TRENTON – Acting in support of thousands of New Jersey Dreamers, Attorney General Gurbir S. Grewal today filed a brief with the U.S. Supreme Court defending the lawfulness of Deferred Action for Childhood Arrivals (DACA) and calling the federal government’s arguments in favor of rescinding the program legally baseless. The brief draws on New Jersey’s successful litigation in 2018 that prevented a Texas-led coalition from immediately terminating DACA.
Set forth in 2012, DACA states that immigrants who came to the U.S. as children have the possibility of remaining in the country if they meet certain criteria and renewing their applications every two years. New Jersey is home to an estimated 53,000 DACA-eligible residents, and more than 17,000 active DACA grantees.
Five years later, in 2017, the Trump Administration decided to rescind DACA. It did so on the asserted basis that DACA itself was unlawful. Federal courts have consistently found that this premise was incorrect, and that the decision to rescind DACA was therefore unlawful.
New Jersey’s brief, submitted together with the Mexican American Legal Defense and Educational Fund (MALDEF), explains that DACA is, in fact, lawful. New Jersey and MALDEF both successfully intervened in 2018 to help defeat a Texas-led challenge that sought to end DACA. Their brief before the Supreme Court highlights significant record evidence developed in their ongoing case supporting the conclusion that DACA reflects an entirely lawful exercise of prosecutorial discretion.
“From a district court in Texas to the United States Supreme Court, we will go wherever the fight takes us to preserve DACA and support our Dreamers,” said Attorney General Grewal. “This is not an academic exercise. This is about real lives, real families and real futures. Dreamers are a vital part of the social, economic and cultural fabric of our state, and we have evidence that disproves all of the federal government’s reasons for ending DACA. With today's filing, we’re making sure the Supreme Court sees that evidence, too.”
The federal government’s core argument before the Supreme Court is that DACA was an unconstitutional exercise of authority by President Obama. A federal appeals court blocked an Obama-era program known as Deferred Action for Parents of Americans on that basis before it went into effect. However, DACA supporters – and the brief filed by Attorney General Grewal today – assert that the two situations are different, and that any attempts to liken them are based on a “flawed premise.”
Among other arguments in support of the notion that DACA did not represent executive authority over-reach, New Jersey’s brief asserts that DACA did not remove discretion from the Department of Homeland security (DHS), but rather provided “lawful agency guidance.”
The brief goes on to assert that “the DACA Memorandum is … a paradigmatic example of a general policy statement: it both clarifies how an agency vested with discretion plans to use that power, and confirms that agents still have the authority to decide each case on an individual basis.” The brief cites official documents, training manuals, testimony, and facts-on-the-ground to support its conclusion.
Approximately 16,000 DACA grantees in New Jersey are currently employed, more than 900 own their own businesses, 7,800 are in school, 5,600 are pursuing a bachelor’s, master’s or professional degree, and more than 12,500 have an American citizen sibling, spouse or child.
Attorney General Grewal has said dismantling of the DACA program could have a “catastrophic” effect in New Jersey and across the nation.