HUGE!!!! Supreme Court give DREAMers a major win: rescinding #DACA violates the APA must be vacated. #HomeIsHere
Extremely complex decision w many many subtle layers w huge implications 4 all aspect of immigration law: from reviewability, to 1252g, to of course APA 'arbitrary and capricious' standard. Practical: it is a mirror to the Census case -- sends it back for agency to consider anew.
Thomas dissent: "This ruling is incorrect and it will hamstring all future agency attempts to undo actions that exceed statutory authority."
So, DACA as implemented by the 6-15-12 Memo is back in effect, which FOR THE MOMENT means that initial application as well as AP can be filed and USCIS had to accept them. (How and when they will rule on them is a different Q) So, this is in the GOOD column.
But as CJ opens up the decision: "The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so." So, if Trump wants to he can certainly terminate DACA again.
Especially as it relates to providing benefits (work permits). The issue is doing it while complying with APA. As an aside, the FN about how the arguments below about 'notice & comment' uniformly failed gives it up that SCOTUS does not think much about it in immig policy context.
As a monumental the underlying issue is, the ultimate reason why SCOTUS sent DACA for a do-over seems to be that the Chief viewed Nielsen's second Memo on rescission as just piss-poor, Du-uh! and was not willing to give her a break.
Just as a background, here is timing of events
1. Sessions sent Memo to Duke (then DHS sec) w "DACA is illegal"
2. Duke rescinded coz Session said it was illegal
3. Everyone sued
4. MD judge gave DHS a possib to explain
5. Nielsen issues the explainer adding uncertainty & policy
So Roberts says: the 2 new grounds cited by Nielsen "can be viewed only as impermissible post hoc rationalizations and thus are not properly before us." They were not considered by Duke & can;t add them later.
On the legality, in essence SCOTUS punt. CJ first takes an aim at the quality of the briefing by advocates: "Because of these gaps in respondents’ briefing, we do not evaluate the claims challenging the explanation and correctness of the illegality conclusion."
Then he quipped how those 'half-ass arguments' "carried the day before the lower courts". Outch! I suppose as the CJ he sought in appropriate to take up the role of a cranky ol' school principal who while looking over his glasses scoffs 'you all suck, now go back to class'!
I get it! it's a decision guided by political considerations & product of quid pro quo btw the Liberal Justices & CJ but in the process the decision makes some very powerful pronouncements which could have monumental consq on some of pending legal challenges to Trump immgr regs
The main is emphasizing that "with respect to 'all questions of law,' the determinations of the Attorney General 'shall be controlling' under 8 U. S. C. §1103(a)(1), thus legality of DACA is for AG to decide first. Ok! but courts review such "legal issues" de novo ...
Perhaps answer is that Majority sees DACA solely as a matter of forbearance, that is DHS has discretion to decide to not deport DREAMers or to set whatever conditions or time limits on such forbearance, as long as in making deci they consider reliance interests & other factors
But in the process Majority made some other "observations" that could have way, way far-reaching consequences for other Trump policies already on the book and no doubt fore coming in the next few months.
under BAD category, "Thus, removing benefits eligibility
while continuing forbearance remained squarely within the
discretion of Acting Sec Duke, who was responsible
for “[e]stablishing national immigration enforcement policies and priorities” under 6 U. S. C. §202(5). Uhgrr
Then there are the footnotes. Hate FNs in court decisions! so, in FN5 we have a passing reference to "Lawful presence" (WTF!/!) with the addition that "It is not the same as forbearance nor does it flow inexorably from forbearance." Well, TYMV 4 nothing, Chief!
But of course, Thomas had to respond. So in his dissent he goes into all the reqtms for immigrant and non-immigrant visas and *status* to sums it up with this little gem "Congress put in place intricate specifications governing eligibility for lawful presence." Hmmm what?!?
So is this a change in lexicon? Are we now to brief eligibility for H1B or EB-1 "lawful presence" ...
But back to footnotes. In FN5 we continue with the fascination with benefits coz you see "lawful presence" =/= forbearance: while DACA bene "have been designated lawfully present for purposes of Soc Sec & Medicare
eligibility, agencies can also exclude them from this designation"
Not what we want to hear! Especially since Admin is planing on eliminating EADs for asylum seekers. This FN kinda kills all the optimism that courts will quickly stop any such effort. Well, maybe they still will but SCOTUS is telling us what the final outcome will be. Depressing
Then there is FN6. "The benefits associated w DACA flow from a separate reg.[]Thus, DHS could have addressed AG’s determination that such benefits were impermissible under INA by amending §1.3 to exclude DACA recipients from those bene w/out rescinding DACA & forbearance policy.
Then there is FN6. "The benefits associated w DACA flow from a separate reg.[]Thus, DHS could have addressed AG’s determination that such benefits were impermissible under INA by amending §1.3 to exclude DACA recipients from those bene w/out rescinding DACA & forbearance policy.
You know, Ken & Stephen Miller are salivating reading FN6. And honestly, it will be tough sale convincing a court that if they decide to eliminate work permits for DACA beneficiaries, it will be 'unlawful'. All Govt has to say is, "look at FN6, Majority said we can do it!"
Completely gratuitous elaborations of issues irrelevant to the ultimate decision. Very disappointing that Liberal wing Ok-ed it.
Also in the BAD category is most of the "reliance interests" portion of the #DACAdecision. After listing all the contribution of DREAMers, economic contrib, family consq, Majority states: "These are certainly noteworthy concerns, but they are not necessarily dispositive."
But it them provides a list that DHS can use to victimize DREAMERs and their family. I'm gonna run them as they appear in decision.
* "DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum."
* "Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight."
* "even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider."
Concluding with another gratuitous dribble "DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests."
So to summarize the BAD in #DACADecision: SCOTUS did not find that DACA is lawful or that DHS cannot rescind the program, or eliminate EADs. It only held that it was arbitrary & capricious 4 DHS to not "consider" retaining forbearance or accommodate particular reliance interests.
Yes, it is a major win for DACA beneficiaries but it is by no means a complete victory.
But #DACADecision has major GOOD aspects, although they are a bit more nerdy.
for immigration litigators it is da BOMBY bomb!
Oh where to start! I'm going with the post hoc rationalization. When the next time AUSA waltzes in court w "USCIS has reopened the decision, so now this APA suit is moot" ... #dirtyimmigrationlawyers:
Then we have "As we have said before, §1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision . . . to seek removal,” or “the process by which . . . removability will be determined.” Basically
SCOTUS told the Govt and some lower courts (yes! you know who you are!) that it finally had with the zipper clause and the 1252 garbAge.
*had it
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