Introduction

On June 15, 2017, Secretary of Homeland Security John Kelly issued a Memorandum rescinding the November 20, 2014 Department of Homeland Security (DHS) Memorandum providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The DHS made clear that the rescission will not affect the terms of the original Deferred Action for Childhood Arrivals (DACA) program as it was set forth in a June 15, 2012 memorandum. However, the “DACA+” provisions set forth in the DAPA program will be phased out. In this article, we will explain why the DHS made these decisions and what it all means going forward.

In this article, we will rely upon the following documents published by the DHS on June 15, 2017:

“Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)” [PDF version];
“Frequently Asked Questions: Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)” [PDF version]; and
“Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)” (DHS Memorandum Attached to Court Filing) [PDF version].1

Rescission of DAPA Memo

On November 20, 2014, then-Secretary of Homeland Security Jeh Johnson signed a DHS memorandum providing for the DAPA program [PDF version]. The DAPA Memo provided for deferred action and employment authorization for aliens who satisfied the following six criteria:

1. As of November 20, 2014, have been the parent of a U.S. citizen or lawful permanent resident (LPR);
2. Have continuously resided in the United States since before January 1, 2010;
3. Have been physically present in the United States before November 20, 2014, and when applying for relief under DAPA;
4. Have no legal immigration status on that date;
5. Not fallen within the DHS civil enforcement priorities implemented in November 20, 2014 ([see article] (Note: The memo underlying the November 20, 2014 civil enforcement priorities was rescinded by Secretary Kelly on February 20, 2017 [see article]);
6. Present no other factors that would make the grant of DAPA relief inappropriate in the DHS’s exercise of discretion.

In addition to implementing DAPA, the November 20, 2014 Memorandum also made a slight modification to the DACA program. This change has been referred to as “DACA+.” On June 15, 2012, the then-Secretary of Homeland Security Janet Napolitano issued the memorandum providing for the DACA program [PDF version] [see article]. The DACA memo provided for deferred action relief and employment authorization for certain individuals who came to the United States under the age of sixteen and who also met several other requirements. The original DACA Memo provides for employment authorization for a period of two years. The DACA+ provisions in the November 20, 2014 DAPA Memo provided for employment authorization for three years under DACA.

The DAPA provisions of the November 20, 2014 DAPA Memo never took effect. Twenty-six states, led by Texas, filed suit against the DHS’s DAPA policies. Judge Andrew Hanen of the United States District Court for the Southern District of Texas granted a preliminary injunction against the implementation of the DAPA provisions of the DAPA Memo. Although this injunction was issued by a District Court Judge, it applied nationwide. The United States Court of Appeals for the Fifth Circuit affirmed district court’s decision and added another ground for the injunction [see article (note, also an opinion blog)]. Finally, an equally divided Supreme Court affirmed the Fifth Circuit’s decision without creating new precedent, leaving the injunction in place [see article (note, also an opinion blog)].

Unlike the DAPA provisions of the DAPA Memo, the DACA+ provisions did take effect for the period between the implementation of the DAPA Memo and the issuance of the first injunction against the DAPA Memo on February 16, 2015. The DHS granted a certain number of 3-year employment authorization documents in that period. The district court decision enjoined the DACA+ provisions effective on the date of the injunction.

The Supreme Court’s decision sent the DAPA litigation back to the district court from whence it came. On January 19, 2017, and March 17, 2017, Judge Hanen granted joint motions by the United States and Texas to stay proceedings while the United States Government determined how it wanted to proceed. The March 17, 2017 stay was slated to expire on June 15, 2017, and this prompted a decision by the Government on whether to continue the litigation challenging the injunction or move to bring it to a close. Secretary Kelly chose the latter option, opting to rescind the DAPA memo, which in turn prompted the Government and Texas to agree on what is likely to be a final two-week stay that will expire June 29, 2017. Judge Hanen granted the stay, noting that the June 15, 2017, memorandum repealing DAPA has a direct bearing on the case, and that the two week stay will give the Government and Texas additional time to confer regarding the proceedings. Judge Hanen’s February 16, 2015, injunction against the implementation of DAPA remains in effect. We have uploaded Judge Hanen’s decision for your reference [PDF version].2

The FAQ on the rescission of the DAPA Memo lists several factors considered by Secretary Kelly in making his decision:

The nationwide injunction of the DAPA Memo;
The ongoing litigation regarding DAPA;
The fact that DAPA never took effect; and
The new enforcement priorities set forth in both President Donald Trump’s January 25, 2017 Executive Order [see article] and Secretary Kelly’s February 20, 2017, memorandum [see article].

Additionally, in the fact sheet on the memorandum rescinding DAPA, the DHS stated that “there is no credible path forward to litigate the currently enjoined policy.”

What Does This Mean for DACA?

On February 20, 2017, Secretary Kelly issued two memoranda implementing President Donald Trump’s Executive Orders on border security and interior enforcement [see article]. The plain language of both President Trump’s Executive Orders and Secretary Kelly’s memoranda appeared to call into question the premises underlying both DACA and DAPA. Nevertheless, Secretary Kelly’s memoranda made explicit that both the DACA and DAPA memoranda remained in effect. Furthermore, the DHS has continued to implement DACA as it was being implemented during the Obama Administration, notwithstanding specific cases where it has charged specific individuals as removable in accord with the broader civil enforcement policies implemented by the Trump Administration. We noted a few months ago that, notwithstanding President Trump’s campaign promises, it appeared that the Trump Administration was moving to retain DACA [see blog].

With one exception, the June 15, 2017 news does not actually represent a change in policy. The Trump Administration has been continuing to follow the DACA Memo, and all indications had been that it would continue to do so.

The Trump Administration is repealing the DAPA Memo in full, including the DACA+ provisions providing for three-year employment authorization. This means that, going forward; the Trump Administration will only renew employment authorization for eligible DACA recipients for two years, not three. However, the FAQ notes that it will honor employment authorization documents that were issued for three years during the period between the issuance of the DAPA Memo and the initial injunction. The FAQ states clearly that “[n]o work permits will be terminated prior to their current expiration dates.” Individuals currently on a three-year period of employment authorization under DACA will be eligible to seek a two-year extension under the provisions of the original DACA Memo so long as the DACA Memo remains in effect.

Analysis and Conclusion

Secretary Kelly’s decision to rescind the DAPA Memo will likely bring the litigation over DAPA, which had already reached the Supreme Court once, to a close. Attorney General Ken Paxton of Texas, who has led the litigation against DAPA, released a statement praising Secretary Kelly’s decision [PDF version].

Furthermore, although both President Trump and Secretary Kelly have indicated that DACA will remain in effect going forward, it is important to note that the program is not based in statute. That is because DACA is based merely on a DHS memorandum and, ostensibly, its implementation is effected in the exercise of prosecutorial discretion. Because of these facts, the DACA Memo could be rescinded at any time, which is why many supporters were highly concerned by the election of President Trump. For this reason, it will be important to follow statements by President Trump and the DHS going forward to see if there are any indications that the policy regarding DACA may be subject to change.

Because individuals who may benefit from DACA are in the United States without any other legal authorization, it is crucial for such individuals to remain in contact with an experienced immigration attorney. An attorney may evaluate the situation of a DACA recipient and provide expert guidance on his or her specific case. This imperative is not lessened by the notion that DACA appears to be the policy going forward based on the information available to us as of June 15, 2017.

However, there are certain interesting legal questions arising with DACA that will be worth following going forward although, at the moment, they do not call into immediate question DACA benefits for current recipients. Josh Blackman notes in his legal blog that in the Memorandum submitted to the District Court, Secretary Kelly takes the position that the DACA program is based in the exercise of prosecutorial discretion [link].3 This was also the position of the Obama Administration., although it was at times unclear the extent to which DACA was considered to constitute a status.

In defending DAPA, the Obama Administration likewise argued that the program was lawful because it fell within the President’s authority to exercise prosecutorial discretion. For reasons we address in our blog on the Fifth Circuit decision, these arguments were found to be unavailing [see footnote 15]. Although neither Judge Hanen nor the Fifth Circuit addressed DACA, it is arguable that some of the same arguments against DAPA could apply to DACA. This is no doubt why Secretary Kelly sought to make it clear in his memorandum rescinding the DAPA Memo that the view of the DHS remains that these initiatives are based on the exercise of prosecutorial discretion. Unfortunately, because the Supreme Court deadlocked at 4-4 in the DAPA case, it did not address any of these issues in a way that creates precedent. It will be worth watching whether this specific issue is issue is litigated in the future.4

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  1. Blackman, Josh. “Breaking: DHS Rescinds DAPA, U.S. v. Texas to draw to a close.” Josh Blackman’s Blog. (Jun. 15, 2017). Joshblackman.com/blog/. (Courtesy to Josh Blackman for PDF of DHS Memo)
  2. Id. (Courtesy to Josh Blackman for PDF of June 15, 2017, decision)
  3. Id.
  4. See Blackman, Josh. “DACA Recipient, Detained by ICE, Asserts 5th Amendment Violation for ‘Break[ing] the Promise Made to Him’ Because of Grant of Lawful Presence.” Josh Blackman’s Blog. (Feb. 14, 2017). Joshblackman.com/blog [link]. Here, Blackman argues that, in a habeas petition for a DACA recipient who was being detained on the basis that he was a “self-admitted gang member, the petitioner’s attorneys ironically relied on the Fifth Circuit’s rejection of DAPA in arguing that the DAPA program created legally enforceable rights. His argument was that their position amounted to arguing that DACA confers more than mere deferred action, which was a position rejected by the Obama Administration itself. Blackman notes this tension in the June 15, 2017 post as well. Whether there is tension depends on whether you agree with the arguments of both the Obama and the Trump Administrations that DACA confers deferred action, or, in the event you believe DAPA went beyond that, whether DACA is in some respects distinguishable from DAPA. It should be noted that Blackman supports Texas’ position against DAPA as a matter of law, a position similar to that espoused in this blog on our site [see blog (see “My Thoughts)], although he supported DAPA as a matter of policy. Again, however, this issue will only be practically relevant if it is litigated.