ANA IONESCU—President Joe Biden vowed to achieve a permanent Deferred Action for Childhood Arrivals (DACA) program on his first day in office. In the wake of the Trump administration’s vigorous efforts to rescind DACA, the controversial immigration relief program stands on shaky ground, making it imperative to analyze the way in which it can attain the permanency that the President promises.
DACA was created through executive action with the issuance of a memorandum, titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” by the Secretary of Homeland Security, Janet Napolitano, on June 15, 2012. The exercise of prosecutorial discretion for “certain young people who were brought to this country as children and know only this country as home” defers their removal “for a period of two years, subject to renewal . . . .” The memorandum concluded by asserting that it “confers no substantive right, immigration status or pathway to citizenship,” given that only Congress has the legislative authority to provide these rights. Therefore, this instrument of executive action is subject to the discretion of the presiding executive official, such that it can be modified or revoked “in the face of evolving presidential priorities.” If Congress wishes to provide the directive with more finality and permanency, “Congress may codify the presidential order as it was issued or with certain modifications.”
Former President Trump’s rescission of DACA exemplifies the unstable nature of these executive actions. On September 5, 2017, Secretary of Homeland Security Elaine Duke initiated a wind-down of DACA in the memorandum titled “Rescission of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.’” The termination of the program spurred litigation up to the Supreme Court of the United States, which held in Department of Homeland Security, et al., v. Regents of the University of California, et al. that the Acting Secretary Duke’s recission violated the Administrative Procedure Act (APA) by being “arbitrary and capricious.” While the Court’s opinion on June 18, 2020, permits the continuance of DACA, it “remand[s] to DHS so that it may consider the problem anew,” leaving open the possibility of ending the program if the right challenge is brought. Acting Secretary Chad Wolf did not wait long before issuing a memorandum on July 28, 2020, significantly modifying the DACA policy “to reject all pending and future initial requests for DACA, to reject all pending and future applications for advance parole absent exceptional circumstances, and to shorten DACA renewals consistent with the parameters established in this memorandum.” However, less than six months later, the U.S. District Court for the Eastern District of New York quickly ordered the restoration of DACA to its original 2012 form, vacated Acting Secretary Wolf’s memorandum, and directed DHS to comply.
Despite numerous attacks over the years, DACA remains intact. However, President Biden’s pledge to make DACA permanent creates an overstated sense of security. Until DACA is codified, it remains vulnerable to rescission by future executives and administrative challenges under the APA. Although President Biden signed a memorandum on day one of his presidency ordering the Attorney General and the Secretary of Homeland Security “to preserve and fortify DACA,” there is no new law as it is followed by the typical executive action language, which indicates that it does not create any enforceable right. The permanency that DACA recipients, also known as Dreamers, yearn for still remains under the authority of Congress.
In order to solidify the immigration relief program that benefits thousands of undocumented childhood arrivals, Congress would have to enact legislation by codifying former President Obama’s executive action into the Code of Federal Regulations or by passing a bill to be codified in the U.S. Code. President Biden stated that he “will immediately work to make it permanent by sending a bill to Congress on day one of [his] Administration,” hinting that the latter route is the likely course of action. Sure enough, President Biden introduced a comprehensive immigration bill to Congress, named the U.S. Citizenship Act of 2021, which proposes an eight-year pathway to citizenship for Dreamers, among other immigrant groups. Recognizing “the heavy lift of turning a priority into law,” the President has expressed he is open to piecemeal legislation, which may be the more effective approach in reforming our immigration system. Notably, the Democratic party controls Congress, which does not guarantee that a DACA law will pass but certainly increases the likelihood of success for any of President Biden’s proposals.
If at least the DACA portion of the U.S. Citizenship Act of 2021 is enacted, the argument to take down DACA will not be an issue of administrative law but rather constitutional law. Given the Court’s tendency to follow the canon of constitutional avoidance, codifying DACA through the legislature creates a higher burden for individuals who wish to challenge DACA. In order to take down the legislation on constitutional grounds, the court must first determine if the statute can be constructed in such a way to avoid the constitutional question. The Chevron deference doctrine also instructs courts to yield to the government’s interpretation of a statute provided that the interpretation is reasonable. Therefore, codifying DACA into law would strengthen it in the face of challenges, thereby making it at least more permanent than it is currently.
The vulnerabilities of DACA as it stands now should encourage immigrant advocates to maintain pressure on President Biden to follow through on his promise to make DACA permanent and to continue efforts to pass DACA through Congress. The stability of the lives of over 600,000 individuals relies on the relief authorized by this program, not to mention the other 11 million undocumented immigrants affected by the U.S. Citizenship Act of 2021.