Immigration Review

Special Episode - Featuring author & founder of KKTP, Ira J. Kurzban, on SCOTUS's DACA decision, the history of DACA and the APA, their practical implications, and Immigrants' List

June 24, 2020 Kevin A. Gregg, Esq. (kgregg@kktplaw.com)
Immigration Review
Special Episode - Featuring author & founder of KKTP, Ira J. Kurzban, on SCOTUS's DACA decision, the history of DACA and the APA, their practical implications, and Immigrants' List
Show Notes Transcript Chapter Markers

Special guest Ira J. Kurzban reviews SCOTUS's DACA Decision—DHS, et al. v. Regents of the University of California, et al., No. 18-587 (U.S. June 18, 2020). 

Topics as discussed in order:

  • [01:50] Brief Overview and Breakdown of SCOTUS Votes
  • [04:15] DACA Ruling
  • [04:58] History of DACA
  • [07:44] Expanded DACA and DAPA
  • [13:17] History of APA
  • [17:18] APA Reviewabilty
  • [19:34] INA Preclusion/Jurisdiction-Stripping Statutes
  • [23:24] Rescission of DACA is "arbitrary and capricious" in violation of the APA.
  • [30:56] Thoughts on the Dissenting and Concurring Opinions
  • [33:48] Equal Protection Claim
  • [34:31] Saving the Court as an Institution
  • [37:22] Practical Implications on Pending Federal Litigation
  • [39:20] What should DACA/DACA-eligible recipients be doing right now?
  • [40:13] Immigrants' List and "The End of Immigration under Trump.


*Get involved with Immigrants' List!
Web: https://www.immigrantslist.org 
Twitter: @ImmigrantsList1 
Email: info@immigrantslist.org 

*About your host: https://www.kktplaw.com/attorney/gregg-kevin-a/
Email: kgregg@kktplaw.com
Facebook: "Immigration Review Podcast" or @immigrationreview
Instagram: @immigrationreview
Twitter: @immreview

*More episodes at: https://www.kktplaw.com/immigration-review-podcast/

*Featured as Top 15 Immigration Podcasts! https://blog.feedspot.com/immigration_podcasts/ 

DISCLAIMER: 
Immigration Review is a podcast made available for educational purposes only. It does not provide specific legal advice. Rather, the Immigration Review podcast offers general information and insights regarding recent immigration cases from publicly available sources. By accessing and listening to the podcast, you understand that there is no attorney-client relationship between you and the podcast host. The Immigration Review podcast should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. 

MUSIC CREDITS: 
"Loopster," "Bass Vibes," "Chill Wave," and "Funk Game Loop" Kevin MacLeod (incompetech.com) Licensed under Creative Commons: By Attribution 4.0 License http://creativecommons.org/licenses/by/4.0/

Support the show

Kevin A. Gregg (00:04): 
Welcome to this special episode of Immigration Review, your weekly source for immigration case law updates and insights. I'm your host, Kevin A. Gregg, a partner with the law firm, Kurzban Kurzban Tetzeli & Pratt. And today, I'm here to listen to the man, the myth and the legend himself—Ira J. Kurzban—discuss the DACA decision, AKA, DHS et. al v. The Regents of the University of California et. al, published by the Supreme Court on June 18th, 2020. In order to keep our social distance, I'm currently on a recorded Zoom call with Ira. We'll be speaking about the Supreme Court's decision and its implications for the DACA recipients themselves, immigration practitioners, administrative law, and the Supreme Court's jurisprudence. So without further ado, let's start the review! 
 
Kevin A. Gregg (00:59): 
As many of our listeners know, Ira is kind of the godfather of immigration and he's been at it for over 40 years continuously pushing the law forward with creative, legal arguments and nationwide litigation. He's argued on behalf of immigrants before the Supreme Court three times. And he's the author of Kurzban's Immigration Law Sourcebook, the 17th edition of which will be published later this year. In recent years, he's dedicated significant efforts to the political action committee Immigrants' list, supporting candidates for political office, that advocate for comprehensive immigration reform and stopping anti-immigration policies. He's the founder of the immigration department at KKTP, and he is my mentor, law partner, and friend. Welcome to the show Ira. And thank you for being here. 
 
Ira J. Kurzban (01:50): 
Thank you, Kevin. It's a pleasure to be here and it's a great opportunity to talk about a very complicated decision DACA, and I hope your listening public will enjoy it because there's a few different decisions. There's a lot of law involved and there, of course, there's always just a lot of politics involved. 
 
Kevin A. Gregg (02:13): 
Sure is and excited to jump into it. So just getting started, how did the justices rule, how did the votes come down and what are some insights that we can take away from the onset? 
 
Ira J. Kurzban (02:22): 
The decision was five to four. There are concurring and dissenting parts of different opinions. 
 
Kevin A. Gregg (02:31): 
So everybody had a chance to say their piece, it sounds like. 
 
Ira J. Kurzban (02:34): 
Yeah. I mean, they all are kind of reflective of different views of the law and of the court, I think, and it's kind of a good example of what happens in these kinds of situations where, you know, the court is divided and they're often divided on different lines. So it begins to look like some of the British decisions, you know, usually in our system, there's more uniformity. I think as of late, what you're finding is that there is more, disunity on legal principles, more than necessarily just unity on the result. So, you know, what you had here was a decision by Justice Roberts, and that is considered the majority opinion of the court joined in by four liberal justices. And then you had actually Justice Sotomayor's decision, which was concurring in the result and dissenting in section IV of the opinion, section IV, of course was the section on equal protection. And Justice Thomas's opinion, I can go into, was joined in by Justice Alito and Justice Gorsuch. And then you had Justice Kavanaugh's opinion separately. And also I think Justice Alito, if I recall, Justice Alito also issued a separate opinion as well, his opinion concurring in the judgment and dissenting in part, obviousy dissenting on the grant of DACA. 
 
Kevin A. Gregg (04:15): 
Thanks for the initial breakdown Ira. And I know you've got a lot more to say about each individual decision later on. For now, let's turn to the holding in the case. 
 
Ira J. Kurzban (04:23): 
The decision in the court basically upholds the decision to enjoin the government from the rescission of DACA. That's basically what the holding is. In other words, they affirmed the lower courts' injunction, the lower courts enjoined the government's effort, which was by Sessions, and then by Secretary Duke, and later by Secretary Nielsen of the Department of Homeland Security to rescind the original DACA program. 
 
Kevin A. Gregg (04:58): 
In a nutshell, what is DACA and how did it come to be? 
 
Ira J. Kurzban (05:02): 
DACA grew out of a movement, really of young people in the United States around 2008, 2009, 2010 to demand, really, some fairness in the system to children who were brought to the United States, you know, not by their own volition, but brought to the United States with their parents. And they were undocumented. And they later became known as Dreamers because these kids had come into the United States with their parents, having no decision of their own when they were very, very young—most of them came in when they were very young children, by definition in DACA, they were under 16 years of age. And what they said is look we're here, and we want to go to college. And some of them were outstanding students. They were people who were getting scholarships to universities like Harvard and others. And they couldn't go because they had no lawful status at all. 
 
Kevin A. Gregg (06:06): 
So in recognition of these people, what did Congress and the Obama administration do? 
 
Ira J. Kurzban (06:11): 
The administration under President Obama was pushed repeatedly to try and do something for these kids. Bills were introduced in Congress. The Senate passed a DACA bill, the House refused to bring it up several times, a Republican-controlled House just simply refused to bring it up for a vote because they knew if it was brought up, it would have been voted in favor of the kids. So by 2012, the President decided along with the Secretary of Department of Homeland Security, who was then Janet Napolitano, to start a program called what we now call DACA, which is Deferred Action for Childhood Arrivals. And the idea was to allow those children to be in the United States. Many of whom were now adults to allow them to remain in the United States. And as part of remaining in the United States, of course they got certain benefits, they were eligible for Medicare or social security. They were also given the opportunity to file for employment and get an EAD card. Those issues became much more important as this went on because after all, what is DACA? All it is, is a program that says we will not deport you. It doesn't say, it doesn't give the DACA kids any real right. It gives them certain benefits, but basically it says, we just will not deport you. 
 
Kevin A. Gregg (07:44): 
Right. But with Congress having failed to act, the Administration didn't stop there. It wanted to defer the removal of more people. 
 
Ira J. Kurzban (07:51): 
Yeah. In 2014, President Obama exercising his authority as President and Department of Homeland Security Secretary, who was then Jeh Johnson exercising his authority, expanded DACA. What we call the expanded DACA, which would include more people who came in at an earlier time and who actually were older in age. And there was no age limit put on the upper end of how old they were now, and it also included another program called DAPA, which was Deferred Action for Parental Arrivals, in other words saying that those parents, who had United States citizen children, that they would be allowed to stay in the United States as well under the same conditions, meaning simply that they would not be deported as a result of the expanded DACA and the initiation of DAPA in 2014, lawsuits were brought in the United States. And this is, again both a political and legal issue, because what you're seeing is different groups, conservative groups, bring all their actions in the Southern District of Texas. And this action of course, was brought in the Southern District of Texas. They argued on expanded DACA and on DAPA, that it required notice and comment—that the President just didn't have the authority to do it. The judge issued 125-27 page decision that said in the end, the President or the Executive Branch have to have DAPA and expanded DACA, but only through notice and comment rulemaking where the public would have a right to respond. 
 
Kevin A. Gregg (09:44): 
Gotta love the Southern District of Texas. I guess that brings us to present day. What next? 
 
Ira J. Kurzban (09:49): 
Then of course, Donald Trump becomes President. He appoints Jeff Sessions, an ardent anti-immigrant advocate for years in the Senate to become the Attorney General. And the first thing they do is say, we're no longer going to fight the DAPA and expanded DACA cases. In other words, remember before then, the government was taking the position that they were lawful. This administration comes in and says, we're not going to defend it anymore. And they leave the order in place enjoining DAPA and enjoining the expanded DACA. But that wasn't good enough for Trump and Sessions. So what they then did is they issued a letter, Sessions issued a legal opinion that basically said, we believe DACA initially is illegal. That the President didn't have the authority to do it—which of course is ironic given the use of presidential power under Trump—they said the President didn't have any authority to do it and besides, 
 
Ira J. Kurzban (10:57): 
it would be fruitless to continue to defend this because DAPA and expanded DACA were unsuccessful. So why would we spend Justice Department resources fighting? Which of course is ironic also given the fact that this Administration is fighting everything all the time in immigration, so much so they've exhausted really the resources of the Office of Immigration Litigation. And they now have to rely on U.S. Attorneys all around the country to defend their immigration decisions. But putting that aside, Session said not legal and not good policy to do this. And then recognizing that he didn't have the authority to suspend and terminate DACA, he turned it over to the Secretary of Homeland Security who was then Elaine Duke. And Elaine Duke issued a very short note, two or three pages that basically said, she's going to withdraw DACA and terminate the program for the reasons specified by the Attorney General. And then she's going to end the program and allow people to have their employment authorizations until they expire, but nobody can renew DACA and it would just end within the next two years. 
 
Kevin A. Gregg (12:26): 
So the Trump administration ends DACA. 
 
Ira J. Kurzban (12:29): 
And then what happened, of course is, there were lawsuits filed, and these lawsuits were filed in the Northern District of California. They were filed in the Southern District of New York. And one other location, I believe in Maryland. The causes of action essentially were that the government's decision to withdraw was arbitrary and capricious. The government's decision to withdraw DACA was in violation of the notice and comments provision. And it was unconstitutional because, invoking Equal Protection, they said that basically Trump given all his speeches and statements that he made amounted to discrimination based on alienage. 
 
Kevin A. Gregg (13:17): 
Appreciate that comprehensive history Ira. Now with this decision ultimately coming down to a violation of the Administrative Procedures Act, would you mind giving us a bit of background on the APA? 
 
Ira J. Kurzban (13:28): 
The Administrative Procedures Act was passed in 1946. It was designed to have some kind of check over administrative agencies. It has a whole series of provisions that stem from what we call notice and comment rulemaking that if an agency is gonna pass some new rule that will affect lots of people, that they must first publish it in the federal register and give the public an opportunity to comment because it was recognized after the second world war that our agencies were really functioning to some extent as little governments creating their own laws and so forth. And the question is, would there be any check on the administrative state, and the Administrative Procedures Act was meant to do that. It was meant to say, we will look at an agency's decision and if it's arbitrary and capricious, we will nullify that decision or reverse it and give it an opportunity to make a new rule that isn't arbitrary and capricious. 
 
Ira J. Kurzban (14:35): 
Same thing with any agency that acts in violation of law. It could be in violation of the Constitution. It could be in violation of an existing statute like the Immigration and Nationality Act, or it could be that the agency is just refusing to make a decision. There are provisions under the Administrative Procedures Act that require the agency within a reasonable amount of time to make a decision. And so the APA was passed with those things in mind. There were exceptions. One of those exceptions, which Justice Roberts dealt with in this decision, is something called committed to agency discretion, in other words, a matter that's totally committed to an agency's discretion is not something that's reviewable in a federal court. For example, the classic example actually, is the Navy wants to build a certain kind of battleship as opposed to a different kind of battle ship. And someone sues, who was a contractor on the battleship that they decided not to utilize. 
 
Ira J. Kurzban (15:49): 
And the person sues. The courts have generally said that kind of decision is within the agency's discretion. It's committed to the agency's discretion. We as judges have no expertise or no authority to sit on a case like that. But as Justice Roberts points out, it's a very narrow exception to the APA. And, you know, I can give you an example. We did a very well known case against the Department of State who imposed a sanction against a client of ours. And we argued that it was arbitrary and capricious. The government said, no, it's committed to agency discretion. We can fine people or pose penalties as we like. And the court said, no, that isn't the committed to agency discretion doctrine. As long as there a criteria that we can look at and enforce, then the courts have a right to be involved. 
 
Kevin A. Gregg (16:55): 
Wait a minute, before we move on from this distinction, are you telling me that if the Navy wanted to rename the USS John McCain to the USS Trump it's unreviewable? Could that be challenged under the APA? 
 
Ira J. Kurzban (17:10): 
I doubt it, I mean, unless they had very detailed procedures of which or how they determined they would name a ship or not. 
 
Kevin A. Gregg (17:18): 
Thanks for indulging me, Ira. I'll let you get back to the APA issues in this case. 
 
Ira J. Kurzban (17:23): 
And so in this case, the first issue of course was, is this committed to agency discretion by law because it's prosecutorial discretion. And prosecutorial discretion to either in this case, deport people or withholding the deportation of people is generally considered a matter that's exclusively left to the agency itself—committed to agency discretion. And what Justice Roberts said, he started out of course talking about the broad presumption of review. In other words, any case comes to the court with a presumption that it is reviewable and cited well known cases that were very well known for the presumption of judicial review. He then looked at the committed to agency discretion doctrine and said, it's a very narrowly defined doctrine and said, in this case, it really didn't apply because this wasn't just a matter of administrative discretion. It wasn't a matter of an agency deciding like a prosecutor who they would prosecute or not, because this is about other matters as well. 
 
Ira J. Kurzban (18:40): 
And he pointed to the fact that the Fifth Circuit zeroed in and its decision enjoining DAPA and expanded DACA on the benefits. The Fifth Circuit said, look, we think DACA is not appropriate, beyond the President's authority because it also includes other benefits, it's not just prosecutorial discretion. It's giving people work authorization. It's saying they're eligible for certain kinds of benefits. And that's what the Fifth Circuit objected to and said, that's why you need notice and comment, etc. So the court says this is not committed to agency's discretion because if you look at the lower court decisions on DACA, it's all about these other benefits—not just about kind of naked prosecutorial discretion. 
 
Kevin A. Gregg (19:34): 
So he covered APA reviewability, and then? 
 
Ira J. Kurzban (19:37): 
So he then went on to look at two other very important issues for lawyers who practice in this field because the government said, well, even if it's not committed to agency discretion, it's barred under section 242(b)(9) and 242(g). And 242(b)(9) of the Immigration Act tries to kind of scoop up all issues, motions to reopen other, issues within the framework of a removal decision and say, those can only be brought in the court of appeal. 
 
Kevin A. Gregg (20:12): 
Right? These pesky jurisdiction-stripping provisions, also referred to as preclusion statutes, are some of our arch enemies in federal court. But there's some good in the majority's holding. 
 
Ira J. Kurzban (20:23): 
Yeah. This decision of Justice Roberts I think is quite important because what he's saying is that the decision not to prosecute is not part of an order of removal. And they're not challenging here, the plaintiffs were not challenging when they sought the injunction against Sessions and Duke, that they were not challenging any removal proceeding. So it took it out of 242(b)(9) because that has to do with channeling all matters to the court of appeal—sidestepping the district court when it involves removal proceedings. And Chief Justice Roberts said, no, in this case, 242(b)(9) does not apply because they're not challenging a removal proceeding, they're challenging that decision to withdraw DACA, and DACA is just a procedural mechanism to prevent people from actually being placed in deportation, or being deported, but you're not challenging the removal proceeding itself. 
 
Kevin A. Gregg (21:36): 
Okay. One statutory enemy down one to go. 
 
Ira J. Kurzban (21:40): 
And then he looked at section 242(g). And 242(g) says, if it's a decision to commence proceedings, adjudicate cases, or execute removal orders, they're barred from the district court. Again, in fact, they're completely barred, in other words, you can't sue the government with respect to a decision to commence proceedings, adjudicate cases, execute removal orders. And Justice Roberts says the decision here—the prosecutorial decision not to go forward and all these other benefits remember, and that's the core of it—that those are not part of 242(g). They don't have to do with the decision to commence the proceeding, or to adjudicate a case, or to execute a removal order. I think there's some interesting questions about that, but he's now read 242(g) extremely narrowly, which I think is a benefit in the future. And people should point to this case. 
 
Kevin A. Gregg (22:48): 
Right, to argue for a narrow interpretation of the INA's jurisdiction-stripping provisions, and in favor of judicial review. 
 
Ira J. Kurzban (22:56): 
That's correct. In other words, these judicial preclusion provisions or judicial-stripping, as you put, provisions, or decisions that would simply not allow any action because the court has no jurisdiction to hear the matter by virtue of it's committed to agency's discretion or it's precluded under these various federal statutes. 
 
Kevin A. Gregg (23:24): 
So the Plaintiffs get over the jurisdictional hurdle, which is always one of the biggest problems for the immigration bar and federal litigation. And getting to the merits then, why do the majority find that the Trump administration's rescission of DACA was arbitrary and capricious? 
 
Ira J. Kurzban (23:39): 
As I said initially, the APA has a provision that says that if an agency acts in an arbitrary and capricious manner, the their decision will not be upheld, and then it will be remanded back to the agency to make a new decision. Sometimes agencies come in, and this was one of those cases, when they realize they have a weak case and try and bolster it by giving new reasons after the lawsuits are filed. And that's what happened here. Remember Duke resigned, or was one of the many Department people, one after the other, who resigned or were fired by Trump. So after Duke came Nielsen, and Nielsen offered some of the reasons that Duke offered, but she offered many more reasons as to why the government had the right to rescind DACA. So there was an issue, and one of the major and interesting issues in this case is, in examining whether or not the government acted arbitrary and capricious, 
 
Ira J. Kurzban (24:51): 
is the court just focused on Elaine Duke's decision, or where they focused both on Duke and Nielsen's decisions. The court said there's a doctrine of post hoc rationalization, and that doctrine says you can't later on come up with new reasons to justify what you did. And the court says, that's what happened here. We're going to discount what Nielsen wrote because Nielsen's letter and notice rescinding is merely a post hoc rationalization to bolster what was not in Elaine Duke's original decision to rescind. This becomes important in two of the dissents, because in Justice Thomas's dissent, he said, well, that wasn't a post hoc rationalization. That was a new decision by Nielsen. And therefore the agency and the courts had to abide by it. Justice Kavanaugh takes a view of post hoc rationalization, that I think the Chief Justice pointed out was not based in law. Justice Kavanaugh says post hoc rationalizations only apply to the lawyers who are fighting the case. It doesn't apply to the agency itself in changing its decision. 
 
Ira J. Kurzban (26:18): 
And there's really no authority for that. I mean, there are many cases that say the lawyers have come in and they've now made a new argument here in court. That's a post hoc rationalization; it's not permissible under the Chenery Doctrine. But it wasn't only limited to that. It's anybody making a post hoc rationalization, that's what Justice Roberts said. So, he then focused on Elaine Duke's decision, and he ultimately concluded that Elaine Duke's decision was arbitrary and capricious for two reasons. First, it confused the forbearance policy and removing benefits. And by that, I mean, again, that this wasn't only a matter of prosecutorial discretion not to prosecute or forbear their deportation as Chief Justice Roberts said, forbearance policy, but it also involves these benefits that were given to people. And that was the basis originally for the determination that it was illegal. So Justice Roberts said look, if Elaine Duke had just relied on the legal decision of Sessions, that may have been okay, but she didn't do that. She went beyond that. 
 
Ira J. Kurzban (27:53): 
And said that the forbearance policy was impermissible without focusing on the benefits that people were given. And he said that that was arbitrary and capricious, and he gave an sample of another agency action, where there were seat belts and airbags in cars, many years ago, people challenged the seatbelt provision. And the agency threw out both the seatbelts and the airbag restraints. And the court said no, that, that, you know, the issue was always seatbelts, and you've gone further and thrown out, you know, you would say the baby with the bath water. You have here decided to throw out everything, not just the benefits, but also the forbearance policy, without any explanation. The second part, which I think is extremely important is the reliance interest. In other words, Chief Justice Roberts says Elaine Duke was not only not considering the benefits and the forbearance policy—but not considering the reliance interests of the DACA kids when making her decision. In other words, this program had been in effect for really now six years. And there was no consideration of the effect, that is, the reliance effect, by the DACA kids. And the reliance interest is a very important doctrine for those who practice under the APA. This goes on all the time. I mean, just this past week, the government has been sued on reliance interests, you know, where they have one policy and then they abruptly change it for a second policy. They don't publish it in the federal register. They don't do anything else. 
 
Ira J. Kurzban (30:01): 
Here, Justice Roberts didn't rely on notice and comment, but he did say that failure to consider in her decision and discuss the reliance interests of the DACA kids who will now be subject to deportation was an arbitrary decision on her part. And ultimately for that reason, and the reason of confusing the forbearance policy and removing benefits, he determined that the decision of the agency was arbitrary and capricious. And what you normally do in that situation is you remand it back to the agency for a new opinion. Now, of course, that's the legal analysis. I can also talk very briefly about Justice Thomas's opinion. 
 
Kevin A. Gregg (30:56): 
Yeah. Let's hear a bit about what the dissents had to say about the APA challenge, starting with Justice Thomas. 
 
Ira J. Kurzban (31:02): 
His opinion was that the President never had the authority to begin with, and that everything else flows from. That if he doesn't have the authority, then there's no basis for the issuance of any kind of forbearance policy. I found that interesting because right in the Immigration and Nationality Act it's clear that the Secretary of the Department of Homeland Security has the authority, exercise the authority not to prosecute. They were arguing, well, but this wasn't an individual decision not to prosecute. It was taking a whole group and saying that that group would now be exempt from prosecution. Then that's different, and they have no authority to do that. The agency from the very beginning has always argued, until Trump came in and abandoned it, has always argued that these were case by case decisions, because they had to be, in other words, each person, they had to look at the application for DACA. They had to make a determination. Does the individual qualify for the forbearance or not? 
 
Ira J. Kurzban (32:15): 
Of course, this undercuts Justice Thomas's typical broad view of the unitary executive, which is that the president is all powerful, like a King. And here Thomas's opinion is going to be used against them, certainly in the recent expansion and the challenge to President Trump's completely rewriting the Immigration and Nationality Act and barring both residents and non-residents for entering because where does he get that authority from? And so I think the decision of Justice Thomas to limit the authority of the President is somewhat ironic and will probably come back and haunt him, Justice Gorsuch, and Justice Alito. 
 
Kevin A. Gregg (33:04): 
I guess time will tell... 
 
Ira J. Kurzban (33:06): 
Then, Justin Alito issued his own concurring opinion with Thomas and Gorsuch, but his opinion just focused on this is all political. This is a political matter. Congress tried to pass DACA for a very long period of time and wasn't able to, but that's not our job. Of course, that kind of sidesteps the issue, which is, does the agency have the right to do it. And then there was the decision of Justice Kavanaugh who focused, as I said before, on this kind of notion of post hoc rationalization, that it only applies to lawyers making arguments. And that in fact, this was a new decision by Nielsen. 
 
Kevin A. Gregg (33:48): 
Right, and the Chief Justice was not having any of that. So turning to Justice Sotomayor's concurrence and dissent. As I understand it, her dissent takes issue with the seemingly high bar that Chief Justice Roberts placed on the asserted equal protection claims. 
 
Ira J. Kurzban (34:03): 
That's correct. And Justice Sotomayor in a dissent of that section of the opinion says, in effect, that there were sufficient allegations here of Trump's bias and prejudice to meet the threshold requirements of Arlington Heights and to demonstrate the prima facie case. And so her opinion really just focuses on equal protection. 
 
Kevin A. Gregg (34:31): 
So a win on the APA, but not so much for equal protection, and for now DACA is saved. Ira, what do you think is happening behind the bench? 
 
Ira J. Kurzban (34:40): 
First of all, this is obviously highly politically charged, right? I think Justice Roberts voted in the majority really to save the court as an institution, more than anything else. And the opinion is quite detailed, but also I would say quite convoluted in certain respects. And I think he wanted to reach the conclusion that he did—more because he was concerned that if DACA went the other way, five to four, that the court's legitimacy would be in jeopardy because it would just look like what it often is, which is just five conservative people voting against four liberal people, which means that the court is just perceived as just another political institution. The fact that Mitch McConnell refused to appoint a justice to the Supreme Court for over a year and then appointed, you know, a very conservative justice is one of the most hypocritical moments, I think ever, of any member of the United States Senate, politicized support and his effort to just put judges, no matter how unqualified, on the court who are ideologically on the most extreme end of the conservative spectrum has politicized the court enormously. 
 
Ira J. Kurzban (36:05): 
And so Chief Justice Roberts recognizing I think correctly that the court is a very important separate institution. It is not just a political extension of Mitch McConnell or Donald Trump. And it's going to be there for the very long run, hopefully establishing what Justice Marshall said over 220 years ago, you know, that the court has the final word on what is the law in America, and established really the principle of the rule of law. So in the midst of all this highly politicization of the court by McConnell, Trump, and others, I think he's trying to save the legitimacy of the court. And one of the ways to do that is to show that, look, we don't always vote along ideological lines. Here, I follow the Administrative Procedures Act, but at the same time, he really stuck it to the liberals to fight in extent, I would say, in part IV of the opinion by so narrowly construing equal protection as to make it extremely difficult on the future to bring those equal protection claims. 
 
Kevin A. Gregg (37:22): 
Ira, in that vein, how do you think this decision affects the various challenges to the Trump administration's immigration actions currently pending throughout the federal courts? 
 
Ira J. Kurzban (37:32): 
I think the reliance issue that Chief Justice Roberts raised is very important in many cases because this administration particularly has radically changed policies, often without any care as to whether it was legal or not. And so people who relied on the former policy, even if the new policy is legal, may have a claim. And I think he's really sanded in many ways, the arbitrary and capricious doctrine. I mean, I think by saying what he said here and kind of finding a very finely tuned analysis of the arbitrary and capricious doctrine, saying that it must be a reasoned decision and a decision that kind of throws out everything at one time—which is the tendency of the Trump administration—is not necessarily a reasoned decision. So I think it will have implications later on other cases. And then of course, even more so, on the preclusion statutes, the ones that I talked about 242(b)9, so his narrow construction of 242(b)9 is very helpful for people who are litigating. And 242(g), for example, people seeking stays of deportation may be able to rely on 242(g) analysis of Chief Justice Roberts in DACA only because he seems to so narrowly construe it as saying, if it really wasn't in a removal proceeding, then it doesn't count, and it's not barred or precluded. So those areas are the ones I see as helpful. 
 
Kevin A. Gregg (39:20): 
I agree very, very helpful for us immigration practitioners. Now what about the 700,000 DACA recipients? What should they be doing in light of this decision? 
 
Ira J. Kurzban (39:30): 
They should absolutely make sure that their status as DACA is kept up. They should reapply, reapply for work authorization, reapply for DACA, if time is running out to protect themselves. This fight's gonna go on for a long time. And my hope is there will be somebody else in the White House on January of 2021 that will once again, take a new look at DACA. And if there's both a Democratic House and a Democratic Senate, and a Democratic President, we may in fact, have new law that would cover all the DACA people and give them residency. 
 
Kevin A. Gregg (40:13): 
Thank you so much for taking us to school, Professor Kurzban. If they're like me, the Immigration Review listeners very much appreciated your beautiful Brooklyn accent and brilliance. Before we go, and because you touched on a Democrat-held House, Senate and Presidency, what is Immigrants' List, and how can listeners get involved? 
 
Ira J. Kurzban (40:33): 
In 2006, a group of laywers got together, including myself, and we came to the conclusion really that because of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, that there was very little maneuverability as to helping people. And the law had so many draconian provisions—mandatory detention, the 3 and 10 year bar, the stop-time rule, the description of waivers as narrowly construed, taking out children as a basis for a waiver, and all of the preclusion statutes that we're dealing with now, they were all part of the 1996 Act. And the view was, this is not going to all go away by litigation. We need to change the Congress. We need to change people's attitudes in a bipartisan way, if we can, to elect people, Republicans and Democrats who are pro-immigration. And since 2006, we've been doing that and we have a good track record. 
 
Ira J. Kurzban (41:45): 
We've won about 70% or more of the positions in the House and Senate we've backed. We have some very strong supporters of immigration now in the Congress that we didn't when we started, people like Senator Cortez Masto from Nevada, Senator Tammy Duckworth from Illinois, and many members of the House, Congresswoman Jayapal from the state of Washington. All people we have supported have been recipients of awards of Immigrants' List over the years, and we build very close relationships with them, which hopefully will make a difference in the future. This year, Immigrants' List is focusing almost exclusively on getting rid of Donald Trump. Trump, in effect, has ended all immigration. I think my colleagues often don't realize that when they talk about the minutia and details of what's going on, but if you look at Trump's April 22nd order, which was just expanded yesterday and include non-immigrants, it's basically shut down all immigration from outside of the United States with certain narrow limited exceptions and done it under the guise of COVID-19. He's really weaponized COVID-19. And so Immigrants' List is going to respond to that challenge. And Immigrants' List has a PAC, which gives political donations directly. But it also has a (c)(4) for Immigrants' List Civic Action, Inc., Which is designed to inform the public, educate the public, get out the vote, inform people about the voting records of the various candidates who are running, including Trump. And hopefully, we'll have a new president in the White House in January. 
 
Kevin A. Gregg (43:41): 
Thanks a lot. And thank you to all the hardworking people at Immigrants' List. We'll be sure to provide the link in our show notes, which is immigrantslist.org, correct? 
 
Ira J. Kurzban (43:50): 
That's correct. And I'd appreciated it if you would go to it, support it—because really, if Trump remains after January, I think we're going to see the end of immigration. He's already closed the border with Mexico and Canada. He's closed all immigration outside of the United States. He's slowed down immigration in the U.S. with public charge and instructions to slow everything down now, changes in asylum. It's really going to be the end of immigration as we've known it. 
 
Kevin A. Gregg (44:25): 
Well, I'm thankful that Immigrant's List is there to prevent that. And thank you for joining the Immigration Review podcast to talk about the DACA decision today. I really appreciate it Ira, and I hope the listeners appreciated it as well. So thank you so much. And please be safe. I hope to see you soon. 
 
Ira J. Kurzban (44:41): 
Pleasure. Thanks a lot. Thanks for doing this, Kevin. 
 
Kevin A. Gregg (44:44): 
Thank you. I have a great day. 
 
Ira J. Kurzban (44:46): 
Take care.

Kevin A. Gregg (44:47): 
And there you have it! You’re all caught up with the DACA decision, brought to you by none other than Ira J. Kurzban. Fun fact, as I always try to note, the "J" in Ira J. Kurzban stands for Jay! I hope you enjoyed this special bonus episode; I know I did. I’ll be back next Monday for a brand new discussion of the week’s published immigration decisions. Until then, I’m Kevin A. Gregg, bringing you the Immigration Review.

Brief Overview and Breakdown of SCOTUS Votes
DACA Ruling
History of DACA
History of Expanded DACA and DAPA
History of APA
APA Reviewability
INA Preclusion/Jurisdiction-Stripping Statutes
Rescission of DACA is "arbitrary and capricious" in violation of the APA.
Thoughts on the Dissenting and Concurring Opinions
Equal Protection Claim
Saving the Court as an Institution
Practical Implications on Pending Federal Litigation
What should DACA/DACA-eligible recipients be doing right now?
Immigrants' List and "The End of Immigration under Trump."