Secretary Kelly Reportedly Does Not Commit to Defending DACA Against Potential Legal Challenges

On July 12, 2017, Politico reported that Homeland Security Secretary John Kelly had told thirty members of the Congressional Hispanic Caucus that, while he personally supported the Deferred Action for Childhood Arrival (DACA) program, the Trump Administration would not commit to defending it against potential legal challenges from Texas and several other states.¹ Secretary Kelly reportedly explained that part of the reason for his reluctance in making a commitment to defending DACA was that government attorneys had suggested to him that DACA would not survive a legal challenge.

Secretary Kelly himself did not comment on the meeting, which took place behind closed doors. Senator Bob Menendez of New Jersey — a prominent DACA supporter — stated that the Congressional Hispanic Caucus has a “different view” than does Secretary Kelly on the legal sustainability of DACA.

Politico reported in the same story that a spokesman for the Department of Homeland Security (DHS) seemed to confirm the reported substance of Secretary Kelly's remarks, stating that most of the lawyers with whom Secretary Kelly has consulted have come to the conclusion that DACA is not legally defensible as currently constituted.

We recently posted a comprehensive article about Texas' potentially forthcoming legal challenge to DACA [see article]. Texas' indication that it would challenge DACA came in the wake of its litigation against the Deferred Action for Parents of Americans (DAPA), which led to the DHS's decision to terminate both DAPA and an associated DACA expansion [see article].

It is important to note that Secretary Kelly's reported remarks do not indicate definitively whether the Trump Administration will leave DACA in place and choose to defend it in court if it is challenged. We will be sure to update the website with information on this important issue as it becomes available. Individuals with questions about DACA and/or more general questions about their immigration status should consult with an experienced immigration attorney for case-specific guidance.

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1. Hesson, Ted. “Kelly Won't Commit to Defending DACA in Court.” Politico. July 12, 2017. politico.com