July 21, 2017 The Honorable Donald J. Trump President of the United States The White House 1600 Pennsylvania Avenue, N.W. Washington, DC 20500 RE: June 29, 2017 letter from Ken Paxton re Texas, et al., v. United States, et al., Case No. 1:14-cv-00254 (S.D. Tex.) Dear Mr. President: We write to urge you to maintain and defend the Deferred Action for Childhood Arrivals program, or DACA, which represents a success story for the more than threequarters of a million “Dreamers” who are currently registered for it. It has also been a boon to the communities, universities, and employers with which these Dreamers are connected, and for the American economy as a whole. Since 2012, nearly 800,000 young immigrants who were brought to this country as children have been granted DACA after completing applications, submitting to and passing a background check, and applying for a work permit. In the case of young adults granted DACA, they are among our newest soldiers, college graduates, nurses and first responders. They are our neighbors, coworkers, students and community and church leaders. And they are boosting the economies and communities of our states every day. In fact, receiving DACA has increased recipients’ hourly wages by an average of 42 percent1 and given them the purchasing power to buy homes, cars and other goods and services, which drives economic growth for all.2 In addition to strengthening our states and country, DACA gives these bright, driven young people the peace of mind and stability to earn a college degree and to seek employment that matches their education and training. The protection afforded by 1 Tom Wong, et al., Center for American Progress, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes (Oct. 18, 2016), https://www.americanprogress.org/issues/immigration/news/2016/10/18/ 146290/new-study-of-daca-beneficiaries-shows-positive-economic-and-educational-outcomes/ (last visited July 17, 2017). 2 See, e.g., United We Dream, New National Survey of DACA Recipients: Proof That Executive Action Works (Oct. 18, 2016), https://unitedwedream.org/press-releases/new-national-survey-of-dacarecipients-proof-that-executive-action-works/ (last visited July 10, 2017) (finding that 95 percent of DACA beneficiaries are working, and that 54 percent bought their first car and 12 percent bought their first home after receiving DACA). President Donald J. Trump July 21, 2017 Page 2 DACA gives them dignity and the ability to fully pursue the American dream. For many, the United States is the only country they have ever known. The consequences of rescinding DACA would be severe, not just for the hundreds of thousands of young people who rely on the program—and for their employers, schools, universities, and families—but for the country’s economy as a whole. For example, in addition to lost tax revenue, American businesses would face billions in turnover costs, as employers would lose qualified workers whom they have trained and in whom they have invested.3 And as the chief law officers of our respective states, we strongly believe that DACA has made our communities safer, enabling these young people to report crimes to police without fear of deportation. You have repeatedly expressed your support for Dreamers. Today, we join together to urge you not to capitulate to the demands Texas and nine other states set forth in their June 29, 2017, letter to Attorney General Jeff Sessions. That letter demands, under threat of litigation, that your Administration end the DACA initiative. The arguments set forth in that letter are wrong as a matter of law and policy. There is broad consensus that the young people who qualify for DACA should not be prioritized for deportation. DACA is consistent with a long pattern of presidential exercises of prosecutorial discretion that targeted resources in a constitutional manner. Indeed, as Justice Antonin Scalia recognized in a 1999 opinion, the Executive has a long history of “engaging in a regular practice . . . of exercising [deferred action] for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 483-84 (1999). DACA sensibly guides immigration officials’ exercise of their enforcement discretion and reserves limited resources to address individuals who threaten our communities, not those who contribute greatly to them. Challenges have been brought against the original DACA program, including in the Fifth Circuit, but none have succeeded. On the other hand, in a case relating to Arizona’s efforts to deny drivers’ licenses to DACA recipients, the Ninth Circuit stated that it is “well settled that the [DHS] Secretary can exercise deferred action.” Ariz. Dream Act Coalition v. Brewer, 855 F.3d 957, 967-968 (9th Cir. 2017). The court also observed that “several prior administrations have adopted programs, like DACA, to prioritize which noncitizens to remove.” Id. at 976.4 As the Fifth Circuit was careful to point out in its ruling in the Texas case, the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) 3 Jose Magaña-Salgado, Immigrant Legal Resource Center, Money on the Table: The Economic Cost of Ending DACA (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/2016-1213_ilrc_report_-_money_on_the_table_economic_costs_of_ending_daca.pdf (last visited July 17, 2017). 4 In another opinion relating to the Arizona law, while deciding the appeal before it on other grounds, the Ninth Circuit stated that given the “broad discretion” that Congress gave to the executive branch “to determine when noncitizens may work in the United States,” the President’s decision to authorize (indeed, strongly encourage) DACA recipients to work was legally supported. Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014). President Donald J. Trump July 21, 2017 Page 3 initiative that was struck down is “similar[]” but “not identical” to DACA. Texas v. United States, 809 F.3d 134, 174 (5th Cir. 2015). Indeed, as DHS Secretary Kelly pointed out in a press conference the day after his June 15 memorandum explaining that DACA would continue, DACA and DAPA are “two separate issues,” appropriately noting the different populations addressed by each program. Notably, only a fraction of the 25 states which joined with Texas in the DAPA case before the Supreme Court chose to co-sign the letter threatening to challenge DACA. Among other significant differences, DACA has been operative since 2012 while DAPA never went into effect. More than three-quarters of a million young people, and their employers, among others, have concretely benefitted from DACA, for up to five years. The interests of these young people in continuing to participate in DACA and obtain the benefits that flow from DACA raise particular concerns not implicated in the pre-implementation challenge to DAPA. Further, the Fifth Circuit placed legal significance on the “economic and political magnitude” of the large number of immigrants who were affected by DAPA, Texas, 809 F.3d at 181; thus, it is notable that many fewer people have received DACA (about 800,000) than would have been eligible for DAPA (up to 4.3 million). One additional, but related, issue concerns DHS’s current practices regarding DACA recipients. A number of troubling incidents in recent months raise serious concerns over whether DHS agents are adhering to DACA guidelines and your repeated public assurances that DACA-eligible individuals are not targets for arrest and deportation. We urge you to ensure compliance with DACA and consistent enforcement practices towards Dreamers. Mr. President, now is the time to affirm the commitment you made, both to the “incredible kids” who benefit from DACA and to their families and our communities, to handle this issue “with heart.” You said Dreamers should “rest easy.” We urge you to affirm America’s values and tradition as a nation of immigrants and make clear that you will not only continue DACA, but that you will defend it. The cost of not doing so would be too high for America, the economy, and for these young people. For these reasons, we urge you to maintain and defend DACA, and we stand prepared to support your Administration in the legal defense of DACA by all appropriate means. Sincerely, XAVIER BECERRA California Attorney General GEORGE JEPSEN Connecticut Attorney General MATTHEW DEAN Delaware Attorney General KARL A. RACINE District of Columbia Attorney General President Donald J. Trump July 21, 2017 Page 4 cc: DOUGLAS S. CHIN Hawaii Attorney General LISA MADIGAN Illinois Attorney General TOM MILLER Iowa Attorney General JANET T. MILLS Maine Attorney General BRIAN FROSH Maryland Attorney General MAURA HEALEY Massachusetts Attorney General LORI SWANSON Minnesota Attorney General HECTOR BALDERAS New Mexico Attorney General ERIC T. SCHNEIDERMAN New York Attorney General JOSH STEIN North Carolina Attorney General ELLEN F. ROSENBLUM Oregon Attorney General JOSH SHAPIRO Pennsylvania Attorney General PETER KILMARTIN Rhode Island Attorney General TJ DONOVAN Vermont Attorney General MARK HERRING Virginia Attorney General BOB FERGUSON Washington State Attorney General The Honorable John F. Kelly, Secretary of Homeland Security The Honorable Jeff Sessions, Attorney General of the United States