’s explicit instructions, it should also be noted that there were many other reliance interests explained in the briefing and as noted in oral argument. See Tr. at 23-24.
 See Kumar v. USCIS, 2017 WL 3268373 (E.D.N.Y. July 28, 2017).