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Subject: Background Press Call on the Administration's Actions on the DACA Program

The White House
Office of the Press Secretary
FOR IMMEDIATE RELEASE
July 28, 2020
BACKGROUND PRESS CALL
BY SENIOR ADMINISTRATION OFFICIALS
ON THE ADMINISTRATION’S ACTIONS ON THE DACA PROGRAM

Via Teleconference

1:47 P.M. EDT

MR. FIELDS: Thank you, Operator. Good afternoon, everyone, and thank you for joining today’s briefing call on the immigration announcement regarding DACA that will take place today.

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This briefing will be conducted by [senior administration official]. Both opening remarks and the question-and-answer portion to follow will be on background from a senior administration official.

All information is embargoed until the conclusion of this call. And with that, I’m happy to introduce [senior administration official].

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SENIOR ADMINISTRATION OFFICIAL: Thanks. So we’ll start from the very beginning here. The administration was obviously very disappointed in Chief Justice Roberts’s decision at the Supreme Court a few weeks back.

The administration continues to have significant doubts about the policy -- the DACA policy’s legality and the negative consequences that ensue from that policy for law enforcement, child welfare, and overall border security.

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It’s important to note here, at the outset, that the Court did not rule that Obama’s program was lawful. The issue that the Court reached in its decision was only that the administration had insufficiently justified its wind-down of the DACA program. The court agreed that the administration can, in fact, pursue a wind-down of the DACA program.

And it’s also worth noting that even with the Court’s disposition, there is still significant ongoing litigation in challenging the DACA program in several federal district court jurisdictions across the country.

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The administration is now undertaking a comprehensive review of the DACA program and the justifications that have been offered for winding DACA down, including its illegality and the negative effect the program has on what I’d call “immigration behavior,” including smuggling and illegal crossings.

When the administration next acts on DACA, it will be on the basis of the comprehensive review of the substantive legal and legal policy justifications offered for winding down the program.

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Obviously, to do this correctly and thoughtfully, the review will have to take time. We won’t weigh in on how long that will take because it’s a question of a careful review of all the documentation that was provided to Deputy Secretary Duke, Attorney General Sessions, Secretary Nielsen, in the formation of their memos.

In the meantime, the administration will take the following actions on the existing DACA program:

All initial requests and application fees submitted for new filings will be rejected without prejudice should the policy be retained -- the DACA policy be retained following the administration’s review.

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We will adjudicate all applications for renewal on a case-by-case basis, consistent with immigration statute, providing one year, rather than the existing two-year renewal.

And consistent with this policy and the reasoning behind the original Napolitano departmental memo, all applications for advance parole will be rejected absent extraordinary circumstances.

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The forthcoming memo issued today from the Department of Homeland Security will lay out the background and be pending actions in greater detail.

I’ll just say here, in conclusion: These actions will limit the scope of the program while DHS and the administration review its legality, the justifications for a possible wind-down, and other considerations relevant to deciding whether to keep or wind down the DACA policy.

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MR. FIELDS: Thank you. Operator, we are now ready to take some questions.

Q Good afternoon. Thanks for doing the call. I have two questions. First, if you’re rejecting all applications and then considering them, again, how does that not violate the judge’s order to begin processing them, again, as if the status quo prior to the original rescinding of the program was put in place? How does that not violate the order?

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And, second, based on how you’re describing the review, it sounds very much like you’ve already decided that the program is illegal, and it seems like the decision has already been made; you’re looking for a justification for it. So what -- in what way can this be considered a good-faith review that would actually meet the requirements set out under the Administrative Procedure Act?

SENIOR ADMINISTRATION OFFICIAL: Great. Thanks for the question. So a couple of things here to clarify. First off, there’s litigation pending in several federal district court jurisdictions. So when we have an order in DDC, there’s also litigation in Maryland, in the Eastern District of California -- so it’s important to note that there isn't a one track for litigation. So one judge’s orders are not a penultimate here.

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So the (inaudible) --

Q So this is going to be done on a circuit-by-circuit basis?

SENIOR ADMINISTRATION OFFICIAL: Sorry, let me just keep going here.

Two, really important to delineate between those who are currently eligible and covered by the DACA problem. Those individuals, as they face the possibility of the (inaudible) of their eligibility can file for renewal. The renewal will only run for a year. New applications or new filing looking to receive a benefit from this program at this point will be rejected.

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And now to the second question: This is extremely important. It’s important not only for the circumstances of this cases and this program, but generally for the rule of law writ large for the Article 2 chief executive management of the administrative state, which is to say a review of this kind needs to be substantive; it needs to be thoughtful.

It cannot -- and I would emphasize it is not -- pretextual to any decided outcome. We’ll be reviewing the material that informed Deputy Secretary Duke’s decision, we’ll look at the same material that went into shaping the composition of the memo authored by Secretary Nielsen, and then any material including legal decisions that helped the Attorney General Sessions reach his decision.

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But the important point here, of course, is the Court was clear that we didn’t comply with their understanding of procedural -- you know, the proper process under the APA. There is no question about the legality of the program. So for those who are thinking through this issue, separate on one hand policy justifications, which is part of what we’ll be doing and doing our substantive review, and the underlying legal question as to whether or not this program, in its origin, was lawful.

Q Yes, hi. Thank you. I appreciate it. So my question is about your point on the issue of the legality of the program. Former Attorney General Jeff Sessions gave an interview in which he said that if Congress’s intent was to ensure that people are not able to enter the country illegally, and that if they’d done so, they’d broken the law, he said that basically the rule of law is undermined by the DACA program that was created by the Obama administration, by basically ignoring the intent of Congress. Do you agree with that assessment from Sessions?

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SENIOR ADMINISTRATION OFFICIAL: So I think the Attorney General’s legal reasoning isn't one that I would quibble with. I think the Supreme Court itself found in its decision that, as I said earlier, the legal justification for the program wasn’t one that they were going to entertain in the litigation that was presented to them.

What’s important here to note is a program that was not enacted through a regulatory process consistent with the APA -- so it went through no formal rulemaking and is neither supported by a statutory underpinning; it lacks sufficient justification in law to extend a benefit under the INA, the Immigration and Naturalization Act. So we have a program designed through an internal department memo contradicting existing statutory law and extending a benefit to a group of individuals that Congress never contemplated to do so.

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So I think the legal justification for saying this was an unlawful exercise of executive power is fairly clear. What the Court would like us to do is to review materials and to exhaustively consider the various policy inputs that would go into the formation -- that went into the formation of DACA and would go into the formation of any wind-down policy.

Q Thank you. Yes. In terms of the federal judge in Maryland who did order for DACA (inaudible) pre-September 2017 status, how do you reconcile not accepting new applications when a federal judge has ordered that you do so?

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SENIOR ADMINISTRATION OFFICIAL: Right. So thanks for that question. So the memo that was issued today -- that should be forthcoming and made available to you all -- rescinds the Duke memo and it rescinds the Nielsen memo. But you have to consider it as an intervening act. It, itself, is a memo laying out this administration’s approach to this program.

Now, the basis of DACA all along was discretionary -- a use of discretionary authority to the chief executive, or at least that’s the argument that the Obama administration put forward. So the reconciliation between the judge’s order and the District of Maryland -- and this one is to say that we are not going back to the pre-2017 status quo -- we’re rescinding the Duke and Nielsen memos and the addendum offered by Attorney General Sessions, but now we are operative under a new memo issued by Acting Secretary Chad Wolf.

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Q Yeah. Thanks -- thank you. Just following up on that: It seems pretty clear from the Maryland federal judge’s decision that it restored DACA to its pre-termination status. I don’t understand your explanation. Forgive me, but doesn’t that status exist today in the law? And shouldn’t you be accepting new applications?

SENIOR ADMINISTRATION OFFICIAL: So, thanks for that question. So I would just reiterate: Under the law, one would be hard pressed to find any place under the law that the pronounce- -- the statutory pronouncements from Congress giving sanction or voice to this program in its entirety. Under the judge’s order, absent any intervening action from this administration, we would be back to a pre-2017 context.

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This memo is an intervening action that lays out how the administration will proceed both with the substantive review of the underlying conditions that led to the promulgation of those two earlier memos and what steps we’re going to take in ensuring the program is maintained as it’s currently constituted.

Q Are you creating a new program? Or what -- what exactly are you doing that allows you to not accept new applications --

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SENIOR ADMINISTRATION OFFICIAL: So -- so, again --

Q -- under the Court’s (inaudible)?

SENIOR ADMINISTRATION OFFICIAL: So, again, to answer your question: No, it’s not a new program. We have issued a new memo.

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Q Hi, my question is just more of the same. So it’s a new memo rather than a new program. Do you expect court challenges and to start this whole process over again?

SENIOR ADMINISTRATION OFFICIAL: Yes, of course.

Q Yeah. Thank you for having this. Can you please explain the rationale behind limiting the extensions for those currently enrolled in the program to one-year protections instead of the two-year protections that have been in place since 2012? And what criteria would make people eligible for advance parole under the new guideline?

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SENIOR ADMINISTRATION OFFICIAL: So, in answer -- I'll take the second question. So, advance parole is operative under similar circumstances to DACA. What we’re just specifying is the Acting Secretary’s discretionary authority over advance parole.

And then, on the first question, that’s all covered in detail in the memo, so I won’t even deign to contradict any of the terms that’s offered in the memo. So I would just say, once you have it, before you -- you’ll see the rationale articulated by DHS.

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MR. FIELDS: Thank you, everyone. This will conclude our call. Again, both opening remarks and the question-and-answer portion will be on background from a senior administration official. As always, direct all further questions to White House Press Office.

And thank you, everyone, for joining. And have a great day.

END 2:03 P.M. EDT

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