Wednesday, June 24, 2020

What's next after DHS v. UC Regents? The political, the legal, and the practical questions

Following the DHS v. UC Regents decision striking down the DACA rescission, immigration lawyers and analysis are considering their next steps. Three major questions loom large: (1) will the White House try again to rescind DACA using proper procedures, (2) will the USCIS accept new applications and ancillary benefits like advance parole, and (3) will the USCIS faithfully process extensions of existing and recently-expired applications.

The Political: Will the WH try again to rescind the program?

The Supreme Court decision said that the Trump administration can rescind the program, if it follows the proper procedures and provides sufficient justification for their policy change. In a series of tweets, Trump and Ken Cuccinelli, acting deputy secretary of the U.S. Department of Homeland Security, declared their intent to move forward with canceling the Obama-era program, which has allowed an estimated 700,000 unauthorized immigrants who arrived in the U.S. as children to continue living and working in the country.

"The Supreme Court asked us to resubmit on DACA, nothing was lost or won [...] We will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court's [...] ruling & request of yesterday," Trump tweeted.

"We are on it @DHSgov Mr. President!" Cuccinelli tweeted in response.

While Acting DHS Secretary Chad Wolfe said his agency will follow the Supreme Court decision, the USCIS has yet to release guidance on important implementation decisions. In the meantime the agency posted this statement to its website.

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 Legal: USCIS Guidance on Implementaton of DACA decision: what is known, what is to be determined 

There seems to be broad agreement that existing DACA protections will be recognized and can be renewed, and that people whose DACA expired one year ago or less can file a renewal request. People whose DACA expired more than one year ago or whose DACA was terminated may file a new DACA request, but they cannot file a comparatively simpler DACA renewal request. Work permits, which rest on separate regulations, should continue to be granted. (My MonkeyCage analysis of these and related issues appears here.)

There is uncertainty about whether people who have not previously been granted DACA can file for the the first time. 

There is also question whether the DACA decision requires DHS to maintain advance parole requests premised on the DACA program.

The American Immigration Lawyers Association in a practice advisory is recommending that people wait to file first-time applications and advance parole requests until there is USCIS guidance. They also recommend that DREAMers obtain an individualized assessment of risks and benefits because some clients and lawyers might be more willing to take risks (and some clients might be in a better position to take those risks) whereas others might be more risk-adverse. (As a practical matter, with COVID travel restrictions, it seems like even if advance parole could be obtained there could be some practical limitations to traveling to Mexico in the near term. H/T Megan Hall, CU Law).

The Practical: Will the USCIS faithfully process existing DACA applications

Setting aside the uncertainties in political analysis and legal interpretation, a real question exists about whether the USCIS will faithfully administer the DACA applications that the recent decision permits. The agency's opposition to the decision and dislike of the program are on public display. They are in the midst of a funding crisis and may soon face 30-day furloughs. And civil servants have always had broad discretion in how vigorously they pursue their agency mission and possess many means of subtly underming it. This is neither a political question or a legal one; it is a practical one -- it might be the most important of all.


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