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No Status, No Notice, No Comment: The Lack of Procedural Adherence to the APA Notice and Comment Requirement Concerning Immigration Rules

By Gabriella D’Agostini*

On September 5, 2017, President Trump controversially ordered the termination of the Deferred Action for Childhood Arrivals (“DACA”) program, which allowed childhood arrivals—undocumented immigrants who came to the United States as children or teens—to apply for deportation protection and receive work permits if they met certain requirements.[1] The Department of Homeland Security’s (“DHS”) memo announcing this change declared that the DACA rescission would be effective immediately.[2] Critics of this decision argued, among other things, that DHS’ actions constituted a violation of the “notice and comment” requirement of the Administrative Procedure Act (“APA”).[3]

Indeed, § 533 of the APA explicitly states that “[g]eneral notice of proposed rulemaking must be published in the Federal Register” and that “the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments . . . .”[4] This notice and comment period applies whenever there is an issuance, amendment, or repeal of administrative rules.[5] As the repeal of an executive action, the termination of DACA likely falls within the purview of the APA. Nevertheless, it has not undergone the APA’s formal rulemaking process for substantive rule changes.[6] As a result, the public—particularly undocumented immigrants—has not been given the chance to provide its input regarding these rules. Whether this irregularity is due to administrative oversight or political motivation, this suppression of undocumented immigrants’ voices causes social, economic, and political harm to American society.

The DACA program went into effect under the Obama administration in June 2012.[7] The administration justified the program on the basis that, in the eyes of the law, childhood arrivals lacked the requisite intent to violate the law when crossing the border, thus possessing a lower level of culpability and risk to society.[8] DACA directed DHS to utilize its prosecutorial discretion by not enforcing deportation laws against undocumented childhood arrivals who met the requirements of the program, conserving federal enforcement and prosecutorial resources for use on higher risk individuals.[9] DACA did not provide a pathway to citizenship for undocumented children and teens, but rather provided temporary protection from deportation.[10] Since its inception, DACA has shielded approximately 800,000 undocumented recipients from deportation.[11]

Since DACA was implemented as an act of prosecutorial discretion, it avoided the formal APA rulemaking process, including the notice and comment requirement.[12] Although this avoidance was never successfully challenged in court, many opponents nevertheless levied accusations that DACA was unlawful and invalid for its failure to undergo a notice and comment period.[13] The Obama administration, however, maintained that its implementation of DACA was lawful as an exercise of agency discretion that is exempt from judicial review under the APA.[14]

Mimicking its institution, the rescission of DACA has also not undergone a notice and comment period.[15] Although critics of President Trump’s actions have certainly pointed out his failure to follow APA procedure, there appears to be a lack of discussion regarding the substantive importance of the notice and comment period in the DACA context: to allow undocumented immigrants and their allies to voice their concerns about how the rescission will directly affect their futures in the United States. Thus, we must ask the question: why are rules governing undocumented immigrants treated with less procedural protection than rules governing other issues under the purview of administrative agencies?

Regardless of the answer, this disparate treatment jeopardizes the livelihood of undocumented immigrants in the United States.

As non-citizens, undocumented immigrants do not have the legal right to vote, receive most federal funds, or obtain employment in the United States.[16] Although, in theory, undocumented immigrants may have many of the same basic constitutional rights as American citizens, their knowledge, access, and exercise of these rights rarely occur in practice.[17] The stigma of being undocumented and a lack of pathway to citizenship forces undocumented immigrants to stay hidden and silent in American society, largely driven by the fear of deportation.[18] The option to submit anonymous comments during the notice and comment period provides a solution to this problem, allowing undocumented immigrants to safely voice their concerns without fear of government reprisal.[19] Absent notice and comment altogether, however, undocumented immigrants are left without a direct mechanism to protect or advocate for their rights and the rights of their children.

Excluding undocumented immigrants from the opportunity to comment about immigration rules causes significant social, economic, and political harm to American society. Socially, this exclusion pressures undocumented immigrants to hide in the shadows, reinforcing the notion that they have no place to voice their concerns in a government process.[20] Consequently, undocumented immigrants as a social group remain fragmented and fearful, lacking the organization and cohesion necessary to pursue legal or political change in immigration rules.[21] Economically, this exclusion prevents undocumented immigrants from challenging rules that affect their ability to pursue higher education or employment, diminishing their potential economic contributions to American society.[22] Politically, this exclusion forecloses the opportunity for undocumented immigrants to utilize a civic representation mechanism that is open to all other non-citizens.[23] Much of this exclusion is justified under the erroneous belief that undocumented immigrants do not contribute to the American economy or society.[24] However, undocumented immigrants currently pay $11.6 billion in state and local taxes a year[25] and have contributed up to $300 billion to the Social Security Trust Fund.[26] As a result, excluding undocumented immigrants from the notice and comment period frustrates the foundational notion of no taxation without representation.

Regardless of one’s views concerning illegal immigration, it should nonetheless be troublesome that an administrative agency is arbitrarily denying procedural protection to social groups, as the consistent and equitable adherence to procedure is a foundational principle of American due process. Accordingly, undocumented immigrants should be afforded the procedural protection of the notice and comment period, not only as a mechanism of representation, but also as a vital instrument for cultivating self-determination and self-efficacy in American society.

*Gabriella D’Agostini is a Junior Editor on MJEAL. She can be reached at

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Vanessa Romo et al., Trump Ends DACA, Calls on Congress to Act, Nat’l Public Radio (Sept. 5, 2017), Examples of these requirements include continuous residence in the United States since 2007 and enrollment in school. Id.

[2] Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA), Dept. of Homeland Security (Sept. 5, 2017), available at

[3] Jonathan H. Adler, Assessing the Administrative Law Claims Against DACA, The Washington Post (Sept. 9, 2017),

[4] 5 U.S.C. §§ 533(b)–(c) (2012).

[5] Id. § 533(e).

[6] Adler, supra note 3.

[7] Romo, supra note 1.

[8] Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, Dept. of Homeland Security (June 15, 2012), available at

[9] See id.

[10] Id. DACA required recipients to re-new their DACA coverage every three years. U.S. Citizenship and Immigration Servs., DACA Recipients Who Received 3-Year Work Permit Post-Injunction: Quick Facts, (last visited Nov. 6, 2017),

[11] Gustavo López & Jens Manuel Krogstad, Key Facts about Unauthorized Immigrants Enrolled in DACA, Pew Research Center (Sept. 25, 2017),

[12] Adler, supra note 3.

[13] Jonathan Turley, On DACA, Both President Trump and Barack Obama Undermine Lawyers’ Arguments on All Sides, USA Today (Sept. 6, 2017),

[14] Adler, supra note 3; Heckler v. Chaney, 470 U.S. 821, 832-33 (1985) (holding that the APA precludes judicial review of actions “committed to agency discretion by law”).

[15] Adler, supra note 3.

[16] 18 U.S.C. § 611 (2012); Tanya Broder et al., Overview of Immigrant Eligibility for Federal Programs, Nat’l Immigrant Law Ctr (Dec. 2015),; 8 U.S.C. § 1324a (2012).

[17] Zadvydas v. Davis, 533 U.S. 678, 718 (2001) (holding that the Due Process Clause of the Fourteenth Amendment applies to undocumented immigrants); Plyler v. Doe, 457 U.S. 202, 215 (1982) (holding that undocumented immigrants may claim the benefit of the Equal Protection Clause); Wong Win v. United States, 163 U.S. 228, 238 (1896) (holding that all persons within the territory of the United States are entitled to protection by the Fifth and Sixth Amendments).

[18] See Vivian Lee, Immigrants Hide, Fearing Deportation on Any Corner, The N.Y. Times (Feb. 22, 2017),

[19] ERulemaking,, (last visited Nov. 27, 2017),

[20] See Gretchen Gavett, “Growing Up in the Shadows” of Illegal Immigration, Public Broad. Serv. (Sept. 21, 2011),

[21] See id.

[22] See Zenen Jaimes Pérez, Removing Barriers to Higher Education for Undocumented Students, Ctr. for Am. Progress (Dec. 5, 2014),

[23] See Public Participation, U.S. Citizenship and Immigration Servs., (last visited Nov. 26, 2017)

[24] Juan Escalantes, I’m an Undocumented Immigrant and I Pay My Taxes Every Year, Vox Media (Apr. 28, 2017),

[25] Lisa Christensen Gee et al., Undocumented Immigrants’ State and Local Tax Contributions, Inst. on Taxation and Economic Policy (Feb. 2016), available at

[26] Adam Davidson, Do Illegal Immigrants Actually Hurt the U.S. Economy?, The N.Y. Times (Feb. 12, 2013),

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