Is DACA Dead?

The Fifth Circuit held arguments last week on an appeal that threatens the federal government’s immigration program known as DACA, Deferred Action on Childhood Arrivals.  This program, which dates back to the Obama Administration, protects from deportation persons who came to the United States while they were children, generally with their parents who brought them here.  In most instances, since they were children, these persons had no choice in the matter.  In many instances, they were infants, and the United States is the only country they have ever known.  Some now have American spouses, and even children born here who are American citizens.

DACA allows these persons to get an education, work and pay taxes here.  It was implemented as a stopgap, more than a decade ago, to stop deportation of these persons to their countries of origin where they would literally have been strangers in their own land.  It was intended at the time to be temporary, while Congress was in the latter stages of passing immigration legislation which would have formally adjusted the status of these persons, to allow them to stay, and work or go to school, and, if they chose, to become naturalized.  But we know what happened to that bill.  Nothing.  The fact is that every piece of immigration legislation that has been seriously considered over the last generation, since the last such bill was passed during the Reagan years, has included provisions protecting these persons.  The most recent such bill was the one being pushed by, among others, Sen. James Lankford, R. of Oklahoma, along with several others, over the summer, before former President Trump put the kibosh on it, telling Republicans in Congress not to vote in favor, because he preferred having an immigration issue rather than a solution.

Because the DACA program was intended to be temporary, a short-term fix, it was never adopted pursuant to the “notice and comment” provisions of the Administrative Procedures Act, among other things.  The Obama Administration defended that approach by saying DACA was a form of administrative discretion, choosing not to expend resources to prosecute and deport persons falling into this category since they would eventually be allowed to stay.  But of course our Congress can do absolutely nothing these days as our country is so deadlocked, with immigration being one of our most controversial issues, and no bill was ever passed.  But the DACA program continued.

Based on this state of affairs, several Republican state attorneys general sued, claiming that DACA was never validly adopted, and was unauthorized under the current unamended immigration statutes.  Following the current regulatory playbook, they sued in District Court in Texas, where a District Judge agreed with them, issuing a nationwide injunction of the sort that the Red Team used to decry, but now that they are the beneficiaries of them, they think nationwide injunctions are just great.  From there the appeal was taken to the Fifth Circuit, the Reddest and Trumpiest of all of our Courts of Appeal.  At least there was a stay in place pending the appeal.  From the argument it seems like the vote will be 2-1 to invalidate DACA, but those things are always hard to predict, and possible en banc and Supreme Court review will inevitably follow, with further associated stay motions.

The plaintiffs in the case frankly have a point.  DACA was never adopted in the manner that the APA requires for long-term permanent regulations, and because of the stasis in Congress that is in fact what the DACA program has become.  But the Administration has a point too.  There is always discretion involved in deciding which cases to bring, and the essence of the DACA program is that we’ll exercise discretion in this class of cases not to deport people who will eventually be allowed to stay.  The plaintiffs say you can’t exercise discretion in an entire class of cases; discretion should by its nature be individualized.  But we often exercise discretion in class-wide, guided ways.  Isn’t that the case when government lawyers follow SEC and DOJ whistleblower and self-reporting policies to decline to prosecute when companies investigate and self-report?  But it is true that if you extend that guided discretion too far you do undermine the APA to some degree.  You can see how it is a difficult line-drawing problem.  

Consider, however, the practical effect on hundreds of thousands of DACA beneficiaries if the program is upended.  One of our close relatives had a DACA person as a college roommate.  His parents brought him here illegally, when he was less than two.  He has no memory of his country of birth.  The United States is the only place he has ever known.  He studied hard, did well in high school and ended up at an elite college, with a full-boat ride since his parents had the kind of menial blue-collar jobs which are not atypical for immigrants.  He majored in biomedical engineering and eventually got his Ph.D. in that subject and now works for a medical device and pharmaceutical start-up.  Why ever would we want to kick him out?  We paid to educate him, and we should want him to be a contributing member of our society.  He can do a great deal of good; indeed, he already has.  I grant you that he may be a bit of an outlier on the success spectrum, but most DACA people have jobs, are law-abiding, pay taxes, and want to be here.  We should be welcoming them, not sending them back to places that may be where they were born but for them for all intents and purposes are foreign countries.

But the fact is we won’t deport all the DACA persons, or anywhere close to the more than 10 million immigrants who are here illegally.  There aren’t enough immigration agents, or buses or airplanes, to discharge the task.  Sure, there will be some random pick-ups, but random is what they will be.  That is also a form of discretion, but not the kind of guided discretion that DACA represents.  Rather, it’s a cruel form of discretion, where somebody’s parent or child falls victim to a random raid, or a traffic stop, or some other form of detention, and the next thing you know they’re back in Central America someplace.  And it won’t even begin to scratch the surface numerically.  As a securities lawyer might say, the numbers will be immaterial.  Is that the kind of country we want to live in?  Not me.  I prefer the words of Emma Lazurus at the Statue of Liberty:  “Give us your tired, your poor, your huddled masses, yearning to be free.”  We’re all immigrants, and their descendants, or at least the overwhelming majority of us, and our openness to immigration has been a source of historic economic and social strength.  Just look at the number of major companies, including tech companies, headed by immigrants and providing good paying jobs.  Those are the values that DACA protects.  Let’s hope the Fifth Circuit sees it that way, although frankly I doubt it. 

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.

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