Whither DACA?

Politico

By Ted Hesson

09/06/2017 10:00 AM EDT

http://www.politico.com/tipsheets/morning-shift/2017/09/06/whither-daca-222130

WHITHER DACA?: It wasn’t Day One — more like Day 228 — but otherwise President Donald Trump delivered Tuesday on his campaign promise to end the Deferred Action for Childhood Arrivals program. DACA will be phased out over two and a half years, with no new applications starting today. The 800,000 enrollees in the program, which provides work permits to undocumented immigrants who were brought to the U.S. at a young age, won’t be affected until March 2017 — and possibly not then if Congress writes the program into law, as Trump urges it to do.

The White House made clear yesterday that it expected Congress not only to codify DACA (a difficult enough task) but also to overhaul the entire immigration system. “We’ve got to do an overall immigration reform that’s responsible and, frankly, that’s lawful, and that’s what the president wants to see Congress do,” White House Press Secretary Sarah Huckabee Sanders told reporters Tuesday. “We can't just have one tweak to the immigration system. We need really big fixes and big reform in this process.”

Congress has no clue how to proceed, POLITICO’s Seung Min Kim, Rachael Bade and Heather Caygle report. “House Republican leaders, already scrambling to avoid a government shutdown and a default on the nation's debt, are privately hoping to push the immigration battle until at least this winter,” the trio write. On the Senate side, lawmakers are split on whether a comprehensive immigration bill makes sense. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said he doubted a stand-alone DACA measure could pass, but Sen. Marco Rubio (R-Fla.) said he doubted comprehensive immigration reform could pass. “If you start adding other things to it, that’s where I think it falls apart,” he told POLITICO.

On the other hand … is Trump serious about ending DACA in six months? A baffling tweet that Trump sent out Tuesday night suggested not. “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do),” he wrote. “If they can't, I will revisit this issue!” Morning Shift’s Timothy Noah was reminded of the time he held a yard sale and a man walked over to an ancient lawnmower and stroked his chin. Before the customer could say a word Noah blurted out, “We’re willing to negotiate on price!” Noah’s kids howled with laughter and still, a decade later, love to tell this story on their old man. But at least Noah never authored a book titled “The Art of the Deal.”

Meanwhile, Dreamers are already starting to see erosion in one crucial protection — the Department of Homeland Security’s promise that it won’t use the personal information they provided to enroll in DACA to deport them. For the moment, POLITICO’s Ted Hesson reports, DHS says it won’t share DACA application data with immigration enforcement agencies. But that policy, DHS explained in a web post Tuesday, could be “modified, superseded, or rescinded at any time without notice.” The same caveat appeared in the instructions for the DACA application, but it assumes much more gravity as Trump moves to eliminate the program.

The new DACA guidance also waters down an assurance DHS made in the DACA applications that the data would be “protected from disclosure." In Tuesday’s web post, DHS said the data "will not be proactively provided” to enforcement authorities. “It’s a subtle way of saying the information is not protected,” said David Leopold, a Cleveland-based immigration lawyer and former president of the American Immigration Lawyers Association. “Whatever protection was there is now gone.”

On the advocacy front, DACA allies will continue to mobilize. "It is particularly cruel to offer young people the American Dream, encourage them to come out of the shadows and trust our government, and then punish them for it," Facebook founder Mark Zuckerberg wrote on Tuesday, as POLITICO’s Steven Overly reported. Faith groups criticized the move, with the U.S. Conference of Catholic Bishops calling it “reprehensible.” President Barack Obama also made his displeasure known. “Ultimately, this is about basic decency,” he said. A “flurry of litigation” could begin in coming weeks, POLITICO’s Josh Gerstein writes.

Obama’s former staffers appear to be gearing up for battle. University of California President Janet Napolitano, who was Homeland Security secretary during the DACA rollout in 2012, sent former colleagues a letter that Morning Shift obtained. “I am sending this note today because each if you, in your own ways at DHS, played a role in either the birth, implementation or growth of DACA,” Napolitano wrote. “I look forward to working with all of you in the coming weeks and months to remedy this injustice.”

Does Trump’s termination of DACA violate the Administrative Procedures Act? Writing in POLITICO Magazine, Daniel Hemel, assistant professor of law at the University of Chicago, thinks it might. The 1946 statute requires federal agencies to provide public notice and solicit comment whenever it issues “substantive rules.” But on Tuesday DHS Acting Secretary Elaine Duke sent a memo shutting down DACA applications that the agency receives after Sept. 5 and halting approval of DACA renewals after March 5. She didn’t provide public notice of this very substantive action in advance. Nor did she solicit comment about it. Did that violate the APA?

The Trump administration can answer that when Napolitano created DACA in 2012, she, too, sent out a memo, omitting public notice and comment. Why should Duke have to follow the APA in ending DACA if Napolitano didn’t follow it in creating it? But Hemel says Trump opponents can argue that Napolitano’s instructions were less specific than Duke’s, and therefore, “at least arguably, a policy statement. The Duke memo is more difficult to interpret as anything other than a hard-and fast rule.” Also, the D.C. Circuit has ruled that the APA must be followed even when it’s withdrawing a “defectively promulgated” regulation. “Two procedural wrongs,” Hemel writes, “do not make a right.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com