Deferred Action, Expedited Litigation
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: When the Trump administration issued an order in September 2017 setting March 2018 as the end of Deferred Action for Childhood Arrivals, a flurry of litigation followed that reached the Second Circuit once and is headed there again.
January 23, 2018 at 02:46 PM
7 minute read
When the Trump administration issued an order in September 2017 setting March 2018 as the end of Deferred Action for Childhood Arrivals (DACA), a flurry of litigation followed that reached the Second Circuit once and is headed there again.
Termination of DACA and the Present Litigation
In 2012, the Obama administration established DACA, which enabled non-citizens brought to the United States as children to apply for a renewable, two-year period of deferred action from deportation. Applicants who satisfied the Department of Homeland Security (DHS) vetting process could obtain renewable work authorization and a Social Security number. Since 2012, nearly 800,000 young people have benefited from DACA. On Sept. 5, 2017, facing threats of litigation from a group of states, Attorney General Jeff Sessions announced the termination of DACA. Acting DHS Secretary Elaine Duke concurrently issued a memorandum announcing that DHS would no longer accept DACA applications.
The following day, a coalition of 16 states led by New York filed suit in the Eastern District of New York, challenging the administration's decision to end DACA on the ground that it was driven by discriminatory animus in violation of the Equal Protection Clause of the Constitution as well as the substantive requirements of the Administrative Procedure Act and the Regulatory Flexibility Act. Plaintiffs also challenged DHS's decision to cease providing notice to DACA recipients eligible for renewal and its withdrawal of protections prohibiting federal officials from using personal information collected from DACA grantees to facilitate immigration enforcement actions against the grantees or their families.
Privilege Log Requirement
The case first reached the Second Circuit because of a discovery dispute. Magistrate Judge James Orenstein expedited discovery and required the Government to produce, within eight days, a privilege log identifying all documents considered within the executive branch in deciding to rescind DACA. The Government appealed Judge Orenstein's order to the district court, arguing that the privilege log requirement raised separation-of-powers concerns and exceeded the bounds of the court's authority; in any event, compliance was impossible. The Government also argued that discovery is not appropriate. After initially extending the deadline for the Government to submit its privilege log, District Court Judge Nicholas G. Garaufis narrowed the scope of the Government's burden, first restricting the log to documents considered within DHS and the Department of Justice (DOJ) and then further narrowing it to material that Attorney General Sessions or Acting Secretary Duke actually considered or that their first-tier subordinates considered. The district court denied the Government's request to stay discovery, reasoning that there would be insufficient time to reach resolution prior to March 5, 2018 and that the burdens of expedited discovery resulted from the Government's decision to terminate DACA on short notice.
On Oct. 6, 2017, the Government produced a 256-page administrative record primarily consisting of publicly available documents, to which plaintiffs objected and the magistrate judge agreed was manifestly incomplete.
Second Circuit and EDNY Play Ping Pong
On Oct. 19, 2017, the Second Circuit stayed discovery contingent on the Government timely filing a writ of mandamus. The writ claimed that the privilege log was unduly burdensome and compliance would require every full-time litigation lawyer at DHS headquarters, all electronic discovery computer resources of Customs and Border Protection, and Immigration and Customs Enforcement counsel from other cases be added to the team.
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