A Brief History of Deferred Action for Childhood Arrivals (DACA)

May 7th, 2018

A federal court in Washington D.C. ruled that USCIS must accept new and renewal applications under Deferred Action for Childhood Arrivals (DACA). It held that the Trump administration’s rescission of DACA in March 2018 was arbitrary and capricious.  However, the court did suspend its order for 90 days to give USCIS time to explain the revocation of DACA. NAACP v. Trump.

Previously, district courts in California, New York and the District of Columbia blocked implementation of the winding down of DACA ordered by the Trump Administration in September 2017 to take effect in March 2018. The federal district court in California held that the government could not revoke DACA recipients’ work permits or other protections without giving them proper notice and a chance to defend themselves.  Also, the order allowed for DACA recipients to apply for renewals.  The Supreme Court denied a petition for writ of certiorari of the California ruling.

In 2012, the Executive Branch created DACA to protect approximately 700,000 undocumented young immigrants known as Dreamers. It established the program as an exercise of its prosecutorial discretion for deciding whether to removal an alien from the US.  DACA provides temporary protection from removal (deportation) for certain undocumented children.  A DACA recipient may obtain an employment authorization document (EAD), and in very limited circumstances, permission to travel abroad (advance parole) and reenter without abandoning DACA status.  An applicant for DACA must show that he or she:

  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching his or her 16th birthday;
  3. Has continuously resided in the United States since June 15, 2007, up to the present time;
  4. Was physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Has not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Several states sued the Obama Administration in 2014 when it sought to create a similar program known as DAPA (Deferred Action for Parents of Americans) and to expand DACA. The Fifth Circuit upheld a preliminary injunction and found that these programs were contrary to federal law and failed to fulfill the notice-and-comment procedure of the Administrative Procedures Act (APA).  The Supreme Court affirmed the decision.  Texas and other plaintiff states then threatened to amend their complaint to challenge the original DACA program if that program were not rescinded.  In response, the US Department of Homeland Security (DHS) issued a memorandum directing that DACA be wound down.  As a result, the plaintiff states agreed to dismiss their complaint challenging DACA.  In September 2017, the Trump Administration ordered that it would rescind DACA as of March 2018.

Congress has not yet created new DACA legislation and attempts at passing such a law have been highly contentious and subject to intense political jockeying. The Trump administration contends that President Obama’s executive order establishing DACA violated the purview of the Executive Branch by making a new law, which the administration argues falls under Congress’s ambit.  The Obama administration claimed that it was merely carrying out the traditional and Constitutional functions of the Executive Branch by exercising its discretion in determining who should be subject to removal.

On May 2, 2018, Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia filed a motion in federal district court in Texas for a preliminary injunction to prevent the government from implementing the 2012 memo that created DACA and from issuing or renewing DACA petitions in the future. In their motion, the states argue that DACA is not merely an exercise of prosecutorial discretion but an unlawful grant of lawful presence status and work authorization to hundreds of thousands of undocumented aliens.  The plaintiff states argue that the program rests on a theory of unreviewable power that would allow the Executive Branch to grant lawful presence and work authorization to any undocumented alien in the US.

The plaintiff states also allege that the Obama Administration promised that DACA would not confer a path to citizenship. They then state that 1,056 DACA recipients have been granted citizenship and 39,514 granted legal permanent residency.

If the district judge decides in the plaintiffs’ favor, he could direct the Trump administration to end DACA. This order would be in conflict with the previous orders of district courts upholding the program, greatly increasing the likelihood that the Supreme Court will step in and decide the case.

Supreme Court Rejects the Trump Administration’s Request to Bypass Court of Appeals. Dreamers May Continue to Renew Their Cases.

February 26th, 2018

On Monday, February 26, 2018, the Supreme Court declined to entertain the Trump Administration’s request to circumvent the Ninth Circuit Court of Appeals and to intervene in the DACA (Deferred Action for Childhood Arrivals) litigation.  The Trump Administration had digressed from the usual practice of seeking an appeal to the next highest court and instead requested that the US Supreme Court rule against the lower California lower federal court’s injunction of the termination of DACA.  In denying the request, the US Supreme Court stated, “It is assumed that the court of appeals will proceed expeditiously to decide this case.”

In January 2018, the federal court ordered a nationwide injunction blocking the administration’s termination of DACA outright in March 2018.  This ruling allowed DACA recipients to continue to renew their status and work authorization, although it did not allow for new Dreamer applicants to file for protection against deportation under DACA.  Currently, there are approximately 800,000 Dreamers who are protected against removal and may receive employment authorization.  However, DACA does not provide a path to legal permanent residency (green card).  President Obama created the program, alleging his authority as the head of the Executive Branch to use his discretion in enforcing immigration laws, because of the unwillingness and inability of Congress to enact legislation to protect children brought to the country illegally or who overstayed a visa.  Trump alleges that Obama exceed his executive powers.

My office will continue to provide updates on the status of the DACA legislation.

USCIS Announces the Resumption of DACA Renewal Processing

January 16th, 2018

On January 13, 2018, based on a Federal court order, USCIS announced that it will resume the processing of DACA renewals. DACA policy will operate pursuant to the same terms as those that were in place before September 15, 2017, when it was rescinded.

It should be noted that the Trump administration is considering litigation to overturn the judge’s ruling. If it prevails, then DACA will expire in March 2018 unless Congress creates a new program. DACA is currently the linchpin of negotiations to pass a budget to run the government. If the budget is not passed by this Friday we could have a shutdown. Some lawmakers are advocating a separate bill for DACA to avoid such a calamity.

A Divided Supreme Court Shields Trump’s DACA Documents

December 10th, 2017

By a five to four vote, the US Supreme Court held that that Trump administration can temporarily shield documents regarding its decision to rescind the Deferred Action for Childhood Arrivals (DACA), a program that protects some 800,000 young undocumented immigrants from deportation. The Supreme Court will hear further arguments in the matter.
The decision arose from five consolidated cases in California accusing the administration of violating the law when it rescinded DACA. Four states (California, Maine, Maryland and Minnesota) and Janet Napolitano, the president of the University of California and the Secretary of the Department of Homeland Security under President Obama who signed the original DACA document in 2012, filed suit.

The Court of Appeals for the Ninth Circuit found that the administration’s decision to terminate DACA based only on 256 pages of publicly available documents inadequate to shed light on a decision of great magnitude. The government argued that the decision was a departure from the separation-of-powers doctrine and the deference that the judiciary normally accorded to federal agency actions. The government also stated that it would be an unreasonable burden to review approximately 21,000 page of documents.

Writing for the Supreme Court’s dissent, Justice Stephen Breyer expressed concern that its abandonment of nonintervention in this discovery-related dispute would not only disrupt litigation but lead to more requests for the Court to address banal discovery disputes. He also noted that in order to have effective review the administrative record must contain all of the relevant documents.

DACA Rescinded as of March 5, 2017

September 5th, 2017

The Trump administration has terminated Deferred Action for Childhood Arrivals (DACA) as of March 5, 2017. It will reject all new applications for DACA status as of today but will process applications that have been filed as of today (the date of the official USCIS memo).

USCIS’s official “Memorandum on Rescission of Deferred Action for Childhood Arrivals” dated March 5, 2017, states that effective as of today, USCIS will do the following:

•Will 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.
•Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
•Will 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.
•Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
•Will 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.
•Will 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.
•Will 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.
•Will 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.

Request in Federal Court to Dismiss Challenge to DACA by Texas

July 31st, 2017

The Mexican American Legal Defense and Educational Fund (MALDEF) filed a motion in the US District Court for the Southern District of Texas to dismiss a threat by the State of Texas to amend its lawsuit against DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) to include a belated challenge against Deferred Action for Childhood Arrivals (DACA). MADELF is arguing that the original lawsuit against DAPA is not sufficiently related to DACA. DAPA, an Obama initiative, was barred by the Federal courts in 2015 and it never went into effect. The US Department of Homeland Security issued a memorandum on June 15, 2015, officially rescinding DAPA. MALDEF argues that such rescission renders the lawsuit to include DACA moot.

During the 2015 federal court proceedings to seek a preliminary injunction against DAPA, Texas was unequivocal that it was not challenging the 2012 DACA program. MALDEF argues that now, almost three years after the case, Texas should file a new lawsuit seeking invalidation of DACA.

Legislation to Provide Path to Green Card for Dreamers

July 29th, 2017

Representatives in the House have introduced two pieces of legislation that will provide “Dreamers,” or children who came to the US without status or overstayed their status, with the chance to apply for legal permanent residency (green card status) in the US and eventually to apply to naturalize to become US citizens. The Dream Act of 2017 is led by Representatives Lucille Roybal-Allard (CA) and Ileana Ros-Lehtinen (FL), and the American Hope Act was sponsored by Minority Leader Nancy Pelosi (CA), Minority Whip Steny Hoyer (MD), Luis Gutierrez (IL) and members of the Congressional Hispanic Caucus.

AILA lauded these pieces of legislation: “These bills make clear that there is bipartisan support for Dreamers that literally reaches across our nation with Representatives Roybal-Allard of California and Ros-Lehtinen of Florida leading the charge. Many leaders in Congress recognize that protecting Dreamers is good for America. At a time when the Deferred Action for Childhood Arrivals (DACA) has come under threat, action by Congress is vitally important to ensure these young men and women are protected from being ripped from their communities. Dreamers are emblematic of the future of our great nation and these aspiring Americans deserve an opportunity to secure a permanent home in our country.”

President Trump should also protect DACA (Deferred Action for Childhood Arrivals) recipients by vowing that the Administration will maintain the DACA program until there is a law to protect Dreamers.

Gap in Employment and Lawful Status in the US if DACA and EAD are not Renewed Before Their Expiration

May 23rd, 2017

An applicant for renewal of Deferred Action for Childhood Arrival (DACA) status and employment authorization (EAD) will incur a gap in lawful presence in the US if his or her DACA and EAD are not renewed before his or her current status expires.

Timely filed applications for renewal of DACA and the EAD do not provide for an automatic extension of lawful presence and work authorization in the US, respectively. In other words, if there is any gap between the expiration of an applicant’s first EAD and the approval his or her renewed EAD under DACA, then the applicant won’t have authorization to work during this gap.

Also, the applicant should be aware that if his or her current DACA status expires before his or her renewal is approved, then the applicant will accumulate unlawful presence in the US if he or she is over 18. Once the applicant accrues more than 180 days of unlawful presence, then if the applicant departs the US he or she cannot reenter for three years (although there are certain waivers available). Also, once the applicant accrues more than one year of unlawful presence, then he or she would be barred for ten years if he or she departed the US (with exceptions). It should be noted that many applicants for DACA would have already accrued the unlawful presence bar before initially filing for DACA.