The three-page memo, signed by DHS Secretary Kirstjen Nielsen, was issued to comply with an April order from a D.C. federal judge that gave the department 90 days to clarify its reasoning for rescinding DACA, or else the program would continue.
In the memo, Nielsen argued that DACA, which benefits immigrants brought to the U.S. without authorization when they were children, was illegal and was thus properly rescinded, citing the Fifth Circuit’s rejection of Obama’s Deferred Action for Parents of Americans program, or DAPA. That program was rescinded by the Trump administration in June 2017.
“Any arguable distinctions between the DAPA and DACA policies are not sufficiently material to convince me that the DACA policy is lawful,” the memo said.
And whether the DACA policy is found to be lawful, Nielsen argued, the administration did not want to risk keeping in place a law that was “legally questionable.”
“Those reasons include the risk that such policies may undermine public confidence in and reliance on the agency and the rule of law, and the threat of burdensome litigation that distracts from the agency's work,” the memo said. “The fact that some courts have recently held or suggested that the DACA policy is legal does not change my view that the DACA policy's legality is too questionable to warrant continuing the policy.”
The challenges in D.C. federal court to the administration’s decision in September to roll back DACA protections are one of several around the country. Federal district courts in New York and California have issued nationwide preliminary injunctions forcing the DHS to continue the program, including continuing to renew applications for DACA recipients.
In the two consolidated cases before the D.C. federal court, the NAACP and several unions, along with Microsoft Corp. and Princeton University, sought permanent injunctive relief for DACA recipients, which would apply to application renewals as well as new applications.
U.S. District Judge John D. Bates partially granted their motion for summary judgment in April, saying that the administration’s plan to end DACA was unlawful under the Administrative Procedure Act because the DHS had not adequately explained why it terminated the program.
“Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program,” the judge wrote in his opinion.
The judge ordered that the administration’s rescission of the program be vacated, but he said he would delay the order for 90 days to give the government a chance to further explain its decision.
In the government’s memo Friday, Nielsen argued that DACA prevented the DHS from evaluating immigration cases individually, which it says it has the authority to do under the Immigration and Nationality Act. She added that only Congress should have the authority to make permanent immigration law.
Nielsen also said that it was necessary for the administration to maintain a hard-line stance on immigration, saying that undocumented minors had crossed illegally into the U.S. at “unacceptably high levels” over the past few years.
“It is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens,” the memo said.
Now that the government has filed its memo, about a month before the court’s stay would have expired, Judge Bane could choose to extend the stay to allow additional briefing. He could also rule on whether the memo is legally sufficient on his own without consulting the other parties.
Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, who is representing the NAACP and other union organizations, told Law360 that based on his initial review, he does not believe that the memo will be enough to save the government’s plan to end DACA.
“While we are still studying the Secretary’s memo submitted as additional support for rescission of the DACA Program, our initial review leads us to conclude that it is not legally sufficient. We look forward to addressing this issue before the Court,” Sellers said in an email.
The U.S. Department of Justice did not immediately return a request for comment.
The NAACP, the American Federation of Teachers and the AFL-CIO are represented by Joseph M. Sellers, Julie Selesnick, Douglas McNamara and Julia Horwitz of Cohen Milstein Sellers & Toll PLLC. Princeton, Microsoft and Sanchez are represented by Thomas J. Perrelli of Jenner & Block LLP.
The government is represented by Gerald Lucas with the U.S. Department of Justice.
The cases are Trustees of Princeton University et al. v. U.S. et al., case number 1:17-cv-02325, and NAACP et al. v. Trump et al., case number 1:17-cv-01907, both in the U.S. District Court for the District of Columbia.
--Additional reporting by Dave Simpson. Editing by Edrienne Su.
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