Arlington, VA

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

It was a big week at the Supreme Court for hundreds of thousands of immigrants who currently hold Deferred Action for Childhood Arrivals (DACA) work permits.

In Department of Homeland Security v. Regents of the University of California, et. al, the Court ruled that the Trump Administration’s efforts to rescind the DACA program did not satisfy the requirements of the Administrative Procedure Act, and hence were not lawful.

In our column this week, we’re going to explain two things: first, how the Court reached this highly technical decision; and second, how we expect the decision to play out practically for DACA recipients. This column will be a bit longer than usual, but we know that ARLnow readers love the details, so we’ll indulge ourselves — and, hopefully, you too.

To understand the Regents decision, you have to understand a bit of legal history. During the New Deal, the Roosevelt administration created a swarm of new agencies under the sole control of the executive branch. These agencies — many of which are still with us to this day, like the FDIC, the Federal Housing Administration and the Social Security Administration — set about implementing the New Deal in their areas of specialization.

Implementation requires the setting of standards and the adjudication of disputes, so, rather quickly, these new agencies found themselves trying to set rules and make precedential decisions in accordance with those rules. But there was no overarching legal framework to determine the manner and method of that work until the passage of the Administrative Procedure Act of 1946.

The Administrative Procedure Act (APA) defines how government agencies promulgate regulations and adjudicate disputes. The APA also defines the scope of judicial review of administrative decisions. Since the passage of the APA, the square footage of American life subject to federal agency oversight has grown enormously. Americans who are dissatisfied with an agency decision have to follow the procedures of the APA in order to hold the government accountable through the judicial system.

Our immigration system is a fine example of the APA’s massive influence on American public life. The Immigration Courts are administrative courts. USCIS, the immigration benefits agency, drafts its own regulations under the Administrative Procedures Act. And, finally, the Department of Homeland Security itself is both a source of regulation and the interpreter of its own regulatory action.

In 2012, the Obama Administration promulgated, via Executive Action — the famous ‘pen and a phone’ — the DACA program. The DACA program had and has two main parts: the grant of ‘deferred action’ to recipients, which effectively protects them from deportation, and the grant of a work permit as long as the deferred action remains valid. DACA was legally controversial from the beginning, and conservatives — both immigration restrictionists and skeptics of administrative action – sought, unsuccessfully, to overturn it through the courts.

In September 2017, the Trump Administration issued a memorandum, through DHS, rescinding the DACA program and setting forth a procedure for winding it down. The rescission was controversial from the beginning, and liberals — both immigration boosters and believers in expansive administrative action —  sought to overturn the rescission through the courts. The final word in that effort is the Regents decision.

The Court majority held, in Regents, that the Department of Homeland Security was within its rights to rescind the DACA program, but DHS had failed to satisfy the requirements of the Administrative Procedure Act in doing so. The APA requires that administrative agencies engage in a process of reasoned decision-making, consider the costs and benefits of administrative action, and offer an account of government action to the public. The Court held that the DHS simply failed to do this with respect to DACA.

A summary of the history of DHS’s attempts to satisfy the APA is beyond the scope of this column, but the TL/DR version is this — DHS’s rescission memorandum rested on an opinion of the Attorney General which in turn relied upon a decision of the Fifth Circuit Court of Appeals which addressed a related, but not identical legal question.

For Justice Roberts, this game of buck-passing didn’t satisfy the APA. Importantly, the Court holds (and all parties agree) that DHS can rescind DACA. DHS now has an opportunity to try again.

So, what’s next for DACA recipients? The Trump Administration has already indicated that it will try to rescind DACA again. Our prediction is that those who challenged the initial rescission will challenge the new one, and so the new rescission will be tied up in litigation past Inauguration Day. Therefore, as a matter of practice, DACA’s rescission may be decided at the ballot box.

In the meantime, DACA stands. DACA recipients who have work permits expiring would be well-advised to renew them as soon as practicable. Also, DACA recipients may — we emphasize may — be allowed to apply for advance parole, which would allow them to leave the United States and re-enter lawfully. DHS has not yet established procedures for accepting such travel permit applications, so we won’t take your money to do one, and don’t give your money to anyone who purports to know better.

Two final housekeeping notes. We know that we promised to provide an overview of the Trump Administration’s immigration platform — we will, in our next column. We also want to remind our readers that, as always, we welcome any comments and will do our best to respond.

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