ICE To Begin Reopening Removal Proceedings Against DACA Recipients: Here’s What You Need To Know
Author: NYC Deportation Lawyer Alena Shautsova, co-author: Greg Abrams
Reports of DACA recipients receiving notices to appear in Immigration Court began on December 29th, 2019. What a great way to start the New Year… with fear and uncertainty. When a person applies for DACA, they concede that they are deportable from the US, but ask for deferred action, similar to prosecutorial discretion from the government to obtain work authorization and a safeguard from deportation. That safeguard has been the subject of much-heated debate in the US over the past decade and many people fear that DACA will come to an end before any benefits to help DACA recipients adjust their status to permanent residents. In the first part of this article, I will go over the options DACA recipients who have their deportation cases reopen can do to protect and defend themselves from deportation. In the second part of the article, I will go over the legal history and the legal tensions at odds with each other that put DACA recipients in the middle of philosophical debate over what the legal term actus contrarious entails in the US.
Options for DACA recipients with recently reopened deportation cases
The options DACA holders have are quite limited if they need to defend themselves in immigration court. There is no special defense for DACA recipients that is separate from any other person’s defenses against deportation. Moreover, most of the time, if a person has DACA then they would have adjusted their status already if they had any life-changing events that made them eligible for adjustment of status such as a marriage to a US citizen. If the opportunity presents itself to hear the case, De Novo, a fancy way of saying “new, and without using any of the previous legal findings,” a DACA recipient will have a much easier time defending themselves in immigration court. When looking for defenses in immigration court there are 3 main points that Immigration Judges look for to determine whether to deport a person or not.
- Whether the person entered the US legally or illegally
- If the person has good moral character
- The ties the person has to the country.
These 3 main points serve as a compass for the available defenses a person may have when deportation proceedings are reopened. If the Immigration Judge does not want to immediately recognize that a person has a deferred action and legal documentation that they are protected while their DACA status is current, defenses must be made. However, if a person entered the country illegally, this limits their options significantly.
Options for DACA recipients with Illegal Entries
Most DACA recipients were brought to the US with their parents by crossing the US-Mexico border many years ago. The way immigration law is written, a person must have a legal entry in the US to adjust their status based on a petition by an immediate relative. An Immigration Judge does have the sua sponte authority to reopen one’s old immigration proceedings but is unlikely to do so. Therefore, most of the legal options for DACA recipients with illegal entries must also correct their illegal entry.
1. Waivers based on hardship to a US Citizen or Lawful Permanent Resident spouse, or parent will help to correct the illegal entry. Normally a person would file a waiver with USCIS after an approved I-130. Since the deportation proceedings are ongoing and do not wait indefinitely for I-130 approvals, the Immigration Judge may request copies of what was filed with USCIS to see if a waiver and I-130 is likely to be approved. Once approved the Immigration Judge can grant voluntary departure for the DACA recipient to allow them to leave the country and reenter the country without having to worry about the issued related to the order of removal.
2. Cancellation of Removal. Cancellation of Removal is available to DACA recipients who have illegal entries and those with illegal entries as well. The hard part about qualifying for cancellation of removal as a defense against deportation is proving 10 years of continuous residence before the first issuance of a Notice to Appear (NTA). Now, some DACA recipients were issued notices to appear as children and never showed up to court because they either didn’t receive the notice, or their parents did not take them, and they were too young to take themselves to court. Either way, sometimes, NTAs can be determined to be deficient and essentially disregarded in deportation proceedings. If an NTA is determined to be deficient, a DACA recipient will be able to prove that they lived in the US for over 10 years from the date of their next NTA, usually the one issued to them recently. The benefit to Cancellation of Removal is that the US Citizen or Lawful Permanent Resident the DACA recipient helps to avoid hardship includes children. Cancellation of Removal is the only form of defense that allows children to be a qualifying relative for a hardship defense. To read more on cancellation of removal and how to qualify please visit our cancellation of removal page.
Legal history, legal tensions, and philosophical debate that affects DACA recipients
The debate surrounding DACA recipients is incased in a legal term that was created in Roman Law called actus contrarious: that which has the power to give, has, and only has the power to take away1. Although it is a term more commonly seen in business and government administrative related legal documents, it appears sporadically throughout the modern US legal system when one branch of government seeks to protect the rights previously given to individuals from being rescinded. Ultra vires is another legal term that is closely associated with actus contrarious, which describes actions taken by government bodies or corporations that exceed the scope of power given to them by laws or corporate charters. Interestingly, the terms actus contrarious or ultra vires are rarely used explicitly to state that a branch of government did not have the authority to afford rights to a minority group or take away rights from a dominant group in favor of a minority group. At the international level, however, at almost every United Nations conference that involves special rapporteurs, you can hear the meaning of these words echo throughout the auditoriums: one country’s representatives will say to another representative or a special rapporteur “ you are exceeding your mandate!” This theory of law allowing specific power to be conferred democratically to an entity creates similar sovereignty to that which exists between Countries. Within most democratic countries that possess a separation of powers within their constitutions are entities who possess sovereignty for the specific functions, they were elected to perform. Thus, if the authority conferred upon an executive does not permit the implementation or dissolution of certain rights, the legislative branch can state that the executive is exceeding its mandate, and the legislative branch has sovereignty over the rights in question2.
Travel Ban – Background, Litigation, and Results
The first of the injunctions against the President’s actions regarding Immigration came after his first travel ban announcement. The initial travel ban stopped all individuals from six (6), primarily Muslim countries and refugees from entering the United States3. Moreover, the “travel ban” stopped the decisions on refugee applicants and went so far as to try to grant authoritative powers on the state and local jurisdictions that accepted refugees4. Nine (9) days later, the District Court of Hawaii issued a temporary restraining order (TRO) to halt the actions Hawaiian plaintiffs and Judge Derrick Watson felt were unconstitutional5. Needless to say, the Ninth Circuit Court of Appeals in the United States, agreed with the plaintiffs in the first travel ban case because “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.”6 Ultimately, the United States Supreme Court (US Supreme Court) ruled that the President had not exceeded his authority because he was enabled through the law to restrict entry to any foreign national if he finds the entry would be detrimental to the United States7.
However, before the US Supreme Court issued its final ruling, the President significantly retracted the provisions set forth in the travel ban and provided an independent third-party report for the basis of his new travel restrictions to foreign nationals. Some human rights NGOs have characterized the US Supreme Court’s decision as ignoring the clear discriminatory basis from the first travel ban8. Nevertheless, the US Supreme Court decision was a split vote at 5-4, and the Justice Ginsburg and Justice Sotomayor’s dissents stated that “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.”9The two Justices also found that the decision went against legal precedent and the US Constitution10.
The key takeaway from the litigation of the travel ban in the United States is that the judiciary branch of government gave consideration and legal interpretation of all applicable law before an issue that dealt with international human rights of migrants and refugees. It is possible to argue that the plaintiffs, in this case, took a selfish stance in advocating the rights of refugees because year after year, refugees and asylees contribute more to the United States economy per capita than US-born citizens. It is also possible to argue that the plaintiffs were selfish in seeking greater physical security for themselves because again, year after year the US Department of State has issued reports proving that a person is less likely to be a victim of a violent crime perpetrated by an immigrant than they are a US-born citizen. The two aforementioned statements do not disaggregate between legal and illegal immigrant status. However, in addition to the selfish reasons of the plaintiffs, the US unanimously ratified 98-0 on November 1, 1968, the 1967 Optional protocol to the 1951 Refugee Convention that provided refugees a safe haven from persecution based on immutable characteristics inherent to their human dignity11. It is clear from the language of the executive order that the order violated the binding international legal obligation to provide a space for refugees who have already proven their claims. While the US Supreme Court ruled against international obligations and did not reference the binding international treaty in its decision12, the process in and of itself facilitated the President to make changes that violated the United States’ international legal obligations less than the initial ban. Admittedly this is not the result any activist working on migrant, asylee, or family unification rights would hope to achieve, but it is also not the result the Trump administration hoped to achieve either: a messy compromise.
DACA Termination – Background, Litigation, and Results
The second executive order regarding immigration was the revocation of the deferred action for childhood arrivals (DACA) program. In 2012, President Barack Obama made an executive order deferring removal proceeding and granting a large umbrella of prosecutorial discretion13 for individuals who came to the US as children through no fault of their own. When Obama sought to expand this form of prosecutorial discretion to parents of childhood arrivals (DAPA) however, the US Supreme Court deemed this an ultra vires action14. Shortly after President Trump took office, he stated that DACA recipients would be safe under his regime. However, about a year after taking office, he announced that he was ending the program15. The Immigration enforcement agency United States Citizenship and Immigration Services (USCIS) quickly reported that it would no longer accept initial requests for the benefit or renewal requests from anyone whose benefits were expiring more than six (6) months past the date of the announcement16
On the surface, the action taken by the administration utilized the principle of actus contrarious. Since the actions of the Obama administration granting the benefit to DACA recipients come from the same branch of government seeking to terminate the benefit, the entity granting the benefit is the entity seeking to take away the benefit. The sad truth is that the administration is within their conferred authority to terminate the program. However, they must do so in accordance with the laws passed by the legislative branch of the United States Congress. On September 6th, 2017, the State of New York filed a complaint that included a request for injunctive relief based on the premise that the Trump administration violated the Administrative Procedures Act (APA)17. Essentially, the argument is not that the Trump administration acted ultra vires, but that they did not comply with the proper procedure to do so18.
To date, the court that has jurisdiction over the DACA case has not ruled on the latest motions filed in 2017. However, since this time, the Trump administration has begun accepting DACA renewals and stated that it has only stopped new applicants from applying19. While many migrant rights activists are unhappy about the decision, Trump supporters seem to be unhappy about DACA recipients being able to renew their deferred status as well20. The DACA compromise has both the plaintiff’s supporters and the defendant’s supporters upset with the situation. The results, however, are clear: Trump tried to remove rights from a group of people with the wave of a pen; plaintiffs filed suit against him for violating the APA by acting in a biased manner and curtailed the effects of the executive order. It is important to note that while the suspension of the initial applications for DACA has continued, those that did receive a benefit of deferred action had their benefits protected21. The benefit of deferred action in many cases is linked to international human rights related to the rights of migrants, particularly refugee/asylee rights because the United States has not fully recognized the international definition of a refugee, and international rights of asylees do not place statute of limitations on claiming asylum whereas the United States does with limited exceptions22.
The Unlimited Expansion of Expedited Removal
Expedited Removal (ER) is a process that very literally, expeditiously removes a person from the United States. Like the DACA program, ER was created through the executive action of President Bill Clinton in 199523. The primary purpose of this document was to protect the US from unauthorized migrants with a lengthy criminal history involving drug smuggling, human trafficking, or producing fraudulent documents to gain entry into the United States24. President Clinton also made sure to respect the international rights of refugees by creating an exception clause for refugees that produce fraudulent documents to escape persecution in their home country
In the law adopted by Congress, two of the jurisdictional provisions allowed for the application of ER in cases that where the migrant had entered the United States up to two (2) years prior, and the territorial jurisdiction was left unspecified. In practice, Immigration officers only used the ER at the border and ports of entry until 2004. In 2004, the Department of Homeland Security (DHS), which is responsible for immigration enforcement in the United States, announced an “expansion” to the “use” of ER. The expansion created a territorial jurisdiction of the apprehension of unauthorized migrants within 100 miles of a land border and within 14 days of their arrival to the United States27. Again, the focus of the application of ER was to apply the procedure on career criminals.
On July 23, 2019, the Trump administration issued an executive order proclaiming a full extension of the ER process. The territorial jurisdiction now includes all the United States territory, and the temporal jurisdiction was expanded to the full two years. On top of the obvious violation of due process rights, was a clause the administration tried to sneak in without anyone noticing: the requirement of proof at the time of apprehension that a person has legal status or has been physically present in the United States for at least two years28. AILA and other NGOs have previously criticized the ER as a court-stripping process with the potential for abuse. However, the 2019 expansion of the policy was by far one of the biggest violations of international rights that the Trump administration has implemented.
Not only were international and national rights of migrants affected, but international and national due process rights were affected as well. If you could not prove “at the time of apprehension” that you had been physically present in the United States for more than two years, ICE could expeditiously remove you from the United States in 48 hours29. Therefore, an unauthorized migrant living in New York for five years, going to the grocery store with nothing but a shopping list and cash for their groceries could be picked up and placed in ER proceedings because they didn’t have anything to prove their length of stay while they were grocery shopping. United States Citizens and Lawful Permanent Residents are protected from ER but can still be held in jail for up to two days before DHS or Immigration Customs Enforcement (ICE) figures out that they are in the country legally but will have no recourse for the mistake. Moreover, the process has no appeal, and the arresting officer is very often the judge, jury, and prosecutor: allowing the arresting officer to claim that “the Law doesn’t make mistakes30.”
The complexities of the ER expansion and remedies for the violation of international due process rights and rights of the migrants make the most difficult case so far. The executive branch of government initially took action, a Democratically controlled branch at the time31. The legislative branch then made the policy law of the land, granting legal authority to use the ER. The law that passed was never fully used, and Immigration Naturalization Services (INS)32 claimed that it limited the scope of the enforcement for budgetary concerns33. Later, the procedure was slightly expanded with little rebuttal during the Bush administration and fully extended during the Trump administration. Clinton was not accused of ultra vires action, and the Trump administration through the lack of action during the first expansion of ER could try to claim opinio juris. In other words, Trump could try to claim the administration acted out of a belief that they were legally obligated to enforce the laws that Congress passed.
However, about a month after the announcement of the latest expansion of expedited removal, the administration was sued again using the APA as a basis for violation34. This time, however, the procedure violated was a lack of notice. Activists and the courts should have made a similar argument in 1996 to prevent enforcement-related entities and their officials from infringing on the functions of the judiciary. In a 126-page memorandum opinion, Judge Ketanji Brown Jackson ruled that the plaintiffs were likely to win their claims under the procedural grounds set forth in the APA35 and, that the judiciary would not be acquiescent and allow DHS to establish a precedent for side-stepping statutory constraints placed on the enforcement agency36, and that their arguments “reek of bad faith37.” Since Judge Jackson granted the preliminary injunction in September of 2019, the ER process rolled back to the previous application of jurisdiction: within 100 miles and 14 days of entry.
The result is remarkable considering two out of the three branches of government agreed with the policy changes and passed laws to reflect the approval of the policy changes. The ruling comes down to the powers granted in the constitution by each branch of government. One of the powers conferred on the judiciary of the United States through constitutional law is the ability to interpret the law and preside over cases in accordance with a person’s due process rights. Actus contrarious states that since the judiciary has the right to judge the cases through constitutional law, they were given this right, and only they possess this authority. Therefore, the judiciary branch has a right to claim a breach of their sovereignty, and that ICE is exceeding their authority, ultra vires, by taking actions delegated to the courts. Until the day Judge Dredd becomes a reality, ICE officers cannot be allowed unlimited and unchecked power to judge the person they just arrested for immigration violations and carry out the sentences themselves.
1. See Leage. (pg 315-318 for a traditional explanation of the term and its general usages through business contracts. “Contrarius actus’ – According to the theory of the civil law, the juris vinculum, of which an obligation consisted, having been attached or tied to the parties when the contract was created, had to be untied by reversing the process. Thus a debt created by nexum had to be released by nexi solutio”).
2. See Henkin. Foreign affairs and the United States Constitution. (pg. 90, “Presumably, also, the law-making component of the powers of the United States deriving from its national sovereignty are vested in Congress and generally denied to the President: for example, he cannot enact general immigration laws by executive order.”).
See Exec. Order No. 13769, 3 C.F.C. § 2 (2017).
4. See Exec. Order No. 13780, 3 C.F.C. § 6(a) and (d) (2017). (6(a) “The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. “and See 6(d) “It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.”).
5. See Hawaii v. Trump, 878 F. 3d. 662 (9th Cir. 2017).
6. See in 8 U.S.C. § 1182(f). Hawaii, 859 F.3d at 755.
7. See 585 U. S. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL. (2018) (pg. 9, “Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f), enables the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.”).
See Frelick. (“pg. 1, The majority donned blinders to take at face value and without context the words in the third version of an executive order banning people from certain Muslim-majority countries from entering the United States. No weight was accorded to Trump’s call as a candidate for a “total and complete shutdown of Muslims entering the United States,” as well as his statement while president that the “travel ban…should be far larger, tougher, and more specific” even though “stupidly that would not be politically correct.”).
9. 585 U. S. No. 17-965 (2018) Sotomayor, J. Dissenting.
11. See 1951 Refugee Convention and 1967 Optional Protocol.
12. See 585 U. S. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL. (2018) (pg. 9).
13. Prosecutorial discretion in immigration law is a term used to describe an immigration officer or attorney for the government in removal proceedings granting a deferred action usually based on strong familial ties, the likelihood of future favorable action for the defendant or hardships to the defendant’s US citizen family members or in rare circumstances to the defendant themselves. For a comprehensive explanation of prosecutorial discretion and the eligibility criteria see here DHS Memo on Enforcement of the Immigration Laws to Serve the National Interest. Feb 17, 2017. Part C. Exercise of Prosecutorial Discretion. Also, see here for the instructions to the “Stay of Removal” form used to request prosecutorial discretion.
14. See 579 U. S. United States v. Texas (2016).
16. See DACA rescission Memo, 4.
17. See UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK CIVIL ACTION NO. 17-cv-5228 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.
18. Ibid. at 282. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. In implementing the DHS Memorandum and rescinding DACA with minimal formal guidance, federal agencies have taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative Procedure Act.
19. See here (“Important information about DACA requests: Due to federal court orders, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.”).
20. See Buskirk, Christopher. (“Will the president make good on his repeated vows to establish a pro-citizen, pro-worker immigration policy — including a wall? Or will he accept the same old "amnesty now, enforcement later" bargain that has been on the table for years? Trump supporters like me are understandably nervous.”).
21. See Footnote 66.
22. See I-589 Application for Asylum and for Withholding of Removal Instructions (pg. 1, “NOTE: You must submit an application for asylum within 1 year of arriving in the United States, unless there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within 1 year”).
23. See William J. Clinton. Deterring Illegal Immigration. Presidential Documents. Washington. The White House, 1995. PDF.
24. See William J. Clinton. Deterring Illegal Immigration. Presidential Documents. Washington. The White House, 1995. PDF.
26. See American Immigration Lawyers Association. AILA Press Release on IIRAIRA Reform. Press Release. Washington: AILA, 1998. PDF. (pg. 1, [the ER provision] “contains many provisions that strip the courts of any authority to review the decision of the INS. Under IIRAIRA, virtually all discretionary decisions affording relief to eligible individuals are no longer reviewable by a court. The ‘court-stripping’ is unprecedented and unconstitutional.”).
27. See Barsa, John. Department of Homeland Security Announces Expanded Border Control Plans. (pg. 1, “This new procedure will only apply o those caught within 1—miles of the Mexican or Canadian borders, and only if they are apprehended within their first 14 days of the U.S.”).
28. See Ghundoz. Notice Designating Aliens for Expected Removal, 84 Fed. Reg. 35409 (July 23, 2019).
29. See Ghundoz. Notice Designating Aliens for Expected Removal, 84 Fed. Reg. 35409 (July 23, 2019).
30. Reference to Judge Dredd.
31. See William J. Clinton. Deterring Illegal Immigration. Presidential Documents. Washington: The White House, 1995. PDF.
32. INS is the agency that is known today as USCIS.
33. See House of Representatives. Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Pg. 209.
34. See Make the Road New York vs. Kevin McAleenan. Complaint for Declaratory and Injunctive Relief. Case 1:19-cv-02369 Document 1 Filed 08/06/19.
35. See Judge Jackson. Memorandum Opinion of Judge Ketanji Brown Jackson. Case 1:19-cv-02369-KBJ Document
36. Ibid. (pg. 108, “But, in this case, as elsewhere, DHS appears to be engaged in a concerted effort to establish a precedent for judicial acquiescence to an agency’s continued application of rules that courts have invalidated.”).
37. Ibid. See Page 108.