However, three Kritarchs in California have decided that DACA is now a mandatory program of amnesty for illegal aliens who now have a legal interest in the program despite the claim by the Obama Regime that it was solely an exercise of prosecutorial discretion that was not reviewable by the courts. And, importantly, was revocable at any time as well as not granting any legal status to illegal aliens.
Below is the Obama Administration's legal rationale:
As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time...Your correspondent warned that kritarchs would seek to make DACA permanent. Because President Trump failed to immediately revoke DACA on his first day in office, we now have kritarchs circling in the water, testing push back from the Trump Administration, and contemplating declaring DACA mandatory.
A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion...
As a general rule, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and it reflects a recognition that the faithful” execution of the law does not necessarily entail “act[ing] against each technical violation of the statute” that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the decision whether to initiate enforcement proceedings is a complex judgment that calls on the agency to “balanc[e] . . . a number of factors which are peculiarly within its expertise.”
[Memorandum Opinion For The Secretary Of Homeland Security And The Counsel To The President, by Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, November 19, 2014]
An appeals court has cleared the way for a federal judge to force the Trump administration to make public more of its internal documents on the decision to rescind the program granting quasi-legal status and work permits to so-called Dreamers.
A panel of the 9th U.S. Circuit Court of Appeals voted, 2-1, to rebuff the Justice Department’s attempt to halt U.S. District Court Judge William Alsup’s order that the administration turn over emails, letters, memos and legal opinions considered in the course of the decision announced in September to end the Deferred Action for Childhood Arrivals program created in 2012 under President Barack Obama.
[Court Won't Halt Judge's Demand For Details On DACA Cancellation Decision, By Josh Gerstein, Politico, November 16, 2017]
Judges Kim Wardlaw and Ronald Gould said in a ruling issued Thursday that the official record the administration submitted in response to more than half a dozen lawsuits challenging the decision was clearly inadequate.
“Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded,” Wardlaw and Gould wrote in a joint opinion.