June 29, 2017
The Honorable Jeff Sessions
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Re: Texas, et al. v. United States, et al., No. 1:14-cv-00254 (S.D. Tex.) Dear Attorney General Sessions:
The State plaintiffs that successfully challenged the Obama Administration’s DAPA
and Expanded DACA programs commend the Secretary of Homeland Security for
issuing his June 15, 2017 memorandum rescinding, in large part, his predecessor’s
November 20, 2014 memorandum creating those DAPA and Expanded DACA
programs.
As you know, this November 20, 2014 memorandum creating DAPA and Expanded
DACA would have granted eligibility for lawful presence and work authorization to
over four million unlawfully present aliens. Courts blocked DAPA and Expanded
DACA from going into effect, holding that the Executive Branch does not have the
unilateral power to confer lawful presence and work authorization on unlawfully
present aliens simply because the Executive chooses not to remove them. Rather, “[i]n
specific and detailed provisions, the [Immigration and Nationality Act] expressly and
carefully provides legal designations allowing defined classes of aliens to be lawfully
present.” Texas v. United States, 809 F.3d 134, 179 (5th Cir. 2015), aff’d by an equally
divided court, 136 S. Ct. 2271 (2016) (per curiam). “Entirely absent from those specific
classes is the group of 4.3 million illegal aliens who would be eligible for lawful
presence under DAPA.” Id. Likewise, “[t]he INA also specifies classes of aliens eligible
and ineligible for work authorization . . . with no mention of the class of persons whom
DAPA would make eligible for work authorization.” Id. at 180-81. Thus, “DAPA is not
authorized by statute,” id. at 184, and “DAPA is foreclosed by Congress’s careful
plan,” id. at 186.
For these same reasons that DAPA and Expanded DACA’s unilateral Executive
Branch conferral of eligibility for lawful presence and work authorization was
unlawful, the original June 15, 2012 DACA memorandum is also unlawful. The
original 2012 DACA program covers over one million otherwise unlawfully present
aliens. Id. at 147. And just like DAPA, DACA unilaterally confers eligibility for work
authorization, id., and lawful presence without any statutory authorization from
Congress.1
Nevertheless, the Secretary of Homeland Security’s June 15, 2017 memorandum
provided that “[t]he June 15, 2012 DACA memorandum, however, will remain in
effect,” and some “Expanded DACA” permits will also remain in effect.
We respectfully request that the Secretary of Homeland Security phase out the DACA
program. Specifically, we request that the Secretary of Homeland Security rescind
the June 15, 2012 DACA memorandum and order that the Executive Branch will not
renew or issue any new DACA or Expanded DACA permits in the future. This request
does not require the Executive Branch to immediately rescind DACA or Expanded
DACA permits that have already been issued. This request does not require the
Secretary to alter the immigration enforcement priorities contained in his separate
February 20, 2017 memorandum.2 And this request does not require the federal
government to remove any alien.
If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012
DACA memorandum and not to renew or issue any new DACA or Expanded DACA
permits in the future, then the plaintiffs that successfully challenged DAPA and
Expanded DACA will voluntarily dismiss their lawsuit currently pending in the
Southern District of Texas. Otherwise, the complaint in that case will be amended to
challenge both the DACA program and the remaining Expanded DACA permits.
1 See, e.g., USCIS, DACA Frequently Asked Questions,
https://www.uscis.gov/humanitarian/c...sked-questions
(last visited June 29, 2017) (DACA
recipients “are considered to be lawfully present”).
2 See DHS, Enforcement of Immigration Laws to Serve the National Interest,
https://www.dhs.gov/sites/default/fi...l-Interest.pdf.
Post Office Box 12548, Austin, Texas 78711-2548 • (512) 463-2100 • www.texasattorneygeneral.gov
We appreciate the opportunity to continue working with you, and the entire
Presidential Administration, to cooperatively enforce federal immigration laws.
Sincerely,
Ken Paxton
Attorney General of Texas
Steve Marshall
Attorney General of Alabama
Leslie Rutledge
Attorney General of Arkansas
Lawrence G. Wasden
Attorney General of Idaho
C.L. “Butch” Otter
Governor of Idaho
Derek Schmidt
Attorney General of Kansas
Jeff Landry
Attorney General of Louisiana
Doug Peterson
Attorney General of Nebraska
Alan Wilson
Attorney General of South Carolina
Herbert Slatery III
Attorney General and Reporter of
Tennessee
Patrick Morrisey
Attorney General of West Virginia
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