In a decision issued on March 5, 2018, Judge Roger W. Titus of the United States District Court for the District of Maryland issued an opinion denying a complaint filed by Casa de Maryland and other plaintiffs to enjoin rescission of the Deferred Action for Childhood Arrivals (DACA) program.

Specifically, the plaintiffs in that case contended that the rescission of DACA by the Department of Homeland Security (DHS) was unlawful under the Administrative Procedure Act (APA), both because it was an arbitrary and capricious decision, and because of the government's failure to follow notice and comment procedures. In addition, they alleged that the rescission of DACA violated the Fifth Amendment to the Constitution on procedural due process, substantive due process, and equal protection grounds. Finally, the plaintiffs there sought "injunctive relief on the basis of equitable estoppel both as to the DACA rescission itself and its information sharing policy." Finally, they asked the court to declare that the DACA program was lawful.

With respect to the APA, Judge Titus first held:

  • Although a substantial paradigm shift, the DACA Rescission Memo neither curtails DHS's discretion regarding individual immigration reviews, nor does it prevent the agency from granting Dreamers deferred action status again in the future. Hence, DACA and its rescission are more akin to non-binding policy statements, and thus not subject to notice-and comment requirements.

He also rejected the argument that the decision to rescind the DACA was arbitrary and capricious, concluding instead that it "was a carefully crafted decision supported by the administrative record." He noted:

  • DHS's rationale provided in the DACA Rescission Memo was a belief, based on recent court decisions and the advice of the Attorney General, that DACA was unlawful. Assuming that a reasonable basis for that belief exists in the Administrative Record, how could trying to avoid unlawful action possibly be arbitrary and capricious? Quite simply, it cannot. Regardless of whether DACA is, in fact, lawful or unlawful, the belief that it was unlawful and subject to serious legal challenge is completely rational.

With respect to equal protection, the plaintiffs argued that strict scrutiny should apply to the court's review of DHS's rescission of DACA "because the disparate treatment allegedly involves suspect classes – race, alienage, and national origin." As the court noted, "When strict scrutiny applies, the government has the burden to demonstrate a compelling state interest, for which the governmental action is narrowly tailored and the least restrictive means."

The government countered, arguing that the rescission of DACA was analogous to "selective prosecution", and therefore "afforded a presumption of non-discriminatory motives absent 'clear evidence to the contrary.'"

Judge Titus held, however:

  • Both sides miss the mark. While DACA was promulgated under a theory of prosecutorial discretion, its rescission was not based on an exercise of that discretion. Rather, its rescission was premised on a legitimate belief that DACA was unlawful and should be wound down in an orderly manner, while giving Congress a window to act and adopt an appropriate legislative solution. The Administrative Record — the basis from which the Court must make its judicial review — does not support the notion that it was targeting a subset of the immigrant population, and it does not support any supposition that the decision was derived on a racial animus. That is where the judicial inquiry should end.

In so doing, he rejected plaintiffs' argument that he should rely on statements made by President Trump "to establish an ulterior motive." He distinguished the president's statements on DACA recipients from those under consideration in Int'l Refugee Assistance Project v. Trump, the Fourth Circuit case affirming in part and vacating in part a district court order injunction of section 2(c) of Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry into the United States", on Establishment Clause grounds.

Specifically, he noted:

  • The instant case is factually very different. The President certainly made statements of his strong views on immigration policy, including advocacy for the rescission of the DACA program. However, his statements have frequently shifted but have moderated since his election. He has referred to the Dreamers as "terrific people;" he has pledged to "show great heart;" and he has referred to Dreamers as "incredible kids." He referred to the "DACA situation" as a "very difficult thing for me. Because, you know, I love these kids." He added that "the existing law is very rough. It's very, very rough."

Concluding his findings on the plaintiffs' equal protection claims, Judge Titus held:

  • The rescission of the DACA program merely fulfills the duty of the executive branch to faithfully enforce the laws passed by Congress. Accordingly, no affirmative showing of bad faith can follow. In fact, the President actually urged Congress to pass Dreamer-protection legislation during DACA's wind down period — simply put, this case is wholly dissimilar to the "extraordinary case" regarding the recent "travel ban." As a result, the Court need not go further than the facially legitimate motivation offered in the DACA Rescission Memo and supported by the Administrative Record.

He also rejected the plaintiffs' procedural due process claim, which was premised on the fact that under DACA, beneficiaries "were afforded, and are now being deprived of, a number of protected interests," such as employment authorization, international travel, school attendance, Social Security benefits, the ability to obtain bank account and credit cards, and lawful presence.

Specifically, he found that this claim failed "because procedural due process applies only to individualized deprivations, not policy-based deprivations for an entire class." Even if due process did apply to class-wide policy deprivations, Judge Titus held, that claim would still fail because DACA by its terms did not create an entitlement:

  • While entitlements are not always self-labeled or created with bright flashing lights, the exercise or restraint of prosecutorial discretion is not traditionally the sort of governmental action that creates substantive rights. The DACA Memo did not guarantee any individual immigrant particular benefits, and the DACA Rescission Memo did not curtail DHS's discretion regarding individual immigration reviews. Therefore, even if due process could attach to DACA, no de facto entitlements were created by the program itself.

With respect to substantive due process, plaintiffs claimed a "denial of fundamental fairness". Judge Titus rejected that that claim as well, noting:

  • [F]or the "denial of fundamental fairness" to rise to the level of a substantive due process violation, it must be "so egregious" and "so outrageous" as "to shock the contemporary conscience." ... Plaintiffs believe they have met this burden by alleging a discriminatory intent in DACA's rescission — an allegation unsupported by the record before this Court.

The rescission of a policy relating to prosecutorial discretion does not shock the conscience of this Court. Absent congressional action, the benefits given to Dreamers by DACA were in potential violation of congressional immigration laws; the only thing that has changed is that deferred status will expire, and enforcement of immigration laws may recommence in the absence of action by Congress, which the President has requested. There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle. Furthermore, the election process, and not federal litigation, is the appropriate method for resolving any fairness implicated in DACA's rescission.

Turning to plaintiffs' estoppel claim, the court noted: "In general, 'equitable estoppel is comprised of three basic elements: (1) a voluntary misrepresentation of one party, (2) that is relied on by the other party, (3) to the other party's detriment.'" He held:

  • As with Plaintiffs' substantive due process claim, estoppel cannot apply to DACA's rescission. The rescission of a policy relating to prosecutorial discretion does not amount to a misrepresentation by the government. DACA was promulgated with an express disclaimer that it was not conferring any rights. Nothing in the DACA Memo or in DACA's implementation suggested to Dreamers that the program was permanent, and individuals in the program were aware that their protections were subject to renewal every two years. DACA's rescission lacks any serious injustice — let alone, affirmative misconduct by any of the defendants.

Judge Titus did, however, enjoin the government's use of information provided by DACA beneficiaries for enforcement purposes, with the caveat that:

  • In the event that the Government needs to make use of an individual Dreamer's information for national security or some purpose implicating public safety or public interest, the Government may petition the Court for permission to do so on a case-by-case basis with in camera review.

Because of injunctions issued by district court judges in the Northern District of California and the Eastern District of New York, DHS must nonetheless maintain the DACA program (with certain limitations) for the time being. Judge Titus has, however, shown the way forward for reviewing courts.

Andrew R. Arthur writes for the Center for Immigration Studies.

 

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