Kris W. Kobach: DACA Is Finally Dead at Last
On Friday afternoon, U.S. District Judge Andrew Hanen of the Southern District of Texas issued an opinion striking down President Obama’s illegal DACA (“Deferred Action for Childhood Arrivals”) executive action, which was announced more than nine years ago.
DACA allowed virtually any illegal alien up to the age of 31 (as of June 15, 2012, when it was announced) who claimed that he entered the United States before the age of 16 to gain “deferred action” and remain in the country. The alien also became eligible for employment authorization. In practice, it ended up being an amnesty for more than 886,000 illegal aliens up to the age of 39 who received permission to stay in the United States, along with work authorization allowing them to compete against young Americans for the same jobs.
But DACA was illegal and unconstitutional from the beginning. Only Congress can grant an amnesty en masse to illegal aliens. Ten ICE agents sued to block the DACA amnesty in 2012 (I represented them). And President Trump tried to repeal DACA, but the Supreme Court issued a perplexing decision in June of 2020 saying that the Trump Administration didn’t jump through the necessary administrative hoops to do so.
However, the Supreme Court never answered the most important question: what if DACA was illegal from the outset? Justice Thomas did not shy away from answering the question in his dissent. In his words, “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception.”
Fortunately, the State of Texas had already filed another suit to stop DACA, and it was that long-awaited decision that was issued Friday. Judge Hanen’s 77-page decision is a powerful ruling that goes into exacting detail as to why President Obama’s DACA amnesty was indeed unlawful from its inception.
Judge Hanen points out, first and foremost, that DACA is illegal because the Obama Administration created it in the form of a policy “directive,” rather than as a formal regulation through the Administrative Procedure Act (“APA”). Generating an agency regulation entails a long process whereby the agency promulgates a proposed rule, providing public notice and inviting public comment, after which the agency must responding to criticism and justify the rule.
The Obama Administration did none of that when it created DACA. As Judge Hanen wrote: “DHS failed to engage in the statutorily mandated process, so DACA never gained status as a legally binding policy that could impose duties or obligations.”
Fortunately, Judge Hanen did not end his opinion there. Department of Justice attorneys had indicated during the litigation of the case that the Biden DHS had plans to redo DACA as a formal administrative rule—going through the administrative process that the Obama DHS skipped. What would happen then?
Judge Hanen provided an unequivocal answer: DACA would still be illegal. It violates federal law that makes DACA recipients unlawfully present in the United States, it violates federal law requiring illegal aliens to be placed into removal proceedings, and it violates federal law by creating a new path to lawful status and work authorization. As Judge Hanen summed it up: “Thus, all DACA applicants and recipients fall into a category for removal regardless of their mode of entry. The DACA Memorandum prevents immigration officials from enforcing these provisions of the [Immigration and Nationality Act].”
The ruling bars Biden’s DHS from granting DACA status to any new illegal aliens. The question of what is going to happen to the aliens who have already been granted DACA status remains pending in Judge Hanen’s court.
Although the Biden Administration will doubtless appeal the decision, Judge Hanen’s opinion stands a very good chance of surviving any appeal. His legal reasoning is strong, and he spent a significant amount of time writing it. But it was worth the wait.
Kris W. Kobach served as the elected secretary of state of Kansas during 2011-19. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 DACA amnesty. During 2001-03, he was Attorney General Ashcroft’s chief adviser on immigration law at the Department of Justice. His website is kriskobach.com.
Analysis: Joe Biden’s Open Border to Drive 1.7M Illegal Aliens to U.S. in 2021
President Joe Biden’s deliberate open borders policy is expected to drive nearly 1.7 million illegal aliens to the United States-Mexico border by the end of 2021, new analysis projects.
On Friday, the Department of Homeland Security (DHS) revealed that more than 178,000 border crossers were encountered by federal immigration officials in June along the border. This total does not include illegal aliens who successfully crossed into the U.S., undetected by federal immigration officials.
Steven Kopits with Princeton Policy Advisors projects that Biden’s “deliberate policy of holding the border open” will invite close to 1.7 million illegal aliens arriving at the border this calendar year — making it the worst year for illegal immigration in American history.
For perspective, a foreign population three times the population of Wyoming is expected to arrive at the border this year.
That figure, Kopits writes, is contingent on a projection where apprehensions at the border “taper off in the balance of the year in a manner similar to 2000” but admits that illegal immigration shows “no signs” of tapering off:
If apprehensions remain elevated near recent levels, both fiscal and calendar year 2021 will enter the history books as records for illegal immigration. By any reasonable measure, only a deliberate policy of holding the border open could achieve such an outcome.
“In any country, a leader has two fundamental responsibilities to the public,” Kopits wrote in his analysis:
The first is the protection of the country from invasion from or conquest by external forces. The second is protecting the public from disruptive internal forces, like crime and terrorism. That the Biden administration would deliberately leave the border open constitutes a fundamental dereliction of duty and is shocking, appalling and an affront to the public. [Emphasis added]
Kopits writes that the Biden administration cannot blame “seasonal patterns” on the continuing wave of illegal immigration, as they have done in the past, because this year’s levels do not match those of the last 21 years. He notes:
In all but two of the last twenty-one years, June apprehensions were below May apprehensions. The case is just the opposite this year, suggesting that extraordinary factors — like an open border — are stimulating continued and counter-seasonal flows of illegal immigration.
Likewise, Kopits compared current illegal immigration levels to those of the year 2000, when President Bill Clinton was in his last year in the White House. The comparison, Kopits writes, “also suggests the administration is holding the border wide open.”
Despite starting that year’s first three months with growing illegal immigration at the border, the Clinton administration ultimately siphoned the inflow for the rest of the year by bringing the number of apprehensions to close to 50,000 by December 2000 — far beneath the peak of more than 200,000 apprehensions in March 2000.
On the other hand, since Biden took office, illegal immigration has skyrocketed and has stayed consistently at high levels since March.
“This tells us that the Biden administration is not taking the steps the Clinton administration did, again suggesting a deliberate policy of keeping the border wide open,” Kopits writes.
John Binder is a reporter for Breitbart News. Email him at jbinder@breitbart.com. Follow him on Twitter here.
Texas Federal Judge Rules Obama’s DACA Program Illegal, Blocks New Illegal Alien Applicants
A federal judge in Texas has ruled that former President Obama violated federal statute when he unilaterally implemented the Deferred Action for Childhood Arrivals (DACA) program that has provided quasi-amnesty to hundreds of thousands of illegal aliens since 2012.
On Friday, Judge Andrew Hanen ordered President Joe Biden’s administration to effectively shut down the DACA program by blocking the federal government from allowing new applicants, illegal aliens who have not previously been enrolled, onto the program’s rolls.
“DHS violated the [Administrative Procedure Act] with the creation DACA and its continued operation … the DACA Memorandum and the DACA program that it created are hereby vacated and remanded to DHS for further consideration, as requested,” Hanen writes.
“DHS … is hereby enjoined from approving any new DACA applications and granting the attendant status,” Hanen continues.
The ruling throws a wrench in the Biden administration’s plan to ramp up the DACA program by adding new applicants to the program’s rolls. For months, Biden and elected Democrats in Washington, D.C. have sought to pass an amnesty for DACA illegal aliens — most recently, by slipping it into a Senate Democrat budget that would only need majority support.
As of 2017, more than 2,100 DACA illegal aliens have been kicked off the program after having committed a crime or being found to have previously committed crimes.
The case is Texas v. United States, No. 1:18-cv-00068 in the U.S. District Court for the Southern District of Texas.
John Binder is a reporter for Breitbart News. Email him at jbinder@breitbart.com. Follow him on Twitter here.
BREAKING: Judge Declares DACA Program Illegal
Source: AP Photo/Manuel Balce Ceneta
On Friday, Judge Andrew S. Hanen of the Southern District of Texas issued a decision which will block the Department of Homeland Security from approving new DACA applications.
The decision found that President Barack Obama illegally exceeded his executive authority in 2012 when his administration created the DACA program.
Judge Hanen called the program an "illegally implemented program" and said "the public interest of the nation is always served by the cessation of a program that was created in violation of law and whose existence violates the law."
He held off for now on deciding how current recipients will be affected. "To be clear, neither this order nor the accompanying injunction requires DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would otherwise not take," the decision concluded with.
We will still have to wait a bit longer until the fate of the DACA program recipients are decided for good though, with Judge Hanen citing "reliance" which "may, in fact, have increased over time."
The order as it would apply to current recipients is "stayed until a further order of this Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court."
This case is a suit brought by Texas and several other states.
Border Patrol Apprehends 1 Million Migrants in 2021
Border Patrol agents apprehended more than 178,000 migrants in June along the U.S. border with Mexico, marking the largest single-month increase since March. The increasing number of apprehensions led to a total of 1,076,242 migrants apprehended so far this fiscal year.
During the month of June, when migrant apprehensions generally decrease, Border Patrol agents apprehended 178, 416 migrants — an increase of 5,789, according to the June Southwest Land Border Encounters report released by CBP officials on Friday. The increased apprehensions came in the categories of Family Units and Unaccompanied Minors which rose by 25 and eight percent respectively. Single Adult apprehensions fell by 4,537.
Because of the extreme heat and other dangerous smuggling conditions, migrant rescues this year rose dramatically, CBP reports. During the first nine months of this fiscal year (October through June), migrant rescues hit 9,500. This represents an 81 percent increase over the entire Fiscal Year 2020, officials stated.
“We are in the hottest part of the summer, and we are seeing a high number of distress calls to CBP from migrants abandoned in treacherous terrain by smugglers with no regard for human life,” CBP Acting Commissioner Troy Miller said in a written statement. “Although CBP does everything it can to locate and rescue individuals who are lost or distressed, the bottom line is this: the terrain along the border is extreme, the summer heat is severe, and the miles of desert migrants must hike after crossing the border in many areas are unforgiving.”
During the month of June, CBP officials expelled nearly 105,000 migrants to Mexico under Title 42 coronavirus protection protocols put in place during the Trump administration by the Centers for Disease Control and prevention. “The majority of all June encounters resulted in a Title 42 expulsion,” CBP officials stated.
However, the Biden administration may cancel this program in July Breitbart News’ Edwin Mora reported. ““President Biden has been briefed on a plan for stopping family expulsions by the end of July, as well as the option of letting a court end it,” according to a report by Axios.
In June, Homeland Security Secretary Alejandro Mayoras formally ended the Trump administration’s Migrant Protection Protocol that virtually ended “Catch and Release” programs of past administration. During the month of June, DHS officials processed more than 12,000 people into the United States who had been returned to Mexico under MPP, the report states.
FY2021 Border Patrol Apprehensions
October — 69,049
November — 69,166
December — 71,143
January — 75,313
February — 97,639
March — 169,204
April — 173,685
May — 172,627
June — 178,416
Bob Price serves as associate editor and senior news contributor for the Breitbart Texas-Border team. He is an original member of the Breitbart Texas team. Price is a regular panelist on Fox 26 Houston’s What’s Your Point? Sunday-morning talk show. Follow him on Twitter @BobPriceBBTX and Face
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