By Brittany M. Milliasseau & Nancy E. Miller
Department of Homeland Security (DHS) officials met last week to review and discuss the fate of the Deferred Action for Childhood Arrivals (DACA) program, which provides immigration relief to certain young people who entered the country as children. Following last week’s meeting, reports have surfaced stating that the DACA program is in serious jeopardy and that a decision from President Trump ending DACA is imminent.
During his campaign, President Trump promised to immediately terminate DACA once he became President. However, nearly eight months after assuming office, the President has yet to make any formal changes to the program. Earlier this year, a draft Executive Order was leaked which rescinded the 2012 Obama-era DACA program. The draft order allowed DACA-based employment authorization documents (EADs) to remain valid until expiration, but ceased processing of initial and renewal DACA applications, and halted the issuance of Advanced Parole to DACA recipients. The draft order was never signed and implemented.
Recent developments in two legal cases are currently putting the DACA program at risk. In 2014, several states filed a lawsuit in federal court alleging that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and an expanded DACA program introduced during the Obama Administration was unconstitutional. A Texas Judge granted a preliminary injunction halting those programs and the case ultimately went to the U.S Supreme Court (SCOTUS) but the Court was divided and unable to reach a decision. The lower court’s preliminary injunction remained in place.
In June 2017, the DAPA program formally came to an end after DHS issued a memorandum rescinding the program. In its memorandum however, DHS affirmed that the DACA program would remain in effect. A couple of weeks later, several state Attorneys General sent a letter to the U.S. Attorney General requesting that DHS rescind DACA. In exchange for termination of the program, the states offered to voluntarily dismiss the current lawsuit. In the absence of the termination of DACA, the lawsuit would be amended to specifically challenge DACA. The letter gives the Executive Branch a deadline of September 5, 2017 to rescind the DACA program.
In a separate legal challenge, the constitutionality of DACA is also at issue. A lawsuit was filed against the state of Arizona alleging that Arizona’s policy of denying driver’s licenses to DACA recipients was unconstitutional. The District Court agreed and blocked the state from implementing the policy. The Supreme Court is currently waiting for input from the Solicitor General on the government’s position as to whether SCOTUS should hear the case. A decision from SCOTUS as to whether they will accept the case is expected to be issued in the fall of 2017.
If President Trump decides to end the DACA program, the fate of the nearly 800,000 “Dreamers” is uncertain. While DACA relief does not confer lawful status and is not a pathway to permanent residency, removal actions against DACA recipients are deferred for a period of two years. If DACA is rescinded, this deferment will cease and current DACA recipients will be at risk for placement in deportation proceedings and ultimately at risk for removal from the United States. There is also no word as to what form termination of the program would take. One potential scenario is that DACA could be immediately terminated, preventing the filing of applications and invalidating DACA-based work authorization. A phase out of the program halting the approval of already filed applications and allowing current recipients to continue working until their EAD expires is also possible.
Even if President Trump does not take specific action now to end DACA, the program will still be at risk as state Attorneys General may follow through on their threat to amend the lawsuit to challenge DACA. And, during the time the case is pending in the various courts, the DACA program could be halted.
It is unknown if and when President Trump will act on DACA. As such, it is highly advisable that DACA recipients who are currently outside of the United States and are planning to return utilizing a DACA-based Advance Parole, return to the U.S. immediately. If DACA ends, there is no guarantee that previously-issued DACA-based Advance Paroles will be honored at the border.
For current DACA recipients in the United States, it is important to remember that DACA is not a legal status. If/when DACA ends, recipients will no longer be protected from being placed into removal proceedings. DACA recipients should consult with an experienced and knowledgeable immigration attorney as soon as possible to discuss how best to proceed and to explore any other avenues available to them to resolve their immigration issues.