DHS Rescinds DACA Memo - The Reasoning and Implementation of the Decision

 

Introduction

On September 5, 2017, the Acting Secretary of Homeland Security, Elaine Duke, issued a memorandum titled “Memorandum on Recession of Deferred Action For Childhood Arrivals.” As the title indicates, the DHS is rescinding the DACA memo and winding down the DACA program over the next six months, although certain DACA applicants will have a brief window to renew their DACA status for two years prior to the expiration of the program, notwithstanding the expiration. The decision was made, according to Acting Secretary Duke, after consultation with the U.S. Attorney General, Jeff Sessions, regarding the program's legality. In this article, we will examine the DACA recession memo and supplementary materials posted by the DHS. Please see our companion blog to read about statements from President Donald Trump, Attorney General Sessions, and Acting Secretary Duke explaining their decision, and Texas Attorney General Ken Paxton praising the move.

DACA Renewal

In the article, we will discuss the following documents. We have listed and uploaded them for your convenience (all retrieved on September 5, 2017):

  • Memorandum on Recession of Deferred Action For Childhood Arrivals (DACA) [PDF version] (“DACA rescission memo”);
  • Fact Sheet: Rescission of Deferred Action for Childhood Arrivals [PDF version]; and
  • “Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA)” [PDF version] (“Rescission FAQ”);
  • “Rescission of Deferred Action For Childhood Arrivals (DACA)” [PDF version].

DACA Background

The DACA rescission memo sets forth the background of the DACA program and the events that led to the decision to rescind it. We will examine this part of the memo in this section. To learn about how the DACA rescission will be implemented, please see the subsequent sections.

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” [PDF version]. This memorandum formed the basis of the DACA program. In her new memorandum, Acting Secretary Duke stated that DACA “purported to use deferred action-an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis-to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” In short, DACA allowed for certain aliens who had been brought into the United States before the age of 16 and had no lawful status to receive deferred action and employment authorization.

On November 24, 2014, the DHS issued a new memorandum that both expanded DACA and created a similar but broader program called “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA). However, before DAPA could take effect, Texas led a coalition of 26 states in challenging the legality of the memorandum. On February 16, 2015, the United States District Court for the Southern District of Texas issued a nationwide injunction against the DAPA program. The decision was affirmed by a three judge panel of the United States Court of Appeals for the Fifth Circuit [see opinion blog]. The case would go to the Supreme Court of the United States, which affirmed the Fifth Circuit ruling by an equally divided 4-4 vote without creating new precedent [see opinion blog].

Acting Secretary Duke noted that the litigation over the DAPA memo did not directly involve DACA. However, she stated that the decisions relied on “factual findings about the implementation of the 2012 DACA memorandum.” Both the district court and the Fifth Circuit had found that DACA determinations were not being made by adjudicators in a case-by-case manner as a matter of discretion, and that DAPA would likely be implemented similarly. Furthermore, both courts found that the implementation of DAPA did not comply with the Administrative Procedures Act (APA), logic that could also apply to DACA. Please see our short post on how the DACA rescission memo appears to concede the position of the challengers to DAPA regarding whether DACA afforded adjudicators genuine discretion [see blog].

On January 25, 2017, President Donald Trump issued Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States” [see article]. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued an implementing memorandum for the Executive Order stating that the DHS will no longer exempt classes of removable aliens from immigration enforcement except as provided in the DACA and DAPA memoranda [see article].

On June 15, 2017, then-Secretary Kelly issued a memorandum rescinding the DAPA memo in its entirety, including the DACA expansion [see article]. The decision was prompted by the belief that Texas was likely to succeed in the litigation challenging the program. However, the 2012 DACA memo was left unaffected.

On June 29, 2017, Texas, along with other states, sent a letter to Attorney General Sessions taking the position that the DACA memo was unlawful for the same reasons as the DAPA memo was found to be by the courts. Texas and the other states stated that they would move to amend the lawsuit against DAPA to include a challenge to DACA if the DHS did not rescind the DACA memo by September 5, 2017.

On September 4, 2017, Attorney General Sessions sent a letter to the DHS. Sessions stated that he had determined that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result” [PDF version]. Accordingly, he explained, he had determined that the DACA memo was an “unconstitutional exercise of authority by the executive branch.” For these reasons, he stated that the outcome of litigation involving DACA would likely be similar to the outcome of the DAPA litigation. Attorney General Sessions recommended that the DHS wind down DACA in an efficient and orderly fashion, and he reviewed the DHS's plans to do so.

Rescission of the DACA Memorandum

Acting Secretary Duke cited the following in her decision to rescind the 2012 DACA memorandum:

  • The Supreme Court and Fifth Circuit rulings in the litigation on the DAPA memorandum; and
  • The September 4, 2017 letter from Attorney General Jeff Sessions.

However, notwithstanding the rescission of the DACA memo, limited classes of DACA recipients will still be eligible to have their requests for DACA and associated applications adjudicated within a short window. The DACA rescission memo lists how DACA will be handled in the wind-down period. We will rely on both the memo and the DACA rescission FAQ.

Initial DACA Requests

The DHS will continue to adjudicate pending DACA initial requests and associated applications for employment authorization that were properly filed and accepted by the DHS as of September 5, 2017. The DACA rescission memo stipulates that these requests will be adjudicated on a case-by-case basis. However, the DHS will reject any initial requests for DACA and for associated Employment Authorization Documents that have not already been accepted for processing by September 5, 2017.

DACA Renewal Requests

DACA recipients who properly filed renewal requests and associated applications for Employment Authorization Documents as of September 5, 2017, will have those requests adjudicated on a case-by-case basis. Interestingly, a limited class of DACA recipients — comprised of current DACA beneficiaries whose benefits will expire between September 5, 2017, and March 5, 2018, will be eligible to apply for DACA renewal after September 5, 2017. In order to have the renewal request adjudicated, the application be properly filed after September 5, 2017 and accepted by the DHS on or before October 5, 2017.

Other DACA recipients will not be eligible to apply for DACA renewal and associated employment authorization, and any requests not described in the paragraph above will be rejected.

At Q3, the DACA Rescission FAQ attributes this decision “to the anticipated costs and administrative burdens associated with rejecting all pending initial requests…”

No Termination of Existing DACA Grants Before Expiration of Validity Period Based on Memo

The DACA rescission memo states that the DHS will not terminate existing DACA grants or revoke associated Employment Authorization Documents solely based on the memo. DACA grants will continue to remain valid for the duration of their validity periods.

However, the DACA rescission FAQ notes at Q9 that DACA is an exercise of prosecutorial discretion. Accordingly, the DHS retains discretionary authority to terminate DACA grants . In general, individuals who comply with the terms of their DACA are unlikely to have DACA terminated before the end of the DACA validity period. However, as was the case before the DACA rescission memo, an individual's DACA grants may be terminated if he or she violates the terms of DACA. A DACA recipient with any questions about his or her case should consult with an experienced immigration attorney.

At Q4, the DACA Rescission FAQ attributes this decision “to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests…”

No New Grants of Advance Parole

The DHS will no longer approve new applications for advance parole under the standards associated with the DACA program. This applies to all DACA recipients. However, the DACA rescission memo states that the DHS “will generally honor the stated validity period for previously approved applications for advance parole.” However, it is important to remember that the U.S. Customs and Border Protection (CBP) retains discretion to make admissibility determinations for any person presenting at the border and determinations of the eligibility of any person to enter as a parolee.

The USCIS may revoke or terminate an advance parole document at any time. Furthermore, Form I-131 advance parole applications filed under the standards associated with DACA that are pending as of September 5, 2017, will be administratively closed. All fees associated with these applications will be refunded to the applicants.

The effect of this decision is that DACA recipients who do not have valid advance parole documents will not be permitted to obtain new ones.

Replacement Employment Authorization Documents

Although DACA recipients may only apply for new Employment Authorization Documents or replace Employment Authorization Documents under the terms of the DACA rescission memo, the DACA rescission FAQ at Q10 clarifies that if a DACA recipient's valid Employment Authorization Document is lost, stolen, or destroyed, he or she may request a replacement by filing the Form I-765. Please see our full article on replacement Employment Authorization Documents to learn more [see article].

DACA Rescission and Immigration Enforcement

At Q6, the DACA Rescission FAQ reminds readers that DACA never conferred legal status. For this reason, DACA recipients are considered “unlawfully present in the U.S. with their removal deferred.” Once DACA expires or is terminated, the former recipient's removal will no longer be deferred and he or she will no longer be eligible for lawful employment. It adds that only Congress has the authority to change the immigration laws.

However, at Q7, the FAQ states that the information DACA recipients and requestors provided to the United States Citizenship and Immigration Services (USCIS) “will not be proactively provided to [U.S. Immigration and Customs Enforcement (ICE)] and CBP for the purpose of immigration enforcement proceedings,” with certain exceptions. The information may be provided if the individual meets the criteria for the issuance of a Notice to Appear or a referral to the ICE under the USCIS's Notice to Appear referral guidance [PDF version]. The FAQ adds that the policy may be modified, superseded, or rescinded at any time without notice.

At Q8, the FAQ addresses situations in which a DACA request is denied proactively. The DHS states that information provided in such DACA requests will not be proactively provided to other law enforcement entities, including ICE and CBP, for the purpose of immigration proceedings,” with certain exceptions. The information may be provided if the requestor (1) poses a risk to national security or public safety; or (2) meets the criteria for the issuance of a Notice to Appear or a referral to ICE.” The FAQ adds that the policy may be modified, superseded, or rescinded at any time without notice.

At Q14, the FAQ explains that when an individual's DACA and EAD expires, he or she will no longer be considered lawfully present in the United States, and he or she will be ineligible to engage in employment (unless he or she is within the class of DACA recipients eligible to apply for renewal, and properly applies for renewal in a timely manner).

Interesting Statistics

At Q15, the FAQ states that from August 2017 to December 2017, the DACA/DACA EAD's of 201,678 individuals are slated to expire. 55,258 of these individuals have already submitted requests for renewal of DACA. 275,344 individuals are slated to have their DACA/EADs expire in calendar year 2018. Of these, 7,271 have submitted requests for renewal. 321,920 DACA recipients are set to have their DACA/EADs expire from January 2019 through August 2019. Of these, eight have submitted requests for renewal.

Conclusion

The future of DACA was uncertain through the first seven months of the Trump Administration, but now the decision has been made to wind down the program.

It is important to note that existing grants of DACA, and initial grants and renewals permitted under the DACA rescission memo, will remain valid for their validity periods (unless the recipient violates the terms of DACA). However, the decision to stop issuing new advance parole documents in accord with the DACA program will generally foreclose the ability of DACA recipients to travel from the United States and be permitted to reenter upon return. DACA recipients with existing advanced parole documents are well advised to consult with an experienced immigration attorney before traveling abroad for a case-specific assessment.

It is unclear whether congress will come up with a legislative solution to confer similar benefits to DACA beneficiaries. We recently discussed one current proposal to this effect [see blog]. The six-month wind-down of DACA will give congress time to debate and attempt to pass a permanent solution. However, it is impossible to say for sure (1) whether congress will pass a legislative version of DACA; and (2) what the details of any legislation would be.

DACA recipients are well-advised to consult with an experienced immigration attorney about their immigration situations. An attorney will be well versed on both the current situation with DACA and new developments. It is important for DACA recipients who are eligible for renewal to act expeditiously in light of the critical deadlines imposed in the memorandum.

We will update the site with information on this issue and associated issues as it becomes available. Please make sure to see our article on statements from key decision makers on the DACA rescission [see blog].