Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec.

Citation279 F.Supp.3d 1011
Decision Date09 January 2018
Docket Number No. C 17–05380 WHA, No. C 17–05235 WHA,No. C 17–05211 WHA, No. C 17–05329 WHA, No. C 17–05813 WHA,C 17–05211 WHA
Parties The REGENTS OF the UNIVERSITY OF CALIFORNIA and Janet Napolitano, in her official capacity as President of the University of California, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and Kirstjen Nielsen, in her official capacity as Secretary of the Department of Homeland Security, Defendants.
CourtU.S. District Court — Northern District of California

Greta Suzanne Hansen, James Robyzad Williams, Laura Susan Trice, Marcelo Quinones, Office of the County Counsel, Santa Clara County, San Jose, CA, Stacey M. Leyton, Eric Prince Brown, Altshuler Berzon LLP, San Francisco, CA, for Plaintiffs.

Brad Prescott Rosenberg, U.S. Department of Justice, Washington, DC, for Defendants.

Jonathan David Weissglass, Altshuler Berzon LLP, San Francisco, CA

William Alsup, United States District Judge

INTRODUCTION

In these challenges to the government's rescission of the Deferred Action for Childhood Arrivals program, plaintiffs move for provisional relief while the government moves to dismiss for lack of jurisdiction. For the reasons below, dismissal is DENIED and some provisional relief is GRANTED .

STATEMENT

In 2012, the United States Department of Homeland Security adopted a program to postpone deportation of undocumented immigrants brought to America as children and, pending action in their cases, to assign them work permits allowing them to obtain social security numbers, pay taxes, and become part of the mainstream economy. This program received the title "Deferred Action for Childhood Arrivals"—DACA for short. In 2017, however, after the national election and change in administrations, the agency eventually reversed itself and began a phase-out of DACA. All agree that a new administration is entitled to replace old policies with new policies so long as they comply with the law. One question presented in these related actions is whether the new administration terminated DACA based on a mistake of law rather than in compliance with the law.

1. HISTORY OF DEFERRED ACTION .

At the core of these cases is an administrative practice known as "deferred action." A primary question presented concerns the extent to which the Department of Homeland Security could lawfully use deferred action to implement DACA, and so it is important to review the history of deferred action as well as of other features of the DACA program.

Congress has the constitutional power to "establish an uniform Rule of Naturalization." Art. I, § 8, cl. 4. Pursuant thereto, Congress has established a comprehensive scheme governing immigration and naturalization through the Immigration and Nationality Act. 8 U.S.C. §§ 1101, et seq. The Secretary of Homeland Security is "charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1). The Secretary is further charged with "establishing national immigration enforcement policies and priorities." 6 U.S.C. § 202(5).

One of the key enforcement tools under the INA is removal, i.e. , deportation. In turn, "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." Arizona v. United States , 567 U.S. 387, 396, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). As an initial matter, in any given case, immigration officials "must decide whether it makes sense to pursue removal at all." Ibid. At each stage of the removal process, they have "discretion to abandon the endeavor." Reno v. Am.–Arab Anti–Discrimination Comm. , 525 U.S. 471, 483, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (" AADC ").

Beginning as early as 1975, one way to exercise this discretion became "deferred action." By deferred action, immigration officials could postpone, seemingly indefinitely, the removal of individuals unlawfully present in the United States "for humanitarian reasons or simply for [the Executive's] own convenience." Id. at 483–84, 119 S.Ct. 936. Immigration officials could also grant parole, temporary protected status, deferred enforced departure, or extended voluntary departure.

Some of these discretionary powers have flowed from statute. Parole, for example, has allowed otherwise inadmissible aliens to temporarily enter the United States "for urgent humanitarian reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A). Temporary protected status, also created by statute, has been available to nationals of designated foreign states affected by armed conflicts, environmental disasters, and other extraordinary conditions. 8 U.S.C. § 1254a.

Some of these discretionary powers, however, have flowed from nonstatutory powers. Deferred enforced departure had no statutory basis but, instead, grew out of "the President's constitutional powers to conduct foreign relations." USCIS, Adjudicator's Field Manual § 38.2(a) (2014). Nor has extended voluntary departure been anchored in any statute. Rather, it has been recognized as part of the discretion of the Attorney General. Hotel & Restaurant Employees Union, Local 25 v. Smith , 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc).

Deferred action, originally known as "nonpriority" status, also began "without express statutory authorization" but has since been recognized by the Supreme Court as a "regular practice." AADC , 525 U.S. at 484, 119 S.Ct. 936. Congress has also acknowledged deferred action by explicit reference to it in the INA ( 8 U.S.C. § 1227(d)(2) ):

The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for a stay of removal, deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws of the United States.

Another federal statute, the REAL ID Act, also acknowledged deferred action. REAL ID Act of 2005, Pub. L. No. 109–13, div. B, 119 Stat. 231. This law provided that states could issue a temporary driver's license or identification card to persons who can demonstrate an "authorized stay in the United States." Id. §§ 202(c)(2)(C)(i)-(ii). Persons with "approved deferred action status" were expressly identified as being present in the United States during a "period of authorized stay," for the purpose of issuing state identification cards. Id. §§ 202(c)(2)(B)(viii), (C)(ii).

Congress has also given the Executive Branch broad discretion to determine when noncitizens may work in the United States. Arizona Dream Act Coal. v. Brewer , 757 F.3d 1053, 1062 (9th Cir. 2014) (" Brewer I "); see 8 U.S.C. § 1324a(h)(3) (defining an "unauthorized alien" not entitled to work in the United States as an alien who is neither a legal permanent resident nor "authorized to be ... employed by [the INA] or by the [Secretary of Homeland Security]"). Pursuant to this statutory authority, regulations promulgated in the 1980s allowed recipients of deferred action to apply for work authorization if they could demonstrate an "economic necessity for employment." 8 C.F.R. § 274a.12(c)(14).

The George W. Bush Administration began to use deferred action to mitigate a harsh statutory provision involving "unlawful presence." The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created three– and ten-year bars on the admission of aliens who departed or were removed from the United States after periods of "unlawful presence" of between 180 days and one year, or more than one year, respectively. 8 U.S.C. § 1182(a)(9)(B)(i). It also imposed a permanent bar on the admission of any alien who, without being admitted, entered or attempted to reenter the United States after having been unlawfully present for an aggregate period of more than one year. 8 U.S.C. § 1182(a)(9)(C)(i). Beginning in 2007, however, DHS regulations and policy guidance provided that deferred action recipients did not accrue "unlawful presence" for purposes of the INA's bars on re-entry. 8 C.F.R. § 214.14(d)(3) ; 28 C.F.R. § 1100.35(b)(2) ; Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). DHS excluded recipients of deferred action from being "unlawfully present" because their deferred action is a period of stay authorized by the government. Brewer I , 757 F.3d at 1059 (citing 8 U.S.C. § 1182(a)(9)(B)(ii) ). This nonaccrual practice arose well before DACA.1

DACA grew out of a long agency history of discretionary relief programs. In 1956, the Eisenhower Administration paroled roughly one thousand foreign-born orphans who had been adopted by American citizens but were precluded from entering the United States because of statutory quotas. That same administration later granted parole to tens of thousands of Hungarian refugees after the unsuccessful Hungarian revolution. Both programs flowed from presidential statements, and the programs later ended (in 1959 and 1958, respectively) when Congress passed laws enabling the paroled individuals to become lawful permanent residents (App. 1602–03, 1948–57; AR 33).2

In 1987, President Ronald Reagan instituted the Family Fairness Program, a non-statutory program that provided extended voluntary departure to children whose parents were in the process of legalizing their immigration status under the Immigration Reform and Control Act of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover spouses of such legalized aliens, and the program ultimately provided immigration relief to approximately 1.5 million people. The need for the program ended with the passage of the Immigration Act of 1990 (App. 1607, 1612–13, 1703).

On at least four occasions prior to the creation of DACA, immigration officials have...

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  • ONLY WHERE JUSTIFIED: TOWARD LIMITS AND EXPLANATORY REQUIREMENTS FOR NATIONWIDE INJUNCTIONS.
    • United States
    • Notre Dame Law Review Vol. 95 No. 5, May 2020
    • May 1, 2020
    ...(N.D. Cal. 2018), appeal docketed, No. 18-16981 (9th Cir. Oct. 12, 2018); Regents of Univ. of Cal. v. U.S. Dep't of Homeland Sec., 279 F. Supp. 3d 1011, 1049-50 (N.D. Cal. 2018), aff'd, 908 F.3d 476, 520 (9th Cir. 2018), cert. granted, 139 S. Ct. 2779 (2019) (mem.). I count in this number t......

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