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Illegal Alien Advocates File Legal Challenges Against Trump’s Plans to Phase Out DACA

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Legislative Update By: Liz Jacobs

This month, illegal alien advocates have filed multiple lawsuits challenging the Trump administration’s decision to wind down President Obama’s unconstitutional executive amnesty program, Deferred Action for Childhood Arrivals (DACA). (USA Today, Sept. 7, 2017; Los Angeles Times, Sept. 8, 2017) The program was unilaterally created by President Obama in 2012 to defer deportation and grant work permits to illegal aliens who arrived in the United States before their 16th birthday, in addition to meeting other criteria. Rather than abruptly ending the unlawful program, President Trump established a phase out of the unconstitutional work permit program over the next two years. (White House Statement, Sept. 5, 2017) Nevertheless, challengers are outrageously arguing that President Trump’s decision to phase out the unconstitutional program is itself unlawful and violates illegal aliens’ due process rights.

Currently, two legal challenges to DACA are pending in a New York federal court. First, a DACA recipient plaintiff, Martin Batalla Vidal, amended his existing lawsuit, which challenges the court decision striking down Obama’s similar executive amnesty program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and his extension of DACA, to also challenge the entire phase out of DACA. (Batalla Vidal v. Baran, et al; CNBC, Sept. 5, 2017) The case is currently with the U.S. District Court for the Eastern District of New York. Second, lawyers representing 15 States and the District of Columbia, led by the State of New York, filed their own legal challenge in the same district court. (Los Angeles Times, Sept. 6, 2017) Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington have signed on to this lawsuit. (Id.)

Additionally, two cases are pending in the U.S. District Court for the Northern District of California. (Los Angeles Times, Sept. 8, 2017; Los Angeles Times, Sept. 11, 2017) First, the University of California system filed a lawsuit on behalf of its illegal alien student population. (Id.) The UC-system claimed the Trump administration’s long deliberated decision to phase out the program equated to an “executive whim.” (Los Angeles Times, Sept. 8, 2017) Notably, the UC-system is now run by Obama’s former Department of Homeland Security Secretary Janet Napolitano who was directly responsible for implementing DACA back in 2012. Just days after the UC-system submitted its complaint, lawyers representing the State of California filed a separate challenge in the same district court. (Los Angeles Times, Sept. 11, 2017)

All four challenges claim the Trump administration’s phase out of Obama’s executive amnesty program violate DACA recipient’s due process rights under the Fifth Amendment. This claim, however, is unlikely to prevail. First, the DACA program was never authorized by law, conflicts with numerous statutes, and was never intended to be a permanent program. The memoranda creating DACAspecifically stated that the program confers no substantive right or immigration status to its beneficiaries. (DHS Memorandum, June 15, 2017) Second, by slowly phasing out DACA, the Trump administration will not cancel any work permit before its expiration date. To the contrary, the Trump administration is allowing current DACA recipients with work permits that expire within the next six months to renew them for another two-year term. The phase out plan thus allows many DACA recipients extra time to conform to the law.

The legal complaints also accuse the Trump administration of avoiding rulemaking procedures required by the Administrative Procedure Act (APA). Ironically, the same APA claims were made by litigants earlier this year who sought to challenge the program as unlawful. The Obama administration created DACA by merely issuing a DHS policy memoranda, arguing at the time that the policy was not subject to the APA mandated rulemaking procedures. (DHS Memorandum, June 15, 2017) The Obama administration doubled down on its claim that DACA is not subject to the APA in the U.S. v. Texas litigation where 26 states challenged DAPA and the expansion of DACA as unconstitutional for, among other reasons, failing to comply with the APA. DACA was implemented by merely a policy memo and the Trump administration similarly issued a memorandum to order the program’s phase out. (DHS Memorandum, Sept. 5, 2017)

The DACA program currently has approximately 690,000 illegal alien beneficiaries. (Department of Homeland Security FAQ, Sept. 5, 2017) While DACA recipients were minors when they entered the United States, the overwhelming majority of DACA recipients are in their 20s and 30s. (Id.) DACA recipient’s ages range from 15-36, and the average DACA recipient is 23 years old. (Id.)

Unless activist judges and the Supreme Court somehow side with the DACA supporters in these meritless lawsuits, the entire program should completely end by late 2019 depending on how long DHS takes to process the applications received by October 5. (Department of Homeland Security FAQ, Sept. 5, 2017)