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

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.