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The Department of Homeland Security has been hit with another court order related to the Deferred Action for Childhood Arrivals program for undocumented immigrants who came to the U.S. as children.
A federal judge in California Feb. 26 ordered that the DHS stop automatically revoking the DACA status and work permits of immigrants based solely on being issued a “notice to appear,” or NTA, for removal proceedings. Doing so violates the agency’s own standard operating procedures as well as the memorandum from former DHS Secretary Janet Napolitano that created DACA, the court said.
With the focus on the DHS’s termination of the DACA program, the agency’s practice of revoking DACA status without notice and an opportunity to respond “has largely slipped under the radar,” Stephen Legomsky, a professor at Washington University School of Law in St. Louis, Mo., told Bloomberg Law.
Judge Philip S. Gutierrez of the U.S. District Court for the Central District of California also allowed the case to proceed as a class action made up of all DACA recipients who, since Jan. 19, 2017, have or will have their DACA grants and work permits revoked without notice or opportunity to respond, even though they haven’t committed any crime that would disqualify them from the program.
It expands a prior order restoring DACA for one of the lead plaintiffs in the case.
The number of individuals whose DACA status and permits are revoked is a “very tiny proportion” of the nearly 800,000 individuals granted DACA, Legomsky said. But it provides the “significant benefit” of keeping the DHS from circumventing its own regulations, he said.
“If all it takes to circumvent the notice and opportunity to be heard requirements” is to issue an NTA, then the procedural requirement essentially becomes meaningless, said Legomsky, who was chief counsel at the DHS’s U.S. Citizenship and Immigration Services when DACA was developed. The court decision thus prevents the DHS from issuing “mass NTAs” to avoid the time and resources needed to allow DACA recipients the chance to respond to a pending revocation decision, he said.
Preventing this future action likely has a bigger overall impact than restoring DACA for the relatively small number of individuals who had it revoked, he said.
The DHS can still rely on NTAs to revoke DACA, but the agency has to explain any deviation from prior procedures, Legomsky said. Those procedures required notice and an opportunity to respond, he said.
A representative for the DHS declined to comment on the decision.
The order was issued the same day that the U.S. Supreme Court refused to take up the Justice Department’s appeal in a separate lawsuit over the Trump administration’s termination of DACA. The justices’ failure to wade into the case leaves in place two federal court orders—one in California and one in New York—requiring the DHS to continue processing DACA renewal applications.
Both of those cases will be heard in their respective federal appeals courts instead. The case could still wind up before the Supreme Court but likely not until the justices’ next term, which starts in October.
Court orders blocking Trump administration immigration initiatives are “starting to add up,” Legomsky said. He pointed to the three DACA orders as well as the court orders blocking President Donald Trump’s separate travel bans.
The Supreme Court is set to hear arguments over the president’s latest travel ban in April.
The ruling on the DACA revocations “is a critical victory for young immigrants and their families across United States,” American Civil Liberties Union staff attorney Katrina Eiland said in a Feb. 27 statement. “The court’s order ensures that Dreamers won’t have their ability to live and work in the country they call home taken from them arbitrarily,” said Eiland, whose organization is representing the DACA recipients.
“A major selling point of the DACA program was that it was prosecutorial discretion, and thus supposedly within the Obama administration’s authority,” Christopher Hajec, director of litigation for the Immigration Reform Law Institute, said in a statement provided to Bloomberg Law. “Now this federal judge, in yet another overreaching nationwide injunction against the Trump administration, has said that officials had better not exercise their discretion in any way the court disapproves of,” he said Feb. 27.
“If the court is right that DACA gives no discretion to officials, that just shows that DACA was unlawful to begin with--that it wasn’t an exercise in prosecutorial discretion, but rather unconstitutional executive lawmaking,” Hajec said. IRLI is the legal arm of the Federation for American Immigration Reform, which supports lower immigration levels.
Gutierrez’s order doesn’t relate to the decision to end DACA but rather the DHS’s practice of automatically revoking individual immigrants’ DACA and work permits if they receive an NTA for being unlawfully present in the U.S.
DACA “was specifically designed for persons without lawful immigration status,” and program rules allow DACA grants even for immigrants in removal proceedings and who have been issued a final order of removal, the judge said.
The order blocks the department from terminating individuals’ DACA without notice, a “reasoned explanation,” and an opportunity to respond. It also requires the DHS to restore DACA to those whose status and work permits were automatically revoked, and requires the agency to process the renewal applications of those who weren’t able to apply as a result of the “unlawful revocation decision.”
The case is Inland Empire--Immigrant Youth Collective v. Nielsen, C.D. Cal., No. 5:17-cv-02048, order 2/26/18.
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