FOURTH CIRCUIT JOINS NINTH CIRCUIT IN RULING THAT TRUMP’S EFFORTS TO RESCIND DACA WERE IMPROPER

Written by: Taher Kameli, Esq.

Deferred Action for Childhood Arrivals (DACA) is an immigration program established by President Barack Obama in 2012 generally to permit undocumented immigrants who came to the United States before the age of 16 to avoid deportation and receive work permits for a period of 2 years, renewable upon good behavior.  President Donald Trump has sought to rescind DACA. On May 17, the Fourth U.S. Circuit Court of Appeals joined the Ninth U.S. Circuit Court of Appeals (which had ruled on November 6, 2018) in ruling that President Trump’s efforts to rescind DACA were improper.

In a majority (2-1) opinion written by Fourth Circuit Judge Albert Diaz (and joined in by Fourth Circuit Judge Robert King), the court held, “Plaintiffs argue that DACA’s rescission was arbitrary and capricious because the Department of Homeland Security failed to give a reasoned explanation for the change in policy, particularly given the significant reliance interests involved.  We agree. As we have explained, DACA was rescinded based on the Department’s view that the policy was unlawful. But neither the Attorney General’s September 4 letter nor the Department’s Rescission Memo identify any statutory provision with which the DAC policy conflicts. . . . The point is that the Department had before it at the time it rescinded DACA a reasoned analysis from the office tasked with providing legal advice to all executive branch agencies that supported the policy’s legality.  Yet the Department changed course without any explanation for why that analysis was faulty. . . . Nor did the Department adequately account for the reliance interests that would be affected by its decision. Hundreds of thousands of people had structured their lives on the availability of deferred action during the over five years between the implementation of DACA and the decision to rescind. Although the government insists that Acting Secretary Duke considered these interests in connection with her decision to rescind DACA, her Memo makes no mention of them.  Accordingly, we hold that the Department’s decision to rescind DACA was arbitrary and capricious and must be set aside”.

Fourth Circuit Judge Julius Richardson wrote a dissenting opinion, stating, “We in the Judicial Branch have a narrowly circumscribed role.  It is not our place to second-guess the wisdom of the discretionary decisions made by the other Branches. The rescission of DACA was a controversial and contentious decision, but one that was committed to the Executive Branch.  For this reason, I respectfully dissent”.

The case, Casa De Maryland v. DHS, No. 18-1521 (4th Cir. 2019) means that, for the time being, DACA beneficiaries (so-called “Dreamers”) remain protected from deportation, consistent with the above-described November, 2018 decision of the Ninth U.S. Court of Appeals.  It is expected that the Trump administration will appeal the Casa De Maryland decision to the U.S. Supreme Court, as it did with the prior Ninth U.S. Court of Appeals decision (which prior appeal request is pending with the U.S. Supreme Court, although the U.S. Supreme Court has so far declined to take up the appeal).

The issue of rescission of DACA is typical of many immigration matters today.  Congress cannot reach a consensus on how to act, President Trump acts in a manner adverse to immigrants, and it is left to the courts to protect immigrant rights (as they often have done since President Trump took office).  Under these circumstances, it is critical that immigrants have a litigation advocate like The Law Offices of Kameli and Associates, which has years of successful experience in protecting immigrants in the courts. If you need immigration litigation assistance concerning DACA or any other issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for representation.