OPINION | Bait and switch: Deporting dreamers using DACA applications
© Greg Nash

Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsHouse Democrats seeking Sessions's testimony in impeachment probe McCabe's counsel presses US attorney on whether grand jury decided not to indict US attorney recommends moving forward with charges against McCabe after DOJ rejects his appeal MORE announced Tuesday that the Trump administration had decided to end the Deferred Action for Childhood Arrivals (DACA) program, which permitted young people who were brought to the U.S. as children to openly get jobs and attend school even though they are undocumented. 

The administration’s action left nearly 800,000 young people wondering whether the extensive personal information they provided with their DACA applications will be used against them by the federal government to deport them.

Their fears have been heightened by guidance issued by the Department of Homeland Security Tuesday in conjunction with the announcement. In the guidance, DHS said that they would proactively forward the information provided by the "dreamers" — as DACA participants are called — to law enforcement (including immigration authorities) only if they posed a risk to "national security or public safety" but reserved the right to change that policy at any time.

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The guidance also made clear that if immigration officials ask for the information, they will provide it. While that means — for now — proceedings won't be started based on the information provided by the dreamers, their own words and documents can be used by the government to meet its burden to prove that the dreamer is not in the U.S. legally.

 

As Betsy Woodruff of The Daily Beast noted, dreamers "gave the Department of Homeland Security information proving they are undocumented so they could get relief from the threat of deportation. They also gave the government information about where they live, work, and go to school." That information makes it far easier for the government to meet its burden.

The idea that the government could promise benefits to young people who applied for a program, and then turn around and use that information to forcibly deport them, seems fundamentally unfair. Fortunately for the dreamers, the Supreme Court has found that when you rely on the government's word and they turn around and take advantage of your reliance on the government that violates the U.S. Constitution's guarantee of "due process of law."

In the case of Raley v. Ohio, back in 1959, the Supreme Court overturned the criminal convictions of people who took the Fifth, refusing to answer a state commission's questions about their alleged involvement in the Communist Party based on erroneous advice from the commission, which opened them up to prosecution for refusing to testify.

The Supreme Court concluded that to permit the state to take advantage of a citizen's reliance on its advice "would be to sanction the most indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State clearly had told him was available to him."

In a 1965 case, Cox v. Louisiana, the Supreme Court overturned disorderly conduct convictions of protesters who violated a law prohibiting demonstrations "in or near" a courthouse. Although they were across the street, the protesters relied upon police officers who gave them permission to protest there.

Finally, eight years later in United States v. Pennsylvania Industrial Chemical Corp., the Supreme Court overturned an environmental conviction because the judge didn't let the defendant present evidence that it relied on the longstanding guidance issued by the Army Corps of Engineers. The Supreme Court concluded that the company should have been allowed to prove that "it was affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation."

All of these cases stand for the principle that if you rely on the government's assurances, they can't turn around and take advantage of that. It would be a bait and switch that runs counter to the Due Process Clause of the Constitution.

Obviously, this principle has not been applied to the immigration context, and the application of this principle in practice may be difficult because the usual rules of evidence don't apply in deportation proceedings. It might be difficult to prove in an individual case that the government didn't receive this information from another source.

For that reason, you can expect to see class action suits seeking to limit the government's ability to use the information provided by the dreamers against them. Based on the aforementioned cases, their eventual success in that suit might be more than just a dream.

Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office in Chicago and he has prosecuted federal obstruction of justice cases. Follow him on Twitter @renato_mariotti


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