On September 5, 2017, President Trump’s acting Secretary of Homeland Security, Elaine C. Duke, issued what many have been dreading since he took office: a Memorandum rescinding the Obama administration’s program known as DACA, or Deferred Action For Childhood Arrivals. DACA was put in place on June 15, 2012 by way of the document titled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, announced by the Obama Administration’s Secretary of Homeland Security, Janet Napolitano.
Also on September 5, 2017, the National Immigration Law Center (Center) put out a press release revealing that a dreamer, who already had a lawsuit pending pursuant to the case United States v. Texas, described below, amended his complaint. According to the press release, the dreamer is a 26-year-old living in Brooklyn, New York. He came to the United States from Mexico when he was seven, and now financially supports his mother with his work in a nursing home and rehabilitation center. His lawsuit’s modifications allege that the Memorandum violates federal law, and the equal protection guarantee of the Constitution. The Center is one of the entities representing the dreamer in his action, Batalla Vidal v. Baran, et al.
The crux of the June 15, 2012 document was to focus the Department of Homeland Security’s (DHS) resources. By exercising her “prosecutorial discretion,” Napolitano put a stake in the ground by formalizing the idea that DACA kids, as a general matter, “lacked the intent to violate the law.” Thus, she reasoned, “additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.”
She directed that certain criteria must be considered before “an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum.” These criteria were the following:
- Whether the individual came to the United States under the age of sixteen;
- Whether the individual has continuously resided in the United States for a least five years preceding the date of this memorandum, and is present in the United States on the date of this memorandum;
- Whether the individual is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Whether the individual has been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
- Is not above the age of thirty.
She further directed that for any individual who met these conditions, the U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP) should “exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.”
As for people already in removal proceedings who satisfied the conditions but were not yet subject to a removal order, the 2012 memorandum instructed ICE to do the following:
- Defer action for two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.
- Use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
- Begin implementing this process within 60 days of the date of this memorandum.
- Immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
For individuals who were not currently in removal proceedings, who met the above criteria, and passed a background check, Napolitano ordered the USCIS to establish a clear and efficient process for exercising prosecutorial discretion, by deferring action against individuals who met the above criteria and were at least 15 years old, for two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
Napolitano concluded by noting that her memorandum conferred no substantive right, immigration status or pathway to citizenship, which is the purview of the legislative, not executive branch.
Deferred action for parents
In 2014, the Obama Administration expanded DACA to certain parents, by way of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The program was for individuals who:
- Had a U.S. citizen or legal permanent resident son or daughter as of November 20, 2014;
- Continuously resided in the United States since before January 1, 2010;
- Were physically present in the United States on November 20, 2014, and at the time of applying;
- Had no lawful immigration status on November 20, 2014;
- Were not an enforcement priority. Those who were priorities included individuals with a wide range of criminal convictions, including certain misdemeanors, those suspected of gang involvement and terrorism, and recent unlawful entrants;
- Presented no other factors that would render a grant of deferred action inappropriate; and
- Passed a background check.
However, as the Memorandum rightly observes, in the case United States v. Texas, 26 states sued the DHS to stop it from implementing DAPA, on the grounds that it was “designed to provide legal presence to over four million individuals who are currently in the country illegally, and would enable those individuals to obtain a variety of both state and federal benefits.” The district court granted the states’ requested relief in February 2015, and in November 2015, the Fifth Circuit affirmed. The case made it to the United States Supreme Court, which affirmed in a one-sentence decision, by way of an “equally divided court.” Duke’s Memorandum recognizes that “[a]fter the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues.”
In June of this year, then DHS Secretary Kelly rescinded DAPA, but temporarily left in place the June 15, 2012 memorandum that created DACA. Later in the month, Texas and other states once again pursued DACA’s rescission, which resulted in Duke’s statement, in the Memorandum, that “it is clear that the June 15, 2012 DACA program should be terminated.” Thus, effective immediately, the DHS will proceed with the following actions:
- Adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
- Reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
- Adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
- Reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
- Not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
- Not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
- Administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
- Continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
As of this writing, officials in New York and Washington have threatened to sue the Trump administration “to halt this cruel and illegal policy and defend DACA recipients.” An article in The Hill notes that nearly 800,000 people have received deportation deferrals under DACA.
The Hill piece quotes Washington’s Attorney General, Bob Ferguson, who said that his group has “been working closely with legal teams around the country, and we expect to be joined by other states in this action.”
As indicated in the Memorandum, and widely reported, the administration will continue to renew permits for anyone whose status expires in the next six months, which gives Congress a window in which to act. But that body has failed to pass comprehensive immigration reform for many years, and has so much in front of it now, like lifting the debt ceiling to avoid a shutdown, funding the wall (or not), providing relief from Hurricane Harvey, and probably Hurricane Irma also, that it is hard to be optimistic.
In the meantime, the Center’s press release quotes a law student intern in the Worker and Immigrant Rights Advocacy Clinic at Yale Law School, who opined that the bravery of the dreamer, and others, shows “that young immigrants will not recede into the shadows as the Trump Administration would like them to do. They are here to stay and will continue fighting today’s callous and unlawful decision to eliminate DACA.”